{ "id": 4306438, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SYLVESTER GRAY, Defendant-Appellant", "name_abbreviation": "People v. Gray", "decision_date": "2010-12-22", "docket_number": "No. 1\u201408\u20142952", "first_page": "466", "last_page": "476", "citations": [ { "type": "official", "cite": "406 Ill. App. 3d 466" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "289 Ill. App. 3d 24", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 350988 ], "year": 1997, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0024-01" ] }, { "cite": "281 Ill. 490", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4901126 ], "year": 1917, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill/281/0490-01" ] }, { "cite": "243 Ill. 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SYLVESTER GRAY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE NEVILLE\ndelivered the opinion of the court:\nThis case involves the limits on the use of a past guilty plea to impeach a defense witness. A grand jury indicted Sylvester Gray for the murder of Michael Sommerville and the aggravated battery of Dominique Washington. At trial, the State\u2019s witnesses identified Gray as the shooter, while defense witnesses identified Gray\u2019s cousin, Darral Geder, as the shooter. One of the defense witnesses had pled guilty to illegal possession of a gun in connection with the same incident. The prosecutor introduced into evidence at Gray\u2019s trial the prosecutor\u2019s statement of the factual basis for that witness\u2019s guilty plea. The factual basis included collateral matters not necessary for the guilty plea but severely prejudicial to Gray. The trial court entered judgment on the jury\u2019s finding that Gray committed murder and aggravated battery. In this appeal, we hold that the trial court committed plain error when it allowed the use of the transcript from the witness\u2019s guilty plea as evidence against Gray. We reverse the convictions and remand for a new trial.\nBACKGROUND\nOn November 26, 2003, London Smith drove with her boyfriend, Gray, to pick up Gray\u2019s sister from her high school. Gray\u2019s sister, LaTonya Snell, told Gray that a boy from her high school, named Larry, called her names. In Smith\u2019s car on the way home, Snell pointed to Larry standing at a bus stop with two other boys. Smith pulled over and Gray got out of the car. Gray asked Larry why he was bothering Snell. Larry hit Gray and they started fighting.\nSommerville drove up in a black van, with his friend Telika Griffin as a passenger. Sommerville got out of the van and intervened in the fight. The fight grew to include Sommerville and Geder, who was also at the scene. Some witnesses said that two other boys from the bus stop also joined in the fight. Gunshots rang out and a bullet hit Washington, who had been watching the fight. Several bullets hit Sommerville as he tried to run away. Sommerville died from the bullet wounds. A police investigation led to the arrest of Gray for the murder of Sommerville and the shooting of Washington.\nGeder testified at the trial by a videotaped evidence deposition. The court explained that Geder could not come to court because he had joined the armed services and had started serving in Iraq. In the videotaped deposition, Geder testified that in 2003 he belonged to the Gangster Disciples. On November 26, 2003, Smith and Gray picked up Geder from the corner where he was selling cocaine before driving over to the high school to pick up Snell. When the fight with Larry started, Geder stood near the two boys at the bus stop, watching the fight. Geder recognized Sommerville as a member of the Black Disciples street gang. Sommerville joined the fight against Gray and the two boys at the bus stop started fighting with Geder. Geder saw Gray run over to Smith\u2019s car, then Geder heard gunshots. Geder saw Gray raise his arm toward Sommerville, then Geder heard more shots. After the shooting stopped, Geder saw Gray with the handle of a gun sticking up from his pants. Smith drove Snell, Gray and Geder away from the crime scene.\nOn cross-examination, Geder admitted that when police first interviewed him, he lied about the incident. He swore that even though he sold drugs for his gang, he never carried a gun. When asked if he wanted people to call him by the nickname he used as a member of the Gangster Disciples, he answered he would rather people called him \u201cPrivate,\u201d for his status in the Army.\nWashington contradicted some particulars of Geder\u2019s testimony. She testified that Geder sometimes carried a gun. Washington saw both Geder and Gray beating up Larry before Sommerville arrived. But Washington corroborated the crucial parts of Geder\u2019s testimony. She saw Smith hand a gun to Gray, and she saw Gray shoot the gun at Sommerville. A bullet hit her after she started to run. Washington admitted that she did not know Gray before the shooting.