The opinion of the court was delivered by: Justice Rarick
Docket Nos. 90678, 90693, 90706 cons.-Agenda 1-November 2002.
These consolidated cases come before us in the wake of our decision in People v. Blue, 189 Ill. 2d 99, 138-39 (2000), wherein a unanimous court held that the cumulative effect of prosecutorial misconduct and trial error had deprived the defendant of a fundamentally fair trial and thus warranted reversal notwithstanding overwhelming evidence of defendant's guilt. In Blue, this court recognized that a pervasive pattern of error, engendered in the main by prosecutorial misconduct, had divested defendant of his right to a fair, orderly, and impartial trial, a substantial right that inures to a criminal defendant " `whether guilty or innocent.' " Blue, 189 Ill. 2d at 138, quoting People v. Bull, 185 Ill. 2d 179, 214 (1998). In Blue, where the trial was permeated by the presentation of emotionally charged evidence, and the prosecutors "encouraged the jury to return a verdict grounded in emotion, and not a rational deliberation of the facts" (Blue, 189 Ill. 2d at 139), the members of this court, acting "as guardians of constitutional rights and the integrity of the criminal justice system" (Blue, 189 Ill. 2d at 139), reversed and remanded for a new trial. Disposition of the instant cases requires that we further delineate the dimensions of Blue, applying the principles and standards of review utilized in that case.
Consolidated for purposes of appeal are the cases of People v. Johnson, No. 90678, People v. Cowley, No. 90693, and People v. Parker, No. 90706.
Defendants Cowley and Parker were co-defendants of Murray Blue, and their trials involved the same prosecutors, James McKay and David O'Connor. Cowley's case was severed from Blue's and the two were tried simultaneously, but with separate juries. Parker's jury trial took place several months later. Ultimately, Parker and Cowley were each convicted of first degree murder and two counts of attempted murder. In addition, Cowley was convicted of two counts of aggravated battery with a firearm and possession of a controlled substance with intent to deliver; Parker was convicted of two counts of possession of a controlled substance with intent to deliver.
The appellate court reversed the convictions of both defendants, relying upon our decision in Blue. In Cowley, the appellate court noted the errors this court had identified in Blue, and the bases of this court's disposition in that case, concluding, "Our supreme court reviewed the exact record before us, and we are bound by its findings of error." Cowley, 317 Ill. App. 3d 834, 842. The appellate court "reverse[d] in accordance with" Blue. Parker, 317 Ill. App. 3d 845, 853.
In Parker, the court similarly stated:
"Because the supreme court reviewed a similar record and found
error as to identical evidence and similar tactics as evidence[d]
in this record, and found that Blue did not receive a fair trial
despite overwhelming evidence of his guilt, we are bound by the
findings of the supreme court that the errors were so fundamental
to the integrity of the judicial process and of such magnitude
that the accused here was denied a fair trial. Accordingly, this
defendant's convictions should be reversed as he was denied a fair
trial." Parker, 317 Ill. App. 3d at 850.
The records in Parker and Cowley are indeed similar to that of Blue; they are not identical.
Defendant Johnson was tried before a jury and convicted of first degree murder and three counts of aggravated discharge of a firearm. The appellate court reversed and remanded, stating:
"The defendant claims he was the victim of prosecutorial excess
during his murder trial before a jury. He was. He was inaccurately
described at trial as a convicted narcotics salesman and a
convicted felon. In addition, his failure to testify was argued by
inference and his lawyer was referred to as `a professional
criminal defense lawyer.'
*** We conclude that serious trial errors, taken in combination,
were not harmless beyond a reasonable doubt." Johnson, 317 Ill.
App. 3d 666, 667-68.
The appellate court also concluded that it was not required to decide whether any one error would result in reversal. Johnson, 317 Ill. App. 3d at 676-77. The court quoted from Blue: " `Cumulatively, we find that the errors created a pervasive pattern of unfair prejudice to defendant's case.' " Johnson, 317 Ill. App. 3d at 677, quoting Blue, 189 Ill. 2d at 139.
Thus, the common threads that bind these cases for purposes of appeal are alleged patterns of prosecutorial misconduct and related trial error, the utilization of cumulative-error analysis, and reliance upon this court's opinion in Blue.
