SUPREME COURT OF ILLINOIS
538 N.E.2d 500, 127 Ill. 2d 499, 131 Ill. Dec. 125 1989.IL.412
Appeal from the Circuit Court of Jackson County, the Hon. Donald Lowery, Judge, presiding.
JUSTICE CLARK delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
The defendant, John Paul Phillips, was indicted on April 8, 1986, by a Jackson County grand jury on five counts for the November 11, 1981, murder of Joan Weatherall. Count I charged that the defendant committed murder with the intent to kill the victim (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)); count II charged that the defendant committed murder knowing that his actions created a strong probability of death or great bodily harm (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(2)); counts III, IV, and V charged that the defendant committed murder while committing
The defendant waived a jury for sentencing. In the two-stage sentencing proceeding, the court found defendant eligible for the death penalty and found that, in the presence of aggravating factors, there were no mitigating factors sufficient to preclude the imposition of the death penalty. The death sentence was stayed (107 Ill. 2d R. 609(a)) pending direct appeal to this court, pursuant to article VI, section 4(b), of the 1970 Illinois Constitution (Ill. Const. 1970, art. VI, § 4(b)) and Supreme Court Rule 603 (107 Ill. 2d R. 603). For the reasons stated herein, we affirm the convictions and sentence.
A brief review of the facts presented here prior to a Discussion of the issues raised by defendant will be supplemented and expanded upon throughout this opinion as necessary for a resolution of a particular issue.
The nude body of a white female was discovered floating face down in the water of an abandoned strip pit west of Elkville, Illinois, on November 11, 1981. The woman was identified as Joan Weatherall of Carbondale, Illinois. An autopsy indicated that the primary cause of death was strangulation; a secondary cause of death was attributed to exsanguination, that is, a loss of blood, suffered as a result of blows to the head. Additionally, the autopsy indicated that one of the blows to the head had chipped her skull, that there were abrasions and contusions to her face and knees as well as indications that her hands had been tied behind her back.
During May 1984, while serving a term of years in prison, the defendant told his cellmate that he had committed a number of crimes; the defendant confessed to the rape and murder of Joan Weatherall as well as two other murders and a rape not here under consideration. The defendant's cellmate, Thomas Mocaby, informed prison officials of his knowledge of these crimes. The prison officials then contacted outside police authorities, who conducted a preliminary investigation to verify the information. The results of the investigation and the information were subsequently presented to the Jackson County grand jury which returned indictments on April 8, 1986, charging John Paul Phillips with five counts of murder.
Prior to trial on these charges and at the request of defense counsel, defendant underwent a fitness examination. The court-appointed expert, Dr. Horecker, filed his report, dated June 27, 1986, which indicated that the defendant did not have a major mental disorder, that he showed no evidence of psychosis and that he was fit to stand trial. The court reviewed Dr. Horecker's report as well as the report of another expert, Dr. Peterson, who had previously been appointed to examine the defendant in a separate pending rape case. The court found that the defendant was fit to stand trial.
At trial, Thomas Mocaby testified that while he and John Paul Phillips were cellmates at the Menard Correctional Facility during May 1984, defendant told him the details of the 1981 Weatherall murder. Mocaby's testimony recounted the following information which had been told to him by Phillips during the time which the two shared a cell.
