People v. Anderson

Opinion

FIRST DIVISION February 14, 2011

No. 1-08-0500 _________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. O5C6-61126-01 ) JOHN ANDERSON, ) Honorable ) Michelle M. Simmons, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE HALL delivered the judgment of the court, with opinion. Justices Lampkin and Rochford concurred in the judgment and opinion.

OPINION

Following a jury trial, the defendant, John Anderson, was

found guilty of residential burglary. The trial court imposed a

sentence of 20 years' imprisonment in the Department of

Corrections. The defendant appeals.

On appeal, the defendant raises the following issues: (1)

whether the denial of his motion to suppress was error; (2)

whether it was error to admit evidence which permitted the jury

to find the defendant guilty of an uncharged residential

burglary; (3) whether it was error to allow the jury to view a No. 1-08-0500

certified copy of the defendant's previous conviction, which

contained prejudicial surplusage; (4) whether the defendant's

testimony in support of his defense was inadmissible hearsay; (5)

whether the prosecutor's remarks in closing argument deprived the

defendant of a fair trial; (6) whether it was error to deny

defense counsel's request to question the venire to ascertain any

bias based on the defendant's prior conviction; and (7) whether

the cumulative effect of the alleged errors denied the defendant

a fair trial and due process of law. We affirm the defendant's

conviction and sentence.

The defendant was charged with a single count of residential

burglary. The indictment charged that, on or about September 17,

2005, the defendant entered the residence of Joann Hess with the

intent to commit a theft. See 720 ILCS 5/19-3(a) (West 2004).

In response to the defendant's request for a bill of particulars,

the State identified the date and time of the offense as on or

about September 17, 2005, at approximately 2:39 a.m., and that it

occurred at or near 12316 Vincennes, Blue Island, Illinois.

As the defendant does not challenge the sufficiency of the

evidence, only a brief summary of the evidence at trial is

necessary. Evidence pertinent to an issue raised on appeal will

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be set forth in connection with that issue.

SUMMARY OF TRIAL EVIDENCE

Joann and Jeffrey Hess resided at 12316 Vincennes Avenue in

Blue Island. On September 16, 2005, the Hesses attended a party.

At approximately 2 a.m., on September 17, 2001, Mrs. Hess

returned to their residence and discovered evidence of a

burglary: the front door was unlocked, and jewelry, cash and gas

cards were missing. After being notified of the burglary, Mr.

Hess returned to the residence. As the Hesses stood in their

kitchen, a man, later identified as the defendant, entered the

residence through the front door and began looking around. When

Mrs. Hess cried out that the man was back, the defendant fled the

house, pursued by Mr. Hess. Mr. Hess managed to restrain the

defendant. The defendant told Mr. Hess that if he did not call

the police, he would get the Hesses' property returned to them.

The police arrived, and a search of the defendant revealed a set

of car keys, which had been on the kitchen counter of the

residence when Mrs. Hess left for the party.

The defendant gave a statement to Blue Island police

officers. Initially, the defendant had acted as a lookout while

a friend of his, Cat Daddy, entered the Hess residence and

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removed some items. Cat Daddy shared the proceeds with his

girlfriend and then told the defendant to return to the Hess

residence and see what else he could take. When the defendant

returned to the Hess residence, he was confronted by the

homeowner. However, at trial the defendant testified that, prior

to going to the Hess residence, he had witnessed Mrs. Hess giving

a set of keys to Cat Daddy's brother in exchange for drugs. The

keys were then given to the defendant who went to the Hess

residence only to exchange the keys for $20.

The jury found the defendant guilty of residential burglary.

Following the denial of his motion for a new trial, the defendant

was sentenced to 20 years' imprisonment. This timely appeal

followed.

ANALYSIS

I. Denial of Motion to Suppress Statement

The defendant contends that the trial court erred when it

denied his motion to suppress the inculpatory statement he gave

to police following his arrest.

A. Pertinent Evidence

At the hearing on the motion to suppress, the following

testimony was presented by the parties.

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Bernadine Rzab1 testified that, on September 17, 2005, she

was a detective with the Blue Island police department. After

reporting for work at 3 p.m., Officer Rzab was informed that the

defendant, a burglary suspect, had been taken into custody at

approximately 2:45 a.m. that morning. At approximately 4:30

p.m., Officer Rzab and Corporal Kevin Sisk interviewed the

defendant.

Officer Rzab advised the defendant of his Miranda rights.

She had the defendant read aloud each of the rights from the

printed form. As he read each right, she asked if he understood

each right. He indicated he did and placed his initials by each

right. Both officers signed the waiver of rights form after the

defendant signed it.

After signing the waiver form, the defendant agreed to speak

to the officers and agreed that his statement could be summarized

in writing. The conversation lasted approximately 40 minutes.

The defendant appeared coherent and had no difficulty forming

sentences. After the defendant gave his statement, Officer Rzab

1 The record reflects that Officer Rzab also spelled her name

"Azab."

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had him review what she wrote, and the defendant agreed it was

accurate. The defendant also acknowledged in the statement that

he had been treated well while in custody and that he was not

forced to make the statement.

When questioned about the defendant's physical condition,

Officer Rzab stated that he appeared fine and that there was no

change in his physical condition during the interview. The

defendant never stated that he suffered from diabetes or that he

was taking insulin. She denied that the defendant told her that

he needed to take his insulin or that he told her he did not

understand the proceedings because he was ill. She never denied

medication to the defendant, and there was no discussion

regarding the defendant's need to take medication.

