People v. Derr

736 N.E.2d 693, 316 Ill. App. 3d 272, 249 Ill. Dec. 499
CourtAppellate Court of Illinois
DecidedSeptember 18, 2000
Docket5-99-0223
StatusPublished
Cited by23 cases

This text of 736 N.E.2d 693 (People v. Derr) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Derr, 736 N.E.2d 693, 316 Ill. App. 3d 272, 249 Ill. Dec. 499 (Ill. Ct. App. 2000).

Opinions

JUSTICE RARICK

delivered the opinion of the court:

John Derr (defendant) was found guilty after a jury trial in the circuit court of Madison County of felony murder (robbery), involuntary manslaughter, and concealment of a homicidal death in connection with the death of Dennis Oberbeck on August 14, 1992. Defendant was sentenced to 25 years’ imprisonment for felony murder (robbery), a concurrent five-year term for involuntary manslaughter, and a consecutive five-year prison term for concealment of a homicidal death. Defendant appeals, contending that the trial court erred: (1) in denying his motions for a judgment of acquittal and a new trial when the State failed to establish the essential elements of felony murder (robbery) as charged, (2) in allowing defendant’s spouse to testify to her observations of defendant, (3) in allowing the prosecutor to make repeated references in closing argument to defendant’s failure to present evidence, thereby denying defendant a fair trial, and (4) in entering a judgment on both the felony murder (robbery) and involuntary manslaughter verdicts, which defendant believes are inconsistent. We reverse defendant’s convictions and remand this cause for a new trial.

On the evening of August 13, 1992, the victim, Dennis Oberbeck, was at Geno’s 140 Club in Bethalto, Illinois. The victim worked as a bartender for the club, but on this evening he was drinking and socializing there. The bartender on duty testified that defendant began talking to the victim around 7 p.m. and was trying to get the victim to leave with him around 10 p.m. According to the bartender, eventually defendant, the victim, and two other men left the bar together and stood outside on the west side of the club talking. One of the two men testified that the victim asked him to lend him some money. He did not have the money to lend and left defendant and the victim alone outside the club at approximately 1:30 a.m. The fourth man, according to other witnesses, joined the three while they were already standing outside the club and was asked to leave upon approaching the group. No one testified to seeing defendant or the victim after 1:30 a.m.

Defendant’s ex-wife, who at the time of the incident was still married to defendant, testified that she was awakened by voices in her living room in the early morning hours of August 14, 1992. She recognized her husband’s voice and fell back to sleep. At approximately 2 a.m., she testified that she was again awakened, this time by a telephone call. Following the phone call, she drove to a house in Granite City that she and defendant owned and met defendant at the side door. Once inside, defendant showed her a ring, similar to a class ring, with a blue stone. He then turned the lights on and off quickly, and she noted a man lying on the floor. She went over to the man and tried without success to locate a pulse. At the trial, she identified a body in a photograph as the body she had seen lying on the floor of the house. She further testified that she had not observed any bruises on the face of the body similar to those depicted in the autopsy photo. Defendant took the body from the house and put it in his van. Defendant then drove across the street onto a levee and stopped. She followed defendant in her truck. They talked for a few minutes, and defendant again showed her the ring and a silver watch, which he then tossed toward the water. They left the levee in their separate vehicles. The wife followed defendant until she had to stop suddenly at a light. When she stopped, a tractor in the back of the truck slid forward and broke the rear window of the truck. At that point, she decided to go back home. Some 30 minutes later, defendant arrived. The body of the victim was subsequently found in the lot of an abandoned house in north St. Louis. The autopsy report indicted that the victim’s blood-alcohol concentration was 0.377. The pathologist who performed the autopsy testified that the victim died as a result of an elevated blood-alcohol level that impaired his brain function and that he subsequently sustained blows to the head, which caused the brain to cease functioning. The injuries to the victim’s head, by themselves, could not have been fatal. The pathologist further testified that the injuries to the head were most likely caused by a fist but possibly could be attributed to a combination of falls. A wallet and a diamond wedding ring were found on the victim. The victim’s wife testified that the victim also wore a bowling ring with a ruby stone and a gold watch, neither of which was ever recovered.

Defendant raises four arguments on appeal. We address his third contention first, for we find that the prosecutor’s closing argument mandates the reversal of defendant’s convictions and the remandment of this cause. Defendant argues that the prosecutor’s repeated references to his failure to present evidence to prove his innocence and testify at the trial denied him a fair trial. We agree.

In general, prosecutors are afforded wide latitude in closing argument, and usually a trial court’s determination as to the propriety of such arguments will not be disturbed on review. See People v. Campbell, 199 Ill. App. 3d 775, 783, 557 N.E.2d 556, 561 (1990); People v. Sheppard, 193 Ill. App. 3d 401, 403, 549 N.E.2d 971, 972 (1990). As defendant points out, however, this wide latitude has limits. It is a basic principle of our criminal justice system that prosecutors owe defendants a duty of fairness. See People v. Yonker, 256 Ill. App. 3d 795, 798, 628 N.E.2d 1124, 1127 (1993); People v. Gutierrez, 239 Ill. App. 3d 536, 543, 605 N.E.2d 1110, 1115 (1992). This duty extends throughout the trial and includes closing statements. Simply put, the prosecutor has an ethical obligation to refrain from presenting improper and prejudicial argument. People v. Hudson, 157 Ill. 2d 401, 441, 626 N.E.2d 161, 178 (1993); Gutierrez, 239 Ill. App. 3d at 543, 605 N.E.2d at 1115. To be sure, a prosecutor is expected to prosecute with earnestness and vigor. See People v. Lyles, 106 Ill. 2d 373, 412, 478 N.E.2d 291, 308 (1985). 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 this instance, prosecutor Weber made six references in closing argument to uncontradicted and/or unrebutted evidence. We acknowledge that it is generally permissible for the.State to point out that evidence is uncontradicted even if the defendant is the only person who could have provided contrary proof. See People v. Keene, 169 Ill. 2d 1, 21, 660 N.E.2d 901, 911-12 (1995); People v. Connolly, 186 Ill. App. 3d 429, 437, 542 N.E.2d 517, 522 (1989). Such comments are not permitted, however, if they are intended or calculated to direct the attention of the jury to the defendant’s failure to testify. See People v. Romero, 189 Ill. App. 3d 749, 757, 546 N.E.2d 7, 12 (1989). Mr. Weber’s comments did just that. His intent and motive were made perfectly clear by his comments outside the presence of the jury in responding to defense counsel’s objections.

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Bluebook (online)
736 N.E.2d 693, 316 Ill. App. 3d 272, 249 Ill. Dec. 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-derr-illappct-2000.