On the evening of November 10, 1981, Phillips first saw Joan Weatherall at Stan Hoye's, a lounge located within the Holiday Inn in Carbondale where Weatherall worked as a waitress. Later that same evening Phillips saw Weatherall, whom he described to Mocaby as a tall, very attractive woman with long hair and inverted nipples, leave another lounge located on Illinois Avenue in Carbondale. When Weatherall neared an alley behind this establishment, Phillips grabbed her and choked her until she passed out. He laid her down and went to get his wife's car, a blue Monte Carlo. The defendant put Weatherall into the trunk and then drove to his father's warehouse located on Highway 51. At the warehouse he proceeded to repeatedly rape Weatherall. After raping her, the defendant told Weatherall that he had to tie her hands behind her back but that he was going to take her back to town. After he tied her hands, however, he also tied a noose around her neck, pulled it tight and then hit her on the head with a hammer. Phillips recounted to Mocaby that Weatherall fell to the ground and spun around. Blood was splashing around and Phillips indicated that he had to step back and wait for Weatherall to stop moving. Phillips also told Mocaby, according to the testimony, that he killed her because she was defiant and because she was a "sloppy drunk." Once he realized that Weatherall was dead, Phillips took a hose and flushed out her internal organs in order to get rid of any traces of semen. He then took the body to a loading dock at the warehouse where, he indicated, he anally assaulted the dead body before wrapping it in plastic and loading it into the trunk of his wife's Monte Carlo. Phillips then drove to the Elkville strip pit where he attempted to submerge Weatherall's body in the water.
In addition to the above description of the Weatherall murder, Mocaby told authorities that Phillips also told him about murdering two other women and about a rape of a South American or Brazilian woman. This and other trial testimony will be elaborated upon below as it becomes necessary to a Discussion of points raised on appeal.
Phillips raises 11 individual issues to be resolved on appeal; four issues relate to alleged trial errors, three to alleged errors at the sentencing hearing, and four address constitutional concerns.
Defendant first contends that he was not proven guilty beyond a reasonable doubt where, he asserts, the State's entire case was based on the testimony of a single, unreliable witness -- that witness being Thomas Mocaby. In essence, the defendant is attacking the sufficiency of the evidence against him. This court has long held that it is the jury's function to determine the accused's guilt or innocence; "we will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of the accused's guilt. [Citations.]" (People v. McDonald (1975), 62 Ill. 2d 448, 456.) When faced with a challenge to the sufficiency of the evidence against the accused, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Rather, as the United States Supreme Court noted in Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) (443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.) The Court elaborated further by pointing out that "upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." (Emphasis in original.) 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.
Upon review, we conclude that the evidence is sufficient to support the jury's verdict. Defendant's contentions that the testimony of Thomas Mocaby was the sole link connecting Phillips to the crime and, further, that Mocaby was a "thoroughly unbelievable" witness are not persuasive. As this court has often noted, it is the responsibility of the jury to weigh the credibility of the witnesses. (People v. Kubat (1983), 94 Ill. 2d 437, 468, rev'd on other grounds (7th Cir. Jan. 24, 1989), Nos. 88 -- 1440, 88 -- 1520; People v. Lewis (1981), 88 Ill. 2d 129, 151-53; People v. Carlson (1980), 79 Ill. 2d 564, 583.) We have already noted above the gist of Mocaby's testimony. We note further that the jury was aware that Mocaby was a convicted felon. Moreover, Mocaby's testimony was not wholly unchallenged. The jury had to weigh Mocaby's testimony against that of defense witnesses Frank Manna, Robert Kirkpatrick, and Rick Kane, also convicted felons. These defense witnesses testified that Mocaby set Phillips up for his own personal gain. They testified that, because Mocaby had extensive financial problems (he allegedly owed money to other prisoners for drugs and had not completed tattoo work for prisoners who had already paid for the work), he wanted to be moved to another and easier prison institution.
