People v. Harris

2023 IL App (4th) 220899-U

Opinion

NOTICE 2023 IL App (4th) 220899-U This Order was filed under FILED NO. 4-22-0899 August 1, 2023 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County CALVIN L. HARRIS, ) No. 18CF1284 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice DeArmond and Justice Knecht concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed defendant’s conviction for armed robbery.

¶2 In December 2018, the State charged defendant, Calvin L. Harris, with one count

of armed robbery with a firearm, a Class X felony (720 ILCS 5/18-2(a)(2) (West 2018)). In July

2022, a jury found defendant guilty, and the trial court later sentenced him to 21 years in prison.

¶3 Defendant appeals, arguing (1) the trial court erred by failing to answer a jury

question and (2) he was substantially prejudiced by the State’s improper comments during

closing argument. We disagree and affirm.

¶4 I. BACKGROUND

¶5 A. The Charges

¶6 In December 2018, defendant was charged by information with one count of

armed robbery with a firearm, a Class X felony (id.). The State alleged generally that in December 2018, defendant robbed Cody Cedeno at gunpoint.

¶7 B. The Trial Evidence

¶8 In July 2022, the trial court conducted a jury trial at which the following evidence

was presented.

¶9 1. Cody Cedeno

¶ 10 Cody Cedeno testified that in December 2016, he was a manager at a Casey’s gas

station on Fox Creek Road in Bloomington, Illinois. As manager, one of his duties was to deposit

money at the bank. On December 16, 2018, at around 1 p.m., Cedeno gathered the money and

receipts into bank bags and left the gas station to take the cash deposits to the bank. As he

walked to his car in the parking lot, Cedeno saw a blue Chevy Equinox parked backwards into

the spot next to his car with a “heavier set person” wearing a camouflage hoodie reclined in the

driver’s seat. He did not see any other person in the car.

¶ 11 As Cedeno opened his car door, someone came from behind him, held a silver

gun to his face, and demanded the money. The robber was wearing “a silky metallic—or like

silver, sweatshirt,” which was different from the sweatshirt he saw the driver in the Equinox

wearing. Cedeno allowed the robber to search him and take the bank bags out of his pockets. The

robber also took Cedeno’s keys and phone and then ordered Cedeno to walk toward the back of

his own car and get into the trunk. Cedeno complied with the robber’s demands, and the robber

closed the trunk door. Once Cedeno heard the Equinox’s door shut, he pulled the trunk’s

emergency release and got out of the trunk. His cellphone and keys were on the ground next to

his car. Cedeno immediately ran into the store to call the police, but not before he saw the

Equinox pull out of the parking lot and onto the road.

¶ 12 When police officers arrived, Cedeno told them what had occurred, describing the

-2- Equinox and that he believed the robber was a male, “over six feet tall, from 300 to 400 pounds,”

who wore a mask and had a deep male voice. One of the officers then drove Cedeno to a traffic

stop involving a blue Equinox for a “show up” to see if he recognized the car’s occupants.

Cedeno identified the stopped Equinox as looking like the one that had been parked next to his

car at the Casey’s. He also told officers that the man in the car had the same physical build as the

robber. Neither of the car’s occupants, however, were wearing sweatshirts.

¶ 13 2. William Buchanan

¶ 14 Officer William Buchanan testified that he was a police officer with the

Bloomington Police Department. On December 16, 2018, Buchanan and several other officers

were “dispatched to a report of an armed robbery” at a Casey’s in Bloomington. While Buchanan

drove towards the Casey’s, dispatch updated him that “the suspects were two males African

American heavyset, last seen in a light blue Chevy Equinox, and the vehicle had last turned right

out of the parking lot from Casey’s on the Fox Creek Road.” Buchanan saw a blue Equinox and

pulled the vehicle over. The driver appeared to be a heavyset black man, but Buchanan later

learned she was a woman, Mary Harris. Her brother, who was a heavyset black man, was also in

the car, seated in the backseat on the car’s passenger side. Buchanan identified the brother as

defendant in court.