On cross-examination, Officer Rzab testified that she was

unaware of whether the defendant had been given any food prior to

beginning her interview with him. She did not ask the defendant

if he needed food. She acknowledged that she was unfamiliar with

the defendant's "normal" demeanor. She again denied that the

defendant told her he was a diabetic or that he requested

insulin. She did not recall telling the defendant that she would

help him get insulin after their discussion. Officer Rzab denied

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that she escorted the defendant to another room to make a

telephone call to obtain insulin.

The defendant testified that he was 45 years of age and had

been an insulin-dependent diabetic since 1984. He took insulin

twice a day, in the morning and the evening. Following his

arrest, he was placed in a holding cell at approximately 2:40

a.m. He had no medication with him, and he was not offered any

food or anything to drink. He had last taken his insulin the

morning of September 16, 2005, and had last eaten around 8:30

p.m. the evening of the 16th.

When he entered the interview room, he was feeling ill; he

had a severe headache, cramps, he was sweating, and feeling

nauseated. He told Officer Rzab that he was an insulin-dependent

diabetic and need his insulin. He also told her that he had some

insulin at his godmother's residence. The defendant was not

wearing his glasses, which, due to his diabetes, he needed in

order to see clearly.

The defendant testified that he repeatedly told Officer Rzab

that he was ill and needed his insulin. Officer Rzab responded

that once they concluded the interview, she would see about

obtaining insulin for the defendant. He did not recall Officer

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Rzab asking if he wanted his statement in writing, but he did

recall Officer Rzab reading the statement to him and telling him

that if he signed it, he could make a telephone call to get the

insulin. The defendant did not read the written statement.

After the defendant signed the statement, Officer Rzab took

the defendant into the squad room so he could telephone his

godmother, Elizabeth Broadway. He spoke to Ms. Broadway, but she

was unable to bring his insulin to the police station. After he

concluded the call, Officer Rzab told him she would see about

getting him insulin. The defendant was then returned to his

cell. When he was taken to bond court the next morning, he

passed out and woke up in the hospital.

On cross-examination, the defendant testified that, while in

custody, he had three meals, each consisting of a cheeseburger

and a soft drink. The first time he ate was after he signed the

statement. The defendant maintained that he signed the statement

because he was feeling ill. He acknowledged that, despite not

having his glasses, he was able to place his initials on the

lines of the form. The defendant pointed out that three of the

letters of his signature on the waiver of rights form were not

exactly on the line. However, he acknowledged that he signed on

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the lines, including a slanted line, in three places on his

statement.

On redirect examination, the defendant testified that much

of the food he consumed while in custody was not good for him.

He passed out because he had not taken his insulin since the

morning of September 16, 2005. He was able to sign the statement

because it was placed right in front of him. On re-cross-

examination, the defendant maintained that he was not given a

choice of food; he ate because he was hungry.

Corporal Kevin Sisk testified that on September 17, 2005, he

was a corporal detective with the Blue Island police department.

Officer Rzab and he conducted an interview of the defendant. The

defendant did not appear ill during the interview. He appeared

coherent and did not have any difficulty communicating during the

interview. He made no request of either officer. On cross-

examination, Corporal Sisk acknowledged that he was not familiar

with the defendant's normal appearance.

The State requested that the trial court take judicial

notice that, in bond court on September 18, 2005, the judge set

bond but issued a "no body" mittimus for the defendant. The

trial court denied the motion to suppress.

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B. Standard of Review

In reviewing a trial court's ruling on a motion to suppress,

we apply a two-part standard. While we will not reverse the

trial court's factual findings unless they are against the

manifest weight of the evidence, the trial court's ultimate

determination is reviewed de novo. People v. Luedemann, 222 Ill.

2d 530, 542, 857 N.E.2d 187 (2006).

C. Discussion

In determining whether a confession is voluntary, the court

must consider the totality of the circumstances. People v.

Gorgis, 337 Ill. App. 3d 960, 970-71, 787 N.E.2d 329 (2003).

Factors to be considered include the defendant's age,

intelligence, background, experience, mental capacity, education,

physical condition at the time of questioning, and any physical

or mental abuse by police, including the existence of threats or

promises. Gorgis, 337 Ill. App. 3d at 971.

The defendant maintains that the police denied him food,

water and medical attention until he provided a confession to the

residential burglary charge. The State initially responds that

the defendant has forfeited the issue because he did not

specifically allege it in his motion to suppress or raise it in

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his motion for a new trial.

The purpose behind the waiver rule is to ensure that the

trial court was given the opportunity to correct any errors

before they are raised on appeal. People v. Bennett, 376 Ill.

App. 3d 554, 567, 876 N.E.2d 256 (2007). In support of his

motion to suppress and in his testimony at trial, the defendant

argued that he was not given any food and was denied insulin

until he gave a statement to the detectives. In his motion for a

new trial, the defendant alleged that the denial of his motion to

suppress was error. In denying the defendant's motion for a new

trial, the trial court was clearly aware of the arguments the

defendant raised in contesting that his confession was voluntary.

As the trial court had the opportunity to consider the

defendant's arguments both prior to and after the trial, the

issue was not forfeited.

The defendant maintains that evidence established that the

officers withheld insulin, food and water to the defendant until

he agreed to give them a statement. While the fact that the

defendant was a diabetic was uncontradicted, what is disputed in

this case is whether he informed the officers that he was a

diabetic and needed insulin. In contrast to the defendant's

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testimony, the officers maintained that the defendant made no

complaints or requests during the interview, never informed them

that he was a diabetic and required insulin, and appeared alert

and coherent during the interview.

In ruling on a motion to suppress, the trial court must

resolve conflicts in the evidence and determine the credibility

of the witnesses. Gorgis, 337 Ill. App. 3d at 971. The trial

court is in a better position than the reviewing court to assess

the credibility and demeanor of the witnesses who testified at

the hearing and to assess the relevant facts. Gorgis, 337 Ill.

