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People v. Phillips

JUNE 4, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HENRY PHILLIPS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. WILLIAM S. WHITE, Judge, presiding. Judgment affirmed.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

In a jury trial the defendant was found guilty of the sale of a narcotic drug contrary to the provisions of the Criminal Code (Ill Rev Stats, c 38, § 22-3 (1969)). After a hearing in aggravation and mitigation, the court sentenced him to serve ten to twelve years in the Illinois State Penitentiary. On appeal defendant contends (1) that the closing argument to the jury on behalf of the State contained such inflammatory and prejudicial statements as to warrant a new trial, (2) that an instruction tendered by defendant with respect to the credibility of an addict-informer was improperly refused, (3) that defendant was not proved guilty beyond a reasonable doubt, and (4) that the trial court erroneously denied defendant's motion for a mistrial after a witness for the State volunteered an allegedly prejudicial statement attributed to the defendant. A summary of the evidence follows.

George Lincoln, a police informer, telephoned the Chicago Police Department on September 15, 1964, and offered to make a controlled purchase of narcotics. Two police officers assigned to the Narcotics Unit, John Campbell and James Arnold, arranged a meeting with Lincoln, at which he was searched and placed in possession of ten dollars in marked and recorded currency. Lincoln was driven to the vicinity of 33rd Street and Indiana Avenue in the City of Chicago, where defendant was observed walking south on Indiana Avenue. Lincoln approached him and asked for some heroin. Lincoln testified that while on the sidewalk he gave defendant the marked money. They went into the vestibule of an adjacent apartment building where, according to Lincoln, defendant gave him two tinfoil packets which were produced from what "looked to be like a brown envelope." While Lincoln and defendant were standing on the sidewalk, they were observed by the two police officers. Both officers testified that they saw no money pass while defendant and Lincoln were in view on the sidewalk, nor did they find a brown envelope when defendant was arrested in a tavern a short distance from the scene. Nine dollars of the marked money was found on the defendant's person and, according to both policemen, when the defendant was brought to police headquarters for questioning, he voluntarily admitted his guilt. A police chemist testified that the tinfoil packet contained heroin.

Defendant was the only witness in his own behalf. He denied having sold any heroin to Lincoln and testified that at Lincoln's request he exchanged a ten dollar bill for smaller bills in the vestibule of the apartment building. We proceed to a consideration of defendant's first point with respect to improper remarks made by the State's Attorney.

Defendant charges that three separate remarks in the rebuttal portion of the State's closing argument denied him his right to a fair trial. The first statement to which he objected involved the suggestion of an illicit relationship between the defendant and two women. The record reveals that defendant had testified to living with two women in two separate apartments on September 14 and 15, 1964. At the time of his arrest on September 15, 1964, he was unemployed and on welfare. The State's Attorney in his closing argument said, "If you have a reasonable doubt that a man who is living with two women and supporting them, and if you have a reasonable doubt. . . ." A defense objection brought the statement to an end at that juncture. Statements based on facts and circumstances proved, or such as might reasonably be inferred therefrom, are not to be discountenanced by the courts. People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297; People v. Miller, 13 Ill.2d 84, 148 N.E.2d 455.

[3-5] The second portion of the argument to which defendant objected related to the testimony of George Lincoln, the addict-informer. The Assistant State's Attorney said:

"Sure, we put an addict on the stand, a man who used to be an addict, a man who is trying to straighten himself out, and who might be able to straighten himself out if we could get somebody like Phillips off the street, that will sell it to anybody for his own purposes, for his own gain. If we can get them off the street, then maybe our children will be safe."

Defendant's attorney objected and moved for a mistrial. The judge cautioned the prosecutor to confine his remarks to the evidence. It is not improper for the prosecuting attorney to reflect unfavorably on the character of the accused and to denounce his alleged wickedness. People v. Wright, 27 Ill.2d 497, 190 N.E.2d 287; People v. Moore, 9 Ill.2d 224, 137 N.E.2d 246; People v. Provo, 409 Ill. 63, 97 N.E.2d 802. Such argument should be within the bounds of reason and relevance. However, not every ill-advised statement in closing argument warrants a reversal. People v. Turner, 82 Ill. App.2d 10, 226 N.E.2d 667. Defendant's objection brought an immediate direction by the court, cautioning the attorney for the State to confine his comments to the evidence. Improper remarks of counsel do not constitute reversible error unless they result in substantial prejudice to the defendant. People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432. The action of the trial judge in immediately reprimanding the State's Attorney erased what little prejudice may have otherwise resulted from the statement and a reversal is not warranted. People v. Daugherty, 43 Ill.2d 251, 253 N.E.2d 389.

Finally, objection was made to another statement in the State's closing argument which defendant contends improperly implied that defense counsel sought to conceal certain facts from the jury. The State's Attorney said:

"If you will remember, after cross-examination I asked Mr. Lincoln if there was any reason why he gave his testimony, at which time the Public Defender objected, and that objection was sustained, and I did not go into the subject any further."

That statement was in direct response to the defense attorney's forceful and rather lengthy argument to the jury that Lincoln was paid for his testimony. Lincoln on cross-examination denied having been paid, and when the prosecuting attorney again asked him on redirect examination if there was any reason why he gave his testimony, the defense attorney interposed an objection which was sustained. Viewed in that context, the State's Attorney's comment was a response invited by the closing argument of defendant's attorney. People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297; People v. Smith, 24 Ill.2d 198, 181 N.E.2d 77. It is difficult to conceive how any prejudice could result from that comment since the only evidence, if any, which the jury could conclude was being withheld would be that Lincoln had not been paid. That would be in accord with all the testimony relating to that issue.

At the close of the case the jury was generally instructed to disregard any statements made by counsel which were not supported by the evidence. The closing argument on behalf of the State was not such as to warrant a retrial.

[7-9] Defendant's next contention is that it was error for the trial court to refuse his tendered Instruction No. 7 which purported to guide the jury in their determination of the credibility of a narcotic addict. The evidence disclosed that Lincoln, who also used the name Rance Aldridge, had been using heroin since 1948; that his habit cost him twenty-five to thirty dollars a day; that he had not had steady employment since 1948 and that he would shoplift to get money to buy narcotics. Although he denied having used any heroin within six months prior to the trial, he admitted using narcotics in September 1964, the month in which the events to which he testified allegedly occurred. He is, according to the testimony of Officer Arnold, a "special employee" of the Chicago Police Department, since he had been working as an informer for over a year. Lincoln testified that this was ...


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