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People v. Libberton

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT


October 20, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIAM T. LIBBERTON, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Jo Daviess County. Nos. 01--CF--45 01--DT--32 Honorable William A. Kelly, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

UNPUBLISHED

Defendant, William T. Libberton, appeals from his convictions of driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(1), (a)(2) (West 2000)) (two counts, one of which was merged into the other) and false report of a vehicle theft (625 ILCS 5/4--103(a)(6) (West 2000)). We now affirm.

I. BACKGROUND

Defendant was charged by indictment with one count of false report of a vehicle theft and two counts of DUI. His case was tried to a jury. The arresting officer, Steven Jahncke of the Warren police, testified that on March 3, 2001, shortly after 2 a.m., he was on routine patrol in his squad car. The night was very cold and the ground was snow-covered. As he was driving, he encountered defendant, who was emerging from a roadside ditch. He stopped his vehicle, approached defendant, and asked him what he was doing. Defendant stated that he was going to a friend's house. When Jahncke asked him why, he said that he needed to use a phone to call the police because his car had been stolen. Jahncke asked defendant for identification and then used the car radio to report a stolen car to the sheriff's department. Right after Jahncke made the report, but during continued radio communication, defendant told Jahncke that he had found his car and that it was stuck in a snowbank by some grain bins.

Jahncke requested that defendant ride with him to the car. On the way, Jahncke asked defendant if there was anyone with him, and defendant said that he was with his girlfriend, who was in the car sleeping. Jahncke noticed that defendant smelled of alcohol. They arrived at the car, which was well back from the street and behind some buildings. Jahncke asked defendant how he found his vehicle, and defendant said that he was walking to his home in another town when he found it.

Jahncke approached the vehicle and saw a woman in the passenger seat slumped over with her head between her legs. (The woman was later identified as Kimberlee Quire (Quire), who, by the time of trial, had married defendant and changed her name to Kimberlee Libberton.) Jahncke attempted to wake her to have her open the locked door, but it took her some time to wake up and, when she did wake, she had difficulty opening the door. After Quire answered several questions posed by Jahncke, Jahncke requested that a wrecker be dispatched. Under cross-examination, he explained that, because defendant was claiming that the car had been stolen, the towing company would store the vehicle indoors so that it was protected from tampering and the State Police crime scene investigators would be brought in to process the vehicle. Jahncke identified a number of the photographs of the interior of the car as having been taken by the State Police.

Deputy Casey Folkes of the Jo Daviess County sheriff's department arrived to assist Jahncke, and both defendant and Quire were questioned further. Defendant told Jahncke that the car had been stolen from the lot at Wally's, a bar and that he had found it because, when he walked past the complex with the grain bins, it had occurred to him that it was a good place to hide a stolen car, and so he had gone to look. Jahncke asked him if he had been driving, and defendant initially denied that he had, but later stated that he had tried to move the car in an attempt to get it unstuck. Jahncke then asked defendant to undergo field sobriety tests. Two of the three tests indicated probable intoxication. Jahncke and Folkes then transported defendant and Quire to the Stockton police department, where defendant was subjected to a Breathalyzer test. By the testimony of the Breathalyzer operator, defendant's breath-alcohol concentration was 0.165. Jahncke also asked Quire to give a statement, which he wrote out and she signed. He admitted that he had done the writing because Quire said that she was too drunk to write.

The State introduced a number of photographs of the area in which the car had been left. The officers called by the State used these to indicate that it would have been difficult to see the car from the road.

Quire, called by the State, testified that she had gone with defendant to at least two bars, and that she and defendant had consumed alcohol at each, but that her memory of that night was poor, and she had no sense of time for that period. She stated that she had no recollection of defendant driving the car from the last bar they had visited, Wally's, to behind the grain bins, but that she remembered being taken to the police station and answering the questions from which the statement was prepared. She said that the statement could not accurately reflect her words because it included the time she left Wally's and the name of the business that had the grain bins, both of which were details that she did not know. Her statement was read into the record. It states:

"Bill [defendant] and I were at Wally's until approximately 12:45-1:00 A.M. Bill and I had both been drinking. Bill and I left Wally's, got into his car and drove up to Custom Grain [the location of the grain bins]. I had no idea where I was. After he got the car stuck I fell asleep and the next thing I remember was someone knocking on the window asking me for my license."