App. 3d at 971. In this case, credibility was the determinative

factor in the outcome of the hearing. The trial court resolved

the conflicts in the evidence against the defendant. We find no

basis in the record for disagreeing with the trial court's

credibility determinations. Therefore, they are not against the

manifest weight of the evidence.

The cases relied on by the defendant are distinguishable.

In People v. Strickland, 129 Ill. 2d 550, 544 N.E.2d 758 (1989),

the police were aware that the defendant was injured when he was

arrested and did not obtain medical treatment for him until he

had given a statement. In the present case, the issue of whether

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the officers were aware of the defendant's medical condition was

resolved against the defendant.

In In re V.L.T., 292 Ill. App. 3d 728, 686 N.E.2d 49 (1997),

the reviewing court found the 10-year-old respondent's confession

to have been coerced. The evidence established that the

respondent, who had no prior experience with police, was taken

from her home in her pajamas, was tired and hungry, and despite

her request, no one concerned with her welfare was present for

her to confer with prior to writing out her confession. V.L.T.,

292 Ill. App. 3d at 737. The evidence in this case established

that the defendant was a mature man, who never indicated to

police that he required food or medical attention or assistance

of any kind.

We conclude that the trial court did not err in denying the

defendant's motion to suppress his inculpatory statement.

II. Uncharged Offense

The defendant contends that his burglary conviction must be

reversed because he may have been convicted of an uncharged

offense. He maintains that the indictment charged him only in

connection with his own entry into the Hess residence. He argues

that by giving the jury an instruction on accountability, the

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jury may have convicted him based on evidence that he served as a

lookout when Cat Daddy entered the Hess residence. The State

responds that the trial court correctly found that the two

entries were part of a continuous course of conduct and that the

defendant's conduct constituted the singular offense of

residential burglary.

Prior to trial, defense counsel filed a motion in limine to

bar evidence of other crimes, specifically the reference in the

defendant's statement that he acted as a lookout while Cat Daddy

entered the Hess residence and removed certain items from the

residence.

Defense counsel argued that, based on the defendant's

statement, two separate burglaries occurred; one in which the

defendant acted as a lookout and the other when he actually

entered the residence. Based on the indictment and its answer to

the bill of particulars, defense counsel maintained that the

State was proceeding only on the burglary in which the defendant

actually entered the residence. In response, the prosecutor

argued that the defendant's actions in acting as a lookout and

his entry into the Hess residence comprised one continuous crime.

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While the exact time of the defendant's actions could not be

ascertained, the prosecutor noted that, according to the

defendant's statement, he did not arrive in Blue Island until

2:30 a.m. on September 17, 2005. While trial counsel

acknowledged that both entrances to the Hess residence were on

September 17, 2005, she pointed out that Mrs. Hess was expected

to testify that she discovered evidence of the burglary at 2 a.m.

on September 17, 2005.

After reviewing the defendant's statement, the trial court

denied the motion. Relying on the defendant's statement, the

court determined that the defendant's actions as a lookout and

his own entry into the Hess residence constituted a continuous

course of conduct. There was no previous burglary and therefore,

the defendant's statement did not refer to other crimes.

B. Discussion

The defendant first challenges the trial court's

determination that the defendant's participation as a lookout for

Cat Daddy and his own entry into the Hess residence was a

continuous course of conduct and constituted the commission of a

single burglary as charged in the indictment. The defendant

relies on People v. Bell, 196 Ill. 2d 343, 751 N.E.2d 1143

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(2001). In Bell, the supreme court held that for purposes of

eligibility for extended-term sentencing, "[i]f there was a

substantial change in the nature of the criminal objective, the

defendant's offenses are part of an 'unrelated course of

conduct.' " Bell, 196 Ill. 2d at 354-55.

The defendant maintains that the State's evidence showed

there was a substantial change in the defendant's criminal

objective between the first and second entries. The defendant

asserts that, in the first entry, he served as a lookout while

Cat Daddy burglarized the Hess residence for the benefit of

himself and his girlfriend. When the defendant entered the Hess

residence, it was to obtain items for himself. However, the

evidence also established that when the police searched the

defendant, he had keys that had been taken from the Hess

residence. According to the defendant's statement, after Cat

Daddy and he returned to Cat Daddy's apartment, the defendant

took the keys that Cat Daddy had obtained from the Hess residence

and returned to obtain more items. After he was surprised by the

Hesses, the defendant testified that he was trying to return to

Cat Daddy's apartment when he was tackled by Mr. Hess.

Based on the evidence and the reasonable inferences from

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that evidence, we agree with the trial court that the defendant's

conduct in acting as a lookout and his own entry into the Hess

residence constituted a single burglary as charged in the

indictment. Assuming, arguendo, the two entries into the Hess

residence did not constitute a continuous course of conduct, the

error does not require reversal.

Citing People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117

(2001), the defendant argues that it would be unfair to uphold

his conviction based on either of two burglary theories, one

which is not legally valid. In Crespo, while the court rejected

the State's argument that three separate stab wounds sustained by

the victim supported three separate offenses, it was because

"[w]e believe that to apportion the crimes among the various stab

wounds for the first time on appeal would be profoundly unfair."

(Emphasis added.) Crespo, 203 Ill. 2d at 343. In the present

case, the State's argument that it was seeking to convict the

defendant either as an accomplice or a principal was raised at

trial.

The defendant then argues that where the jury was instructed

on alternative theories of guilt and may have relied on an

invalid one, the guilty verdict may not stand. See Yates v.