\nGriffin testified that she saw four or five boys fighting when Sommerville pulled up to the scene. Sommerville fought with Gray, and then Griffin saw a gun in Gray\u2019s hand. Griffin tried to warn Sommerville as Gray raised his arm, pointing the gun at Sommerville. Griffin dove back into the van and put her head down on the seat. When she thought the shooting had stopped, she lifted her head and saw Gray shoot again at Sommerville. Griffin ducked her head and heard more gunshots. Like Washington, Griffin had not known Gray before the shooting.\nPolice never recovered the gun. The cartridge cases left at the scene bore no useful fingerprints. All came from a single gun.\nGray presented three witnesses: Snell, Smith, and Gray himself. Gray testified that Geder did not ride to the scene in Smith\u2019s car. Instead, Geder ran over to the scene of the fight coming from the home of Geder\u2019s grandmother, who lived a few houses away from the corner where the fight took place. After Gray and Larry stopped fighting, Geder began fighting with Larry. Sommerville drove up and started fighting with Gray. A gun fell to the ground near Larry and Geder. Smith picked up the gun and went back to her car. Gray heard shots and saw Geder shooting. Gray admitted that he lied to police about the incident.\nSnell corroborated much of Gray\u2019s testimony. Geder arrived with the fight already in progress. After Gray stopped fighting, Geder began hitting Larry. Sommerville fought with Gray, and then two other boys from the bus stop joined in the fight. A gun fell to the ground and Smith ran over and picked it up. Snell testified that she saw Geder run over to the car and take the gun away from Smith. He started shooting in different directions. Gray yelled at Geder to stop shooting. Geder drove off in his own car.\nSmith testified that she had seen Geder with a gun he kept for his work for the gang. Like Gray and Snell, Smith testified that Geder arrived after the fight began, and he started fighting with Larry. Later, Sommerville and the two boys from the bus stop joined the fight. Geder\u2019s gun fell to the ground near him. Smith picked it up and took it to her car. Geder took the gun from her hand and started shooting. Smith saw Geder shoot Sommerville.\nSmith admitted that she pled guilty to a charge of possessing the gun. The court imposed a sentence of two years\u2019 probation. Smith\u2019s lawyer told her she did not need to agree to any of the facts the prosecution stated on the record for the guilty plea. The transcript of the hearing on Smith\u2019s guilty plea shows that Smith\u2019s attorney stipulated only that some State witnesses would testify to certain facts and that the testimony would sufficiently support a finding that Smith possessed the gun illegally. Neither Smith nor her attorney agreed to the accuracy of the facts to which those witnesses would testify.\nAt Gray\u2019s trial, in rebuttal to the defense case, the trial court permitted an assistant State\u2019s Attorney to read into the record, over Gray\u2019s attorney\u2019s objection, the factual basis the prosecutor presented when Smith pled guilty to possessing the gun. The assistant State\u2019s Attorney read the following parts of the factual basis into the record:\n\u201c[0]n November 26, 2003, *** Smith *** gave a handgun to her boy friend, Sylvester Gray.\nSylvester Gray in return used that handgun and fired several shots. One of those struck the victim, Michael Sommerville, and he did die as a result of those injuries.\u201d\nIn closing at Gray\u2019s trial, the prosecutor argued:\n\u201c[Defense witnesses] are just trying to blame [Geder] because [Geder] is not here. [Geder] is in Iraq fighting for his country. ***\n***\nIf the police were scrutinizing him so much that he had to flee the country, he would not have been here for that video. *** He joined the Army because he was tired of living the life that he was living. ***\nHe was a gang-banger, he was a drug dealer, and do you know what? He straightened his life out.\u201d\nIn response, defense counsel attacked Geder\u2019s credibility:\n\u201c[W]e also saw a guy who wanted to be called private because he has now found religion, he has now found a light. He has now changed his life from the drug dealing gangster days he used to have ***.\n* * *\n*** [The prosecutor hopes to] do a bunch of impossible tasks, *** [like] mak[ing] you believe that [Geder] *** was telling the truth truth ***.\n* * *\n*** [Geder] lied to the police.\n* * *\n*** [Geder] tells you he\u2019s a drug dealer who doesn\u2019t need a gun.\u201d\nIn rebuttal, the prosecutor focused on reasons to believe the three principal State witnesses, especially Geder. The prosecutor said:\n\u201cWhy would [Geder] come from Fort Benning, Georgia, and give his testimony on a videotaped statement knowing that he was about to be sent to Iraq to fight for his country if he was not coming in to tell the truth?\nYou heard from the detectives. They cleared him. *** After that, he went and joined the Army.