Defendant was the sole defense witness. He testified that he had parked his car near Wally's, leaving the keys in the ignition, but that when he came out after drinking for a while, the car was not where he had left it. Defendant said that he thought that his friends were playing a joke so he began to search for his car. After searching unsuccessfully, defendant and Quire set out walking toward a friend's house in another town. Quire was barely able to walk. As defendant passed the grain bins, he noticed his car behind them. He left Quire with the car and, after remembering that he had a friend in the same town, started walking toward that friend's house. He denied trying to drive the vehicle at any time after leaving Wally's, but admitted that he had been intoxicated. He stated that he had gone back to the police the Monday after he was arrested to give them a list of items that he thought were missing from the vehicle.

The State, in closing argument, asserted that many aspects of defendant's testimony were illogical and commented that it was terrible that defendant persisted in claiming that his car had been stolen in order to escape responsibility for his drunk driving.

Defendant's counsel emphasized defendant's right make the State prove its case:

"It's not a crime, Ladies and Gentlemen, to profess your innocence. It's your constitutional right to have a trial; we all possess that and that's all my client's done. He said 'I'm not guilty of this' and his only choice when that decision is made is to come here and have a trial by 12 of his peers.

Now he does have an option, he could waive jury trial and try for [sic] the Court which is called a bench trial, but that's his decision alone and he made that decision to have the jury trial; and that's why we're here today because he professes his innocence on this."

He then argued that defendant's version of events should be taken to be the truth because, as a lie to avoid trouble, it was much less sensible than other lies defendant could have told. He argued that Quire's statement was discredited by her intoxication. He suggested that the State's photographic exhibits had been deliberately chosen to overstate the difficulty defendant would have had in locating his car from the road. Further, he argued that minor variations in the calibration of the Breathalyzer made the Breathalyzer data unreliable. He stated that there were too many holes in the police evidence for the State to have met its burden of proof.

The State's Attorney, in rebuttal, stated that the case was a very important one to the people of the State of Illinois. He argued that the pictures were accurate and representative, and then asserted that he "[did not] deal in any kinds of attempts to deceive." He then stated:

"[Defendant's counsel] begins his argument by asking you; there's no other choice for this Defendant, right? No other choice. He's got to take this case to trial and profess his innocence. Well, not quite. Okay? There is something that about 80 to 90 percent of Defendants do in this country and that is they be [sic] honest, forthright. They go into the courtroom and plead guilty.

MR. NACK [Defense counsel]: Objection, that's grounds for mistrial, Judge.

THE COURT: Overruled. Go ahead.

MR. WEBER [State's Attorney]: It happens every day. You hear about it all the time. Right?

'You know what? That story I gave was pretty stupid and I think it's time for me to accept responsibility for my stupidity in driving drunk and filing a false police report and I'll plead guilty.' "

He then argued that it is perfectly natural for someone to get tangled in his own lies, stated that defendant's intoxication was not even at issue because defendant had admitted it, reemphasized the physical implausibility of defendant's story, and suggested that Quire's renunciation of her statement could be the result of her bias in favor of her husband.

He suggested that defense counsel was attempting to sow confusion:

"[T]hat's the defense; that's the tactic, right. Well, Officer Craft did this and the machine did that and blah-blah, blah-blah, blah. Folks, that is not even an issue in this case. I asked him flat out, 'Were you over the legal limit?' 'Yeah, oh yeah.' 'Beyond .08?' 'Yeah.' What do we need a machine for? But see, that's the way. That's the tactic, of course, you know let's get back in the jury room and let's, convince [sic] about the machine and let's convince [sic] about this and dah-dah-dah- dah-dah, and pretty soon there's 12 of you and there's reasonable doubt all over the place because you're thinking about all sorts of things that have nothing to do with the facts and circumstance and hard evidence in this case."

