Appeal from the Circuit Court Madison County No. 96CF90 Honorable Ann Callis, Judge Presiding.
The opinion of the court was delivered by: Justice Rarick
Defendant, John Derr, was found guilty after a jury trial in the circuit court of Madison County of felony murder-robbery, involuntary manslaughter and concealment of a homicidal death in connection with the death of Dennis Oberbeck on August 14, 1992. Defendant was sentenced to 25 years' imprisonment for the felony murder-robbery, five years, to be served concurrently, for the involuntary manslaughter and five years, to be served consecutively, for the concealment of a homicidal death. Defendant appeals contending the trial court erred: (1) in denying his motions for judgment of acquittal and new trial when the State failed to establish the essential elements of felony murder-robbery as charged; (2) in allowing defendant's spouse to testify to her observations of defendant; (3) in allowing the prosecutor to make repeated references in closing argument to defendant's failure to present evidence, thereby denying defendant a fair trial; and (4) in entering judgment on both the felony murder-robbery and involuntary manslaughter verdicts which defendant believes are inconsistent. We reverse defendant's convictions and remand this cause for a new trial.
On the evening of August 13, 1992, the victim, Dennis Oberbeck was at Geno's 140 Club in Bethalto, Illinois. The victim worked as a bartender for the club, but on this evening was drinking and socializing there. The bartender who was on duty testified defendant began talking to the victim around 7 p.m. and was trying to get the victim to leave with him around 10 p.m. According to her, eventually defendant, the victim and two other men left the bar together and stood outside on the west side of the club talking. One of the two men testified the victim asked him to lend him some money. He did not have the money to lend and left defendant and the victim alone outside the club at approximately 1:30 a.m. The fourth man, according to other witnesses, joined the three while they were already standing outside the club and was asked to leave upon approaching the group. No one testified to seeing defendant or the victim after 1:30 a.m.
Defendant's ex-wife, who at the time of the incident was still married to defendant, testified she was awakened by voices in her living room in the early morning hours of August 14, 1992. She recognized her husband's voice and fell back to sleep. At approximately 2 a.m., she testified she was again awakened by a telephone call. Following the phone call, she drove to a house in Granite City which she and defendant owned and met defendant at the side door. Once inside, defendant showed her a ring similar to a class ring with a blue stone. He then turned the lights on and off quickly and she noted a man lying on the floor. She went over to the man and tried without success to locate a pulse. She identified a photograph of the body of the victim as the person she had seen lying on the floor of the Granite City house. She further testified she did not observe any bruises on the face of the body similar to those depicted in the autopsy photo. Defendant took the body from the house and put it in his van. Defendant then drove across the street onto a levee and stopped. She followed defendant in her truck. They talked for a few minutes, and defendant again showed her the ring and a silver watch which he then tossed toward the water. They left the levee in their separate vehicles. The wife followed defendant until she had to stop suddenly at a light. When she stopped, a tractor in the back of the truck slid forward and broke the rear window of the truck. At that point, she decided to go back home. Some 30 minutes later, defendant arrived. The body of the victim was subsequently found in the lot of an abandoned house in north St. Louis. The autopsy report indicted the victim's blood alcohol was 0.377. The pathologist who performed the autopsy testified the victim died as a result of elevated blood alcohol which impaired his brain function and subsequently sustaining blows to the head which caused the brain to cease functioning. The injuries to the victim's head, by themselves, could not have been fatal. The pathologist further testified the injuries to the head were most likely caused by a fist but possibly could be attributed to a combination of falls. A wallet and diamond wedding ring were found on the victim. The victim's wife testified the victim also wore a bowling ring with a ruby stone and a gold watch, neither of which were ever recovered.
Defendant raises four arguments on appeal. We address his third contention first, for we find the prosecutor's closing argument mandates reversal of defendant's convictions and remandment of this cause. Defendant argues the prosecutor's repeated references to his failure to present evidence to prove his innocence and testify at trial denied him a fair trial. We agree.
