APPEAL from the Circuit Court of Peoria County; the Hon.
ROBERT E. MANNING, Judge, presiding.
MR. JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
The defendant Mose Childs was indicted on three counts of attempt (murder) and one count of armed violence. Following a jury trial, Childs was convicted on all four counts. He was sentenced to two consecutive 15-year terms of imprisonment for attempt (murder), and a concurrent 10-year term for attempt (murder) with no sentence being imposed for the armed violence conviction.
Childs advances two issues for review: (1) whether he was deprived of a fair trial by the closing arguments of the prosecutors; (2) whether the trial court erred by considering as an aggravating factor that Childs' conduct caused serious harm to the victims.
Childs asserts that various comments made by the prosecution during closing and rebuttal arguments were improper. During the closing argument the State made the following comments:
"Ladies and gentlemen, I think the thing that jumps out in this case probably above anything else is that this is a case that's going to be decided by you on the basis of credibility of witnesses. You heard quite a bit of testimony from that witness stand. I think the one thing that should jump out to you immediately is that someone was not entirely honest with you from the stand. In fact, someone lied to you from the witness stand, and the evidence, other testimony, showed who, and I think as you'll find out as I talk further, show what, that is, untruths were spoken.
Now, the evidence shows, ladies and gentlemen, very simply, the defendant lied to you on the stand. But why? Well, the self defense, intoxication, those are ideas not necessarily legal only in nature. They are as far back as cowboy shows that you see on T.V."
During defense counsel's closing argument, he responded to the State's improper claims by stating:
"Now, I was somewhat troubled — am somewhat troubled by the use of Mr. Holman's — liberal use of the word `lie'. A lie is something crystal clear, and Mr. Holman's attempt or suggestion to anybody, based upon the conflicting testimony that we heard here, was positively lying, I think is consistent with his attempt to bring some sort of false focus upon what actually happened on this date. It's impossible, it's out of place. It's not proper. I don't say to anyone, and I don't say about anyone, `You're lying,' or `He's lying,' or `I'm lying.' Strong words unless you know for a fact that they're lying, unless you can say without a doubt, `You're lying, I'm lying, he's lying.' What was there in the evidence that we heard over the last couple of days that allows Mr. Holman to say that Mose Childs lied about virtually everything? The only thing that he can tie it to, the only thing he can base that assertion on, I think, is the testimony of the other witnesses."
In rebuttal argument the State further remarked:
"Now, Mr. Picl for the defense objected to our use of the term that when someone took the stand, someone being several people, I would suggest to you during trial, that they lied to you. Ladies and gentlemen, I don't know of any other term that appropriately fits. I submit to you that unfortunately in all too many criminal cases the people take the stand and perjure themselves, and I submit to you that's what occurred in this case.
DEFENSE ATTORNEY: Judge, I'm going to object to the use of the term `perjure.'
THE COURT: Objection's overruled.
ATTORNEY FOR THE STATE: Ladies and gentlemen, it will be for you to decide if somebody lied and who, but in making that decision consider the points of contradiction in this testimony that Mr. Holman mentioned in his opening part of the closing argument. Consider these additional points and then you tell us whether or not somebody lied to you when they took the stand and testified in ...