In arguing against defense counsel's claim that defendant's story was unlikely to be a lie because it was not in his self-interest, he said:

"I'll tell you why he would [persist in his story], okay? I will answer that question for you. Because he wants to escape responsibility for his crime; because he wants to escape because he wants to walk; because he wants to get back out on the street, back out after the verdict and yuck it up with the officers, 'Hey-hey, you know, hey look at what I did and got away with it.' "

The jury found defendant guilty on all counts, and defendant moved to arrest judgment, for a new trial, and for a judgment not withstanding the verdict. Issues raised included claims that the indictment for false report of a vehicle theft was inadequate in that it failed to allege that a third party had been harmed by the report, that such an allegation was a necessary element of the offense, and that the State's proof was inadequate because it failed to make any showing of this same purported element. Defendant did not raise any issue relating to the State's closing argument. The motions did allege that the State committed a discovery violation by failing to provide information about certain physical evidence to defendant until just before the trial. During oral argument on the discovery issue, the State's Attorney indicated that the car had been dusted for fingerprints, although none were found that could be used for identification. Defendant's motions were denied and defendant was sentenced to 180 days' periodic imprisonment and 2 years' probation.

II. ANALYSIS

On appeal defendant contends that (1) his conviction of the false report of a vehicle theft violated his substantive due process rights under the United States and Illinois Constitutions; and (2) the State's closing arguments were improper and violated his right to a fair trial.

We address each contention.

A. Substantive Due Process

We begin by noting that defendant has cited provisions of both the Illinois Constitution (Ill. Const. 1970, art. I, § 2) and the United States Constitution (U.S. Const., amends. V, XIV) in support of his first contention; however, his arguments relate only to the Illinois constitutional provision. Consequently, defendant has waived any argument under the federal constitution (188 Ill. 2d R. 341 (e)(7)) and our analysis will be so confined. Defendant argues that because he "told the officer of the theft of his own car in response to questions by the officer, immediately informed the officer that he had located his car, did not accuse another citizen of the purported theft, and did not seek to profit from the conveyance of the false information, the prosecution of [defendant] as a Class-2 felon violated his right to substantive due process." Defendant contends that his "report" is not the type of report envisioned by the legislature to be within the scope of the offense of falsely reporting a vehicle theft. We disagree.

Defendant directs us to People v. Morris, 136 Ill. 2d 157 (1990). In Morris, the defendant had altered a temporary vehicle registration permit displayed on a vehicle he owned to show a later expiration date. He was convicted of violating section 4--104(a)(3) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 4--104(a)(3)), which makes it a Class 2 felony to possess "any *** temporary registration permit *** knowing it to have been stolen, converted, altered, forged or counterfeited." The issue in Morris, pertinent to this appeal, was whether the penalty for possession of an altered temporary registration permit applied in that case violated the defendant's right to substantive due process under the Illinois Constitution (Ill. Const. 1970, art. I, §2). Morris, 136 Ill. 2d at 161-62. The court explained that in order " '[t]o be a valid exercise of police power, the legislation must bear a reasonable relationship to [the interest] which is sought to be protected, and the means adopted must constitute a reasonable method to accomplish such objective.' " Morris, 136 Ill. 2d at 161, quoting City of Carbondale v. Brewster, 78 Ill. 2d 111, 115 (1979). The court then declared that "[t]he purpose of the anti-theft laws 'is to protect automobile owners against theft and to protect the general public against the commission of crimes involving stolen automobiles.' " Morris, 136 Ill. 2d at 162, quoting People v. One 1979 Pontiac Grand Prix Automobile, 89 Ill. 2d 506, 510 (1982). The court then found that the defendant altered the temporary registration of his own vehicle and that there was no evidence that the alteration contributed in any way to any vehicle theft-related crime. Morris, 136 Ill. 2d at 162. Our supreme court concluded:

"A Class 2 penalty for a person who alters a temporary registration permit for a vehicle which he or she owns or to which he or she is legally entitled is not reasonably designed to protect automobile owners against theft, nor is it reasonably designed to protect the general public against the commission of crimes involving stolen motor vehicles. Such a penalty is violative of the due process clause of our constitution, and may not stand." Morris, 136 Ill. 2d at 162.

Applying the analysis from Morris to this case, we must determine whether a Class 2 penalty for a person who falsely reports a theft of his own motor vehicle is reasonably designed to protect automobile owners against theft, or reasonably designed to protect the general public against the commission of crimes involving stolen motor vehicles. We conclude that, under the facts of this case, an application of a Class 2 penalty to defendant is reasonably designed to meet those legitimate state interests.