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United States, 354 U.S. 298 (1957), overruled on other grounds by

Burks v. United States, 437 U.S. 1 (1978). However, our supreme

court's decision in People v. Davis, 233 Ill. 2d 244, 909 N.E.2d

766 (2009), suggests otherwise.

In Davis, our supreme court determined that a harmless-error

or a plain-error analysis applied to a constitutional due process

error. The court noted that in Hedgpeth v. Pulido, 555 U.S. 57

(per curiam), the United States Supreme Court held that where the

jury was instructed on multiple theories of guilt, one of which

is improper, a harmless-error analysis is applicable. Davis, 233

Ill. 2d at 270, citing Hedgpeth, 555 U.S. at ___, 129 S. Ct. at

532. The court further noted that Yates had been decided prior

to the decision in Chapman v. California, 386 U.S. 18 (1967), in

which the Court held that constitutional error may be harmless.

The harmless-error analysis also applies to violations of the

Illinois Constitution. See People v. Rivera, 227 Ill. 2d 1, 30,

879 N.E.2d 876 (2007) (harmless-error analysis applied to

violation of the right to a jury trial under the federal

constitution and applied to a violation of that right alleged

under the Illinois Constitution).

Unlike Davis, where the plain-error analysis applied because

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the error was not preserved, here the error was preserved for

review; therefore, the harmless-error analysis applies. People

v. Thurow, 203 Ill. 2d 352, 363, 786 N.E.2d 1019 (2003). Under

the harmless-error analysis, the test is whether, absent the

error, a rational jury could have found the defendant guilty

beyond a reasonable doubt. Thurow, 203 Ill. 2d at 368-69. The

State bears the burden of proof. Thurow, 203 Ill. 2d at 363.

Even assuming that a conviction on the accountability theory

would have been invalid because the defendant was never charged

in connection with Cat Daddy's entry, there was more than

sufficient evidence from which the jury could conclude that the

defendant was guilty of burglary based on his own entry into the

Hess residence. The only contested issue was why the defendant

was present at the Hess residence. The State's evidence

established that the defendant was in possession of a set of

keys, that had been in the Hess kitchen when Mrs. Hess left.

While the defendant testified that he was given the keys to

return them for money, his statement was contracted by his own

statement to police, as well as his statement to Mr. Hess that if

he did not call the police, the defendant could assist in getting

the remaining stolen items returned.

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We conclude that any error in allowing the jury to consider

an accountability theory in convicting the defendant was harmless

beyond a reasonable doubt.

III. Admission of Certified Copy of Previous Conviction

The defendant contends that the trial court erred by

admitting the certified copy of the defendant's conviction

without deleting the references to the sentence he received,

that he caused injury and great bodily harm and the nine counts

the defendant was charged with, not just the seven of which he

was convicted. He acknowledges that he failed to preserve the

error but seeks review under the plain-error doctrine. See Ill.

S. Ct. R. 615(a). Under the plain-error doctrine, we may

consider a forfeited issue "when either (1) the evidence is

close, regardless of the seriousness of the error, or (2) the

error is serious, regardless of the closeness of the evidence."

People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467 (2005).

The defendant asserts that we should review the alleged error

because the evidence is closely balanced. First, we must

determine if error occurred. People v. Hudson, 228 Ill. 2d 181,

191, 886 N.E.2d 964 (2008).

To impeach a defendant with a prior conviction, the proper

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method of proof is the introduction of a certified copy of the

record of conviction only. People v. Davis, 54 Ill. App. 3d 517,

525, 369 N.E.2d 1376 (1977). The inclusion of irrelevant

evidence such as the inclusion of criminal charges of which the

defendant was not convicted was surplusage, irrelevant and

erroneous. Davis, 54 Ill. App. 3d at 525. It is also improper

to indicate the sentence the defendant received for a prior

conviction, as it is immaterial to the question of a defendant's

credibility. People v. Pruitt, 165 Ill. App. 3d 947, 954, 520

N.E.2d 867 (1988). The details appearing on the documents

necessary to prove the defendant's prior conviction may be so

prejudicial that the defendant would be entitled to a new trial.

See People v. Dudley, 217 Ill. App. 3d 230, 234, 576 N.E.2d 1110

(1991). Assuming, arguendo, that the admission of the surplusage

information was error, we must address the defendant's argument

that the evidence is closely balanced.

In People v. Naylor, 229 Ill. 2d 584, 893 N.E.2d 653 (2008),

the supreme court determined that the trial court erred when it

admitted the defendant's prior conviction. In conducting a

plain-error analysis, the court further determined that the

evidence was closely balanced where the trial court was faced

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with two credible versions of the event. As the State's only

successful attack on the defendant's testimony was his

erroneously admitted prior conviction and the court could not be

certain the error did not prejudice the defendant's right to a

fair trial, the error was not forfeited and required that the

defendant receive a new trial. Naylor, 229 Ill. 2d at 608-09.

The defendant's reliance on Naylor is misplaced. Unlike the

trial judge in Naylor, in the present case, the jury was not

faced with two equally credible versions of the events. The

testimony of the Hesses established that the defendant entered

their residence and that the defendant had in his possession a

set of keys, which had been in the residence at the time Mrs.

Hess left. The defendant attempted to flee and was restrained by

Mr. Hess. The defendant then offered to help Mr. Hess retrieve

his possessions. The defendant's testimony denying his

participation in the burglary was contradicted by his statement

admitting his participation in the burglary of the Hess residence

and his possession of the keys taken from the residence.

The evidence is not closely balanced in this case, and the

defendant does not argue the second prong of the plain-error

analysis. Therefore, we conclude that there is no basis for

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excusing the defendant's procedural default.