¶ 15 3. Timothy Marvel

¶ 16 Officer Timothy Marvel testified that he was a police officer with the

Bloomington Police Department. On December 16, 2018, Marvel responded to a dispatch for the

armed robbery at Casey’s. When he arrived, two other officers were inside speaking with

Cedeno. At that moment, a call came in that Buchanan had stopped the suspect vehicle. Marvel

recommended that the other officers take Cedeno to the traffic stop to see if he could identify the

-3- suspects. Marvel accompanied them to the location of the traffic stop, where he observed a silver

gun in the mesh pocket on the back of the passenger-side seat of the Equinox.

¶ 17 4. Mary Harris

¶ 18 Mary Harris testified that she was defendant’s sister and was a former assistant

manager at the Casey’s on Fox Creek Road. Harris testified that she alone committed the

robbery, without defendant’s involvement, and was convicted for that robbery in 2019. Harris

stated that she chose Cedeno as her mark because she had stopped working at the Casey’s before

he was hired. She knew Cedeno would leave the store around midday to deposit the money.

Harris stated that on the day of the robbery, she had been alone all day prior to and during the

robbery. Defendant was only present at the traffic stop because she had picked him up just after

leaving Casey’s, following the robbery. She recalled wearing a camouflage jacket at that time.

¶ 19 Harris testified that prior to her arriving at Casey’s, defendant called and asked

her to pick him up from a house that was near the gas station, but she did not plan on picking him

up. When she arrived at the Casey’s parking lot, she backed her car into the spot next to

Cedeno’s car and waited for Cedeno to come out of the building. When Cedeno began opening

his car door, Harris got out of her car, shutting the door behind her. She then walked around the

back of her car and put a gun in Cedeno’s face, demanding he give her the bags of money, which

he had in his hands. Harris took the bags, walked Cedeno towards the back of his car, opened his

trunk, took his phone, and “had him put himself into his trunk.” Harris then shut the trunk on

Cedeno. Money in hand, she placed Cedeno’s phone on the ground next to his trunk and left the

Casey’s parking lot in her own car.

¶ 20 Because Harris realized that she was likely to get in trouble for the robbery, she

decided to pick her brother up, figuring that if she got into trouble, she could place the “blame

-4- the situation on him.”

¶ 21 Harris at first testified that she took a left out of the parking lot but then corrected

herself to say she took a right and called her brother on the phone to let him know she would

pick him up. Harris was unable to recall what the house looked like where she picked up her

brother or precisely where it was located. When Harris arrived at the house, defendant got into

the passenger-side backseat of the car, and Harris headed home. While en route, she was pulled

over by police officers and arrested. At the police department, Harris submitted to a recorded

interview with officers, portions of which were played for the jury.

¶ 22 During the interview, Harris told the detective that she went to Casey’s to put air

in her tires and not to rob anyone. Normally, she would go to a different Casey’s that was closer

to her home, but she went to the Casey’s on Fox Creek Road because defendant had told her to.

She had been with defendant that entire day and felt like the “whole thing” was a setup by

defendant because he kept asking her questions. Harris said that “it was a motive for the mother

fucker being down there. Because I never see my family ever, but my brother—I’ve been in

Bloomington for years he never visits my house until now.”

¶ 23 Harris told the detective that when she was at the Casey’s, all she did was get out,

air up her tires, and pull off. At some point, defendant exited the car. Harris said she heard a little

scream but did not elaborate because she did not want to incriminate defendant. When the

detective told Harris “we know it wasn’t you that stuck the gun in [Cedeno’s] face,” she

responded, “[N]or did I know that was about to take place.” Harris told the detective that when

defendant got back into the car, he told Harris to “go,” and she pulled away. He also told her not

to pull over for the police.

¶ 24 C. Closing Arguments

-5- ¶ 25 During rebuttal argument, the State made the following comment:

“Now with regard to the cell phones, during this investigation there was

no need to look for communication between the defendant and his sister. They

were together the entire day. There would be no need for planning and

communication. It was only three and a half years after the incident took place,

the first time we are hearing this story from Mary Harris that they weren’t

together—”

¶ 26 Defendant objected to the portion of the State’s argument referring to the passage

of three and a half years before hearing Mary’s story for the first time, and the trial court

sustained the objection. The State then restated its argument without the inclusion of that

particular sentence.

