{ "id": 4268917, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY L. PORTER, Defendant-Appellant", "name_abbreviation": "People v. Porter", "decision_date": "2007-04-20", "docket_number": "No. 3\u201405\u20140330", "first_page": "973", "last_page": "980", "citations": [ { "type": "official", "cite": "372 Ill. App. 3d 973" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "98 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3122553 ], "year": 1983, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0502-01" ] }, { "cite": "156 Ill. 2d 225", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777552 ], "year": 1993, "pin_cites": [ { "page": "247-48" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0225-01" ] }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "year": 2004, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "208 Ill. 2d 53", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463141 ], "year": 2003, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0053-01" ] }, { "cite": "233 Ill. App. 3d 258", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5195326 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "267" }, { "page": "269" }, { "page": "267" }, { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0258-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "year": 2005, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "215 Ill. 2d 539", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060511 ], "year": 2005, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0539-01" ] }, { "cite": "215 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060088 ], "year": 2005, "pin_cites": [ { "parenthetical": "Freeman, J., dissenting, joined by McMorrow, C.J., and Kilbride, J." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0427-01" ] }, { "cite": "217 Ill. 2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3874667 ], "year": 2005, "pin_cites": [ { "page": "187-88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0177-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186", "parenthetical": "to preserve an issue for appeal, an objection must be raised during trial and the issue raised in a written posttrial motion" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 878, "char_count": 18940, "ocr_confidence": 0.764, "pagerank": { "raw": 5.980954067738682e-08, "percentile": 0.37190739691773533 }, "sha256": "6712470435044763ec5e97c59fb30b1d45969f4d11ab3d9f13059df3b7fd4fd4", "simhash": "1:ee26b645ac49c3bf", "word_count": 3122 }, "last_updated": "2023-07-14T16:46:01.247775+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. JERRY L. PORTER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WRIGHT\ndelivered the opinion of the court:\nDefendant, Jerry L. Porter, appeals from his convictions for aggravated battery (720 ILCS 5/12\u20144(b)(6) (West 2004)) and obstructing justice (720 ILCS 5/31\u20144(a) (West 2004)). We reverse and remand for a new trial.\nBACKGROUND\nOn February 9, 2005, defendant, Jerry Porter, was charged by first superseding indictment with aggravated battery (720 ILCS 5/12\u2014 4(b)(6) (West 2004)), and two counts of obstructing justice (720 ILCS 5/31\u20144(a) (West 2004)). Count I of the indictment alleged that on July 11, 2004, defendant knowingly and without lawful justification made physical contact of an insulting or provoking nature with Peter Van Gessel, knowing him to be a peace officer engaged in the execution of his official duties, by pushing him in the chest. Count II alleged that defendant, with the intent to obstruct his own prosecution for possession of a controlled substance, knowingly destroyed evidence by swallowing a baggie containing an off-white, rock-like substance. Count III alleged that defendant, with the intent to obstruct his own prosecution for possession of a controlled substance, knowingly concealed evidence by swallowing a baggie containing an off-white, rock-like substance.\nAt trial, Charles Palmer testified that at about 8 p.m. on July 11, 2004, he observed four young men congregated near his house at the corner of Hickory and Division in Joliet. The men were drinking beer and yelling at passing cars, \u201cHey, hey, hey, you straight?\u201d When the men began arguing over money, Palmer called \u201c911.\u201d Police arrived within a few minutes. All Palmer could see were two men\u2019s legs on the ground because the squad car partially blocked his view. Palmer thought the officer needed assistance because a crowd was forming and again called \u201c911.\u201d At least 20 squad cars arrived within minutes of Palmer\u2019s second call.\nOn cross-examination, Palmer testified he was not certain if defendant was one of the four men he saw that evening. Even if defendant was one of the four men, Palmer could not say that defendant was drinking alcohol or acting aggressively or that he heard defendant say anything.\nJoliet police officer Peter Van Gessel testified he responded to a radio dispatch about a fight on July 11, 2004, at about 7:50 p.m. Van Gessel was driving a squad car and was in uniform. As he drove from Division onto Hickory, Van Gessel saw defendant from the back leaning into a parked car. Defendant\u2019s head, shoulders, and arms were inside the car and he appeared to be handing something to someone inside the car. When Van Gessel exited his squad car, defendant stood up and the car began to drive away. Van Gessel ordered the car to stop, and it did. Two men were inside the car.