\nThere is no reason for him to make the trip from Georgia to come here when he\u2019s already an Army man and a private to come here and tell you a fabrication. ***\n***\n*** Detective Meyers *** spoke to [Geder] *** prior to him joining the Army.\n\u2756 \u2756\nVery conveniently they blame the guy who can\u2019t come in to defend himself because he is fighting in Iraq. ***\nHe told us he wants to be Private [Geder] which is a name he has earned. He has joined the Army. He is trying to make something of his life. He is no longer gang-banging. He is no longer selling drugs. He said, I\u2019m an Army man. I work for the Army. That is a name and a respect that every single person in the armed forces who voluntarily joins earns that right to be called that name.\n* * *\nThe same way that [Geder] earned the right to be called private, Sylvester Gray has earned the guilty verdict.\u201d\nDuring deliberations, the jury sent the judge several notes. In one note the jury asked about the locations of witnesses and a car at the time of the shooting. The judge told the jurors to rely on their memories of the evidence. The jurors asked for transcripts of Smith\u2019s testimony and Griffin\u2019s testimony. The judge gave them the transcript of Griffin\u2019s testimony, but the judge said the transcript of Smith\u2019s testimony was unavailable. The jurors told the judge they could not reach a consensus. After consulting with Gray, the lawyers, and the jurors, the judge sent the jurors home for the night, instructing them to continue deliberations the next day. The jury deliberated the following day until 3:30 p.m., when the jury returned its verdict, finding Gray guilty of murder and aggravated battery.\nIn his posttrial motion, Gray objected to the prosecution\u2019s repeated references in closing argument to Geder\u2019s service in Iraq. The trial court denied the posttrial motion and sentenced Gray to 20 years for murder and 6 years for aggravated battery, with the sentences to run consecutively. Gray now appeals.\nANALYSIS\nStandard of Review\nGray raises two issues on appeal. First, he contends that the trial court erred when it permitted an assistant State\u2019s Attorney to read into the record the factual basis presented when Smith pled guilty to a charge of unlawful possession of a gun. Second, Gray argues that the comments in closing argument about Geder\u2019s service in Iraq deprived Gray of a fair trial. Gray admits that he forfeited appellate review of both issues. Although he objected at trial to the use of Smith\u2019s guilty plea, he did not raise the issue in his posttrial motion. Although Gray raised the issue of improper closing argument in his posttrial motion, at trial he failed to object to any of the comments of which he now complains. We agree that Gray has forfeited appellate review of both issues he now raises. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Therefore, in order to consider the issues, we must consider them under the doctrine of plain error. People v. Herron, 215 Ill. 2d 167, 178-79 (2005).\nOur supreme court explained the plain error doctrine as follows:\n\u201cThe plain-error doctrine, as it has developed in Illinois, allows a reviewing court to reach a forfeited error affecting substantial rights in two circumstances. First, where the evidence in a case is so closely balanced that the jury\u2019s guilty verdict may have resulted from the error and not the evidence, a reviewing court may consider a forfeited error in order to preclude an argument that an innocent person was wrongly convicted. [Citation.] Second, where the error is so serious that the defendant was denied a substantial right, and thus a fair trial, a reviewing court may consider a forfeited error in order to preserve the integrity of the judicial process.\u201d Herron, 215 Ill. 2d at 178-79.\nHowever, before we determine whether there was plain error, we first determine whether there was an error. People v. Hudson, 228 Ill. 2d 181, 191 (2008), citing People v. Urd\u00edales, 225 Ill. 2d 354, 415 (2007).\nSmith\u2019s Guilty Plea\nGray argues that the trial court erred when it overruled his objection to the assistant State\u2019s Attorney\u2019s testimony concerning the factual basis presented when Smith pled guilty to the charge of gun possession. A defendant who pleads guilty admits the elements of the offense charged. People v. Henderson, 95 Ill. App. 3d 291, 296 (1981), citing People v. Langford, 392 Ill. 584 (1946). However, the plea does not constitute an admission of collateral matters. Henderson, 95 Ill. App. 3d at 296.\nIn Henderson, the State prosecuted Henderson and several others for a theft from a hardware store. Ricky Hurt, who pled guilty to the theft, testified at Henderson\u2019s trial that Henderson did not take part in the theft. On cross-examination, Hurt admitted that an assistant State\u2019s Attorney had summarized the evidence the State would have presented against Hurt had Hurt pled not guilty. That summary included the assertion that a witness would say Henderson also accompanied Hurt. At Henderson\u2019s trial, Hurt testified that he disagreed with that part of the evidence the State would have presented against Hurt.