Appeal from the Circuit Court of Winnebago County. No. 95-CF-698 Honorable Richard W. Vidal, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
In 1996 a jury convicted defendant, Dana D. Simmons, of the offense of first-degree murder (720 ILCS 5/9--1(a)(1) (West 1994)). The trial court imposed a sentence of 80 years' imprisonment. Defendant appealed, and this court reversed his conviction and remanded the cause for a new trial. See People v. Simmons, No. 2--96--1077 (August 24, 1998) (unpublished order pursuant to Supreme Court Rule 23). In February 2000 defendant was retried, and a jury again convicted defendant of the offense of first-degree murder; the trial court sentenced defendant to 80 years' imprisonment. Following the trial court's denial of his posttrial motion, defendant timely appealed. On appeal, defendant contended that he received the ineffective assistance of counsel, challenged the trial court's authority to impose an extended-term sentence, and claimed that the trial court abused its discretion in its imposition of an 80-year sentence. This court affirmed. See People v. Simmons, 331 Ill. App. 3d 416 (2002).
Defendant petitioned our supreme court for leave to appeal. In denying defendant's petition, our supreme court entered an order directing this court to vacate our judgment and to reconsider the case in light of People v. Swift, 202 Ill. 2d 378 (2002). See People v. Simmons, 202 Ill. 2d 693 (2003). Since Swift was decided, however, our supreme court issued People v. Thurow, 203 Ill. 2d 352 (2003), and a supplemental opinion in People v. Crespo, 203 Ill. 2d 335 (2001), which we will also utilize to reconsider defendant's case. Pursuant to our supreme court's directive, we vacate our decision (Simmons, 331 Ill. App. 3d 416) and enter this opinion in its stead.
Just before defendant's trial commenced, his counsel moved in limine for the trial court to enter an order prohibiting the State from referring to Sebastian Patterson, a witness, as "Slick" during its cross-examination of him. The trial court conducted a hearing, and defense counsel clarified that he was not requesting that the State be forbidden from referring to Patterson or other witnesses by their nicknames during its opening statement and closing argument but that the State should not be permitted to use the nickname repeatedly so as to make it appear to demean the witness and ultimately prejudice defendant. The trial court found that the nickname "Slick" and the other nicknames were relevant to the identification of witnesses to and participants in the matter but granted the motion, which prohibited the State from constantly referring to the witnesses by their nicknames during its examination or cross-examination of those witnesses.
The record reflects that on March 10, 1995, Bocci Wills (the victim) went to the Amoco gas station located on West State Street in Rockford. He was driving a black Bronco and accompanied by two friends, Amavlee Macklin and Keonta Burnell. When they arrived, Wills parked by a pay phone and he and Macklin exited the vehicle. Wills walked toward the gas station and made eye contact with defendant. Defendant was at the gas station with two friends, Rodney Kinds and Sebastian Patterson. A few minutes later, a physical altercation erupted between Wills and defendant. Wills struck defendant in the face, causing his face to bleed. They fought for several minutes while others watched. A gun fell from defendant's coat to the ground, and Patterson picked up the gun.
Defendant and Wills continued to fight. Defendant called for help, and Kinds retrieved a 9-millimeter gun from his car and began firing toward Wills. Patterson took the gun he had and held it against Macklin and warned him not to move. Wills began running toward the Bronco, which Burnell had driven to the area of the fight scene. Wills appeared to have been hit in the legs by gunfire and fell to the ground. At this point defendant appeared to have a gun; he admittedly shot at Wills at least four times. Wills suffered a total of 10 gunshot wounds but died as a result of a single gunshot wound to the back of his head. The State's witnesses testified that defendant stood over the victim and shot him as he lay on the ground. Defendant, Patterson, and Kinds fled the scene.
Defendant left the state and traveled for five months until he and Kinds were arrested in Milwaukee, Wisconsin. Patterson had previously surrendered himself to the police. At the time of his arrest, defendant admitted that he had used a 9-millimeter handgun to shoot at Wills. Police found evidence at the scene that at least 17 shots had been fired.
The parties presented their closing arguments, the trial court instructed the jury, and the jury retired to deliberate. The jury found defendant guilty of the offense of first-degree murder, and the trial court entered judgment on the verdict. Defendant filed a posttrial motion, and, following a hearing, the trial court denied the motion. Proceeding to the sentencing phase, the trial court reflected upon the factors in aggravation. It found that defendant had a substantial history of criminal conduct, including a juvenile record, a misdemeanor offense of resisting a police officer, and a felony offense of aggravated battery. The trial court commented that the State presented compelling evidence that defendant fired the weapon that killed the victim in an execution-style manner while the victim was attempting to flee, had fallen, and was wounded. The trial court found that the offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty and determined that defendant was eligible for extended-term sentencing. The trial court sentenced defendant to a term of 80 years' imprisonment. The trial court denied defendant's motion to reconsider his sentence, and defendant timely appeals.
