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People v. Brooks

January 16, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LAVANCE BROOKS, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County Honorable Timothy Chambers, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice O'mara Frossard

[8]  After a jury trial, defendant LaVance Brooks was found guilty of armed robbery. He was sentenced to prison for 20 years. Defendant appeals his conviction. He contends he was denied the effective assistance of counsel because his defense counsel failed to invoke the Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act (725 ILCS 235/6 (West 2000)) in order to secure alibi witness Robert Austin at trial. Additionally, defendant claims the closing argument by the prosecution denied him a fair trial. We affirm.

[9]  BACKGROUND

[10]   Dion Sarthy was working at Hartigan's Ice Cream Shop in Evanston on February 18, 2000. Around 10 p.m. he was in the process of closing the store when two men appeared at the back of the store. Both wore masks and one was armed with a gun. When they asked Sarthy for money, he told them the money was in the cash register and in the envelope on the desk. The two men duct taped Sarthy's hands and legs and placed him in the freezer. After about 15 minutes, Sarthy was able to get out of the freezer. He noticed the cash register was empty, and called the police. The cash register was located on the other side of the counter, away from the customer area about five to eight feet.

[11]   Officer Josephine Dolinski responded to the call and observed that the register drawer was pulled out. She lifted prints from the cash register drawer and placed them on a white fingerprint card and in a sealed envelope. She submitted the envelope with the prints to Detective Jason Parrott. He sent the prints to Mary Beth Thomas, a forensic scientist at the Illinois Crime Laboratory specializing in latent print examination. Thomas concluded the latent prints from the cash register drawer did not belong to the store clerk, Dion Sarthy. As there were no suspects in the case, forensic scientist Thomas scanned one of the latent prints into AFIS (Automatic Fingerprint Identification System), which returned 10 candidates. Thomas then physically compared the recovered print with the 10 candidates and found only one match. She obtained the fingerprint card of the potential match and concluded to a reasonable degree of scientific certainty regarding the two latent prints on the cash register drawer that "the person whose copy of the fingerprint card marked LaVance Brooks left both impressions on the latent lift."

[12]   On April 18, 2001, Detective Parrot arrested defendant. Defendant denied ever being inside Hartigan's Ice Cream Shop and indicated he had never operated a cash register for any purpose. Defendant did not testify and called no witnesses. The jury found defendant guilty of armed robbery. After a sentencing hearing, the judge considered witnesses in mitigation and aggravation. The evidence in aggravation included five previous felony convictions and live testimony regarding three pending cases, two deliveries of a controlled substance, and one possession of a controlled substance. In mitigation, Stephanie Chambers, a friend of defendant, testified for defendant. She grew up with defendant and takes care of defendant's son about 85% of the time. She described defendant as a very responsible, caring, and loving parent. She also testified that defendant was always helping people in the community. Defendant was sentenced to 20 years in prison. Defendant appeals.

[13]   CLOSING ARGUMENT

[14]   Defendant contends that the prosecution made improper comments that shifted the burden of proof to the defense. Defendant acknowledges that defense counsel neither objected to the prosecutor's remarks nor included the alleged error in the posttrial motion. Defendant asks this court to review his forfeited argument under the plain error rule. See 134 Ill. 2d R. 615(a). Supreme Court Rule 615(a) provides that if "substantial rights" are not affected, any such claim "shall be disregarded." 134 Ill. 2d R. 615(a). Regarding the difference in analyzing plain error and harmless error, the Illinois Supreme Court in People v. Crespo, 203 Ill. 2d 335, 347-48 (2001), noted:

[15]   "An `important difference' between the two analyses lies in the burden of proof: in harmless-error analysis, the State must prove that the jury verdict would have been the same absent the error to avoid reversal, whereas under plain-error analysis, a defendant's conviction and sentence will stand unless the defendant shows the error was prejudicial. [Citations.]"

[16]   Before a reviewing court may correct plain error, that is, error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects the defendant's substantial rights. Crespo, 203 Ill. 2d at 348, quoting United States v. Cotton, 535 U.S. 625, ___, 152 L. Ed. 2d 860, 868, 122 S. Ct. 1781, 1785 (2002). When all three conditions are satisfied, a court of review may exercise its discretion to notice a forfeited error, " `but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.' " Crespo, 203 Ill. 2d at 348, quoting Cotton, 535 U.S. at ___, 152 L. Ed. 2d at 868, 122 S. Ct. at 1785. With those principles in mind, we address defendant's contention that based on improper closing argument by the State his conviction should be reversed and the case should be remanded for a new trial.

[17]   A. Comment By Prosecution Was Error

[18]   The argument that defendant contends improperly shifted the burden of proof to the defense and misstated the law occurred at the conclusion of the opening closing argument by the prosecution as follows: "There's no question, ladies and gentlemen, there's no issue as to identification as to who was in that store. When you go back into the jury room, the presumption of innocence which Judge Chambers told you about as you were being selected as jurors and which you will receive in your jury instructions[,] that presumption, that cloak of innocence is gone. When you go back into the jury room and deliberate and find this defendant guilty of the only verdict which you can possibly do under the evidence, and that is to find defendant guilty of armed robbery. Thank you."

[19]   There is no dispute that defense counsel neither objected to the comment made by the prosecution nor included the alleged error in the posttrial motion. In its brief, the State argues that "the prosecutor was not telling the jury that the presumption of innocence was presently gone[;] rather[,] he told them that when they returned to the jury room and looked at the evidence, the cloak of innocence would be gone because defendant had been proven guilty." We disagree with that characterization by the State. The prosecution, contrary to the State's brief, did not tell the jury "the cloak of innocence would be gone because defendant had been proven guilty." The prosecution in closing argument stated "that presumption, that cloak of innocence is gone." (Emphasis added.) The prosecution did not state that "that cloak of innocence would be gone." The prosecution misstated the law regarding the presumption of innocence.

[20]   We find the cases relied upon by the State to be distinguishable. In People v. Cisewski, 118 Ill. 2d 163, 178 (1987), the court found no error in the prosecutor's comment that "[n]ow is the time *** to remove the cloak of innocence." In the instant case, the prosecutor stated that the cloak of innocence is gone. Moreover, the argument did not indicate that after hearing the evidence the defendant was no longer cloaked in innocence. See People v. Tomes, 284 Ill. App. 3d 514 (1996). ...


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