\nVan Gessel ordered defendant back to the squad car. Defendant complied. It appeared to Van Gessel that defendant was chewing something. Van Gessel asked defendant what he was chewing. 'Defendant opened his mouth to reveal a piece of gum and then turned to his left and spit out the gum, as well as a small, clear baggie containing an off-white, rock-like substance. Defendant then pushed Van Gessel and dove to the ground, on top of the baggie. Van Gessel took a step backwards as a result of the push and then dropped on top of defendant to try and retrieve the baggie. Van Gessel claimed that defendant picked up the baggie and appeared to put it in his mouth. Van Gessel applied force to defendant\u2019s lower jaw with his thumb to try and prevent defendant from swallowing anything, but ultimately removed his thumb after being distracted by a man who was approaching and shouting at him. Van Gessel radioed for assistance.\nVan Gessel then got one handcuff on defendant, who was struggling beneath him. Shortly thereafter, Officer David Friend arrived and helped subdue and handcuff defendant. Van Gessel then pat-searched defendant and found no contraband, weapons, money, or cell phones on defendant\u2019s person. Following the incident, Van Gessel saw the gum defendant had spit out was still on the ground, but did not see any clear plastic baggie. On cross-examination, Van Gessel admitted that he did not actually see defendant put the baggie in his mouth.\nJoliet police officer David Friend testified that he was dispatched to the corner of Hickory and Division concerning a disturbance and an officer needing assistance at about 8 p.m. on July 11, 2004. When he arrived at the scene, he observed Van Gessel and defendant on the ground near Van Gessel\u2019s squad car. Van Gessel appeared to have defendant under control and was in the process of handcuffing defendant. Friend searched the scene and found no drugs or drug paraphernalia.\nFollowing Friend\u2019s testimony, the State rested. The defense then called a single witness, Aisha Baker.\nAisha Baker testified she was familiar with the area around Division and Hickory. Baker and defendant were \u201ccasual friend[s].\u201d At about 8 p.m. on July 11, 2004, Baker was outside, looking out onto the street from behind a wrought iron fence, when she saw a police car pull up. Two officers got out of the car and grabbed defendant. Defendant stepped back and \u201cthrew his hand out\u201d as if to ask what he had done. Baker did not see anything in defendant\u2019s hands. One of the officers asked defendant what was in his mouth and accused defendant of having crack cocaine in his mouth. The officer then threw defendant to the ground and choked him, forcing him to spit out gum. Defendant\u2019s nose was bleeding. Defendant never pushed the officer. According to Baker, defendant \u201calways chews gum.\u201d Baker guessed she may have been standing about 100 feet or more from where the confrontation took place. There was nothing obstructing Baker\u2019s view. Baker saw other people drinking beer that day, but defendant was not drinking beer.\nBaker never reported what she saw to the police. The first time she told anyone what she saw was when she was contacted by a defense investigator in December 2004. Baker acknowledged she had prior misdemeanor convictions for resisting a police officer and obstructing a peace officer in early 2004. Baker failed to appear in court on those charges and, in October 2004, she was arrested on a warrant by Van Gessel. The defense rested following Baker\u2019s testimony.\nDuring closing arguments, one of the prosecutors told the jury that by asking \u201cAre you straight?\u201d defendant was asking, \u201cDo you want any drugs?\u201d The prosecutor also told the jury:\n\u201cIf you look at the larger picture of what was going on that day, *** what the defendant had going on was basically a fast food joint for dealing drugs, and he had buddies he was with who were on the corner, and he was basically using the parking lot of St. John\u2019s church as a position to sell drugs and flag down vehicles that were going by in the street that evening.\u201d\nIn rebuttal closing argument, another prosecutor told the jury:\n\u201cWhat is [defendant] doing out there? He\u2019s hanging out with people out on a street corner *** what were those people doing out there with him? Why were they flagging down cars that are going by? Why are they saying [\u2018]you straight, you straight?[\u2019] When was the last time you pulled out of your driveway and just flagged cars down just to make sure they were all straight?\nWell, I think everyone is driving straight, aren\u2019t they? So, you don\u2019t need to ask that unless there is an ulterior motive, unless you\u2019re doing something that you should not be doing. And, ladies and gentlemen, based upon the evidence in this case, based upon the circumstantial evidence as well as the direct evidence, our position is that the defendant was part of an enterprise, he was hanging out with people selling drugs on that street corner.\nThey were stopping cars. Some cars went by. Eventually a buyer bit, he pulled into this driveway, turned around, got back out, and the defendant walked over. But before all of that happened, and that\u2019s all circumstantial evidence, why is he leaning into a car and talking when the police arrive? Our common sense tells us that somebody who is away from his house, who is a mile away from it, who is hanging out on a street corner where he doesn\u2019t even reside, with people that he is \u2014 just his people that he\u2019s working with, that\u2019s an individual that is conducting a drug transaction.