Additionally, we note that the jury could weigh the extent of Mocaby's knowledge of facts about the murder and any question concerning the possible source of such knowledge against the contents of newspaper articles published in 1981 after Weatherall's body was found. Copies of the published articles were made available to the jury by the defendant. In addition to testimony that Mocaby was a resident of Marion, Illinois, and that he completed schooling in that city through the eleventh grade (he later earned a G.E.D.), we note that he was approximately 17 or 18 years of age at the time of the Weatherall murder. There was no testimony offered to support an inference that he ever read any newspaper articles about the murder. While it is perhaps possible, though never argued by the defense, that Mocaby could have committed the crime himself, or that he learned about it from another person, we note that his testimony included certain facts, facts which were corroborated by independent testimony and that, according to arguments in closing, were not included in the newspaper accounts. While copies of these articles were not before this court in the record, we note that no objection was made to the State's summation of facts not known by the general public. These facts asserted to not be known by the general public (those not personally associated with Weatherall), when linked together, tend to support an inference that Mocaby's source of knowledge was Phillips: that Weatherall had been drunk on the night of her murder, that she was a pretty woman with long hair, that her breasts had inverted nipples, and that the defendant drove his wife's blue Monte Carlo on the night of the murder because his own car was in the shop for repairs. Nor could reference be made to any newspaper accounts of the rape of the Brazilian woman to account for Mocaby's knowledge, a woman who, as we discuss later, had already positively identified the defendant as the rapist who abducted her. We also note, for example, that the physical description of the condition of Weatherall's body given by Mocaby could be weighed against the testimony of Dr. Gronemeyer, who performed the autopsy. An assertion by Mocaby that Phillips had told him that Weatherall's internal organs had been hosed out after he raped her could be weighed against information from Dr. Gronemeyer that when she performed the autopsy she found no sperm but that diatoms, small algae present in fresh water, were found in Weatherall's vaginal cavity. These are examples of testimony that either corroborated Mocaby's testimony or challenged it. The jury weighed and balanced the scales and found against the defendant. We cannot say that its judgment was against the manifest weight of the evidence.
Assertions that Mocaby provided the State's sole link of Phillips to Weatherall are also without merit. Testimony from Dean Buchanan, an instructor for a Dale Carnegie course in which the defendant was enrolled, placed Phillips at the Holiday Inn in Carbondale on the last evening that Weatherall was seen alive. As noted earlier, the restaurant/bar where Weatherall worked was located in this Holiday Inn. Other testimony supported statements made by Mocaby. For example, testimony from Dennis Howell, parts manager for a Carbondale auto dealer, verified that Phillips' automobile was in the shop for repairs and thus unavailable for his use. Testimony from Delores Otterson, Phillips' former wife, verified that the defendant had used her car, a blue Monte Carlo, on the evening of November 10, 1981. Andrew Wist, a forensic scientist with the Illinois Department of State Police, testified that certain hair strands found in the Monte Carlo were consistent with the hair of Joan Weatherall. While a defense expert disagreed with this evaluation, the jury could weigh the testimony of each expert in reaching its decision. Testimony was elicited from both Dr. Gronemeyer and Phyllis Weatherall, sister of the victim, about the condition of Joan Weatherall's breasts -- information that would not be known by the general public (Mocaby had testified that Phillips told him that Weatherall's nipples were inverted). The jury was able to weigh and evaluate this testimony.
Further, in testimony given by Delores Otterson she testified that on November 11, 1981, the defendant came to her place of employment to get the Monte Carlo in order, he told her, to clean it. Otterson testified that Phillips had never done this in the past.
Testimony by Robert Ratcliffe (a co-worker), Nicholas Fabish (a friend), Kenneth Gilbert (an acquaintance of a friend of Joan Weatherall), and James Duke (a bartender who saw Weatherall on prior occasions and on the night she was murdered) substantiated that Joan Weatherall had been at a couple of establishments along Illinois Avenue in Carbondale; that she had had several drinks at each bar; and that she was last seen by people who knew her at approximately 1:30 a.m. on November 11. At about that time she left a bar known as The Club and was not seen again. Defense attorneys countered by putting Mike Stearns on the stand. Stearns testified that during the early morning hours of November 11, 1981, at approximately 12:30 to 1 a.m. he saw Joan Weatherall, or a woman who looked very much like her, come into Dumarocs, a bar where he worked as a disc jockey. Dumarocs is located several miles north of Carbondale on Route 51 in DeSoto. Stearns testified that he remembered the woman because she came in with two black men. He also testified that he only saw the woman from across the room and that the room was somewhat dark. It is therefore not improbable that, in weighing the testimony, the jury could find the prosecution's witnesses' testimony more credible.
