{ "id": 2813772, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PATTERSON, Defendant-Appellant", "name_abbreviation": "People v. Patterson", "decision_date": "1976-12-06", "docket_number": "Nos. 61149, 62043 cons.", "first_page": "894", "last_page": "900", "citations": [ { "type": "official", "cite": "44 Ill. App. 3d 894" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "287 N.E.2d 297", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. 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App. 3d 1022", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2838619 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "1025" }, { "page": "1025" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/1022-01" ] }, { "cite": "329 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2967220 ], "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0023-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "337 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5305992 ], "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0666-01" ] }, { "cite": "194 N.E.2d 280", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2823362 ], "year": 1976, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0511-01" ] }, { "cite": "352 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2969453 ], "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0322-01" ] } ], "analysis": { "cardinality": 825, "char_count": 15925, "ocr_confidence": 0.878, "pagerank": { "raw": 3.053822700730588e-07, "percentile": 0.8561221136830758 }, "sha256": "1ad3a6763cf837573499c4ad2af8a150cfc124cbc78d56fcfccd8bf4301e1196", "simhash": "1:3b36f7c8fbf287a8", "word_count": 2581 }, "last_updated": "2023-07-14T18:25:08.154218+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. LARRY PATTERSON, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nAfter a jury trial, Larry Patterson (defendant) was found guilty of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18\u20142), and sentenced to 5 to 15 years. Defendant has appealed.\nIn this court, defendant contends that he was not proved guilty beyond a reasonable doubt because the alibi evidence was strong and the identification was defective. He also asserts that he was denied a fair trial as a result of several prosecutorial errors during cross-examination and final argument, including violations of the privilege against self-incrimination and comments on matters not in evidence, and that he was prevented from demonstrating the bias of a witness for the People.\nThe People urge that the identification was positive and the alibi evidence was insufficient to raise a reasonable doubt of guilt, and defendant was not denied a fair trial because the challenged final argument was based on the evidence or given in response to defendant\u2019s argument and any prejudicial effect was cured by the court. The State further denies that defendant\u2019s right to remain silent was infringed and denies that any prejudice resulted from the court\u2019s refusal to permit the alleged evidence of bias of the witness.\nAt trial, two ticket counter employees identified defendant as the man who had robbed an airline office at gunpoint on the afternoon of October 23, 1971. Defendant testified that he was employed as a furniture mover on the date of the crime and had helped to move three families that day. He also testified that, after a guilty plea, he had been previously convicted of robbery and had served time in the penitentiary. He testified that he had never been convicted of any other crime. A truck driver testified that on the date of the armed robbery, between 7:30 a.m. and 8 p.m., he, defendant and a third man had moved three households and defendant had not left his presence during that time. Moving company records tended to show that defendant had received three moving assignments on October 23, 1971, but this was a subject of dispute. Further summary of the evidence, or expression of any opinion thereon, is neither necessary nor appropriate in view of our conclusion that the conviction must be reversed and the cause remanded because grossly improper final argument and prejudicial cross-examination by the prosecutor resulted in denial of a fair trial. See the cases cited in People v. Monaghan (1976), 40 Ill. App. 3d 322, 323, 352 N.E.2d 295.\nThe record before us reflects multiple violations of the fundamental principle that statements of fact not based upon the evidence may not properly be argued before a jury (People v. Beier (1963), 29 Ill. 2d 511, 517, 194 N.E.2d 280; People v. Johnson (1976), 35 Ill. App. 3d 666, 668, 341 N.E.2d 443). In arguing beyond the record, a prosecutor, in substance, introduces his own unsworn testimony in lieu of competent evidence. (People v. Vasquez (1972), 8 Ill. App. 3d 679, 681, 291 N.E.2d 5.) This type of argument must be strongly condemned if we are to perpetuate a fair-and impartial administration of criminal justice.\nDuring rebuttal argument, one of the assistant State\u2019s Attorneys, in charging that defendant\u2019s alibi had been recently fabricated, stated:\n\u201cWell, the police cannot check an alibi, when he never tells them about it for over three years. * 0 * Do you wait for over three years and then spring it during the middle of trial, and then turn around and have the gall to say why didn\u2019t the police check it in March [when defendant was arrested]? He [sic] reason they didn\u2019t check it in March was because he didn\u2019t tell them about it in March.\nMR. HOWARD [defense attorney]: Objection. There is no evidence of that. Objection.\u201d\nThe assistant State\u2019s Attorney then added: \u201cAnd the reason he didn\u2019t tell them about it was because it didn\u2019t exist in March.\u201d The court sustained the objection and struck \u201cthe last part of that phrase.\u201d In spite of the objection, and the action promptly taken by the trial judge, the prosecutor persisted: \u201cAll right, not having told them about it in March \u2014 .\u201d At this point, another objection was sustained.