The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Ralph Reyna, judge Presiding.
Defendant Anthony Barker was found guilty of aggravated reckless homicide and reckless homicide after an automobile accident in which a young woman, Ruth Erwin, was killed. Defendant, who had been driving under the influence of alcohol and cocaine, ran a stop light at a high rate of speed and crashed into Ms. Erwin's vehicle. Following a jury trial, defendant was convicted and sentenced to 13 years in prison.
On appeal, defendant asserts the following: (1) the State's repeated references to the victim's family and the victim's good character resulted in plain error; (2) the trial court erred in admitting the incriminating hospital statement of witness and passenger John Vargas as substantive evidence; (3) defendant was denied effective assistance of counsel due to numerous alleged errors on the part of defense counsel; and (4) defendant's sentence was excessive and should be reduced.
Upon review, we affirm defendant's conviction and sentence.
On July 23, 1994, at approximately 3:30 a.m., defendant ran a red light at a high rate of speed, striking the vehicle of Ruth Erwin as she proceeded southbound through an intersection. Ms. Erwin was killed instantly. There were four eyewitnesses to the accident, all of whom identified defendant as the driver of the car at the time of the accident. Mitchell Prestler testified defendant was driving at the time of the accident, and he observed the vehicle enter the intersection on a red light. He estimated the vehicle's speed to be at least 70 miles per hour. He also observed an Hispanic male, later identified as John Vargas, in the passenger side of the car at the time of the accident. Mr. Prestler's brother, Michael, also testified that he observed defendant in the driver's seat and Vargas in the passenger seat. Another witness, Ahmed Hill, also testified as to the high rate of speed and identified defendant as the driver of the vehicle and Vargas as the passenger. Finally, witness Henry Hill testified defendant was the driver and Vargas the passenger at the time of the crash.
Following the accident, defendant and Vargas were transported to Northwestern Hospital. At the hospital, Vargas gave a statement to Assistant State's Attorney Joe Roddy in which he described the facts leading up to the crash. In his statement, Vargas stated that he and defendant had been driving around in defendant's car since 2 p.m. that afternoon. He stated they stopped at a liquor store and purchased a six-pack of beer and, later in the evening, stopped at a bar, Cafe Fresco, where defendant got out of the vehicle and proceeded into the bar. After defendant exited the bar carrying a glass containing a dark liquid, the two continued to drive around and returned again to the liquor store to purchase another six-pack of beer. Vargas stated that at that time, the two began to snort cocaine. In the early morning hours, defendant was involved in a police chase in which he ran several red lights and was driving at a very high rate of speed. In his statement, Vargas estimated defendant Barker was traveling at over 85 miles an hour at the time his vehicle struck the victim's vehicle.
The defense presented at trial was that Vargas, not defendant, was the driver of the vehicle at the time of the crash. At trial, Vargas admitted giving the statement to Assistant State's Attorney Roddy but denied making the statements incriminating defendant as the driver of the vehicle. Vargas testified he did not remember who was driving at the time of the accident. At trial, defendant testified he passed out from the cocaine and that Vargas was driving at the time of the accident.
Defendant appeals his conviction of aggravated reckless homicide and reckless homicide and his sentence of 13 years in prison.
Defendant first contends the State improperly appealed to the sympathy of the jury with various references to the family of the deceased, the good character of the deceased, and the defendant's criminal associate, John Vargas. By failing both to object at trial and raise this argument in a posttrial motion, defendant has waived any alleged error with regard to this issue. People v. Enoch, 122 Ill. 2d 176, 185, 522 N.E.2d 1124 (1988). Defendant, however, argues the remarks constitute plain error. Under the plain error doctrine, issues not properly preserved may be considered on review. Plain error may be shown when the evidence in the case is closely balanced or when the alleged error is so fundamental that it denied the defendant's right to a fair trial. People v. Burgess, 176 Ill. 2d 289, 680 N.E.2d 357 (1997).
An examination of the record supports defendant's contention that the prosecution's remarks and the direct examination of the victim's father regarding the deceased's background and character, as well as the remarks about the character of defendant's associate, were improper. Illinois law is clear that such attempts to appeal to the emotions of the jurors are not permissible. See People v. Hope, 116 Ill. 2d 265, 508 N.E.2d 202 (1986); People v. Henderson, 142 Ill. 2d 258, 323, 568 N.E.2d 1234 (1990). However, in the present case, these comments did not deny defendant a fair trial in light of the overwhelming evidence of his guilt.
The prosecution presented clear and basically uncontroverted evidence supporting a guilty verdict. Significantly, four witnesses at the scene identified defendant as the driver of the automobile. Additionally, a Chicago police officer testified that, after the crash, defendant stated "it was me," and a doctor who treated defendant at the hospital testified that defendant stated he was driving the vehicle at the time of the crash. Defendant tested positive for both alcohol and cocaine following the crash. Several witnesses also testified as to the high rate of speed at which the vehicle was traveling immediately before the crash, as well as the fact the car ran the red light at the intersection where the crash occurred.
In a written statement, the passenger in defendant's car, Vargas, identified defendant as the driver of the car, noted defendant had run a red light at a high rate of speed immediately before the crash, and stated he and defendant had been drinking alcohol and ingesting cocaine that night. In light of the overwhelming evidence in the case, we fail to see how the conduct of the prosecution, though improper, denied defendant a fair trial.
Alternatively, the prosecutorial errors are not so fundamental as to have denied defendant's right to a fair trial. Every defendant is entitled to a fair trial free from prejudicial comments by the prosecution. People v. Grano, 286 Ill. App. 3d 278, 676 N.E.2d 248 (1996). However, improper remarks by a prosecutor generally do not constitute reversible error unless they result in substantial prejudice to the accused and were material to his conviction. People v. Sims, 285 Ill. App. 3d 598, 606, 673 N.E.2d 1119 (1996). Illinois courts have specifically addressed references to a victim's family and found that, although improper, such remarks do not necessarily constitute reversible error.
In People v. Bartall, 98 Ill. 2d 294, 322, 456 N.E.2d 59 (1983), quoting People v. Wilson, 51 Ill. 2d 302, 307 (1972), the court stated that every mention of a deceased's family does not necessarily entitle the defendant to a new trial "'since, in certain circumstances, dependent upon the factual circumstances, such evidence and argument can be harmless, particularly when the death penalty is not imposed.'" As in Bartall, the misconduct in the present case, though improper, was harmless error. See also People v. Shelton, 293 Ill. App. 3d 747, 755, 688 N.E.2d 831 (1997)(comments about the victim's family can constitute harmless error where the defendant is not substantially prejudiced); People v. Flax, 255 Ill. App. 3d 103, 627 ...