The State raises multiple issues, only some of which are actually germane to our disposition of these consolidated cases. Among these are the following arguments. The State contends, "under due process analysis there was no cumulative error that justified the reversal of DeAngelo Johnson's convictions." With respect to defendants Cowley and Parker, the State argues that the appellate court misapplied Blue, as there was "no pervasive pattern of prosecutorial misconduct" in either case and the juries were called upon to return verdicts "based on a dispassionate evaluation of the facts and the complex rules of accountability rather than emotion and sympathy for the victim."
Other issues raised by the State are, in the context of this appeal, little more than requests for abstract pronouncements from this court. For example, the State in oral argument requested that we declare the plain error rule to be a standard of review rather than an exception to the "waiver doctrine." The State also claims that "the closely balanced evidence test applied to Supreme Court Rule 615(a)'s plain error clause is *** confusing and unworkable, it creates an internal conflict with Rule 615(a)'s harmless error clause, and should therefore be abandoned and replaced by the test used in the federal system to identify plain error." The State urges us to abrogate our longstanding formulation of plain error analysis and adopt the "federal test," as set forth in United States v. Olano, 507 U.S. 725, 732, 123 L. Ed. 2d 508, 518, 113 S. Ct. 1770, 1776 (1993). Application of the Olano standard, the State submits, would result in reversal of the appellate court's judgment in defendant Johnson's case.
We have considered these issues; however, for reasons which will become manifest in the course of our discussion, we decline to address them, as they are not pertinent to our resolution of these cases. Although the second prong of plain error analysis does figure in our resolution of Cowley's and Parker's cases, the closely balanced evidence component of plain error analysis is not a factor in our disposition. Since defendants did not object to some of the claimed errors in these cases, we begin with a discussion of basic principles of plain error analysis.
Illinois reviewing courts, faced with allegations of plain error, examine, substantively, on a rudimentary level, the records before them to determine if the claimed errors constitute "plain" and "reversible" errors. People v. Keene, 169 Ill. 2d 1, 17 (1995); People v. Terrell, 185 Ill. 2d 467, 526 (1998) (Freeman, C.J., specially concurring, joined by McMorrow, J.).
Our plain error rule is set forth in Supreme Court Rule 615(a), which states as follows:
"Any error, defect, irregularity, or variance which does not
affect substantial rights shall be disregarded. Plain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the trial court." 134 Ill. 2d
Our prior decisions make clear that this court may invoke the plain error rule to review alleged errors not properly preserved when (1) the evidence in a criminal case is closely balanced or (2) the error is so fundamental and of such magnitude that the accused is denied the right to a fair trial and remedying the error is necessary to preserve the integrity of the judicial process. People v. Lindsey, 201 Ill. 2d 45, 54 (2002), quoting People v. Nieves, 192 Ill. 2d 487
, 502-03 (2002); People v. Hall, 194 Ill. 2d 305
, 335 (2000); People v. Williams, 193 Ill. 2d 306
, 348 (2000). Absent reversible error, there can be no plain error. Williams, 193 Ill. 2d at 348. "[T]o determine whether a purported error is `plain' requires a substantive look at it. But if, in the end, the error is found not to rise to the level of a plain error as contemplated by Rule 615(a), the procedural default must be honored." Keene, 169 Ill. 2d at 17.
Initially, we note that a pattern of intentional prosecutorial misconduct may so seriously undermine the integrity of judicial proceedings as to support reversal under the plain error doctrine. See United States v. Young, 470 U.S. 1, 33 n.16, 84 L. Ed. 2d 1, 24 n.16, 105 S. Ct. 1038, 1055 n.16 (1985) (Brennan, J., concurring in part and dissenting in part, joined by Marshall and Blackmun, JJ.); People v. Moss, 205 Ill. 2d 139, 189 (2001) (Freeman, J., concurring in part and dissenting in part, joined by Kilbride, J.). Indeed, concern over the cumulative effect of errors that "created a pervasive pattern of unfair prejudice," much of it attributable to misconduct of the prosecutors, is what drove this court's analysis in Blue. See Blue, 189 Ill. 2d at 138-40. This court recognized in Blue the "synergistic effect" that multiple errors of this kind can have in a trial. Blue, 189 Ill. 2d at 139. See also People v. Hill, 17 Cal. 4th 800, 847, 952 P.2d 673, 699, 72 Cal. Rptr. 2d 656, 682 (1998) (A unanimous California Supreme Court, foregoing harmless error analysis, reversed a death penalty conviction due to pervasive prosecutorial misconduct and trial errors that, cumulatively, "created a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum of the individual errors").