IV. Hearsay

barred a portion of the defendant's testimony on the basis that

it was hearsay and that the error prevented him from establishing

his defense. The State responds that the testimony was hearsay

and that any error was harmless and did not deprive the defendant

of his defense.

On direct examination, the defendant testified that Cat

Daddy passed him a set of keys from Cat Daddy's brother. The

defendant was then questioned as follows:

"Q. After you had that conversation about these keys,

did you do anything?

A. Meaning?

Q. What did you do after you had this conversation

about the keys that you were given?

A. I went down the street. I followed their

direction."

The prosecutor's objection was sustained, and the answer was

stricken. The questioning then continued as follows:

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"Q. Just tell me what you did. Where did you go?

A. I walked down the street on the same side of the

street we all were on until I saw the house on the opposite

side of the street like they told me."

Again, the prosecutor's objection was sustained. The trial

court instructed the defendant to answer the question without

telling what someone told him to do. The defendant indicated

that he understood the court's instruction. The questioning

continued as follows:

"Q. All right. You said you walked to a house. How

did you know which house to walk to?

A. I was given instructions."

Outside the presence of the jury, defense counsel argued

that the testimony was not hearsay in that it was not offered for

the truth of the matter asserted but to explain why the defendant

went to a particular house. The trial court disagreed, finding

that the testimony was offered to prove that the defendant was

told by someone to go that house. Later, the trial court

allowed the defendant to testify that he was going to the Hess

residence to get $20.

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A trial court's decision on the relevance and admissibility

of evidence is reviewed for an abuse of discretion. People v.

Gonzalez, 379 Ill. App. 3d 941, 953, 884 N.E.2d 228 (2008).

In order to constitute hearsay, the statement must be

offered to establish the truth of the matter asserted in the

statement. Gonzalez, 379 Ill. App. 3d at 954. "The primary

rationale for the exclusion of hearsay testimony is the inability

of the opposition to test the testimony's reliability through

cross-examination of the out-of-court declarant." People v.

Weatherspoon, 394 Ill. App. 3d 839, 850, 915 N.E.2d 761 (2009).

Where the out-of-court statement is offered to prove its effect

on the listener's mind or to show why the listener subsequently

acted as he did, the statement does not constitute hearsay and is

admissible. Gonzalez, 379 Ill. App. 3d 941.

The defendant maintains that the excluded testimony was not

hearsay because his testimony as to Cat Daddy's instructions was

offered to explain that he went to the Hess residence to return a

set of car keys. In People v. Sorrels, 389 Ill. App. 3d 547, 906

N.E.2d 788 (2009), the reviewing court held that a police

officer's order to the defendant to "stop," was not hearsay as it

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was admitted to establish that the defendant ignored the

officer's command and continued to flee. In addition, the court

found that the statement was properly admitted because there was

"'no truth of the matter asserted'" in the command to "stop" and

that it was not necessary "'to test the reliability through

cross-examination of the out-of-court declarant' because that

testimony has no 'reliability' in the hearsay sense." All that

mattered was that the word was uttered. Sorrels, 389 Ill. App.

3d at 553.

Likewise, in this case, the defendant's statement that he

was instructed to go to the Hess residence did not constitute

hearsay because it was offered to show why the defendant acted as

he did, namely to go to the Hess residence. Like the "stop"

command in Sorrels, the instruction to go to the Hess residence

did not constitute "'an assertion or a statement of fact.'" See

Sorrels, 389 Ill. App. 3d at 554 (quoting Holland v. State, 713

A.2d 364, 369-70 (Md. Ct. Spec. App. 1998).

"Erroneous exclusion of admissible evidence does not mandate

reversal unless defendant was prejudiced and the error affected

the verdict." Weatherspoon, 394 Ill. App. 3d at 850-51. In

Weatherspoon, the trial court erroneously excluded on the grounds

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of hearsay the defendant's testimony that during a conversation

with a group of men, he felt threatened. The defendant argued

that the exclusion of the testimony prevented him from explaining

why he left the jurisdiction. The reviewing court held that the

error was harmless where, from the defendant's testimony, the

jury could discern that the conversation was so disturbing as to

cause the defendant to immediately leave Chicago. The court

concluded that, considering all of the evidence and arguments,

the jury was sufficiently aware of an explanation for his flight

compatible with the defendant's innocence. Weatherspoon, 394

Ill. App. 3d at 851-52.

In the present case, the defendant testified that he did not

go to the Hess residence on his own, that he had a conversation

with Cat Daddy or Cat Daddy's brother about the keys and that he

was going to the Hess residence to make an exchange for $20. On

cross-examination, the defendant was questioned as follows;

"Q. Now, you indicated that you do remember that

approximately sometime between 1:30 and 1:45 [a.m.], Cat

Daddy's brother gives Cat Daddy some keys and Cat Daddy

gives the keys to you, is that what happened?

A. Yes, ma'am.

27 No. 1-08-0500

Q. Were you now wearing a watch?

A. No, ma'am.

Q. How did you know the time this time?

A. Because it was late. I had not too much more time

before they told me the bus quit running. When he gave me

the keys, he said go on do that so you can go on and get out

of here.

Q. Okay.

So he gave you the keys and then you walked to 12316

Vincennes, that's your testimony, right?

A. Yes, ma'am."

The admitted testimony was sufficient to acquaint the jury

with an explanation for the defendant's presence at the Hess

residence compatible with the defendant's innocence. See

Weatherspoon, 394 Ill. App. 3d at 853. Therefore, the exclusion

of the testimony did not prejudice the defendant, and given the

overwhelming evidence against the defendant, the outcome of the

trial would not have been different had the omitted testimony

been allowed.

V. Prosecutor's Rebuttal Argument

The defendant contends that the prosecutor's improper

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remarks during her rebuttal argument require that the defendant

receive a new trial.