\nLadies and gentlemen, he didn\u2019t have any cell phones, but that\u2019s not dispositive of anything here. Well, you know, there were three other people there *** one of them *** could have held the cell phones, he could have held the cash. One person could have just taken little bits and pieces of the drugs in this case and taken them over to the cars.\nDoesn\u2019t that make sense? If you\u2019re dealing drugs, why would you want to carry all of the drugs on you? Wouldn\u2019t it make more sense just to carry small pieces of drugs? Why lose the whole shipment when you can just do it one at a time, sort of like inventory. This is like an enterprise, when you sell drugs. You do it just like a business.\n* * *\nLadies and gentlemen, with everything else, when you combine little bits and pieces of evidence in this case, it becomes pretty clear that the defendant had no other legitimate purpose to be out there than him hanging out.\nAll of this leads to a conclusion that obviously they were working together on this corner selling drugs to people ***.\u201d\nThe jury found defendant guilty of aggravated battery and obstructing justice. The trial court denied defendant\u2019s motion for a new trial and sentenced defendant to concurrent, extended-term sentences of eight years\u2019 imprisonment for aggravated battery and six years\u2019 imprisonment for obstructing justice on April 22, 2005. On May 6, 2006, the trial court denied defendant\u2019s motion to reconsider his sentences. Defendant filed a timely notice of appeal pursuant to Supreme Court Rule 606(b) (188 Ill. 2d R. 606(b)).\nANALYSIS\nOn appeal, defendant contends, inter alia, that the prosecutors made improper comments during their closing arguments which denied him a fair trial. The State contends that defendant has waived this issue because defense counsel did not object to the prosecutors\u2019 comments during closing argument, nor was the issue raised in defendant\u2019s posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve an issue for appeal, an objection must be raised during trial and the issue raised in a written posttrial motion). We note that the State\u2019s \u201cwaiver\u201d argument is really a claim of forfeiture or procedural default. \u201c \u2018[Wjaiver implies a knowing relinquishment of a right, whereas procedural default refers to the failure to adequately preserve an issue for later appellate review.\u2019 \u201d People v. Whitfield, 217 Ill. 2d 177, 187-88 (2005), quoting People v. Blair, 215 Ill. 2d 427, 457 n.3 (2005) (Freeman, J., dissenting, joined by McMorrow, C.J., and Kilbride, J.). Although defendant has technically forfeited this issue, the rule of forfeiture is \u201can admonition to the parties and not a limitation on the jurisdiction of [the reviewing] court.\u201d People v. Normand, 215 Ill. 2d 539, 544 (2005).\nMoreover, Supreme Court Rule 615(a) allows consideration of plain errors or defects affecting substantial rights that were not brought to the attention of the trial court. 134 Ill. 2d R. 615(a). The plain-error doctrine allows a reviewing court to consider a waived error when \u201c(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.\u201d People v. Herron, 215 Ill. 2d 167, 187 (2005). As our supreme court explained in Herron:\n\u201cIn the first instance, the defendant must prove \u2018prejudicial error.\u2019 That is, the defendant must show both that there was plain error and that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. The State, of course, can respond by arguing that the evidence was not closely balanced, but rather strongly weighted against the defendant. In the second instance, the defendant must prove there was plain error and that the error was so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process. [Citation.] Prejudice to the defendant is presumed because of the importance of the right involved, \u2018regardless of the strength of the evidence.\u2019 [Citation.] In both instances, the burden of persuasion remains with the defendant. [Citations.]\u201d Herron, 215 Ill. 2d at 187.\nDefendant contends the prosecutors\u2019 improper comments were plain error because the evidence was closely balanced and because the remarks unfairly bolstered the State\u2019s case. We agree with defendant that the evidence was closely balanced in this case because defendant presented evidence that tended to refute the State\u2019s evidence showing defendant pushed Officer Van Gessel and attempted to destroy or conceal evidence by swallowing drugs. Although there were numerous witnesses to the incident, no witness corroborated Van GesseT s testimony that defendant initiated the contact with the officer by pushing him in the chest. Further, no evidence was discovered on defendant\u2019s person suggesting defendant had been in possession of illegal drugs. We find that review under the first prong of the plain-error doctrine is warranted, despite defendant\u2019s procedural default. Accordingly, we will consider whether the prosecutors\u2019 remarks during closing argument resulted in plain error, warranting reversal.\nWe must first determine whether the prosecutors\u2019 remarks were improper. The prosecution is allowed great latitude in closing argument and may argue fair and reasonable inferences that can be drawn from the evidence introduced at trial. People v. Dunsworth, 233 Ill. App. 3d 258, 267 (1992). However, prosecutors have an ethical obligation to refrain from presenting improper and prejudicial evidence or argument. Dunsworth, 233 Ill. App. 3d at 269. The prosecution may not \u201cargue assumptions or facts not based upon the evidence in the record.