In general, prosecutors are afforded wide latitude in closing argument, and usually a trial court's determination as to the propriety of such arguments will not be disturbed on review. See People v. Campbell, 199 Ill. App. 3d 775, 783, 557 N.E.2d 556, 561 (1990); People v. Sheppard, 193 Ill. App. 3d 401, 403, 549 N.E.2d 971, 972 (1990). As defendant points out, however, this wide latitude has limits. It is a basic principle of our criminal justice system that prosecutors owe defendants a duty of fairness. See People v. Yonker, 256 Ill. App. 3d 795, 798, 628 N.E.2d 1124, 1127 (1993); People v. Gutierrez, 239 Ill. App. 3d 536, 543, 605 N.E.2d 1110, 1115 (1992). This duty extends throughout the trial and includes closing statements. Simply put, the prosecutor has an ethical obligation to refrain from presenting improper and prejudicial argument. People v. Hudson, 157 Ill. 2d 401, 441, 626 N.E.2d 161, 178 (1993); Gutierrez, 239 Ill. App. 3d at 543, 605 N.E.2d at 1115. To be sure, a prosecutor is expected to prosecute with earnestness and vigor. See People v. Lyles, 106 Ill. 2d 373, 412, 478 N.E.2d 291, 308 (1985). But, as the United States Supreme Court has recognized, "while [the prosecutor] may strike hard blows, he [or she] is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629, 633 (1935). In this instance, prosecutor Weber made six references in closing argument to uncontradicted and/or unrebutted evidence. We acknowledge that it is generally permissible for the State to point out that evidence is uncontradicted even if the defendant is the only person who could have provided contrary proof. See People v. Keene, 169 Ill. 2d 1, 21, 660 N.E.2d 901, 911-12 (1995); People v. Connolly, 186 Ill. App. 3d 429, 437, 542 N.E.2d 517, 522 (1989). Such comments are not permitted, however, if they are intended or calculated to direct the attention of the jury to the defendant's failure to testify. See People v. Romero, 189 Ill. App. 3d 749, 757, 546 N.E.2d 7, 12 (1989). Mr. Weber's comments did just that. His intent and motive were made perfectly clear by his comments outside the presence of the jury in responding to defense counsel's objections. After the objection to Weber's first use of the phrase "uncontradicted" was overruled, defense counsel commented to Weber: "So you're going to go back out and aggravate it?" Weber responded: "There's no doubt about that." After repeating the phrase five more times, Weber then told the jury: "[Defendant] sure didn't prove his innocence. He didn't prove anything." The trial judge, in responding to defense counsel's objections, stated she believed Weber was "walking the line." Weber retorted: "But I can tell you right now I know where the line is *** I know where the line is." Our response: Mr. Weber, you do not. In our view, Weber's comments exceeded the bounds of reasonable and proper comment. They were part of a concerted effort to highlight defendant's failure to testify and shift the burden of proof. It is reversible error for the prosecution to attempt to shift the burden of proof to the defense, notwithstanding the fact that the jury is properly instructed regarding the burden of proof. See Gutierrez, 239 Ill. App. 3d at 545, 605 N.E.2d at 1116. Given the cumulative effect of the prosecutor's comments and the nature of the evidence in this case, we believe defendant was denied a fair trial. See People v. Johnson, 102 Ill. App. 3d 122, 429 N.E.2d 905 (1981); People v. Escobar, 77 Ill. App. 3d 169, 395 N.E.2d 1028 (1979). The evidence of guilt can hardly be characterized as overwhelming; consequently this is not a matter of harmless error. Reversal and remandment for a new trial is not only justified in this instance, it is required.
Because we are remanding this cause for a new trial, we must consider whether the evidence was sufficient to prove defendant's guilt beyond a reasonable doubt to avoid any double jeopardy problems. See People v. Fornear, 176 Ill. 2d 523, 535, 680 N.E.2d 1383, 1389 (1997). Examining the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt (see, e.g., People v. Patton, 249 Ill. App. 3d 844, 849, 619 N.E.2d 1377, 1381 (1993)), we hold the evidence, albeit weak and primarily circumstantial, is sufficient. Testimony of several witnesses placed defendant in the victim's company as late as 1:30 a.m. Testimony of defendant's ex-wife placed the body of the victim alone with defendant in a house they owned. There was no direct evidence of defendant killing, striking or in any way harming the victim, but the pathologist who performed the autopsy on the victim testified in his opinion the victim was struck several times with a fist and the combination of the blows to the head, with the victim's level of intoxication, resulted in his death. A defendant's acts need not be the sole and immediate cause of death in order to find him or her guilty of murder. See People v. Lowery, 178 Ill. 2d 462, 471, 687 N.E.2d 973, 978 (1997). The State needs only to prove beyond a reasonable doubt that the defendant's actions were a contributing cause to a death such that the death did not result from a source unconnected with the defendant's acts. As often noted, the defendant must take the victim as he finds him. See Patton, 249 Ill. App. 3d at 849-50, 619 N.E.2d at 1381. Moreover, it is not necessary that the trier of fact be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. See