A. Standard of Review

Our appellate courts are divided on the standard of review

for closing remarks. People v. Maldonado, 402 Ill. App. 3d 411,

421, 930 N.E.2d 1104 (2010). The division stems from an apparent

conflict between two supreme court cases. In People v. Wheeler,

226 Ill. 2d 92, 121, 871 N.E.2d 728 (2007), the supreme court

held that whether a prosecutor's remarks are so egregious as to

require a new trial presents a question of law to which the de

novo standard of review is applicable. However, in Wheeler, the

court also cited with approval People v. Blue, 189 Ill. 2d 99,

724 N.E.2d 920 (2000). In Blue, the court applied the abuse of

discretion standard to its review of the prosecutor's remarks.

Within this district, there is a division as to the

applicable standard of review. See People v. Raymond, 404 Ill.

App. 3d 1028, 1038 (2010). While noting the conflict, this

division has declined to determine the appropriate standard,

where the result would be the same regardless of which standard

was applied. See Maldonado, 402 Ill. App. 3d at 422. As we

would reach the same approach under either standard, we will

29 No. 1-08-0500

refrain from articulating the applicable standard until our

supreme court resolves the conflict.

1. Forfeiture

In order to preserve an issue for appeal, the defendant must

object at trial and raise the issue in a posttrial motion.

People v. Johnson, 385 Ill. App. 3d 585, 604, 898 N.E.2d 658

(2008). In his posttrial motion, the defendant raised only one

remark by the prosecutor as error: that the defendant had two

years to fabricate his defense. However, as the State points

out, the defendant did not object to this remark at trial but

rather to the prosecutor's reference to what the defendant "knew"

two years before. As the prosecutor's remarks were either not

objected to at trial or not raised in the defendant's posttrial

motion, the defendant has forfeited any error based on the

prosecutor's closing argument.

2. Plain Error

In his reply brief, the defendant requests that we review

this issue for plain error. Ordinarily a litigant may not raise

issues for the first time in a reply brief. Ill. S. Ct. R.

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341(h)(7) (eff. Mar.16, 2007). However, this court has

recognized that a reviewing court is not precluded from reviewing

a defendant's plain-error argument even when it was raised for

the first time in a reply brief. People v. Johnson, No. 1-07-

3372, slip op. at 5-6 (Ill. App. Dec. 10, 2010) (citing People v.

Williams, 193 Ill. 2d 306, 347-48, 739 N.E.2d 455 (2000)).

The defendant contends that we may consider the forfeited

error in this case because the evidence is closely balanced. We

must first determine if error occurred. Hudson, 228 Ill. 2d at

191.

In reviewing a defendant's claims of prosecutorial

misconduct in closing argument, the court considers the closing

argument in its entirety in order to place the complained of

remarks in context. Johnson, 385 Ill. App. 3d at 604. "If the

jury could have reached a contrary verdict had the improper

remarks not been made, or the reviewing court cannot say that the

prosecutor's improper remarks did not contribute to the

defendant's conviction, a new trial should be granted." Wheeler,

226 Ill. 2d at 123.

The defendant complains that the prosecutor accused the

defendant of fabricating his defense, misstated the defendant's

31 No. 1-08-0500

testimony when he argued that the defendant had referred to Mrs.

Hess as a "crackhead," improperly shifted the burden of proof by

arguing that there was no evidence that Mrs. Hess ever purchased

drugs, inflamed the passions of the jury by accusing the

defendant of using his status as a diabetic to excuse his

behavior, and bolstered his case improperly by telling the jury

police officers were more credible than the defendant based on

their status as police officers. Finally, the defendant argued

that the cumulative effect of these improper remarks required

that the defendant receive a new trial.

Prosecutors are afforded wide latitude in closing argument.

Wheeler, 226 Ill. 2d at 123. A prosecutor has the right to

comment upon the evidence presented and upon reasonable

inferences arising from that evidence, even if the inferences are

unfavorable to the defendant, and may respond to comments made by

defense counsel which clearly invite a response. People v.

Hudson, 157 Ill. 2d 401, 441, 626 N.E.2d 161 (1993).

Nonetheless, " 'it is improper for the prosecutor to do or say

anything in argument the only effect of which will be to inflame

the passion or arouse the prejudice of the jury against the

defendant, without throwing any light on the question for

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decision.' " People v. Fluker, 318 Ill. App. 3d 193, 202, 742

N.E.2d 799 (2000) (quoting People v. Smith, 141 Ill. 2d 40, 60,

565 N.E.2d 900 (1990)).

The prosecutor's statement that the defendant wanted the

jury to believe that Mrs. Hess was a "crackhead" was in response

to defense counsel's argument that Mrs. Hess's statement to Mr.

Hess that "he's back" was based on the fact she had seen the

defendant while she was purchasing drugs. The prosecutor's

statement that there was no evidence that Mrs. Hess ever bought

drugs did not amount to shifting the burden of proof to the

defendant but was a proper attack on the theory of defense. See

People v. Berry, 264 Ill. App. 3d 773, 780, 642 N.E.2d 1307

(1994).

The defendant asserts that the prosecutor repeatedly and

improperly argued that the defendant fabricated his defense. In

People v. Slabaugh, 323 Ill. App. 3d 723, 753 N.E.2d 1170 (2001),

the reviewing court found the prosecutor's rebuttal argument

improper where he repeatedly argued that the defense witnesses

were lying and had gotten together to create a defense. The

court determined that the testimony of the defendant and a

witness, who were friends, that they had a discussion about what

33 No. 1-08-0500

would happen at the trial some two years before did not support

the inference that they had manufactured a defense. Slabaugh,

323 Ill. App. 3d at 729-30.

The defendant's reliance on Slabaugh is misplaced. In the

present case, the prosecutor's argument was based on the

differing versions of the burglary contained in the defendant's

statement and in his testimony at trial. See People v. Frieberg,

147 Ill. 2d 326, 356, 589 N.E.2d 508 (1992) (proper for

prosecutor to cross-examine the defendant on the inconsistencies

between his statement to police and his in-court testimony).