\u201d People v. Johnson, 208 Ill. 2d 53, 115 (2003). The prosecution may not present argument calculated solely to inflame the passions and prejudices of the jury. Dunsworth, 233 Ill. App. 3d at 267.\nThe remarks made by the prosecutors in their closing arguments, which suggested defendant was dealing drugs in a neighborhood where he did not belong, were improper. The prosecution repeatedly told the jury defendant was \u201cflagging down cars\u201d and asking motorists if they wanted to buy drugs, even though there was no such testimony presented to the jury. We recognize that one witness, Mr. Palmer, testified he witnessed four men drinking beer and yelling at cars. However, Mr. Palmer did not testify that any of the men were \u201cflagging down cars\u201d or that he witnessed anything even remotely suggesting the men were engaged in selling drugs. No other witness testified that defendant was flagging down or stopping cars, nor did any witness testify that defendant was dealing drugs or in possession of drugs, cell phones, money, or contraband. There was absolutely no testimony introduced during the trial that drug dealers act in groups and, when they do so, one person holds the drugs, another holds the money, and a third holds the cell phones. Here, the prosecution improperly went outside the record and argued evidence that was not elicited before the jury.\nThis does not, however, end our inquiry. \u201cA reviewing court will find reversible error based upon improper comments during closing arguments only \u2018if a defendant can identify remarks of the prosecutor that were both improper and so prejudicial that \u201creal justice [was] denied or that the verdict of the jury may have resulted from the error.\u201d \u2019 \u201d People v. Evans, 209 Ill. 2d 194, 225 (2004), quoting People v. Jones, 156 Ill. 2d 225, 247-48 (1993), quoting People v. Yates, 98 Ill. 2d 502, 533 (1983). We will reverse a conviction based on a prosecutor\u2019s improper comments during closing argument when \u201cthose remarks were such that without their having been made, the jury might have reached a different result.\u201d Dunsworth, 233 Ill. App. 3d at 266.\nThe State argues the comments were reasonable inferences that explained defendant\u2019s otherwise irrational conduct. We disagree. Rather, the comments were akin to testimony that was never presented at trial. In essence, the prosecution misstated evidence in closing argument to bolster their case, in which the evidence against defendant was exceedingly weak. We conclude that, in this case, the cumulative effect of prosecutors\u2019 repeated improper statements deprived defendant of his constitutional right to a fair trial in what was a closely balanced case. The comments could have had no other purpose but to inflame the jurors\u2019 passions, and the prosecutors\u2019 conduct did nothing to advance the truth-seeking process.\nThe prejudice here was significant because only the prosecutors told the jury that defendant was flagging down cars, asking if motorists wanted to buy drugs, and acting in concert with other persons in a manner common to drug dealers. It is apparent that the prosecutors\u2019 improper conduct created a situation where the jury likely believed the prosecutors\u2019 claims even though no such evidence was presented at trial. Moreover, defendant was not charged with possession or intent to deliver any illegal substances. The comments where not only unfavorable to defendant, they were also unrelated to the charges brought against defendant. Clearly, defendant was denied his constitutional right to a fair trial. Under these circumstances, we invoke the plain-error exception to the waiver doctrine.\nBased on our finding that the evidence was closely balanced in this case, we cannot determine, with a reasonable degree of certainty, that the prosecution\u2019s improper comments did not contribute to defendant\u2019s guilty verdict. Accordingly, we reverse the judgment of the circuit court of Will County and remand the cause for a new trial.\nAs a result of our holding that defendant is entitled to a new trial based on the prosecution\u2019s improper closing argument, we find it unnecessary to address any of the remaining issues raised in defendant\u2019s appeal.\nCONCLUSION\nWe find that the prosecutors\u2019 improper comments during closing argument in this case amounted to plain error that deprived defendant of a fair trial. The judgment of the circuit court of Will County is therefore reversed and the cause is remanded for a new trial.\nReversed and remanded.\nCARTER and O\u2019BRIEN, JJ., concur.", "type": "majority", "author": "JUSTICE WRIGHT" } ], "attorneys": [ "Mark D. Fisher (argued), of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "James Glasgow, State\u2019s Attorney, of Joliet (Lawrence M. Bauer and Sabrina S. Henry (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY L. PORTER, Defendant-Appellant.\nThird District\nNo. 3\u201405\u20140330\nOpinion filed April 20, 2007.\nMark D. Fisher (argued), of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJames Glasgow, State\u2019s Attorney, of Joliet (Lawrence M. Bauer and Sabrina S. Henry (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0973-01", "first_page_order": 989, "last_page_order": 996 }