Blue represents an important step this court has taken to stem what some would say is a rising tide of prosecutorial misconduct, a problem that courts across the country have, for the most part, been unable or unwilling to control. See P. Spiegelman, Prosecutorial Misconduct in Closing Argument: The Role of Intent in Appellate Review, 1 J. App. Prac. & Process 115, 115-18 (1999) ("Despite long-standing and widespread dissatisfaction, there does not seem to be any substantial change in the perception of the performance of prosecutors or courts. The volume of reported appellate cases of misconduct in argument remains high; there are frequent findings of improper argument, but only occasional reversals; and the volume of scholarly criticism is, if anything, increasing"). To suggest that the problem is proliferating is not to say that it is of recent origin. Roscoe Pound commented on it over 70 years ago. R. Pound, Criminal Justice in America 187 (1930); 1 J. App. Prac. & Process, at 115. Over 50 years ago, Judge Jerome Frank of the Second Circuit Court of Appeals weighed in on the same exasperating issue:
"This court has several times used vigorous language in
denouncing government counsel for such conduct as that of the
United States Attorney here. But, each time, it has said that,
nevertheless, it would not reverse. Such an attitude of helpless
piety is, I think, undesirable. It means actual condonation of
counsel's alleged offense, coupled with verbal disapprobation. If
we continue to do nothing practical to prevent such conduct, we
should cease to disapprove it. For otherwise it will be as if we
declared in effect, `Government attorneys, without fear of
reversal, may say just about what they please in addressing
juries, for our rules on the subject are pretend-rules. If
prosecutors win verdicts as a result of "disapproved" remarks, we
will not deprive them of their victories; we will merely go
through the form of expressing displeasure. The deprecatory words
we use in our opinions on such occasions are purely ceremonial.'
Government counsel, employing such tactics, are the kind who,
eager to win victories, will gladly pay the small price of a
ritualistic verbal spanking. The practice of this court-recalling
the bitter tear shed by the Walrus as he ate the oysters-breeds a
deplorably cynical attitude towards the judiciary." United States
v. Antonelli Fireworks Co., 155 F.2d 631, 661 (1946).
See also Dardeen v. Wainwright, 477 U.S. 168
, 205-06, 91 L. Ed. 2d 144, 173, 106 S. Ct. 2464, 2484 (1986) (Blackman, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.), quoting Antonelli Fireworks Co., 155 F.2d at 661; 1 J. App. Prac. & Process, at 116.
Members of this court have recently expressed concern over the frequency with which this court is seeing instances of prosecutorial misconduct:
"Unfortunately, the kind of courtroom tactics which occurred in
this case does not appear to be an isolated occurrence. This court
recently cited the conduct of two assistant State's Attorneys as
lacking in maturity and professionalism, once again in a Cook
County courtroom during a capital trial. See People v. Blue, 189
Ill. 2d 99, 142 (2000). The frequency with which this court is
seeing such behavior is not only alarming, but causes legitimate
public concerns regarding the fairness and integrity of these
proceedings." Moss, 205 Ill. 2d at 191 (Freeman, J., concurring in
part and dissenting in part, joined by Kilbride, J.).
The Moss dissent also conveys a sense of exasperation with the "helpless piety" that afflicts our judiciary. In Moss, our distinguished colleagues in dissent observed that threats of reversal, and words of condemnation and disapproval, have been less than effective in curbing prosecutorial misconduct and are unlikely to achieve any greater success in the future:
"It is obvious to me that our admonishments-that such behavior
risks reversal-have not been heeded. ***
*** [M]y colleagues' disposition of this issue will serve only
to embolden those who would engage in such highly charged rhetoric
and confuse the trial judges who have to deal with it. This court
cannot expect the trial judges to vigorously guard against
improper conduct if we ourselves fail to address the problem with
any consistency. *** [N]otions of reform ring hollow when this
court, faced with conduct which requires reversal, fails to
acknowledge it." Moss, 205 Ill. 2d at 191, 195-96 (Freeman, J.,
concurring in part and dissenting in part, joined by Kilbride,
Within this milieu, and against the precedential backdrop of Blue, we now turn our attention to the facts of these consolidated cases. We begin with the cases of Blue's co-defendants, Clyde Cowley and Jimmie Parker.
