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07/14/94 PEOPLE STATE ILLINOIS v. CHRISTOPHER GROSS

July 14, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHRISTOPHER GROSS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lee County. No. 92-CF-148. Honorable Thomas E. Hornsby, Judge, Presiding.

Released for Publication August 15, 1994.

Inglis, McLAREN, PECCARELLI

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

This case presents an issue of first impression to this district: the use of videotape evidence during closing argument. Defendant, Christopher Gross, appeals his conviction and sentence in the circuit court of Lee County for involuntary manslaughter (720 ILCS 5/9-3 (West 1992)). A jury convicted defendant in connection with the July 8, 1992, death of the infant son of defendant's girlfriend, Kelly Botts. The trial court sentenced defendant to an extended term of seven years' imprisonment. On appeal defendant contends that the trial court erred in permitting the prosecutor during closing argument and rebuttal to replay excerpts from a videotaped interview. He also contends that the extended sentence constitutes an abuse of discretion. We affirm.

Testimony indicated that on the morning of July 8, 1992, around 8:30 a.m., Botts left her two sons, a 2-year-old and a 10-month-old, in defendant's care. The infant cried incessantly, and around 10 a.m. defendant shook him and squeezed him to stop the crying. A neighbor across the street heard the infant cry and then scream. When defendant returned the infant to his crib, the infant continued to cry, so defendant backhanded him across the face. Botts returned home about 2 p.m.

The infant's condition deteriorated throughout the day. In the evening, around 7 p.m., defendant and Botts found him pale and nonresponsive, his eyes rolled back into his head. Botts took the infant to the hospital, where he was pronounced dead on arrival at about 7:35 p.m. The infant's body was bruised on the back and neck, and to a lesser extent on his distended abdomen. The internal autopsy indicated peritonitis (a tear in the colon) and consequences therefrom as the cause of death. A doctor testified for the State that the tear could be caused by squeezing the abdomen hard enough to cause the chest to touch the spine.

The State entered into evidence a videotape of a police interview with defendant. During closing argument, the court permitted the prosecutor to replay certain portions of the tape for the purpose of pointing out inconsistencies within the taped interview and inconsistencies between the taped interview and defendant's trial testimony. The jury then returned a verdict of guilty of involuntary manslaughter, and the court imposed sentence.

Defendant first contends that the trial court denied him a fair trial by allowing the prosecutor to replay excerpts from the videotape, because this replay placed undue emphasis on the contents of the interview. The parties seem to agree that the replaying of parts of the tape during closing argument is analogous to reading from the record during closing argument. We agree. (See People v. Ammons (1993), 251 Ill. App. 3d 345, 190 Ill. Dec. 648, 622 N.E.2d 58.) A trial court's decision to allow counsel to read from the record during closing argument will not be disturbed absent an abuse of discretion. People v. Pierce (1974), 56 Ill. 2d 361, 364, 308 N.E.2d 577; People v. Davies (1977), 50 Ill. App. 3d 506, 513, 8 Ill. Dec. 390, 365 N.E.2d 628.

Upon defendant's objection, the trial court initially denied the prosecutor permission to play the entire 45-minute videotape during closing argument. Following argument on the propriety of this request, the court permitted the presentation of excerpts for the purpose of demonstrating inconsistencies. The prosecutor presented these eight excerpts during closing: (1) defendant states that he lost his temper when he struck the infant; (2) defendant states that he was more scared than mad when he "freaked out" and struck theinfant; (3) defendant indicates that he could possibly have bruised the infant when he squeezed him; (4) defendant states that the infant was alive but not "fine" when defendant left; (5) defendant states that the infant cried worse when shaken; (6) defendant states that the infant did not cry worse when shaken; (7) defendant answers that he does not know or does not think he squeezed the infant hard enough to cause his bowels to descend; and (8) defendant answers that it is possible that he squeezed the infant hard enough to cause his bowels to descend.

During rebuttal, the prosecutor presented an excerpt wherein defendant asserts that the infant's mother admitted beating her children daily and admitted beating one of them thoroughly on the night before the infant's death. The prosecutor argued here that if this were true, the statement would have been made earlier in the interview.

Properly admitted evidence may be displayed during closing argument. ( People v. Eckles (1980), 83 Ill. App. 3d 292, 301, 38 Ill. Dec. 934, 404 N.E.2d 358.) A prosecutor may summarize during closing and dwell at length on the testimony of a particular witness. ( Davies, 50 Ill. App. 3d at 514.) The excerpts here comprised a small fraction of the entire tape, an even smaller fraction of the entire record. Each was presented to demonstrate an inconsistency either with other statements on the tape or with testimony. Under these circumstances, we find no abuse of discretion in the decision to allow the replay of limited excerpts of videotaped evidence for the purpose of summary during closing argument.

Defendant's reliance on Ammons, 251 Ill. App. 3d 345, 190 Ill. Dec. 648, 622 N.E.2d 58, People v. Williams (1983), 97 Ill. 2d 252, 73 Ill. Dec. 360, 454 N.E.2d 220, and People v. Franklin (1990), 135 Ill. 2d 78, 142 Ill. Dec. 152, 552 N.E.2d 743, is misplaced. In Ammons, a conviction was reversed where the State replayed an 18-minute audiotaped statement in its entirety during closing argument. ( Ammons, 251 Ill. App. 3d at 347.) There, the taped statement was substantially similar to the defendant's testimony, so that replaying it in its entirety placed undue emphasis on its contents. Ammons, 251 Ill. App. 3d at 347.

Unlike the recorded statement in Ammons, the statement in this case was substantially dissimilar to defendant's testimony. Replaying excerpts did not place undue emphasis on the contents of the recorded statement. Rather, it facilitated the ...


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