Appeal from Circuit Court of Sangamon County. No. 94CF597. Honorable Diane L. Brunton, Judge Presiding.
As Corrected September 16, 1997.
Honorable Robert J. Steigmann, P.j., Honorable James A. Knecht, J., Concur. Honorable Robert W. Cook, J., Dissent. Presiding Justice Steigmann delivered the opinion of the court.
The opinion of the court was delivered by: Steigmann
PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:
In November 1995, a jury convicted defendant, Terrance Woods, of first degree murder, home invasion, and armed robbery (720 ILCS 5/9-1, 12-11, 18-2 (West 1994)). The trial court later sentenced him to consecutive terms of 60, 30, and 30 years in prison, respectively. Defendant appeals, arguing only that the prosecutor committed reversible error by commenting during closing argument on defendant's failure to call an alibi witness. We affirm.
We review the trial evidence only to the extent necessary to put defendant's argument in context. Springfield police officer Tim Young testified that as part of his investigation into the murder of Bill Meyers, Young questioned defendant, who told Young that on the night of the murder he had been at his mother's house with his mother, Dorothy Williams, and his girlfriend, Ira Jean Bolden. At trial, defendant presented an alibi defense through the testimony of Williams, who corroborated the story defendant gave Young. Defendant did not testify.
During closing argument, the prosecutor made the following comments:
"But remember what the defendant said to the police. He said my mother and my girlfriend, [Bolden], can back up my story. They can verify that I was home all day at my mother's house.
And we heard a little bit about [Bolden]. *** But at some point, somebody decided that they didn't want you to hear what [Bolden] had to say."
Defendant objected but the trial court overruled the objection, noting that defense counsel had indicated in his opening statement that he would call Bolden to testify regarding defendant's whereabouts on the night of the shooting. In fact, defense counsel had made no mention of Bolden as an alibi witness in opening statement.
II. THE PROSECUTOR'S CLOSING ARGUMENT
Defendant argues the prosecutor committed reversible error by commenting during closing argument on defendant's failure to call Bolden as an alibi witness. The State concedes the trial court mischaracterized defendant's opening statement but argues that the prosecutor's comments were nevertheless proper in light of Williams' testimony. We agree with the State.
In People v. Fly, 249 Ill. App. 3d 730, 736, 619 N.E.2d 821, 825, 189 Ill. Dec. 120 (1993), quoting People v. Eddington, 129 Ill. App. 3d 745, 777, 473 N.E.2d 103, 125, 84 Ill. Dec. 887 (1984), this court wrote the following:
"'As a general rule, it is improper for the prosecution to comment on a defendant's failure to present witnesses when such witnesses are equally accessible to both parties. [Citation.] An exception to the rule exists where potential alibi witnesses are interjected into the case by the defendant but are not produced at trial.'"
Further, in People v. Kubat, 94 Ill. 2d 437, 498, 447 N.E.2d 247, 275, 69 Ill. Dec. 30 (1983), the supreme court addressed the defendant's contention that the prosecutor improperly commented upon the defendant's failure to present an alibi witness where the State initially had brought out at trial the name of the defendant's alibi. In Kubat, a police officer testified that in response to officers' questions after his arrest, the defendant stated that he was with a female friend in another state on the date of the offense. A witness later testified for the defense. that she saw the female friend with a man fitting defendant's description on either the day before or the day of the offense. Consistent with People v. Blakes, 63 Ill. 2d 354, 348 N.E.2d 170 (1976), the supreme court in Kubat (94 Ill. 2d at 498, 447 N.E.2d at held that "where a defendant injects into the case the name of an alibi witness and then fails to call the witness, the prosecutor may legitimately comment on the lack of such evidence although it may not be relied upon as proof of the charge."
In Blakes, the supreme court held that it was not improper for the prosecutor to comment on the defendant's failure to produce any witnesses from the club where the defendant had testified he spent five hours on the night of the offense. The supreme court reasoned as follows:
"'If it is developed in a trial that a witness exists, presumably under the control of a defendant, who can throw light upon a vital matter, and he is not produced, certainly a jury may fairly consider that fact, and, likewise, counsel would have a legitimate right to comment thereon. ***
*** Though failure to call a witness or produce evidence may not be relied on as substantial proof of the charge, nonetheless, if other evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.'" Blakes, 63 Ill. ...