The tragic events of March 8, 1995, and the details of the resulting trials have been set forth with specificity in this court's opinion in Blue and the appellate court's opinions in Parker and Cowley. We reiterate evidence common to Parker's and Cowley's trials as necessary to provide a factual framework for our disposition.
These cases involve two shootings at different times and different locations: the shooting of Victor Young (the first shooting) and, later the same day, the contemporaneous shooting of Officers Daniel Doffyn and Milan Bubalo (the second shooting). The evidence suggests that Young was shot because he sold drugs for a rival street gang and, perhaps, because Blue believed Young had discussed Blue's activities with the police. The officers were later shot as they tried to apprehend Blue, Cowley and Parker as they fled from Blue's apartment.
Young testified that, on the day he was shot, he had exchanged words with Blue, who was at the time visible in the first-floor window of an apartment building on Maypole Street in Chicago. When Blue produced a gun, Young began to run and was felled by gunshot wounds to the hip or buttocks. From the ground, Young looked behind him and saw Blue run out of the apartment building, accompanied by Cowley and Parker. Parker was holding a weapon and, at Blue's direction, also shot at Young. Blue then said, "Let's get out of here. It's getting too hot." Young testified that he saw Blue, Cowley and Parker run through a vacant lot. A few minutes later, Young observed a black Lincoln Continental drive north on Kildare Street. Young knew the car belonged to Blue.
Blue, Cowley, and Parker fled to Blue's apartment at 750 North Lorel Avenue, which is located across the street from Chicago's 15th District police station. Because Blue had forgotten his keys, he had to break the glass of his front window to gain entry. That resulted in a neighbor's report of a burglary in progress.
Officer Elois Jackson testified that she was at the 15th District police station when she heard a report over her police radio of a burglary in progress. Jackson told the dispatcher she could respond to the call. She and several other police officers proceeded to the apartment building across the street, the location given in the report.
Officer Jackson testified that, as she approached the building, she saw Officers Bubalo and Doffyn walking to the front of the building. She entered a gangway at the south side of the building, leading toward its rear. As she reached the far end of the gangway, she was approached by two black males. One carried a gun with his hands extended in front of him. The other male appeared to be unarmed. Jackson keyed in her radio that she had an emergency, pointed her gun at the men, and yelled at them to get on the ground.
The unarmed man, later identified as Parker, raised his hands in the air, but did not immediately go to the ground. The other man turned and started to run away. Eventually, Parker followed Jackson's command to get to the ground. As he did so, Jackson heard gunfire. Jackson remained behind the wall of the gangway, with her gun trained on Parker, until other officers arrived.
Officer Bubalo testified that he and Officer Doffyn were in the parking lot of the police station when they learned of the suspected burglary across the street. They went to investigate the reported burglary and saw broken glass on the ground from a window next to the entrance of the building. Bubalo testified that he went inside the building followed by Doffyn. Bubalo knocked on the front door of the apartment with the broken window. He heard the sound of several feet running to the back of the apartment and the sound of breaking glass.
Officer Bubalo further testified that Doffyn ran down the steps from the first-floor landing and out of the building. Bubalo followed Doffyn as Doffyn ran from the front of the building to the rear, through a gangway at the north side of the building. When Bubalo entered the gangway, Doffyn was already rounding the far corner of the gangway, into the back yard of the building. According to Bubalo, Doffyn never drew his service weapon at any time.
When Bubalo reached the backyard of the building, he saw Doffyn struggling with a black male. Doffyn had the man, whom Bubalo identified in court as Cowley, in a "bear hug" and Cowley was trying to break free. Almost immediately, Bubalo heard several gunshots fired in quick succession. Both Doffyn and Cowley fell to the ground, with Doffyn lying face down on top of Cowley.