Therefore, it was a reasonable inference from the evidence that

the defendant had tailored his defense to fit the facts.

We find the prosecutor's reference to the defendant's use of

his diabetic condition as an excuse for his confession to be a

reasonable inference from the evidence. The defendant testified

that he was an insulin-dependent diabetic and that he took

insulin twice a day. He further testified that his confession

was the result of being deprived of insulin. When confronted by

the prosecutor, the defendant acknowledged he did not take his

insulin the night of September 16, 2005, explaining that he did

not feel like he needed the insulin because he had consumed

34 No. 1-08-0500

enough food that evening. Yet, by the time of his September 17,

2005, statement to police, he had twice missed taking insulin.

In that statement, the defendant maintained that he had been well

treated by police. In light of the defendant's varying testimony

as to his dependance on insulin, the prosecutor's comment was not

intended to inflame the passions of the jury and was a proper

comment on the evidence.

Finally, the defendant contends that the prosecutor

improperly bolstered the testimony of the police witnesses.

Defense counsel had argued to the jury that Officer Rzab could

not afford to change her account of the defendant's interview in

her trial testimony and how convenient it was that the statement

was not videotaped. In rebuttal, the prosecutor argued that the

detectives would not have ignored the defendant's requests for

insulin, given the potential liability if the defendant passed

out or died as a result. The defendant relies on People v.

Fields, 258 Ill. App. 3d 912, 921, 631 N.E.2d 303 (1994), and

People v. Clark, 186 Ill. App. 3d 109, 542 N.E.2d 138 (1989). In

both cases, the reviewing courts found the prosecutors' arguments

that the police witnesses would not risk their pensions by

committing perjury to be improper argument.

35 No. 1-08-0500

In People v. Gorosteata, 374 Ill. App. 3d 203, 870 N.E.2d

936 (2007), this court explained that the "invited response"

doctrine applies where the prosecutor is responding to improper

argument on the part of defendant's counsel. Gorosteata, 374

Ill. App. 3d at 222. " 'The credibility of a witness is a proper

subject for closing argument if it is based on the evidence or

the inferences drawn from it.' " Gorosteata, 374 Ill. App. 3d at

223 (quoting Hudson, 157 Ill. 2d at 445). As trial counsel's

argument was not improper, the prosecutor's reference on rebuttal

to why the jury should believe the police officers cannot be

justified under the invited response doctrine. As such, the

prosecutor's argument was improper.

Even if reversible, this error does not require that the

defendant receive a new trial in this case. See Gorosteata, 374

Ill. App. 3d at 225 (not all reversible errors are plain errors).

As we previously determined, the evidence against the defendant

was overwhelming; therefore, the defendant has failed to satisfy

the first prong of the plain-error analysis. As the defendant

does not argue the second prong of the plain error analysis, we

conclude that there is no basis for excusing the defendant's

procedural default.

36 No. 1-08-0500

VI. Voir Dire

refused to allow defense counsel to question the venire to

determine if they could be fair and impartial, knowing that the

defendant had a prior conviction.

Initially, the trial court allowed defense counsel to

question the venire as to the defendant's prior convictions as

follows:

"MS. MALONE-LOCKETT (defense counsel): Mr. McNicholas,

if you learned that a witness or a defendant had a

conviction in his background, would that impair your ability

to be fair and impartial?

MR. McNICHOLAS: For repeated offense?

MS. MALONE-LOCKETT: At all.

MR. McNICHOLAS: Or just whether [sic] general?

MR. McNICHOLAS: I guess it depends on [the] nature of

it.

MS. MALONE-LOCKETT: What do you mean by that?

MR. McNICHOLAS: Well, I mean again if it is [a]

37 No. 1-08-0500

similar event and there was [a] conviction I guess I would

have to look at - [.]"

The trial court recessed the proceedings and in chambers

heard argument from both parties on the merits of the defendant's

request. The court then ruled as follows:

"I am not going to allow the question. It seems loaded with

other issues that it will lead to. What is [the] conviction

for. That's what the jury instruction is for.

I asked all of them it they will follow the law.

Follow the jury instruction. There will be no question

pertaining if the defendant or witness had a prior

conviction. And I guess your next question would be would

it affect your ability to be a juror in this case.

That's not a proper question for the venire."

We review an issue as to compliance with a supreme court

rule de novo. People v. Lloyd, 338 Ill. App. 3d 379, 384, 788

N.E.2d 1169 (2003). However, a trial court's denial of a party's

request to question jurors on a particular viewpoint is reviewed

for an abuse of discretion. People v. Reeves, 385 Ill. App. 3d

716, 729-30, 897 N.E.2d (2008).

38 No. 1-08-0500

The defendant concedes that the error was not raised in his

posttrial motion. He argues that the error was sufficiently

preserved in the record by his objection at trial and may be

reviewed under the constitutional or plain error exceptions

recognized in People v. Enoch, 122 Ill. 2d 176, 190, 122 N.E.2d

1124 (1988) (where a defendant failed to file a posttrial motion,

review was limited to constitutional issues properly raised at

trial, sufficiency of the evidence and plain error).

The constitutional exception does not apply in this case

because the authority to question prospective jurors derives from

the supreme court's inherent power to make rules governing the

conduct of the circuit courts. See People v. Glasper, 234 Ill.