In this case, defendant's actions did have harmful consequences, the prohibition of which protects automobile owners against theft and protects the general public from the commission of crimes involving stolen motor vehicles. Contrary to defendant's contention, his actions caused a misdirection of police resources. It is important to note that although defendant quickly advised Officer Jahncke that the "stolen" vehicle had been recovered, he never retreated from his claim that a theft had occurred. The arresting officer's testimony makes it clear that defendant's car was inventoried and processed as a stolen vehicle. It was held indoors so that it could be protected from tampering, and an Illinois State Police crime scene investigator photographed the vehicle. The prosecutor's comments to the court related that it was also dusted for fingerprints. Defendant's actions also kept the Warren police involved in the investigation of the possible theft: according to defendant's testimony, he came to the police station the Monday following his arrest to provide the police with a list of items he thought were missing from his vehicle. Deterring misdirection of police resources advances anti-theft interests; for example, it improves the protection of automobile owners against vehicle theft by increasing the resources that can be expended on solving or preventing actual automobile thefts. Further, the deterrence of such misdirection makes police resources available to investigate, detect, and prevent all crimes that negatively affect the public in general, including crimes involving stolen motor vehicles. Accordingly, the application to defendant of the Class 2 penalty provided for by section 4--103(b) for a violation of section 4--103(a)(6) did reasonably relate to legitimate state interests and, therefore, did not violate his due process rights.

Defendant points to the State's closing argument in which the prosecutor referred to defendant's story as "laughable" and "ridiculous." Defendant suggests that this characterization is an acknowledgment by the State that defendant's report was so inane that there was no reason to expend police resources to investigate the theft. We realize that it is possible that a report of a stolen motor vehicle could be so outlandish (e.g., Martians stole my car!) that charging a person with the false report of a stolen vehicle would violate that person's right to substantive due process guaranteed by the Illinois Constitution. However, this is not such a case. The record indicates that the report was at least plausible and that the police took it seriously enough to impound defendant's car for investigation and to apply valuable resources to the case, including the time of an Illinois State Police crime scene investigator. Moreover, defendant did nothing after the initial report to dissuade the police from believing the veracity of his claim, even to the point of bringing them a list of items he claimed were stolen from his car. Defendant never did retract the report and stuck to his story at trial.

Defendant also argues that People v. Fuller, 187 Ill. 2d 1 (1999), holds that the false report provision, read in the light of Morris, requires that the false report have some victim in order for it to be punishable. Defendant contends that his crime was victimless.

The defendant in Fuller, after allowing her former husband to borrow her car, called the police and reported it stolen. The former husband was stopped by police, arrested, and ultimately charged with the theft. Fuller, 187 Ill. 2d at 4. After the defendant admitted that she had lied about the theft, she was charged with false report of a vehicle theft. Fuller, 187 Ill. 2d at 5. She moved to dismiss the charge on the grounds that, under the rationale of Morris, application of the false report provision in her case would violate her due process rights. Fuller, 187 Ill. 2d at 5-6. Our supreme court rejected the defendant's argument that punishing her particular actions did nothing to advance anti-theft interests and that, thus, to apply the false report provision to her actions would violate her due process rights. Fuller, 187 Ill. 2d at 5-6.

As to defendant's contention that Fuller requires that the defendant's conduct have a victim, we disagree. We believe that our supreme court simply distinguished Morris and People v. Hamm, 149 Ill. 2d 201 (1992), on this basis, but did not require a specific victim in order to conclude that a given penalty is reasonably related to the legislative purpose of the statute in question. See Fuller, 187 Ill. 2d at 16. The court found it sufficient that there was harm to a specific victim, i.e., the defendant's former husband, in deciding if the Class 2 penalty was reasonably related to the legislative purpose, but nothing the court said indicates that this is necessary.