Bubalo testified that, just as Doffyn and Cowley dropped, Bubalo himself sustained a gunshot wound to his left hip. As he fell to the ground, Bubalo saw Blue running toward him from "around the corner." Blue fired a gun at Bubalo and Bubalo returned fire. Bubalo fired a total of five shots; one struck Blue in the back of the head as Blue ran past Bubalo. This shot caused Blue to fall face forward to the ground, slightly behind Bubalo.
After Blue fell, Bubalo radioed for help, disarmed Blue, and crawled to the aid of Doffyn and Cowley. Bubalo underwent surgery the next day for a total replacement of his left hip. Officer Doffyn died from a gunshot wound to his head.
Police officers searched the first-floor apartment with the broken front window. They discovered that the window of the rear door to the apartment had also been broken. Not knowing whether there were other offenders inside, they entered and searched the apartment. No one was inside. In the living room, they found several bags of marijuana on a table and a jacket with .38-caliber bullets in its pocket. In the bedroom, they found plastic bags containing rock cocaine and folded tin packets containing heroin. Also in the bedroom were $5,385 in cash, a scale and a razor blade. An open box of nine-millimeter cartridges lay on the bed. They did not see any mail, receipts, bills or other papers connecting Cowley or Parker to the apartment. A drinking glass on the living room table had Cowley's fingerprint on it.
In addition to the foregoing evidence, each defendant gave a statement that was ultimately admitted at his trial. Cowley gave both an oral statement to a police officer, shortly after the shooting, and a subsequent written statement to an assistant State's Attorney at the hospital. Cowley told the assistant State's Attorney that on the afternoon of March 8, 1995, Blue, Parker and Charlie "Chow Mein" pulled up in Blue's Lincoln Continental and told Cowley they had to take care of business with Puff, a rival drug dealer infringing on their territory. Blue gave Cowley a loaded .38-caliber gun to protect himself and "watch the others' backs." The four men then went to a building at 4300 Maypole to wait for Puff and his workers. They intended to kill Puff or one of his workers to teach them a lesson. Before Puff or any of his workers arrived, Charlie left the building. Shortly thereafter, Parker saw Charlie talking to Victor Young. Young had sold drugs for Blue in the past, but at the time of the incident was selling drugs for someone else and had been known to "stick up" Blue's workers. Although Young did not work for Puff, Blue said, "Let's shoot him," and started shooting. As Blue, Parker and Cowley left the building to run to Blue's car, Parker also fired at Young. Cowley still had the .38-caliber gun when they left the scene of the first shooting.
Cowley indicated that they drove down Lake Street fast because they thought Puff's guys or the police would be looking for them. Their intent was to "chill" at Blue's apartment and then continue the plan to kill Puff or one of his workers. Blue let Parker and Cowley in the back door of the apartment and told them he had to break the front window because he had forgotten his keys. Blue and Parker went to the bedroom to hide a couple of extra shotguns under the bed, and Cowley went to the living room to drink a glass of soda pop. Parker then reported that the police had arrived. Upon hearing this, Blue stated, "We're all in this together!" Blue then grabbed the TEC-9 he had just used to shoot Young and followed Parker outside through a window. Cowley, still armed with the .38-caliber weapon, followed Parker and Blue out the window and into the alley. Cowley then heard someone yell, "Police! Stop!" He turned around and ran into a police officer who grabbed him. Blue began shooting and hit the officer and Cowley. Both fell.
Parker's written statement was consistent with the State's proof as to the shooting of Young. The written statement also indicated that Parker had placed shotguns under the bed in the bedroom of Blue's apartment after the shooting of Young and had retrieved some beer from the kitchen. Shortly thereafter, he informed Blue and Cowley that the police had arrived. Parker also stated that, when police knocked on the door, he wanted to grab a gun, but he did not have enough time. When Blue said, "they were all in this," Parker knew Blue meant they were not going to get caught and would shoot it out. Cowley and Blue grabbed weapons and all three jumped out the window together.