\nThis portion of the argument was clearly beyond the record and any legitimate inferences that could be drawn from it. The sole evidence bearing on the prosecutor\u2019s assertion was defendant\u2019s testimony that after his arrest he had a conversation about the robbery with a policeman. The substance of that conversation does not appear in the record. The argument that defendant failed to inform the police of his alibi was thus outside the record, inflammatory and wholly unwarranted. In addition, even if these remarks had been supported by the record, we have serious doubts that they would have been proper. The United States Supreme Court, without reaching the constitutional issue raised by the privilege against self-incrimination, has noted that a defendant\u2019s silence while in custody may be insolubly ambiguous and the prejudicial effect of this fact upon the jury may outweigh its probative value. (United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133.) This principle was recently cited with approval in People v. Wright (1975), 32 Ill. App. 3d 736, 742, 336 N.E.2d 18, where this court refused to classify the error as harmless.\nThe State\u2019s Attorney continued far outside the record in a similarly prejudicial manner when he argued: \u201cHow about the preliminary hearing in front of Judge Sulski? Do you think he mentioned it [the alibi] then? I mean, now we are in the courtroom. 0 * * We are talking about now, being in a courtroom, with the lawyer, his own lawyer. Where is the alibi then? Nowhere, no mention of that alibi.\u201d The record contains no testimony concerning defendant\u2019s participation in any preliminary hearing. This argument was grossly improper. In addition, defendant was not required to present his defenses at the preliminary proceedings. (People v. Bonner (1967), 37 Ill. 2d 553, 557, 229 N.E.2d 527.) A preliminary hearing may be terminated once probable cause has been established. (37 Ill. 2d 553, 560.) Although no objection was made to this argument, it patently served only to curtail the opportunity for a fair appraisal of defendant\u2019s alibi evidence by the jury. It was definitely unfair and prejudicial. This court may and should consider \u201cerror relating to seriously prejudicial arguments of counsel, even though no objection was made at trial.\u201d (People v. Young (1975), 33 Ill. App. 3d 443, 447, 337 N.E.2d 40, and cases there cited.) This is particularly true where the error, not objected to, is but one of a series of repeated and seriously prejudicial acts of misconduct in cross-examination and final argument to which proper objections were made.\nThe State contends that the comments about defendant\u2019s failure to assert his alibi were legitimate response to specified portions of defense counsel\u2019s final argument. We have examined these cited sections of the defense argument and find that they contain a review of the alibi evidence and a statement by defense counsel that if he were charged with an offense occurring five or six months ago, all he could do would be to present evidence of his whereabouts on the day of the crime. We are unable to conclude that the prosecutor\u2019s remarks were invited by defense argument.\nRegarding the comments on defendant\u2019s silence, we have limited our review to the prejudice flowing from the State\u2019s Attorney\u2019s reliance upon matters not in evidence. We do not reach or consider the possible significance on constitutional grounds of the use for impeachment purposes of defendant\u2019s failure to assert his alibi after his arrest or at the preliminary hearing. These issues are not raised by the record before us. Whether such evidence would be constitutionally permissible on retrial of this case depends in part on several facts, not present here, such as the substance of defendant\u2019s conversations with the police and whether Miranda warnings had actually been given. See Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.\nThe prosecutors persisted in this pattern of prejudicial argument unsupported by the record. During rebuttal, one of them commented:\n\u201cYou learn things after you have been convicted of a robbery once, after you have been arrested for armed robbery, and convicted of various\u2014\nMR. HOWARD: Objection, move for a mistrial.\nTHE COURT: The objection is sustained. The jury will be instructed to disregard that last comment.\u201d\nThese prejudicial remarks served to accentuate previous misconduct of the same type. During cross-examination, one of the assistant State\u2019s Attorneys asked defendant whether his prior conviction was for armed robbery. The court, on defense counsel\u2019s objection, ordered the question stricken. Later, during the same examination, this same prosecutor began a question, \u201cHaving been to the penitentiary for armed robbery, didn\u2019t \u2014 .\u201d The court then sustained a defense objection and denied a motion for mistrial. The able trial judge, vigorously and with commendable competence, cautioned the jury that the defendant had not been imprisoned for armed robbery but rather for robbery. The prosecutor then apologized for his remarks, calling them \u201cunintentional.\u201d The prosecutor\u2019s contrition, however, was quite temporary. During defendant\u2019s surrebuttal, while cross-examining defendant, the prosecutor again referred to defendant\u2019s prior conviction by asking, \u201cThe offense also involved a gun, did it not?\u201d The trial court immediately ordered the remark stricken and instructed the jury to disregard it.\nDuring the State\u2019s final argument, one of the prosecutors told the jury: \u201cThat\u2019s the same defendant that gets right up on the stand and says, well, yes, I did time for armed robbery, but I sure would like you to believe me now.