\nThe appellate court held that Hurt did not judicially admit the accuracy of what other witnesses would have said:\n\u201cWhile a confession may be involved as Hurt voluntarily acknowledged his guilt, such does not embrace declarations of independent facts. The rule that a guilty plea constitutes an admission of every fact alleged in an indictment is limited to facts which constitute an ingredient of the offense charged. [Citation.] Hurt\u2019s guilty plea therefore cannot be characterized as embracing the collateral matter of his passenger\u2019s identity. *** Therefore the lack of a statement by Hurt negates characterizing the synopsis as an admission. The lack of a statement similarly precludes characterizing the synopsis as a prior inconsistent statement.\u201d Henderson, 95 Ill. App. 3d at 296.\nHere, by pleading guilty to the offense of unlawful use of a weapon, Smith admitted that she possessed a gun illegally. However, when she entered her plea, Smith never said that she handed the gun to Gray, and nothing in her conduct showed that she agreed to the accuracy of the testimony that other witnesses would have given had she pled not guilty. Smith\u2019s guilty plea did not include an admission that she gave a gun to Gray or that Gray fired the gun, because those collateral facts had no bearing on the elements that the State had to prove to establish Smith\u2019s guilt of the unlawful use of a weapon offense. The doctrine of judicial admissions does not justify the admission in evidence, at Gray\u2019s trial, of the assistant State\u2019s Attorney\u2019s account of the factual basis for Smith\u2019s guilty plea. See Henderson, 95 Ill. App. 3d at 296.\nNeither could the court justify admitting the evidence from the guilty plea as a prior inconsistent statement by Smith. See Henderson, 95 Ill. App. 3d at 296. Smith said nothing when she pled guilty or when she testified at Gray\u2019s trial that showed her assent to the collateral matters the prosecutor stated when the prosecutor presented a factual basis for Smith\u2019s guilty plea. Smith\u2019s testimony at Gray\u2019s trial accords with her plea that she possessed a gun. Therefore, we find that the trial court erred when it permitted the prosecutor to testify about the factual basis the State presented during Smith\u2019s guilty plea.\nPlain Error\nTo determine whether the error here amounts to plain error, we must decide whether the evidence \u201cis so closely balanced that the jury\u2019s guilty verdict may have resulted from the error and not the evidence.\u201d Herron, 215 Ill. 2d at 178.\nHere, the State presented two witnesses, Washington and Griffin, who swore they saw Gray shoot Sommerville and Washington. Geder swore he saw Gray extend his arm to point at Sommerville, then Geder heard shots, and then Geder saw Gray holding a gun in his waistband. Three defense witnesses swore they saw Geder shoot Sommerville. The evidence at the scene showed all shots came from a single gun, but none of the physical evidence helped determine whether Geder or Gray fired the gun. We see nothing inherently incredible or severely self-contradictory in the testimony of any of the witnesses. Therefore, the case came down to a matter of the credibility of the conflicting witnesses. We find the evidence closely balanced. See People v. Naylor, 229 Ill. 2d 584, 607-08 (2008). The lengthy jury deliberations, with the note informing the court that the jury could not reach a consensus, shows that the jury, too, found the evidence closely balanced. See People v. Davis, 393 Ill. App. 3d 114, 133 (2009); People v. Ehlert, 274 Ill. App. 3d 1026, 1035 (1995); People v. Palmer, 125 Ill. App. 3d 703, 712 (1984).\nThe assistant State\u2019s Attorney\u2019s testimony about the factual basis presented when Smith pled guilty implied that Smith inculpated Gray. See Henderson, 95 Ill. App. 3d at 296-97. In this case, with closely balanced evidence, the improperly admitted evidence, which might have led the jury to believe that one of Gray\u2019s witnesses once admitted that she saw Gray shooting Sommerville, might have swayed the jury. We find that the trial court committed plain error when it permitted the prosecution to introduce into evidence the assistant State\u2019s Attorney\u2019s testimony about the factual basis presented when Smith pled guilty to possessing a gun illegally. Therefore, we reverse the conviction and remand for a new trial. See Henderson, 95 Ill. App. 3d at 296-97; People v. Traylor, 201 Ill. App. 3d 86, 90-91 (1990).\nGeder\u2019s Service\nNext, Gray contends that the prosecutor\u2019s repeated references to Geder\u2019s service in Iraq deprived Gray of a fair trial. We address this issue only because it may arise again on remand. Gray complains mostly about remarks the prosecutor made in closing and rebuttal argument. \u201cWhether statements made by a prosecutor at closing argument were so egregious that they warrant a new trial is a legal issue this court reviews de novo.