¶ 27 D. Jury Deliberations

¶ 28 During deliberations, the jury sent the trial court a note, which the court read as

follows: “[A]re we able to know what [defendant’s] legal status was during the last three and a

half years? Was he tried previously?” The court asked the State and defense counsel what

response they thought would be proper and proposed to answer as follows: “Ladies and

gentlemen, please consider the evidence that was presented during trial and the law which the

Court has instructed.” Both parties agreed to that response, and the court tendered it to the jury.

Later, the jury sent a note back saying they could not reach a verdict. The court instructed the

parties to continue deliberating, and the next day the jury returned a guilty verdict.

¶ 29 E. Posttrial Proceedings

¶ 30 In August 2022, defendant filed a motion for new trial, asserting that (1) the State

failed to prove him guilty beyond a reasonable doubt and (2) the State’s closing argument

-6- regarding its statement that “[i]t was only three and a half years after the incident took place,

[and] the first time we are hearing this story from Mary Harris ***,” amounted to the State

vouching against Harris’s credibility, prejudicing defendant.

¶ 31 In September 2022, following a hearing, the trial court denied defendant’s motion.

The court explained that (1) it had sustained an objection to the State’s argument regarding the

“three and a half years,” (2) the jury was instructed about what it could consider as evidence,

(3) the jury heard the two different versions of Harris’s story and could decide her credibility on

that basis, and (4) the jury likely sent the note regarding the “three and a half years” because it

“wanted to know why it took so long to get this case to trial.”

¶ 32 After denying defendant’s motion, the trial court conducted a sentencing hearing

and sentenced defendant to 21 years in prison.

¶ 33 This appeal followed.

¶ 34 II. ANALYSIS

¶ 35 Defendant appeals, arguing (1) the trial court erred by failing to answer a jury

question and (2) he was substantially prejudiced by the State’s improper comments during

¶ 36 A. The Trial Court’s Response to the Jury’s Question

¶ 37 Defendant contends that the trial court erred by referring the jury back to the

originally tendered instructions in response to the jury’s question regarding defendant’s status

during the three and a half years prior to trial. Defendant acknowledges that he did not preserve

the issue for review by contemporaneously objecting to the court’s response to the jury’s

question. However, defendant argues that we can review the issue as either plain error or

ineffective assistance of counsel.

-7- ¶ 38 1. Plain-Error Review Is Inapplicable Here

¶ 39 “The plain-error doctrine provides that a reviewing court may consider

unpreserved errors if ‘a clear or obvious error occurred’ and either (1) ‘the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant,’ or

(2) the ‘error is so serious that it affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process.’ ” People v. Baker, 2022 IL App (4th) 210713, ¶ 61 (quoting

People v. Birge, 2021 IL 125644, ¶ 24, 182 N.E.3d 608). However, “[w]hen defense counsel

affirmatively acquiesces to actions taken by the trial court, any potential claim of error on appeal

is waived, and a defendant’s only available challenge is to claim he received ineffective

assistance of counsel.” People v. McGuire, 2017 IL App (4th) 150695, ¶ 29, 92 N.E.3d 494.

¶ 40 Here, the trial court consulted with defense counsel regarding how to respond to

the jury’s note asking about defendant’s status for the prior three and a half years. Because

counsel acquiesced to the court’s response, defendant waived plain-error review, and we instead

review his argument as ineffective assistance of counsel.

¶ 41 2. The Applicable Law and the Standard of Review

¶ 42 a. Ineffective Assistance of Counsel

¶ 43 Claims of ineffective assistance of counsel are governed by the framework set

forth in Strickland v. Washington, 466 U.S. 668 (1984). “To prevail on a claim of ineffective

assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient,

and that the deficient performance prejudiced the defendant.” People v. Domagala, 2013 IL

113688, ¶ 36, 987 N.E.2d 767. To show deficient performance, defendant must establish that

counsel’s performance was objectively unreasonable under prevailing professional norms.

People v. Veach, 2017 IL 120649, ¶ 30, 89 N.E.3d 366. To show prejudice, defendant must

-8- establish that there exists a reasonable probability that, but for counsel’s deficient performance,

the outcome of the proceeding would have been different. Id. “A reasonable probability is

defined as a probability sufficient to undermine confidence in the outcome.” (Internal quotation

marks omitted.) Id. A defendant must satisfy both prongs to prevail on a claim of ineffective

assistance of counsel. Id.

