The opinion of the court was delivered by: Justice McBRIDE
Appeal from the Circuit Court of Cook County. Honorable Reginald H. Baker, Judge Presiding.
Following a jury trial, defendant Xavier Edgecombe was convicted of armed robbery and sentenced to a six-year prison term. On appeal, defendant contends that he was denied a fair trial because the State engaged in improper argument and the trial court improperly admitted hearsay evidence of flight. We reverse and remand for a new trial.
Briefly stated, the State's evidence established that DeShon Thompson was the victim of an armed robbery at approximately 1 a.m. on January 15, 1998, near the intersection of Thorn and Hickory Streets in Chicago Heights. Three individuals, including defendant, grabbed the victim, pointed a gun at him, and demanded drugs and money. Defendant and another individual held the victim's arms while the third individual pointed the gun at the victim. After taking $60 from the victim, the three men got into a car and drove off. The victim then reported the incident to police and described the robbers and their vehicle. Officer Julian testified that while interviewing the victim, he received a radio call that police had stopped a vehicle matching the car described by the victim. The car contained three people who fled; one of the three people, however, was apprehended. Minutes later, the victim identified the person who was apprehended as the one who held his left arm and went into his pocket. The victim also identified the car as the one used in the robbery. The victim subsequently identified defendant's picture from a photo array and identified defendant in a lineup as the person who held his right arm during the robbery. Defendant was convicted under an accountability theory. Prior to trial, defendant made an oral motion in limine, seeking to preclude the State from mentioning that the car in which defendant fled was stolen. The court said that the State could introduce statements that defendant made concerning the car, but the State indicated that it would not use that evidence at trial.
Prior to closing arguments, defendant made two additional oral motions in limine, which were both denied. In his first motion, defendant sought to limit the State from arguing anything regarding an unsuccessful search for defendant. The court denied that motion, but stated that if there was a defense objection, it would issue a cautionary instruction that statements made by lawyers that are not based on the evidence should be disregarded. Defendant's second motion in limine sought to preclude the State from arguing that defendant's leaving in the car was a flight and that flight was an indication of guilt. The court denied that motion, pointing out that the objection amounted to a difference of interpretation as to why defendant was in the car with the other offenders.
After the jury began to deliberate, defendant orally requested a mistrial based on his belief that the State violated the motion in limine regarding the car, and that the State improperly shifted that burden of proof to defendant. The court denied the motion, finding that the motion in limine was not violated and that the burden of proof was not shifted.
Defendant contends that multiple instances of prosecutorial misconduct during closing arguments denied him a fair trial. He argues that the State's opening and rebuttal arguments repeatedly referred to his failure to testify, attempted to shift the burden of proof to the defense, suggested that the defense was hiding things from the jury, and violated the court's order on a motion in limine regarding the "getaway" car being stolen. Although defendant mentioned each classification of improper remarks in his post-trial motion for new trial, he did not specifically object to all of the comments. We will classify the comments in two groups: those to which there was an objection and those to which there was no objection.
Comments on defendant's failure to testify and the shift of the burden of proof
Defendant first argues that the State repeatedly commented on his failure to testify and attempted to shift the burden of proof. Defendant points to six specific instances in the State's arguments that contain the complained-of comments.
Defense counsel objected to the following comments made by the prosecutor during opening and rebuttal arguments. These were properly preserved for review.
During the State's opening argument, the following statement was made:
"[ASSISTANT STATE'S ATTORNEY]: Ladies and gentlemen, the evidence is clear, and the evidence is uncontradicted of DeShon Thompson. There's no one that got up there that said anything different. There's no one that got up there and said that the defendant was just standing there - -
[DEFENSE COUNSEL]: Judge, objection. Counsel is improperly shifting of the burden. Move for mistrial.
THE COURT: That's denied. Disregard the last statement."
During the State's rebuttal argument, the following comment was made:
"*** The only question they tell you is that his guy just was there. Is there any evidence that you heard that his guy was just there? Nobody told you that.
[DEFENSE COUNSEL]: Objection your Honor. Detective Leuser testified to that.
THE COURT: Overruled. Argument."
Also during rebuttal argument, the following comments were made:
"[ASSISTANT STATE'S ATTORNEY]: *** Now, ladies and gentlemen, I'm not going to play any games with you, but I want to focus on something that happened during this trial. You heard defense counsel ask DeShon a number of things what he did, what he did. Did he ever ask him (Indicating) what he did? Never asked that question, did he? Then he flipped it over in the negative, and he said my guy didn't have a gun, did he? My guy didn't take your money out of his [sic] pants, did he? But did he ever ask the real question -
[DEFENSE COUNSEL]: Objection, your Honor, counsel is ...