\u201d People v. Wheeler, 226 Ill. 2d 92, 121 (2007). A prosecutor may properly comment on the credibility of witnesses, as long as he bases his comments on the evidence and permissible inferences from the evidence. People v. Hickey, 178 Ill. 2d 256, 291 (1997). However, \u201cstatements made in closing argument which serve no purpose except to inflame the jury constitute error.\u201d People v. Threadgill, 166 Ill. App. 3d 643, 651 (1988).\nHere, defense counsel argued that the jurors should not believe Geder because he sold drugs for the Gangster Disciples and he lied to police. When a party impeaches a witness with evidence of past misconduct, the other party may rehabilitate the witness with evidence of subsequent conduct showing present good character. People v. Farrell, 377 Ill. App. 3d 249, 252 (2007); People v. Costello, 223 Cal. App. 2d 748, 753, Cal. Rptr. 155, 158 (1963). If a witness has offered crucial testimony, the trial court should allow both parties wide latitude to impeach and rehabilitate the witness to help the jury evaluate the credibility of the witness. Bianchi v. Mikhail, 266 Ill. App. 3d 767, 777 (1994). \u201cIn assessing credibility, the trier of fact may consider the witness\u2019 occupation as a factor bearing on credibility.\u201d People v. Hawkins, 243 Ill. App. 3d 210, 221 (1993); see People v. Bond, 281 Ill. 490, 499 (1917). The trial court properly permitted the prosecutor to comment that Geder had reformed from his past as a gang member and drug dealer to take an honest job as a soldier.\nHowever, the prosecutor should not have used the risk Geder faced as a soldier as a reason for the jurors to find him credible. In a case involving police officers as witnesses, the appellate court said, \u201c[fit is *** improper for the State to attempt to bolster the credibility of its police officer witnesses by commenting that these officers risk their lives every day for people like the jurors.\u201d People v. Williams, 289 Ill. App. 3d 24, 36 (1997). In Threadgill, the prosecutor emphasized in closing argument that jurors should find the testimony of police officers credible because the officers placed their lives at risk to defend the public. The Threadgill court said, \u201cThis line of argument was calculated to inflame the jurors\u2019 fears that if they found the defendant not guilty, they were turning their backs on the *** police ***, who were risking their lives for the jurors. This argument was uncalled for and exceeded the bounds of propriety.\u201d Threadgill, 166 Ill. App. 3d at 651. Soldiers, like police officers, risk their lives protecting the public. Arguing that jurors should find soldiers credible because they risk their lives to protect the public would similarly exceed the bounds of propriety. We find that some of the prosecutor\u2019s remarks, if reused at the retrial, could become inflammatory. In particular, comments that Geder joined the Army \u201cto fight for his country\u201d could bias the jury, especially if the prosecutor uses the sympathy Geder might evoke because all of the jurors recognize the risk Geder faces fighting in Iraq. But we see nothing improper in the comments that Geder no longer works for the gang selling drugs and that he has joined the Army. The prosecutor may repeat the remarks at the trial on remand if Gray attacks Geder\u2019s credibility based on his former work as a gang member and a drug dealer.\nCONCLUSION\nThe trial court committed plain error when it overruled Gray\u2019s objection to the testimony concerning the factual basis presented when Smith pled guilty to possessing a gun. Because the error may have tipped the scales for the closely balanced evidence against Gray, we reverse the conviction and remand for a new trial. On remand, if Gray again asks the trier of fact to find Geder\u2019s testimony incredible because he sold drugs as a member of the Gangster Disciples, the prosecutor may comment on evidence that Geder reformed and joined the Army. However, the prosecutor should not ask the jurors to believe Gray because he risks his life serving them in Iraq.\nReversed and remanded.\nQUINN, P.J., and STEELE, J., concur.\nThe grand jury also indicted Gray for unlawful use of a weapon, and the jury found Gray guilty of that charge. The court did not enter judgment on that part of the jury\u2019s verdict. The unlawful use of a weapon charge has no bearing on any issue in the case.", "type": "majority", "author": "JUSTICE NEVILLE" } ], "attorneys": [ "Michael J. Pelletier, Tomas G. Gonzalez, and Colby M. Green, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Miles J. Keleher, and Conor Fleming, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SYLVESTER GRAY, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201408\u20142952\nOpinion filed December 22, 2010.\nMichael J. Pelletier, Tomas G. Gonzalez, and Colby M. Green, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Miles J. Keleher, and Conor Fleming, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0466-01", "first_page_order": 482, "last_page_order": 492 }