¶ 44 b. Response to Jury Questions

¶ 45 “Generally, jurors are entitled to have their questions answered. [Citations.] When

the jury asks a question on a point of law, when the original instructions are incomplete, or when

the jurors are manifestly confused, the court has a duty to answer the question and clarify the

issue in the minds of the jurors.” People v. Lewis, 2022 IL 126705, ¶ 58, 211 N.E.3d 375.

However, a trial court may exercise its discretion to refrain from answering the jury’s question

under the following circumstances:

“[W]hen (1) the jury instructions are readily understandable and sufficiently

explain the relevant law, (2) further instructions would serve no useful purpose or

could mislead the jury, (3) the jury’s inquiry involves a question of fact, or (4) the

court’s answer would cause it to express an opinion that would likely direct a

verdict one way or the other.” Baker, 2022 IL App (4th) 210713, ¶ 65.

¶ 46 3. This Case

¶ 47 Here, the jury asked the trial court, “[A]re we able to know what [defendant’s]

legal status was during the last three and a half years? Was he tried previously?” After discussion

with the parties, the court returned the following answer: “Ladies and Gentlemen, please

consider the evidence presented during trial and the law which the court has instructed.”

Defendant contends that the court’s answer was erroneous, tantamount to no answer at all, and

-9- should have more clearly answered the jury’s question. We disagree.

¶ 48 The jury’s question is a question of fact. The jury wanted to know if defendant

had been previously tried for the offense. Even if construed as a question of law—that is to say,

whether the jury could even be told whether defendant had been previously tried—further

instruction on that point would serve no useful purpose and could mislead the jury. Either way,

the trial court was well within its discretion to direct the jury back to the evidence and the

instructions.

¶ 49 Defendant cites to People v. Flynn, 172 Ill. App. 3d 318, 323-24, 526 N.E.2d 579,

582-83 (1988), People v. Morris, 81 Ill. App. 3d 288, 290-91, 401 N.E.2d 284, 285-86 (1980),

and People v. Brouder, 168 Ill. App. 3d 938, 948, 523 N.E.2d 100, 106 (1988), in support of his

argument that the trial court’s response was inadequate, but each of those cases are factually

distinguishable. In Flynn the jury asked (1) why they were to consider only four charges when

they had been instructed that there would be five counts and (2) whether the lawyers were legally

allowed to call a codefendant to testify. Flynn, 172 Ill. App. 3d at 323. In Morris, the jury asked

whether “a person [who] comes into possession of property obtained illegally by another[,] can

he be presumed guilty of burglary even though he, himself, may never have illegally entered the

building or removed the property.” (Internal quotation marks omitted.) Morris, 81 Ill. App. 3d at

290. And in Brouder, the jury, deliberating whether the State had proven the charge of resisting a

peace officer, asked several questions indicating that they were confused about the meaning of

“knowing resistance.” Brouder, 168 Ill. App. 3d at 948.

¶ 50 Because each of these cases involved questions that bear no factual similarity to

the one asked in by the jury in the present case, we conclude that the cases defendant relies upon

are inapposite and unpersuasive. We further conclude that the trial court did not abuse its

- 10 - discretion by answering the jury’s question in the manner that it did.

¶ 51 Accordingly, because the trial court’s response to the jury’s question was proper,

defendant cannot establish either that (1) his attorney performed deficiently by failing to object

to the court’s response or (2) he was prejudiced by his counsel’s alleged failure. Therefore, his

claim of ineffective assistance of counsel fails.

¶ 52 B. The State’s Closing Argument

¶ 53 1. The Applicable Law and the Standard of Review

¶ 54 “A defendant is entitled to a fair trial free from irrelevant evidence and prejudicial

comments by the State.” People v. Stewart, 2023 IL App (1st) 210912, ¶ 75. However, the State

“still has wide latitude in making a closing argument and may comment on the evidence and any

reasonable inferences that arise from it, even if those inferences reflect negatively on the

defendant.” People v. Williams, 2022 IL 126918, ¶ 44, 210 N.E.3d 1207. “Such comments

should be considered in the context of the entire closing argument.” Id.