The testimony of Christina Kater, a Brazilian woman who testified that she had been raped by the defendant, will not be unduly elaborated upon at this point, as it will be discussed at length below. At this point, however, we note that her testimony was capable of being construed by the jury as further substantiation or corroboration of the testimony of Mocaby and was susceptible of being weighed by the jury for the limited purpose for which it was introduced.
Applying the principles enunciated above to the testimony at trial, we find sufficient evidence to support the jury's verdict. Resolution of conflicts and/or inconsistencies in testimony is wholly within the province of the jury (People v. Sanchez (1986), 115 Ill. 2d 238, 261; People v. Collins (1985), 106 Ill. 2d 237, 262), as are determinations of witness credibility (Sanchez, 115 Ill. 2d at 261; Collins, 106 Ill. 2d at 261-62). Mocaby's testimony was subject to vigorous cross-examination, as was evidence which tended to corroborate his testimony. We cannot say that the jury's Conclusion was unsupported or unreasonable under these circumstances and therefore reject defendant's attack on the sufficiency of the evidence.
The defendant next contends that he was denied a fair trial when the State was allowed to present evidence of other crimes based on a theory of modus operandi, intent or identity when, he asserts, that evidence lacked distinctive similarities or features which would indicate that the offenses were committed by the same individual. The disputed evidence involved the abduction and rape of Christina Kater allegedly perpetrated by Phillips on December 26, 1981. Although Philips had been charged with the Kater rape, the case had not yet gone to trial. Both Mocaby's and Kater's testimony is detailed below.
As previously indicated, Mocaby testified that Phillips told him of the abduction and rape of a South American or Brazilian woman in Carbondale. At the time that Mocaby and Phillips shared a cell, Phillips had already been identified by Christina Kater as the rapist. Because she had returned to Brazil, however, Phillips indicated that he was not really worried about any pending proceedings on the charges. According to Phillips' confession, Mocaby testified, this woman was abducted near a parking lot behind Gatsby's (a restaurant and bar) in Carbondale and taken to an office at his father's business on Route 51. The automobile used for the abduction was the victim's own car. Phillips also told Mocaby that, because the victim's car was low on gas, he put some gasoline into the tank while at his father's business before taking the victim into the office. During the abduction, the defendant told Mocaby, the victim was passive and cooperative; she did not fight or put up a struggle as Phillips raped her, had oral sex with her and attempted to force her to have oral sex with him. According to the testimony, Phillips also asked Mocaby, while they were cellmates, to put a tattoo on his chest. The tattoo, Phillips had indicated, would support his assertion that he did not commit the rape because if he were the rapist, the victim would have noticed the tattoo. Mocaby, however, never gave Phillips the tattoo.
Christina Kater also testified at the trial. She testified that on the evening of December 26, 1981, she had gone to a friend's house to borrow a car in order to go to a movie. The friend's house was located in Carbondale on South University, behind Gatsby's. The car she was borrowing was parked in a parking lot that was behind the house, that is, between the house and Gatsby's. As she opened the door to the car she was pushed into the car and the rapist grabbed her while holding a knife to her neck. He then pushed her into the passenger side and started driving the car himself. During this initial scuffle, Kater's glasses were knocked off and her purse disappeared. The assailant drove for a time and then stopped the car. While stopped, Kater indicated, she was told to take off her coat, her hands were then tied behind her back with a thin rope, a piece of cloth which came down to her neck was put over her head, and the rope was tied around her neck to hold the cloth onto her head. She was also told to scoot down on the seat so that she would be out of sight. The assailant again began to drive the car but shortly thereafter stopped and got out. While he was out of the car, Kater attempted to untie her hands in order to escape, but he noticed her efforts; he hit the windshield, got back into the car, and tied her hands again. Kater indicated that her abductor was angry. He proceeded to drive for a short time and then stopped again and got out of the car. Kater again attempted to untie her hands but was again noticed. The abductor got back into the car for a few seconds; he then got out and went to open the trunk of the car where he placed Kater. He drove again for a very short time and finally stopped. He took Kater out of the trunk and, she testified, she walked over some gravel before they entered a building.