Even if Fuller could be read to include a victim factor in the due process equation, we believe that it was met in this case. In his trial testimony, defendant related that when he emerged from Wally's bar and discovered his vehicle was missing, he thought that his friends were playing a joke on him, so he began to search for his car. We would certainly expect that Officer Jahncke of the Warren police department, as well as other law enforcement officers working in the vicinity, could easily ascertain who these "friends" of defendant were and subject them to an investigation regarding this incident. Moreover, defendant potentially exposed persons who had innocently touched his vehicle in the past to a stolen-motor-vehicle investigation. Although no fingerprints suitable for comparison were located on defendant's vehicle, at the time defendant made the report he did not know that the innocent people who had touched his vehicle in the past would be so fortunate. As the supreme court in Fuller observed, "the defendant's actions exposed [innocent people] to the uncertainty and expense that will result from being falsely accused of a crime." (Emphasis added.) Fuller, 187 Ill. 2d at 19.

For the foregoing reasons, we reject defendant's contention that the Class 2 felony penalty that was applied to him in this case was a violation of his right to substantive due process of law under the Illinois Constitution.

B. The Prosecutor's Closing Argument

Defendant's second contention on appeal is that the prosecutor's closing arguments denied him a fair trial. Defendant notes that this claim was not raised in his posttrial motions, but he claims that the improprieties were serious enough to rise to the level of plain error. Because the standard for reversal of a conviction on appeal due to improper closing argument by the State is much the same as the plain-error standard, the failure to raise this issue before the trial court has little effect. "The standard of review applied to arguments by counsel is similar to the standard used in deciding whether a plain error was made: comments constitute reversible error only when they engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from those comments." People v. Nieves, 193 Ill. 2d 513, 533 (2000).

We agree with defendant that certain parts of the rebuttal argument were improper. However, we do not agree that every portion of the rebuttal singled out by defendant is improper, and, more critically, we do not agree that the improper remarks rise to the level of reversible error.

Defendant argues that it was improper for the State to suggest that defense counsel was attempting to confuse the jury. These comments by the State were proper in light of defendant's remarks which attempted to make much of a minor discrepancy in the calibration of the Breathalyzer used to test him. Comments on the defense's attempt to use minor discrepancies to discredit the State's evidence are proper rebuttal. People v. Hudson, 102 Ill. App. 3d 346, 349 (1981). We read the State's comments not as an attempt to accuse defendant's counsel of dishonesty but, rather, to draw attention to his trial tactic.

Defendant further argues that it was improper for the State to suggest that defendant and counsel had encouraged his wife to lie on his behalf. It is not clear that the State made such a claim, and if it did, it immediately retracted it. The interchange, discussing the use of Quire's written police statement, was as follows:

"MR. WEBER [State's Attorney]: And because Defendants attempt to get around [statements made to police] by later bringing in [the persons who made the statements] and having them say 'I don't remember. I don't remember', okay, that does not--

MR. NACK [Defense Counsel]: I'll object to that. There's no indication that we had anything to do with that. The implication is we told her to come in here and lie.

THE COURT: Overruled. Go ahead.

MR. WEBER; Well, I certainly don't want to leave that impression whatsoever if that's the impression I gave, I would certainly withdraw it and strike it and I don't think I was saying that but if I did, I apologize. What I mean is, he's married to her, okay, and now she comes in here and says I don't remember."

Generally, a trial court can correct any error by sustaining an objection and instructing the jury to disregard the remark. People v. Cisewski, 118 Ill 2d. 163, 178 (1987). Here, although the court overruled the objection, the State itself was at pains to correct the impression. With any implication that defendant or his counsel was suborning perjury definitively retracted, all that remained of the statement was a comment about the likelihood of the witness's bias, which was proper.

The State made comments which suggest, essentially, that a decent person in defendant's position would have pleaded guilty. Negative comments about a defendant's exercise of his or her constitutional rights are improper because they penalize the defendant for the exercise of those rights. People v. Mulero, 176 Ill. 2d 444, 462 (1997). This argument by the State is nothing if not an attempt to anger the jury at defendant for his choice to have a trial. The State argues that this line of argument was invited, but this was not the case. In closing, defendant's counsel argued that, once defendant chose to assert his right to plead his innocence, he had no choice but to go to trial. He further stated that defendant had the choice between a bench trial and a jury trial, and that defendant had chosen to have a jury trial. Nothing in these remarks could be understood to state that defendant was forced to go to trial. If anything, the remarks appear to have been intended to remind the members of the jury that they were assisting in upholding defendant's right to a trial by jury.