\u201d An objection to this remark was then sustained. We conclude that this statement and the later reference during rebuttal to an arrest for armed robbery as above set out are indicative of an intentional lack of regard for the rulings and admonitions of the trial court. Substantial and repeated prejudicial insinuations, made over defense objections which are sustained, cannot be condoned and bolster the conclusion that defendant was denied a fair trial. Cf. People v. Hawkins (1975), 61 Ill. 2d 23, 28, 329 N.E.2d 221.\nIn our opinion, when read in context, the prosecutor\u2019s assertion that defendant had been \u201cconvicted of various \u2014 \u201d can have possible reference only to previous convictions of various crimes. Defendant was entitled to have his guilt or innocence determined solely with reference to the crime charged and argument which attributed to him previous convictions of \u201cvarious\u201d offenses unrelated to that crime, without basis in the record, was severely prejudicial. (See People v. Brown (1972), 3 Ill. App. 3d 1022, 1025, 279 N.E.2d 765. See also People v. Weathers (1975), 62 Ill. 2d 114, 120, 338 N.E.2d 880.) In People v. Dukes (1957), 12 Ill. 2d 334, 146 N.E.2d 14, the prosecutor suggested that defendant had a prior record by improperly stating that he had used an alias. The court concluded that these remarks were prejudicial, noting: \u201cIn a sense it was more damaging than proof of other specific criminal offenses because it left the jury to speculate upon the insinuation that the defendant had a prior record without stating what it was.\u201d 12 Ill. 2d 334, 342.\nIn the case before us, the jury was left, in effect, with an open-ended statement that defendant had been convicted of various offenses. The way was thus cleared for speculation that he had committed various other crimes and was tantamount to describing him as an habitual criminal. Such insinuations have been condemned as severely prejudicial. (Cf. People v. Weathers (1975), 62 Ill. 2d 114, 120-21.) Further, these remarks were not directed at defendant\u2019s credibility. Generally, evidence of the commission of other crimes in support of guilt is \u201csufficiently prejudicial to constitute reversible error.\u201d (People v. Spencer (1972), 7 Ill. App. 3d 1017, 1021, 288 N.E.2d 612. See also People v. Cage (1966), 34 Ill. 2d 530, 533, 535, 216 N.E.2d 805.) It follows that accusations during final argument that defendant committed other offenses without any such evidence in the record could not be measurably less harmful. The impact of this argument was not sufficiently softened by sustaining of counsel\u2019s objections or by the prompt admonition by the trial court to the jury that they disregard \u201cthat last comment.\u201d Cf. People v. Brown (1972), 3 Ill. App. 3d 1022, 1025.\nImmediately following this occurrence, the assistant State\u2019s Attorney continued: \u201cThank you, Judge. We will not reduce this charge. He got a break once, and he doesn\u2019t deserve it again.\u201d Taken in context with the immediately preceding remarks, this comment suggested that defendant had been previously arrested and charged with armed robbery but that this charge had been reduced so that defendant was convicted only of robbery. These assertions were wholly unwarranted and served to deepen the improper impression, not justified by the evidence that defendant had been previously granted unwarranted and undeserved leniency.\nThe impact on this appeal of the several errors and repeated errors which we have found to have been prejudicial is governed by well-settled principles. Improper remarks during closing argument deny defendant a fair trial and constitute reversible error when they result in substantial prejudice (People v. Nilsson (1970), 44 Ill. 2d 244, 248, 255 N.E.2d 432, cert. denied, 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881); and thus operate as a material factor in the conviction (People v. Dukett (1974), 56 Ill. 2d 432, 443-44, 308 N.E.2d 590, cert. denied, 419 U.S. 965). The reviewing court must determine whether the verdict could have been otherwise if the objectionable remarks had not been made. People v. Davis (1970), 46 Ill. 2d 554, 560, 264 N.E.2d 140.\nIn this case, we are unable to conclude with reasonable certainty that the jury would have convicted the defendant absent the multiple and repeated prejudicial errors appearing on this record. In essence, as the trial developed the jury was required to compare the strength and credibility of the identification testimony with the credibility of the alibi evidence. The identification aside, no other evidence linked defendant to the crime. Defendant\u2019s credibility was a crucial element in the presentation of his alibi testimony. The credibility of the alibi defense, especially the testimony of the truck driver, that he had been with defendant the entire day of the crime, depended on the jury\u2019s fan-determination of whether the alibi was a recent fabrication. In our view, the various and repeated trial errors above discussed destroyed the possibility that the issue of guilt or innocence could be fairly assessed.\nReversal of a conviction is proper when multiple errors combine to affect the verdict although no single error considered by itself would have justified overturning the conviction. (People v. Hudson (1972), 7 Ill. App. 3d 333, 338, 287 N.E.2d 297.) We hold that the cumulative effect of the enumerated trial errors was the denial of a fair trial.\nThe judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.\nJudgment reversed and cause remanded for further proceedings.\nSIMON and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "Marshall R. Weinberg, of Reilly, Bell & Weinberg, of Chicago (Frederick F. Cohn, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Mary Ellen Dienes, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PATTERSON, Defendant-Appellant.\nFirst District (1st Division)\nNos. 61149, 62043 cons.\nOpinion filed December 6, 1976.\nMarshall R. Weinberg, of Reilly, Bell & Weinberg, of Chicago (Frederick F. Cohn, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Mary Ellen Dienes, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0894-01", "first_page_order": 924, "last_page_order": 930 }