Once in the building, they went into a room in the building, the door of which the rapist closed and locked. She was then told to take off all of her clothes; the cloth was then removed from her head. The room was dark. The rapist proceeded to kiss and caress her; he then forced his penis into her mouth and then he raped her. Kater indicated that her participation in these activities was not voluntary but that she did not fight the rapist because he had a knife; she feared that if she did not cooperate he would kill her. After the rape, Kater was told to put her clothes back on, which she did; the cloth was again put over her head and her hands were tied behind her back. They left the building and her abductor attempted to put Kater back into the trunk. When she refused, he told her she could ride in the car. He then began to drive the car and, as they drove, Kater was allowed to remove the cloth covering her face. Although at that exact point in time it was still very dark and she could not see his face, as he continued to drive they passed through well-lit areas and Kater was then able to see his face.
Although Kater wears glasses, she indicated during testimony that she is nearsighted, that is, she can see things near to her clearly. At the time that she saw her abductor's face, she knew exactly where they were; they were on Walnut Street in Carbondale heading towards South University Street. These streets are major thoroughfares in Carbondale and are well lit. During this time the rapist talked with Kater and told her that he was taking her back to where he first saw her. When they arrived in the parking lot, he untied her hands and left her in the car. She did not see where he went; instead, she started the car and drove it around to the front of her friend's house and went in.
Kater testified that she told her friends what happened but that at first her friends were angry with her for not screaming and fighting the rapist. At this point, Kater indicated, she felt that everyone would have the same reaction, that they would also yell at her or be angry with her for not fighting. The police were called and while they were waiting for an officer to arrive, Kater and one of her friends went to the car to see if they could find Kater's glasses. While searching the car for the glasses and purse they noticed that the auto, which had originally had very little gas in it when Kater went to get in the car, now had a full tank. When the police officer arrived, Kater was taken to the local hospital where she was examined by a doctor who also took samples using a rape kit for evidentiary purposes. Later that same evening Kater attempted to recreate for the police officer the events of the evening before accompanying the officer to the station where she completed a written report.
In her initial report to the police, Kater indicated that she had not seen the rapist. She testified during trial that she initially told this story because she was very afraid that she would get the same reaction from the police that she had received from her friends, that she would be yelled at for not fighting her abductor. However, within a few days, by December 31, she indicated that she rethought her position, realized that not everyone would react the same way, and therefore told the police the truth, that is, that she had indeed seen the assailant and could identify him. She assisted an officer in the preparation of a composite drawing which she felt showed a likeness of the rapist.
Police subsequently showed her photographs from which she identified the rapist. As we have already discussed, this identification preceded the time during which Phillips and Mocaby shared a cell. At the Weatherall trial Kater identified the defendant as the person who had raped her. The defendant, at the time of the Weatherall trial, was still awaiting trial on the Kater rape charges. Kater's testimony was subject to vigorous and thorough cross-examination at the Weatherall trial; in addition, we note that the defendant's attorney who was representing him in the Kater proceedings against the rape charges was required to be present during the entire Weatherall trial. The court indicated that this was for the very purpose of assisting the Weatherall defense attorney and protecting the interests of the defendant as to any testimony or information about the Kater rape which might be elicited during the Weatherall trial.
Admission of the testimony regarding the Kater case was subject to extensive briefing and oral argument prior to the trial court's decision to allow the testimony. In reviewing the similarities which the State asserted were an indication of a common scheme, intent, or design of modus operandi, the court recognized 10 factors which supported a finding of common scheme: both victims were abducted from downtown Carbondale; the points of abduction were just three blocks away from each other; the crimes occurred just 46 days apart; both women were about the same age; both women were abducted after dark; both women were placed in the trunk of the car during the abduction; force was used against both women and each had had her hands tied; both women were taken to the industrial park where the defendant's father maintained his place of business; both women were raped and subjected to deviate sexual assault; and both incidents occurred over a holiday period when the particular business location used for the perpetration of the crimes would be empty.
