People v. Everette

581 N.E.2d 109, 220 Ill. App. 3d 453, 163 Ill. Dec. 158, 1991 Ill. App. LEXIS 1653
CourtAppellate Court of Illinois
DecidedSeptember 27, 1991
Docket1-87-1978
StatusPublished
Cited by6 cases

This text of 581 N.E.2d 109 (People v. Everette) 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. Everette, 581 N.E.2d 109, 220 Ill. App. 3d 453, 163 Ill. Dec. 158, 1991 Ill. App. LEXIS 1653 (Ill. Ct. App. 1991).

Opinion

JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant, Donald Everette, was convicted of murder and sentenced to 24 years’ imprisonment.

This cause now comes before us on remand from the supreme court (People v. Everette (1990), 141 Ill. 2d 147, 565 N.E.2d 1295) to consider two issues presented by defendant which this court did not reach in our previous decision on this matter (People v. Everette (1989), 187 Ill. App. 3d 1063, 543 N.E.2d 1040). Defendant first contends that the following statements are prejudicial and constitute reversible error: (1) numerous references to the location of the fatal wound, i.e., the victim was shot in the back; (2) a question posed regarding defendant’s possession of an identification card for his gun; (3) a comment made by the prosecutor during closing argument about defendant’s eyeglasses; (4) the prosecutor’s reference to defendant’s attorney as a “hired gun”; and (5) the prosecutor’s argument during rebuttal that “self-defense is out of this case.” The second issue raised by defendant is whether or not his sentence is excessive.

For the reasons which follow, we affirm the judgment of the circuit court.

The facts need not be fully repeated here since they are detailed in both the decision of the supreme court (Everette, 141 Ill. 2d 147, 565 N.E.2d 1295) and the prior opinion of this court (Everette, 187 Ill. App. 3d 1063, 543 N.E.2d 1040). In short, defendant admitted that he fatally shot the victim in the back but claimed that the shooting was an accident or, in the alternative, that he acted in self-defense. The trial court instructed the jury on involuntary manslaughter and murder because it believed that an accident defense was inconsistent with and thus precluded a self-defense theory. On appeal, this court found that the trial court’s failure to instruct the jury on self-defense and voluntary manslaughter required a new trial. Everette, 187 Ill. App. 3d 1063, 543 N.E.2d 1040.

The Elinois Supreme Court reversed and held that although a homicide defendant is entitled to an instruction on self-defense even where the defendant testifies he accidentally killed the victim, the present defendant failed to introduce sufficient evidence to warrant an instruction on self-defense. (Everette, 141 Ill. 2d 147, 565 N.E.2d 1295.) Accordingly, the supreme court found that the trial court’s refusal to tender a self-defense instruction was correct. The supreme court then remanded the cause for consideration of the two issues which were raised but not reached in defendant’s appeal to this court.

We initially address defendant’s contention that he was denied a fair trial based on certain statements made by the State which were allegedly improper and so prejudicial as to constitute reversible error. The nature and character of the remarks which are the gist of this appeal do not warrant reversal.

It is well established that improper remarks do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200.) Each case must be decided on its own facts. Baptist, 76 Ill. 2d at 29.

First, defendant argues that he was unfairly prejudiced by repeated references, i.e., approximately 52, to the fact that the victim was shot in the back.

Statements based on the evidence are not improper. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) Moreover, an opening statement is intended to inform the jury of facts each party expects to prove in the course of the trial. People v. Davis (1982), 104 Ill. App. 3d 512, 432 N.E.2d 1134.

The evidence revealed that the fatal bullet wound entered the victim’s back and exited through the front of his body. A review of the record discloses that the prosecutor made nine references to this fact during his opening argument and the majority of the remaining references to the location of the bullet wound occurred during the testimony of the deputy medical examiner. Given the circumstances of this case, the evidence presented, and the self-defense theory advanced by defendant, we find that the references to the location of the bullet wound during opening statements and testimony were not improper because they stemmed from the evidence and addressed a key issue in the case.

Second, defendant submits that he was prejudiced by the following question which the prosecutor asked defendant during his cross-examination: “You got any identification cards for this gun?” Defendant argues that the intent of this question was to improperly suggest to the jury that defendant had violated other laws.

The record reveals that defense counsel objected to this question, the trial judge sustained the objection, and defendant never answered this question. When a trial court promptly sustains an objection and instructs the jury to disregard an improper argument, any prejudicial effect caused by the improper statement is generally viewed as cured. Baptist, 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Spann (1981), 97 Ill. App. 3d 670, 422 N.E.2d 1051.

We find that any prejudicial effect which may have resulted from this question was sufficiently cured by the trial court’s actions.

Third, defendant asserts that during closing argument the State improperly implied that defendant had lied about his poor eyesight when the prosecutor made the following remark: “Donald Everette can sit here, and exchange his glasses as many times as he wants to, he can parade as many witnesses as he wants in front of you, to say that he is a truthful and peaceful man ***.” Defendant characterizes this remark as an improper, unfounded and prejudicial attempt to refute his self-defense theory by implying that he had no vision problems and was a liar. We disagree.

It is well established that a prosecutor is allowed wide latitude in closing arguments. (People v. Davis (1982), 104 Ill. App. 3d 512, 516, 432 N.E.2d 1134.) The substance and style of closing arguments are within the discretion of the trial court, and its findings will not be disturbed absent extreme error. (People v. Barnes (1983), 117 Ill. App. 3d 965, 978, 453 N.E.2d 1371.) Parties have the right to comment on the evidence, to draw any legitimate inferences from the evidence, and to make inferences even if detrimental to defendant. (People v. Weatherspoon (1978), 63 Ill. App.

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United States ex rel. Everette v. Roth
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Bluebook (online)
581 N.E.2d 109, 220 Ill. App. 3d 453, 163 Ill. Dec. 158, 1991 Ill. App. LEXIS 1653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-everette-illappct-1991.