People v. McDonald, 168 Ill. 2d 420, 444, 660 N.E.2d 832, 842 (1995). The trier of fact is not required to disregard inferences which flow normally from the evidence before it, nor need it search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. See People v. Campbell, 146 Ill. 2d 363, 380, 586 N.E.2d 1261, 1268 (1992). The evidence presented supports defendant's conviction for involuntary manslaughter. Defendant argues, however, the evidence is "virtually non-existent" to support the conviction for felony murder-robbery. To convict a defendant of felony murder, the State must prove beyond a reasonable doubt that the defendant killed an individual without lawful justification if, in performing the acts which caused the death, he was attempting or committing a forcible felony other than second degree murder. See 720 ILCS 5/9-1(a)(3) (West 1992). Death does not have to be contemporaneous with the commission of the forcible felony. And, the fact that the precise manner in which the death occurred may not have been foreseen does not relieve the defendant of responsibility. See People v. Brackett, 117 Ill.2d 170, 180, 510 N.E.2d 877, 882 (1987); People v. Pugh, 261 Ill. App. 3d 75, 77-78, 634 N.E.2d 34, 36 (1994). A forcible felony includes robbery (see 720 ILCS 5/2-8 (West 1992)), and the offense of robbery is committed when a person takes property from the person or presence of another by the use of force or by threatening the imminent use of force. See 720 ILCS 5/18-1(a) (West 1992). See also People v. Jones, 149 Ill. 2d 288, 292, 595 N.E.2d 1071, 1073 (1992). The jury could reasonably find the use of force in this instance, given the evidence of blows sustained to the victim's head prior to his death. The evidence also revealed a watch and ring were taken from the victim or at least from his body. The prosecution is not required to prove in any particular order the force and taking elements of a robbery charge. The prosecution need only show some concurrence between the force used and the taking of the property. See People v. Williams, 118 Ill. 2d 407, 416, 515 N.E.2d 1230, 1235 (1987). The fact that the victim is reduced to a state of non-resistance before any property is taken does not relieve the crime of the quality constituting robbery. See People v. Lewis, 165 Ill. 2d 305, 339-40, 651 N.E.2d 72, 88 (1995). The prosecution need not show that the force even was asserted for the purpose of taking the property. See People v. Aguilar, 286 Ill. App. 3d 493, 498, 676 N.E.2d 324, 327 (1997). We agree the circumstantial evidence presented here was sufficient to permit the trier of fact to conclude there was a concurrence between the use of force which resulted in the victim's death and the taking of property from his person. We also have no problem with the sufficiency of the evidence to sustain defendant's conviction for concealment of a homicidal death. According to defendant's then wife, the body of the victim was put in defendant's van, defendant drove off, threw some of the victim's possessions in the river, and later returned home with an empty van. The body of the victim was subsequently found in the backyard of an abandoned building in north St. Louis.
Because we are reversing defendant's convictions and remanding this cause for a new trial, we choose not to address defendant's contention that his guilty verdicts for involuntary manslaughter and felony murder- robbery are legally inconsistent. We must address, however, his second contention on appeal, that the court erred in allowing defendant's former spouse to testify to her observations of defendant's actions on August 14, 1992, in violation of the marital privilege, as this issue most assuredly will resurface on re-trial.
In Illinois a husband and wife may testify for or against each other in criminal cases, provided that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during the marriage. See People v. Layne, 286 Ill. App. 3d 981, 989, 677 N.E.2d 469, 475 (1997); People v. Muzard, 210 Ill. App. 3d 200, 212, 569 N.E.2d 26, 32 (1991). Admission of evidence in violation of the marital privilege, which contributes to a guilty verdict, constitutes denial of a fair trial and requires reversal. Muzard, 210 Ill. App. 3d at 212, 569 N.E.2d at 32-33.
Implicit in the term "communication" is speech. See People v. Krankel, 105 Ill. App. 3d 988, 991, 434 N.E.2d 1162, 1164 (1982). Certain acts, however, may also constitute communication, such as a nod of the head. See People v. Murphy, 241 Ill. App. 3d 918, 924, 609 N.E.2d 755, 760 (1992); Krankel, 105 Ill. App. 3d at 991, 434 N.E.2d at 1164. In order to fall within the privilege, though, the nonverbal conduct must clearly be a substitute for oral communications. The mere description by one spouse of general, non-communicative conduct is not protected by the marital privilege. See Krankel, 105 Ill. App. 3d at 991, 434 N.E.2d at 1164. See also People v. Krankel, 131 Ill. App. 3d 887, 894-95, 476 N.E.2d 777, 784 (1985). We agree with the State that the former wife's testimony in this instance did not constitute "communications" within the intendments of any marital privilege, and therefore the trial court did not abuse its discretion in allowing in her testimony.
For the aforementioned reasons, we reverse defendant's convictions and remand this cause for a new trial.