Defendant contends that the Kater testimony should have been disallowed because the two crimes were totally dissimilar and only served to improperly prejudice the jury with a showing that the defendant had a propensity to commit crimes. The most obvious difference, defendant asserts, is the fact that in this (Weatherall) case the woman was violently and brutally killed while in the Kater case the victim was treated "in a totally non-violent manner." While it is apparent from Kater's own description that she did not have lacerations to the head, a chipped skull, a black eye or swollen lips following the rape, it is inconceivable how the mere absence of such injuries transforms an alleged crime of rape into a "non-violent" activity. Nor do we find persuasive defendant's arguments that other differences are indeed substantial differences that are determinative, i.e., the use of the victim's car as opposed to the use of his wife's car; the difference between a 7 p.m. abduction and a 1:30 a.m. abduction; the return of the victim to the spot where abducted as opposed to being dumped in the strip pit; the difference between being choked unconscious and having the head covered with cloth; the difference in timing as to when the victim's hands were tied (before or after the rape); the difference between an alleyway and a parking lot.
We also find unpersuasive defendant's argument that the testimony obviously should not have been allowed because the jury did not subsequently find the defendant guilty of felony murder during the commission of rape and deviate sexual assault. The admittance of testimony is not Judged in hindsight based on the jury's final verdict, but rather on its relevance. People v. McKibbins (1983), 96 Ill. 2d 176, 182.
This court has long held that evidence which tends to prove a fact in issue is admissible even though it may be evidence showing that the accused has committed a crime other than the one for which he is being tried, and evidence which shows motive, intent, identity, or modus operandi is admissible despite the fact that it may show the commission of another crime. (People v. Lehman (1955), 5 Ill. 2d 337, 343; People v. McDonald (1975), 62 Ill. 2d 448, 455; People v. McKibbins (1983), 96 Ill. 2d 176, 182.) Evidence of other offenses has been upheld as admissible if it is relevant for any purpose other than to show the propensity to commit crimes. (McKibbins, 96 Ill. 2d at 182; McDonald, 62 Ill. 2d at 455; People v. Dewey (1969), 42 Ill. 2d 148, 157.) The threshold question of whether a crime occurred in which the defendant participated (Wernowsky v. Economy Fire & Casualty Co. (1985), 106 Ill. 2d 49, 55) has been answered in the affirmative. While similarity is essential to admittance of the disputed evidence, the test is not one of exact, rigorous identity. This court has recognized that "some dissimilarity will always exist between independent crimes." People v. Taylor (1984), 101 Ill. 2d 508, 521.
The defendant's reliance on People v. Tate (1981), 87 Ill. 2d 134, is not persuasive. Tate is often cited for the proposition that evidence of other crimes as proof of modus operandi is only admissible upon a "strong and persuasive showing of similarity." (87 Ill. 2d at 141.) While that proposition is not contested, defendant goes on to assert that we are also bound by this court's statement in that case that "there must be present some distinctive features that are not common to most offenses of that type in order to demonstrate modus operandi." (87 Ill. 2d at 143.) Defendant asserts that the Weatherall and Kater cases do not have such "distinctive features" which distinguish it from other offenses of this type. Tate, however, in discussing the distinctive features argument, was concerned with admitting evidence of another person's commission of a crime in order to support the defendant's contention that he did not commit the crime for which he was charged.
