offense of attempted aggravated criminal sexual assault.
A lesser included offense is one that is established by proof of the
same or less than all of the facts, or a less culpable mental state (or
both), than that which is required under the charged offense. 720 ILCS
5/2-9. Under Illinois law, "[a] person commits battery if he
intentionally or knowingly without legal justification and by any means,
(1) causes bodily harm to an individual or (2) makes physical contact of
an insulting or provoking nature with an individual." 720 ILCS
5/12-3(a). Mr. Leyva was charged with attempting to commit an act of
sexual penetration by the use of force or threat of force while using or
displaying an object reasonably believed to be a dangerous weapon. This
attempt could be completed without actually causing bodily harm or making
physical contact of an insulting or provoking nature, so battery is not an
included offense, and Mr. Leyva was not constitutionally entitled to a
Finally, Mr. Leyva claims that he was prejudiced by improper
prosecutorial remarks in closing argument. To establish a constitutional
violation from improper closing argument that does not infringe a
particular trial right, such as the right of the defendant not to
testify, "it "is not enough that the prosecutors' remarks were
undesirable or even universally condemned.' The relevant question is
whether the prosecutors' comments "so infected the trial with unfairness
as to make the resulting conviction a denial of due process.'" Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (citations omitted). I first look at
the remark in isolation to determine whether it was improper; if so, I
consider whether, in light of the evidence, arguments by defense
counsel, opportunity of defense counsel to respond to the remarks, and
the weight of the evidence against the petitioner, the remark deprived
the petitioner of a fair trial. See Aliwoli v. Carter, 225 F.3d 826,
829-30 (7th Cir. 2000)
The first remark to which Mr. Leyva objects is the prosecution's
characterization of him as a "jerk" and a "creep" during rebuttal. This
kind of name-calling is inappropriate, but the Illinois Appellate Court
concluded that it was limited and relatively harmless in light of the
evidence against Mr. Leyva. Although Mr. Leyva had no opportunity to
respond to the name- calling, it is unlikely that these isolated comments
by the prosecution affected the jury's assessment of the evidence.
The prosecution stated that "reasonable doubt is not a mystical entity"
and "has to be supported by a reason." Mr. Leyva claims that this was an
improper comment on the reasonable doubt standard. The Illinois Appellate
Court held that it was not improper, but even if it were improper, see
United States v. Alex Janows & Co., 2 F.3d 716, 723 (7th Cir. 1993)
("It is settled law in this circuit that attorneys should not attempt to
define reasonable doubt to a jury."), it was harmless. The evidence
against Mr. Leyva was so strong that there is no reasonable likelihood
that the jury was improperly influenced by the prosecutor's statements
about reasonable doubt.
Mr. Leyva did not testify or put on any witnesses, but during closing
argument, his attorney called the prosecution's case science fiction,"
"fantasy," "smoke and mirrors," and "a shell game." He attacked the
credibility of the state's witnesses, and he argued that the prosecution
and police were exacting "revenge" on him for his previous assault of
M.K., who was an assistant state's attorney. In rebuttal argument, the
You would have to believe that a 53-year old Jehovah's
Witness, a 22-year old college student, a 76-year old
man, Jehovah's Witness, a 30-something [assistant
state's attorney], a 28-year old [assistant state's
attorney], a 30-year veteran of the Chicago Police
Department, [D]etective McInerny, a 20-something nice
young officer from the district just doing his job. . . .
You'd have to believe that they all called
eachother up and planned to frame this guy. You'd
have to believe they were all lying . . . ."
Ex. D at 15. This argument was not improper; it was invited by defense
counsel's claim that Mr. Leyva was being framed and that the state's
witnesses were incredible. "It is not only permissible but advisable in
closing argument to refute meritless accusations." United States v.
Reed, 2 F.3d 1441, 1450 (7th Cir. 1994). See also Darden, 477 U.S. at 182
(holding that prosecution's comments did not deprive defendant of fair
trial where they were invited by or responded to arguments by defense
Finally, Mr. Leyva objects to the prosecution's comments about Mr.
Leyva's flight after the M.K. incident. The trial court allowed the
details of the M.K. assault, but excluded details of the arrest that
followed it, including the fact that, because Mr. Leyva fled, he was not
arrested for nine months. Ex. D. at 5-6. In closing argument, the
prosecution said: "Something else important to note about [M.K.'s]
testimony. Why was she being truthful? Why did she tell you . . . I
didn't see a gun. You know [defendant] wasn't picked up until 9 months
afterwards, that's when [the assistant state's attorney] first spoke to
him." Ex. D at 14. Mr. Leyva's counsel objected, but the trial court
overruled the objection. In rebuttal, the prosecution said: "And you look
at the prior actions, you look at the subsequent action. If he had such
an innocent reason for being there, why is he fleeing. Why is he
leaving, why did he flee for 9 months in the first case." Id.
The state court held that both of these comments were invited by
defense argument: the first by argument that M.K. was not believable, and
the second by argument that Mr. Leyva's intent was innocent. Id. The
first statement was made before defense counsel had made a closing
argument, so it is hard to see how it was invited. Nonetheless, in light
of the strength of the evidence against Mr. Leyva, the isolated comment
that his arrest was nine months after the M.K. incident did not infect
his entire trial with unfairness. The second comment was invited by the
defense argument that Mr. Leyva's intent was innocent. "[E]vidence of
flight and concealment is admissible to show consciousness of guilt, as
well as guilt itself." United States v. Kord, 836 F.2d 368, 372 (7th
Cir. 1988). But even if uninvited, both references were brief, and
defense counsel had the opportunity to respond to the first reference.
The evidence against Mr. Leyva was so strong that no reasonable jury
would have been swayed to convict him on the basis of these two remarks.
Because none of the prosecutorial statements had an unfair effect on the
trial as a whole, Mr. Leyva was not denied due process.
Mr. Leyva's petition for habeas corpus and motion for appointment of
counsel are DENIED.