2d 173, 196, 917 N.E.2d 401 (2009) (defendants do not have a

right to Illinois Supreme Court Rule 431(b)(4) (eff. May 1, 2007)

questioning under either the United States or Illinois

Constitution). Therefore, we will apply the plain-error analysis

and determine, first, if error occurred.

Initially, we note that the trial judge did not deny defense

39 No. 1-08-0500

counsel the opportunity to question the jurors directly. It

allowed the questioning until it appeared defense counsel's

questions were intruding into the area of jury instructions, thus

violating Rule 431(a). We must determine if the trial court

abused its discretion by not allowing defense counsel to question

the venire as to the effect the defendant's prior conviction

would have on their ability to be fair and impartial. Rule

431(a) provides as follows:

"The court shall conduct voir dire examination of

prospective jurors by putting to them questions it thinks

appropriate, touching upon their qualifications to serve as

jurors in the case at trial. The court may permit the

parties to submit additional questions to it for further

inquiry if it thinks they are appropriate and shall permit

the parties to supplement the examination by such direct

inquiry as the court deems proper for a reasonable period of

time depending upon the length of examination by the court,

the complexity of the case, and the nature of the charges.

Questions shall not directly or indirectly concern matters

of law or instructions." Ill. S. Ct. R. 431(a) (eff. May 1,

2007)).

40 No. 1-08-0500

We find no error in the refusal of the trial court to

question prospective jurors as to whether a witness or a

defendant's prior conviction would affect their ability to be

fair and impartial. Such an inquiry violated Rule 431(a)

prohibition against questions covered by the instructions.

Illinois Pattern Jury Instructions, Criminal, No. 3.13 (4th ed.

2000) (hereinafter, IPI Criminal 4th No. 3.13) provides that

jurors may consider evidence of a defendant's prior conviction

only as it affects his credibility as a witness and not as

evidence of guilt.

The defendant argues that defense counsel's question

concerned not only the defendant's credibility but that of the

witnesses as well. IPI Criminal 4th No. 1.02 sets forth what the

jurors may take into account in their role as the sole judges of

the believability of the witnesses. Since the defendant's

inquiry of the prospective jurors directly or at the very least,

indirectly, concerned the instructions to be given to the jury,

it was prohibited by Rule 431(a).

Our conclusion finds support in People v. Brandon, 157 Ill.

App. 3d 835, 510 N.E.2d 1005 (1987). On appeal, the defendant

argued that the trial court erred in refusing to question

41 No. 1-08-0500

potential jurors if they would be prejudiced against the

defendant if they learned he had a felony conviction. The

defendant maintained that his question did not pertain to matters

of law, but was proper in order to uncover bias.

The reviewing court found the tendered question improper

because the subject was covered in IPI Criminal 2d No. 3.13 and

because it would have tended to unfairly tip the balance in favor

of the defendant's case. The court reasoned that, as the

defendant claimed that the case was a battle of credibility

between the defendant and the arresting officer, the tendered

question would have improperly highlighted an aspect of the

defense claim rather than a legitimate attempt to expose bias or

prejudice. In addition, at the voir dire stage of the

proceedings, the trial court could not have anticipated whether

the defendant would testify and, if so, whether the State would

impeach him with his prior convictions. Brandon, 157 Ill. App.

3d at 844.

In this case, the defendant argues that the question did not

relate to the theory of his case. We disagree. As was the case

in Brandon, the trial here presented a credibility contest

between the defendant's version of why he was present in the Hess

42 No. 1-08-0500

residence and the version presented by the State's witnesses.

The defendant's reliance on People v. Strain, 194 Ill. 2d

467, 742 N.E.2d 315 (2000), and People v. Lanter, 230 Ill. App.

3d 72, 595 N.E.2d 210 (1992), is misplaced. In People v. Dixon,

382 Ill. App. 3d 233, 887 N.E.2d 577 (2008), this court

reiterated its holding that Strain was limited to cases involving

evidence relating to gangs and gang membership and refused to

extend Strain to other areas of potential bias. Dixon, 382 Ill.

App. 3d at 245. The court in Dixon also distinguished Lanter on

the basis that the defendant in Lanter asserted the affirmative

defense of intoxication and that no affirmative defense was

asserted in the case before it. The court also noted the court's

observation in Lanter, that " '[n]ot every affirmative defense is

so controversial as to render voir dire questioning appropriate.'

" Dixon, 382 Ill. App. 3d at 244 (quoting Lanter, 230 Ill. App.

3d at 76).

This case does not involve gang-related evidence or an

affirmative defense. The defendant also relies on People v.

Stack, 112 Ill. 2d 301, 493 N.E.2d 339 (1986). However, in

Brandon, the reviewing court found Stack inapplicable because the

question relating to the defendant's prior convictions did not go

43 No. 1-08-0500

to a basic or fundamental matter directly involving the

defendant's guilt or responsibility, such as the defense of

insanity raised in Stack. Brandon, 157 Ill. App. 3d at 843.

Likewise, Stack does not support the defendant's argument that

the question relating to the defendant's prior convictions was

proper.

We conclude that the trial court did not abuse its

discretion when it refused to allow defense counsel to question

the venire as to the affect prior convictions would have on their

ability to be fair and impartial. As there was no error, we need

not engage in the plain-error analysis.

VII. Cumulative Error

The defendant contends that the cumulative effect of the

alleged errors requires that he receive a new trial. Based on

our resolution of the defendant's claims of error in this case,

we find no merit to the defendant's contention.

CONCLUSION

The defendant's conviction and sentence are affirmed.

Affirmed.

44 No. 1-08-0500