Parker testified at trial, inter alia, that when police began to arrive at the apartment, he had wanted to escape because he thought Cowley and Blue would have a shoot-out with police. He did not want to get caught, and lowered himself out of the window while Blue and Cowley were still in the apartment. He then ran into the alley, but turned around to head to the car. He had escaped from the apartment, unarmed and ahead of his co-defendants. Further, Parker testified he was stopped by a police officer before the second shooting involving Officers Doffyn and Bubalo.
In both Parker's and Cowley's cases, the State utilized an exhibit and evidence which, in Blue, this court held warranted reversal when considered in conjunction with the prosecutors' improper closing argument and testifying objections. More to the point, the prosecutors obtained admission and display of Officer Doffyn's blood- and brain-splattered uniform, they presented the emotionally charged testimony of Officer Doffyn's father, much of which was irrelevant and obviously intended to appeal to the jury's emotions, and they succeeded in compounding these errors by the introduction of transparently inflammatory testimony that served only to highlight the ceremonies and oath associated with Officer Doffyn's service and duties as a police officer, matters irrelevant to defendants' guilt or innocence.
During each defendant's trial, the bloodied and brain-splattered uniform of Daniel Doffyn was displayed on a life-size, headless mannequin, which was later taken into the jury room during deliberations. The uniform consisted of Doffyn's shirts, police jacket and bulletproof vest. The clothing was torn as a result of medical treatment rendered to Officer Doffyn.
In Blue, this court found "the potential prejudice of the uniform outweighed its probative value." Blue, 189 Ill. 2d at 125. This court observed: "[W]e perceive a coalescence of facts that tip the evidentiary scale from items that are merely useful to those that are aimed directly at the sympathies, or outrage, of the jury." Blue, 185 Ill. 2d at 126. That pattern was to continue throughout Blue's trial, and it is impossible not to notice it in the trials of Cowley and Parker as well.
In the trial of these cases, as in Blue, the testimony of Officer Doffyn's father, Roger Doffyn, was presented by the State, ostensibly for the purpose of identifying the victim as Daniel Doffyn and proving that he was alive, and subsequently died, on the date of the crimes. However, this court in Blue noted that the State had apparently elicited a portion of Mr. Doffyn's testimony for another purpose:
"[S]ome of the evidence admitted through Mr. Doffyn, such as the
age of his granddaughter, the number of years he has been married
to decedent's mother, and the living arrangements of the Doffyn
family, was not probative of defendant's guilt or innocence. This
evidence served only one purpose, namely, to highlight the
poignancy of the Doffyn family's loss and to suggest to the jury
that the family's pain could be alleviated by a guilty verdict.
Moreover, the knowledge of these facts surely heightened the
impact of the State's emotional closing argument on the jury."
Blue, 189 Ill. 2d at 131.
In the trial of these cases, as in Blue, the prosecutors presented the testimony of Commander Joseph Delopez of the Chicago police department. In Cowley's case, Delopez testified in person; in Parker's trial, the testimony was offered by way of stipulation. Delopez was the commander of the training division of the department. He was present for the "star ceremony" when Daniel Doffyn took his oath of office as a police officer. As part of Delopez's testimony, the oath of office sworn by Officer Doffyn was read to the jury. The oath states:
"I, Daniel Doffyn, having been appointed to the office of police
officer, do solemnly swear that I will support the constitution of
the United States and the constitution of the State of Illinois,
and that I will faithfully discharge the duties of the office of
such to the best of my abilities."
Delopez was also permitted to testify that Doffyn's police badge was retired and is now displayed in the "honored star case" at Chicago police department headquarters.
This court in Blue held that the testimony was irrelevant to the issue of guilt or innocence and speculated whether the evidence was elicited "by design" to intensify the State's "nakedly prejudicial" closing argument which followed. This court's comments in Blue obviously apply to the instant cases as well.
We find no meaningful differences between these three instances of error identified in Blue and their occurrence and impact in the trials of Cowley and Parker. Indeed, there was no difference at all in the presentation of this evidence in Blue's and Cowley's cases, as the two were tried simultaneously in the same courtroom.
As the State notes, one kind of error identified in the evidentiary portion of Blue's trial is not present in either Parker's or Cowley's case. The juries in these cases were not exposed to the prosecutors' "testifying objections" during the cross-examination of Etoya Nelson. In a bit of wishful advocacy, the State suggests that this violation of the advocate-witness rule was the "most egregious error" identified in Blue.
