People v. Bailey

616 N.E.2d 678, 249 Ill. App. 3d 79, 186 Ill. Dec. 488, 1993 Ill. App. LEXIS 1059
Appellate Court of Illinois·Decided July 9, 1993·No. 3-91-0907·Published·Cited by 16 cases

Opinions

JUSTICE SLATER

delivered the opinion of the court:

A jury convicted the defendant, Randall L. Bailey, of one count of attempted murder and two counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, pars. 8 — 4, 9 — 1, 12 — 4). He was thereafter sentenced to 24 years’ imprisonment for the attempted murder conviction. He appeals. We affirm in part and vacate in part.

The record shows that the victim, Doug Bailey, is the brother of the defendant. Doug Bailey testified that on January 25, 1991, the defendant attacked him when he told the defendant not to call their mother names. He stated that the defendant “stomped” on his ribs and head. The defendant then pulled out a knife and held it to Doug’s throat while stating “you’re going to die.”

Other evidence showed that the victim managed to escape and make his way to a house that was about a mile away. The weather was cold and he was dressed in only jeans and a T-shirt.

The medical evidence showed that Doug Bailey had a laceration on his left wrist, cuts and abrasions on his face, a broken nose, bruised ribs, and a long scratch on his neck. He underwent surgery to repair his wrist and suffered a 20% to 30% permanent loss of function in his left thumb.

The defendant testified that he and his brother had fought, but stated that his brother had started it by hitting him on the head with a can of beer. He did not remember the specifics of the fight, but knew he did not pull a knife. He also could not say how Doug was injured so severely. The defendant did not suffer any injuries.

Other evidence showed that no beer cans were found at the scene of the incident. In addition, several witnesses testified that the defendant was an unreliable source of information and untruthful.

On appeal, the defendant first argues that prosecutorial misconduct occurred when the State introduced irrelevant, unsubstantiated, and patently prejudicial evidence of child molestation allegations involving him. He also contends that prosecutorial misconduct occurred when the prosecutor repeatedly expressed his personal opinions as to the credibility of the witnesses and the strength of the evidence.

Initially, we note that the defendant did not object at trial to the remarks he now complains of on appeal. He did, however, raise the issues in his post-trial motion. We also note that while the defendant did object at trial to the introduction of the molestation evidence, he did not raise the issue in his post-trial motion. The State therefore argues that the issues are waived since the defendant did not raise them both at trial and in his post-trial motion.

We agree with the State and find that the errors the defendant now complains of on appeal are waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Accordingly, we will only reverse if there was plain error, which is defined as error that either denies the defendant a fair trial or that occurs in a case where the evidence is closely balanced. People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755.

The State argues that the alleged errors were harmless since the evidence of the defendant’s guilt was overwhelming. We agree and find that the errors were harmless even when viewed in their totality. We do not find plain error.

We first address the defendant’s contention that the prosecutor improperly introduced inflammatory evidence. He notes that the prosecutor pursued an irrelevant line of questioning that resulted in the jury being exposed to unsubstantiated allegations that the defendant had sexually molested his own children. The prosecutor, during direct examination of the victim, elicited the following testimony:

“A. And then — and then [the defendant] said — he said, ‘You Mom, and Dad are the reasons my kids are gone.’
Q. And what happened to his kids?
A. Well, my mom took them and put them on a plane back to their parents — or not the parents — back to their mom when she found out he had been molesting the kids.
DEFENSE COUNSEL: Objection, your Honor.
Q. And what happened?
THE COURT: Anything concerning the molesting or alleged molesting is to be disregarded. The jury’s instructed to disregard. He’s not on trial for that.”

Thereafter, outside of the presence of the jury, the defendant moved for a mistrial, which was denied. While the trial court agreed the evidence was inflammatory, it found that it was not “so inflammatory as to make it impossible for the jurors to make a decision.”

A prosecutor is ethically obliged to refrain from presenting improper prejudicial evidence or argument. To this end, a prosecutor is barred from presenting irrelevant evidence that serves no purpose but to prejudicially inflame the passions and prejudice of the jury. (People v. Reimnitz (1979), 72 Ill. App. 3d 761, 391 N.E.2d 380.) We note that the erroneous admission of evidence of prior criminal activity carries a high risk of prejudice. (See People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) In addition, we note that evidence regarding child molestation, in and of itself, carries a high risk of prejudice since such evidence is highly inflammatory.

The evidence of guilt in this case was overwhelming and the isolated reference to child molestation did not rise to the level of plain error. Any .potential prejudice to the defendant was cured by the court’s instructions to the jury to disregard the remark. Where a timely objection is made at trial the court can usually correct any error by sustaining the objection or instructing the jury to disregard the answer or remark. (People v. Speight (1992), 153 Ill. 2d 365, 373.) We find that the prosecutor’s misconduct was properly cured by the trial court and this did not result in the defendant being deprived of a fair trial.

We now turn to the defendant’s argument regarding the prosecutor’s closing argument. On nine occasions during his closing argument, the prosecutor used the terms “I believe” and “I think,” when commenting on the credibility of the witnesses and the weight of the evidence. The State argues that such comments are not errors per se and that they were proper in the case at hand because the prosecutor’s comments were predicated on the evidence.

Error cannot be presumed simply because the prosecutor begins a sentence with such language, although we note that the better practice is to refrain from using sentences beginning with “I.” (People v. Baker (1990), 195 Ill. App. 3d 785, 552 N.E.2d 421.) The comments complained of are as follows:

“I think its obvious from Randy’s own testimony that he’s a violent person, that violence follows Randy Bailey.
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People v. Bailey, 616 N.E.2d 678, 249 Ill. App. 3d 79, 186 Ill. Dec. 488, 1993 Ill. App. LEXIS 1059 (Ill. Ct. App. 1993).

616 N.E.2d 678 (People v. Bailey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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