The State also commented that defendant's purpose in lying was to be able to laugh at the police when he was back on the street. It is error for the trial court to permit comments that serve only to arouse the passions of the jury, and particularly comments that attempt to turn the jury's verdict into a test of its support for law enforcement. People v. Slabaugh, 323 Ill. App. 3d 723, 731 (2001). The State could point out that defendant was motivated to lie, but the comment about him laughing at police went well beyond this. The comment had no basis in the evidence and seems to have been designed to be purely inflammatory.

Generally, improper closing arguments by the State will constitute reversible error only if there is doubt as to whether the jury would have rendered a guilty verdict in the absence of the comments. Nieves, 193 Ill. 2d at 533. Nothing in the case suggests that the closing argument had such an effect on the outcome of the trial. With regard to the false-reporting charge, the only dispute was the legal one of whether the provision under which he was charged applied to defendant's admitted conduct. With regard to the DUI charge, the only real dispute was whether defendant had driven his car after he became intoxicated. On this point, the jury heard testimony of defendant's own admission that he had driven the car (by trying to get it unstuck) after he left the last bar. This, coupled with the implausibility of defendant's explanation as to how the car got to the place it was found, made a sufficiently strong case for defendant's guilt that we can presume that the State's closing argument did not affect the verdict, and under the general standard there is no reversible error.

Defendant also argues that under People v. Blue, 189 Ill. 2d 99, 139 (2000), and People v. Ray, 126 Ill. App. 3d 656, 663 (1984), closing argument that exceeds all bounds of propriety can constitute reversible error, even when the evidence against the defendant is overwhelming. Both cases stand for the proposition that the cumulative effect of errors during the course of a trial can so taint the proceedings as to deprive the defendant of a fair and impartial trial and thus require reversal even in the face of evidence that strongly establishes the defendant's guilt. Ray holds that such taint can be caused by improper closing argument alone. However, the errors in Ray were much more pervasive than those in this case. In Ray, the court noted that it was examining only the most egregious of the prosecutor's closing comments, and yet it listed 16 instances of claiming that defense counsel was lying, a single instance of suggesting that the defendant no longer enjoyed the presumption of innocence, a single instance of drawing attention to the fact that the defendant had not testified, several instances of suggesting that excluded evidence would have favored the State, several suggestions that the defendant had intimidated witnesses, and several insinuations that the defendant had a long criminal history. Ray, 126 Ill. App. 3d at 660-63.

Without diminishing the failings of the State in this matter, we recognize that improper comments in this case were neither as pervasive nor as potentially damaging as those in Ray. The quantity of improper comments in this case does not match the sheer quantity of the inflammatory remarks in Ray. Furthermore, the improper comments in this case lacked the potential of those in Ray to confuse the jury. There, the comments brought to the jury's attention the existence of excluded evidence and otherwise attempted to mislead the jury as to the evidence that it should have considered, whereas here the improper remarks were simply inappropriate appeals to emotion.

III. CONCLUSION

For the reasons stated, the judgment of the circuit court of Jo Daviess County is affirmed.

Affirmed.

BYRNE, J., concurs.

PRESIDING JUSTICE HUTCHINSON, dissenting:

I respectfully dissent. I believe that State's Attorney Glen Weber's rebuttal argument was so fraught with improper comments that it not only rose to the level of reversible error, it shattered the ceiling of courtroom decorum and professional conduct. I recognize the general principle of affording prosecutors wide latitude in closing argument. See People v. Blue, 189 Ill. 2d 99, 127 (2000). However, this wide latitude is not without limits. See People v. Slabaugh, 323 Ill. App. 3d 723, 727-32 (2001). A fundamental tenet of our criminal justice system is that prosecutors owe defendants a duty of fairness. People v. Amaya, 255 Ill. App. 3d 967, 973 (1994). This duty extends throughout the trial and includes closing arguments. Amaya, 255 Ill. App. 3d at 973. What this means is that State's Attorney Weber has an ethical obligation to refrain from presenting improper and prejudicial argument. See People v. Hudson, 157 Ill. 2d 401, 441 (1993). We expect our state's prosecutors to prosecute with earnestness and vigor. But as the United States Supreme Court has recognized, "[W]hile [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 the present case, the first foul blow emanating from State's Attorney Weber came at the outset of his rebuttal, when he explained to the jury that defendant could have chosen to do what "80 to 90 percent of [d]efendants do in this country" and that is "they be honest [and] forthright," and "[t]hey go into the courtroom and they plead guilty." Upon defense counsel's objection that the remark just attacked defendant's constitutional right to a jury trial (see U.S. Const., amend. VI), the trial court actually overruled the objection and allowed Weber to continue. Thereafter, Weber repeatedly accused defendant of lying, accused defense witnesses of lying, explained why defendant and defense witnesses would lie, and why defendant and defense witnesses would continue to maintain their lie. Weber explained to the jury that defendant "want[ed] to escape responsibility for his crime," "get back out on the street, back out after the verdict and yuck it up with the officers." Weber then concluded by asking the jury to "send [defendant] a message" and say "enough of these lies." In my view, Weber's rebuttal argument exceeded all bounds of reasonable and proper comment. The argument was especially harmful due to Weber's strategic decision to wait until rebuttal to present it, so that defendant would have absolutely no method to substantively counteract the venom of Weber's comments before the jury retired to deliberate. See People v. Sutton, 316 Ill. App. 3d 874, 896 (2000).

Time and again Glen Weber has crossed the line of permissible conduct. See People v. Slabaugh, 323 Ill. App. 3d 723, 727-32 (2001); People v. Couch, No. 2--01--0585 (2003) (unpublished order under Supreme Court Rule 23); People v. Doll, No. 2--02--0564 (2003) (unpublished order under Supreme Court Rule 23). In Slabaugh, Weber repeatedly argued that defense witnesses were " 'lying,' '[sat] down together and [got their] stories straight,' 'concocted' their defense, and 'creat[ed] a defense.' " Slabaugh, 323 Ill. App. 3d at 729. We noted that, despite a trial court's sustaining an objection and instructing the jury, when a prosecutor repeatedly attempts to make unfounded arguments, a defendant may still be prejudiced. Slabaugh, 323 Ill. App. 3d at 731-32. In reversing the defendant's conviction, we held that, in addition to his improper impeachment, Weber's "numerous improper arguments" deprived the defendant of a fair trial. Slabaugh, 323 Ill. App. 3d at 732.

In Doll, we noted in a special concurrence that Weber's comment that the defendant was a "rat in a maze" "served no other purpose than to arouse the passions of the jury." Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring). In the present case, Weber, while attempting to explain what a "prior inconsistent statement" was, argued: "you see, because we have [d]efendants here that are always trying to, you know, they're like a rat in a maze, you know, okay, let's see what it looks like in here--zoom, zoom, and try to get out of it." (Emphasis added.) Just as in Doll, this type of rhetoric served no purpose other than to arouse the passions of the jury and to denigrate defendant and the defense witnesses and is, therefore, highly improper. See Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring).

Apparently, our past admonitions to Glen Weber have gone callously and cavalierly disregarded as this case more than amply demonstrates. I am further troubled that the majority's treatment of this issue does nothing to diminish the likelihood that such conduct will recur. Though I am unable to convince my colleagues, I feel compelled to make a public record of Glen Weber's lack of professionalism and decorum.

In cases such as this, where prosecutorial misconduct has not been deterred through admonition or condemnation, the United States Supreme Court has stated that it "may well so seriously undermine the integrity of judicial proceedings as to support reversal under the plain-error doctrine." 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.). Given the cumulative effect of Weber's comments and the nature of the evidence in this case, I believe that defendant was denied a fair and impartial trial. See Slabaugh, 323 Ill. App. 3d at 732. The evidence of guilt can hardly be characterized as overwhelming; consequently, this is not a matter of harmless error. A reversal and remand for a new trial free from the taint of Glen Weber is not only justified in this instance, it should be mandated. I urge judges to vigorously guard against such improper argument and unprofessional conduct.

For these reasons, I respectfully dissent.

20031020

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