Defendant contends that a combination of prosecutorial misconduct and the ineffective assistance of counsel deprived him of a fair trial. He argues that the State committed numerous errors during its closing and rebuttal arguments and that the cumulative effect of defense counsel's failure to object to the errors constituted ineffective assistance. Defendant concedes that the allegations of prosecutorial misconduct were not raised in his posttrial motion. Generally, to preserve an issue for review, a defendant must both make a contemporaneous objection and include the alleged error in a posttrial motion. See, e.g., People v. Banks, 161 Ill. 2d 119, 143 (1994). By failing to do so, the issue is waived on appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Our supreme court has consistently recognized that the failure to raise an issue in a written motion for a new trial prevents raising the issue on appeal. See People v. Towns, 174 Ill. 2d 453, 464 (1996). However, defendant requests that we consider this issue under the plain error doctrine, and we will do so. See 134 Ill. 2d R. 615(a); Towns, 174 Ill. 2d at 464, citing People v. Carlson, 79 Ill. 2d 564 (1980) (stating that, under the plain error doctrine, courts may address a waived issue if the evidence is closely balanced or if the error affects substantial rights).
Defendant first argues that the prosecutor's closing argument and rebuttal argument denied him the right to a fair trial. Specifically, defendant argues that the prosecutor posited that the reason the fight between Wills and defendant came about was likely very trivial; the prosecutor reminded the jury that it was allowed to hear the victim's last moments on the 911 audiotape; the prosecutor recounted the medical examiner's testimony where one of the prosecutors served as a model regarding the trajectory of the bullets upon the victim; the prosecutor asked for a verdict of first-degree murder because defendant's conduct deserved nothing less than first-degree murder; the prosecutor referred to Patterson as "Slick" in an alleged violation of a motion in limine; and the prosecutor argued in the rebuttal argument that a fist fight was insufficient provocation to result in gunfire.
We note that a prosecutor is allowed a great deal of latitude in giving a closing argument. People v. Cisewski, 118 Ill. 2d 163, 175 (1987); People v. Siefke, 195 Ill. App. 3d 135, 144 (1990). The trial court's determination of the propriety of the closing argument generally will be followed on appeal absent a clear abuse of discretion. Cisewski, 118 Ill. 2d at 175. Arguments and statements based upon the facts in evidence, or upon reasonable inferences drawn therefrom, are within the scope of proper argument. People v. Terry, 99 Ill. 2d 508, 517 (1984). In reviewing allegations of prosecutorial misconduct, the closing arguments of both the State and defense counsel must be examined in their entirety, and the allegedly improper remarks must be placed in their proper context. Cisewski, 118 Ill. 2d at 175-76. Even where certain remarks are found to be improper, they will not be considered reversible error unless they constitute a material factor in the defendant's conviction or result in substantial prejudice to the accused such that the verdict would have been different had they not been made. Terry, 99 Ill. 2d at 517.
After reading the prosecutor's and defense counsel's closing arguments in their entirety, we hold that the prosecutor's remarks did not constitute a material factor in defendant's conviction or result in substantial prejudice such that the verdict would have been different had the comments not been made. The prosecutor's remarks were all reasonable inferences based on the testimony and evidence presented. The prosecutor's reference to Patterson as "Slick" during his closing argument was previously allowed by the trial court and defense counsel and was not a violation of the motion in limine. In rebuttal, the prosecutor argued in response to defense counsel's argument regarding provocation. Defense counsel urged the jury to consider the mitigating factors before rendering its verdict, and the prosecutor rebutted defense counsel's argument. The prosecutor argued that the fight between the victim and defendant was a "one-on-one fair fight" that started with a punch and that the fight had not escalated to the point where using a gun was justified, a reasonable inference based upon the testimony and evidence presented. We also note that the trial court instructed the jury that opening statements and closing arguments were not evidence. See People v. Reeves, 228 Ill. App. 3d 788 (1992). Therefore, defendant suffered no error or prejudice resulting from the prosecutor's closing argument and rebuttal argument.
Defendant also argues that defense counsel's failure to object during the prosecutor's closing and rebuttal arguments prejudiced his right to a fair trial and, as a result, he received the ineffective assistance of counsel. Generally, to establish the ineffective assistance of counsel, a defendant must show both that counsel's representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for the error, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504 (1984)(adopting Strickland). However, we may resolve a claim of the ineffective assistance of counsel by reaching only the prejudice ...