While the prosecutors' conduct in this respect was undoubtedly unprofessional and improper, and certainly contributed to this court's decision in Blue, the error does not bear the weight the State attributes to it. The subject matter of Nelson's testimony was relatively insignificant when considered in the context of Blue's trial. The State had called her to establish Blue's purported hostility toward police, and his belief that the police were pursuing him in the days preceding the shootings. See Blue, 189 Ill. 2d at 134. The prosecutors' quibbling with the witness over minor points or collateral issues during the course of that testimony was a factor in this court's disposition in Blue, but it was hardly the "most egregious error" in that case. Indeed, the predominant feature of this court's cumulative error analysis in Blue concerned the prosecutors' relentless appeal to the jurors' passions and emotions, culminating in a "nakedly prejudicial" closing argument.
We now consider the State's closing arguments in these cases, and we begin with the State's closing argument in Parker's trial. There is no mistaking that much of the argument was aimed at directly at the sympathies of the jury or was intended to evoke outrage.
Though the prosecutor did not explicitly ask the jury to send a message of support to law enforcement, the jury could not have missed the import of McKay's argument, which was clear from the outset:
"In March of 1995, Daniel Doffyn was a 40 years [sic] old rookie
police officer. And you have learned, ladies and gentlemen, over
the course of the last few days that on March 8, 1995, he was more
than just a 40 year old rookie police officer.
You have learned, ladies and gentlemen, that he was a hero. He
risked his life in the backyard at 750 North Lorel as did his
partner, Milan Bubalo[,] to serve and to protect the people who
lived in the 15th District.
And you have also learned, ladies and gentlemen, that in March
of 1995, this guy sitting right over here was a gun tooting [sic],
drug dealing cop killer. And while Dan Doffyn's duty and oath was
to serve and protect, Jimmie Parker's duties was [sic] to maim,
kill and destroy.
And while Dan Doffyn was in the police station at the 15th
District with his shiny uniform on, what was then a clean blue
uniform shirt and a brand new leather jacket, as Dan Doffyn talked
with his partners Dan Doffyn clipped on the radio to his jacket[,]
and as Dan Doffyn talked to his sergeant and was told about the
days events, who to look out for, how better to serve and protect
the good people of the community, this guy was talking about the
problems he and his partners are facing in business. About how he
and Murray [Blue] and Clyde [Cowley] and the rest didn't like
getting ripped off."
The prosecutor's theme and emotional appeal continued as he discussed the events immediately preceding the shooting of Officer Doffyn:
"Dan Doffyn is now struggling with Clyde Cowley as Milan Bubalo
told you. And Dan Doffyn was just doing his job. And as he
struggled with Dan, with Clyde, Dan Doffyn, who looked like this
when he was sworn in to be a police officer for us, to serve us,
and to protect us, later looked like this with his head shaved at
the Cook County Hospital where they looked at that horrible
gunshot wound to his skull. *** And that shiny bright uniform is
covered in blood and brain matter.
And a 40 year old hero falls to the ground. And within hours
We must consider the foregoing remarks in conjunction with others in the prosecutor's well-orchestrated argument-companion comments which were clearly intended to do service to the same theme and achieve the same end of arousing the jury's passion and outrage. Although these isolated comments might otherwise occupy the margins of proper argument as exhortations to fearlessly administer justice, an overview of the prosecutor's argument reveals their dichotomous presentation was likely calculated to avoid the appearance of urging the jurors to use their verdict to send a message of support to the police, a tactic that this court deemed improper in Blue, 189 Ill. 2d at 133. See People v. Clark, 52 Ill. 2d 374
, 390 (1972) ("What are you going to tell this community and what are you going to tell 12,000 Chicago policemen?"); People v. Swets, 24 Ill. 2d 418
, 423 (1962) (the prosecutor observed that a lot of people were watching the case "and if [defendant] can get away with it there are a lot of sharpies that will figure they can and they'll try it"); see also People v. Slabaugh, 323 Ill. App. 3d 723
, 731 (2001).
Referring to Parker, Cowley and Blue explicitly, and unidentified others implicitly, the ...