In Tate evidence was presented that the defendant had entered a grocery store, walked to the meat counter and was observed putting items in his coat by the store's security guard. When the security guard confronted him and told him that he was under arrest, he attempted to head back to the meat counter. The security guard grabbed him, however, and began to frisk him. The defendant then dropped the meat and a struggle ensued. During the struggle the defendant grabbed the guard's gun; he then went to the front of the store where he attempted to break the lock on the door which the cashiers had secured. When the attempt failed, the defendant ran to the back of the store and fled through the back door. At trial, the guard and two cashiers identified the defendant as the man involved in the robbery. The evidence which the defendant asserted should have been provided to him was the arrest report of an offense committed by James Brown. The report indicated that Brown had tried to steal meat and that when a police officer who had been called to the scene followed him out of the store he threw the meat to the ground and ran. The officer ran after Brown, tackled him to the ground, and during the struggle Brown tried to grab the officer's gun. The court concluded that the stealing of meat by hiding it in or under a coat, fleeing from an officer, and reaching for an officer's gun during a struggle did not amount to distinctive features which would mark the offenses as the work of a single perpetrator.
The case before this court presents a quite different scenario than that confronted by our court in Tate. While our court saw the events described in Tate as nondistinctive and capable of being found in many shoplifting and struggle cases, it was also noted that distinctive links could be found with evidence which indicated that a defendant was "using similar weapons, dressing the same, acting with the same number of people, or even [using] a distinctive method of committing this particular offense." (87 Ill. 2d at 142.) This listing of links was not meant to be all-inclusive or limiting on the trial court's weighing and balancing of similarities and dissimilarities.
As noted above, the trial court found 10 distinct areas of similarities between the Weatherall and Kater abductions. On review of the record, we find that the similarities were sufficient to warrant admission of testimony regarding the Kater offense in the Weatherall trial. The mere presence of some dissimilarities does not catapult the testimony into a "clear abuse of discretion" category necessary on review to warrant reversal of the trial court's decision.
Defendant's third argument claims that he was denied a fair trial based on the prosecutor's improper statements made during the closing argument. The allegedly improper statements involved (1) a prosecutorial remark accusing the defense case of being a fraud, (2) an attempt to shift the burden of proof to the defendant, and (3) an obfuscation of the meaning of reasonable doubt.
The first argument, alleging improper statements based on an accusation of fraud, involves two statements made by the prosecutor. In discussing certain defense witnesses -- Kirkpatrick, Kane and Manna -- and their reliability or credibility, the prosecutor indicated that "it is the weaknesses that expose this defense as nothing more than a fraud. It is nothing more than a type of trickery . . .." Defense counsel objected to the statement; the court sustained the objection and instructed the jury to "disregard fraud and trickery." Later in the closing argument, when discussing evidence about the presence of dogs on the Phillips property and defendant's concern that Kater never indicated that she heard the barking of dogs and thus she could not have been on that property, the prosecutor pointed to testimony by the defendant's former wife. In that testimony, the defendant's former wife indicated that the defendant had been hunting earlier on the day of the Kater abduction. The prosecution speculated that because of the hunting trip perhaps the dogs were not even on the property. In referring to the defendant's concern about barking dogs, the prosecutor went on to say: "It is all part of a shotgun defense. Throw that out and see what sticks. It is nothing more than a red herring intended to distract you from the real issues in this case." The State argues that defense attorneys did not object to this statement during the closing argument, thus any alleged error is waived. (People v. Adams (1985), 109 Ill. 2d 102, 118; People v. Gacy (1984), 103 Ill. 2d 1, 88.) Additionally, the State argues, neither statement was raised in the defendant's motion for a new trial, thereby waiving consideration on appeal. People v. Jones (1988), 123 Ill. 2d 387, 410; People v. Enoch (1988), 122 Ill. 2d 176, 190.
Defendant urges the court to consider the argument, however, under our plain error rule (107 Ill. 2d R. 615(a)). As this court has stated in the past, though, in order for the statements to be considered plain error they must be either "so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process." (People v. Albanese (1984), 104 Ill. 2d 504, 518.) Neither comment by the prosecutor reaches such level so as to be construed as inflammatory or a flagrant threat to the judicial process. In reviewing specific statements made in the closing arguments we must look to more than just a few words in isolation; we must look to the entire context in which the words were uttered. Often, the same word may have a completely different impact on a listener, ...