¶ 55 Relevant to this case, the State “may argue that a witness is or is not credible but

may not personally vouch for the credibility of a witness or use the credibility of the state’s

attorney’s office to bolster a witness’s testimony.” People v. Potts, 2021 IL App (1st) 161219,

¶ 280, 196 N.E.3d 961. If the State made such an improper comment, then reversal is required if

that comment caused “ ‘substantial prejudice,’ such that a reviewing court cannot determine

whether the verdict resulted from [it].” Williams, 2022 IL 126918, ¶ 54. However, the State’s

comment in closing argument must be both “improper and substantially prejudicial. If it fails to

meet either description, it is not reversible error.” Id. ¶ 49.

¶ 56 In People v. Marzonie, 2018 IL App (4th) 160107, ¶ 50, 115 N.E.3d 270, this

court set forth the standard of review applied when reviewing allegations of prosecutorial

- 11 - misconduct in closing argument, writing as follows:

“The Illinois Appellate Court is divided on whether to apply an abuse of

discretion standard or de novo review when reviewing allegations of prosecutorial

misconduct. See Ryan T. Harding, Division in the Illinois Appellate Court: What

is the Appropriate Standard of Review for Alleged Prosecutorial Misconduct

During Closing Argument?, 38 N. Ill. U. L. Rev. 504, 508-12 (2018). The First

District has applied an abuse of discretion standard. People v. Willis, 2013 IL App

(1st) 110233, ¶ 102, 997 N.E.2d 947. The Third District and this court have

consistently applied de novo review. People v. Palmer, 382 Ill. App. 3d 1151,

1160, 889 N.E.2d 244, 251 (2008); People v. McCoy, 378 Ill. App. 3d 954, 964,

881 N.E.2d 621, 631-32 (2008). Consistent with our court’s established

precedent, we will continue to apply de novo review. Palmer, 382 Ill. App. 3d at

1160 (citing Wheeler, 226 Ill. 2d at 121); State Farm Fire & Casualty Co. v.

Yapejian, 152 Ill. 2d 533, 539-540, 605 N.E.2d 539, 542 (1992) (decision of an

appellate court is not binding upon other appellate districts).”

Accordingly, we apply a de novo standard in this case.

¶ 57 2. This Case

¶ 58 Defendant argues that the trial court erred by failing to grant his motion for a new

trial because the State’s comment regarding the three and a half years between Harris’s interview

and the trial was “improperly vouching against [her] credibility,” that substantially prejudiced

defendant. We disagree.

¶ 59 Although the trial court sustained defendant’s objection to the State’s comment—

namely, “It was only three and a half years after the incident took place, the first time we are

- 12 - hearing this story from Mary Harris that they weren’t together”—we do not agree that the

comment was improper. It is well established that a prosecutor may argue that a witness is not

credible but should avoid arguing that he personally believes a witness is not credible. The

prosecutor’s comments here amount to the former and not the latter.

¶ 60 Here, the State simply commented during argument that (1) three and a half years

had passed since Harris was interviewed by the police and implicated her brother in the robbery

and (2) during that time, she made no effort to attempt to exonerate him by telling any official

the story she told the jury—namely, that defendant had nothing to do with the robbery. The State

properly argued that these circumstances gave rise to the reasonable inference that if defendant

had no part to play in the robbery, a truthful Harris would have said something sooner to attempt

to exonerate him. We note that such an inference could have perhaps been made more explicit

had the State simply asked Harris when she testified, “When exactly it was that you realized your

prior statements were untruthful?”

¶ 61 In addition, we reiterate what this court wrote in People v. Pope, 284 Ill. App. 3d

695, 707, 672 N.E.2d 1321, 1329 (1996):

“[W]e expressly reject the notion that a prosecutor improperly crosses the bounds

of asserting his personal views regarding witnesses’ credibility *** if the jury has

to infer the prosecutor is doing so from his comments. *** [F]or a prosecutor’s

closing argument to be improper, he must explicitly state that he is asserting his

personal views, stating for example, ‘this is my personal view.’ ” (Emphases in

original).

¶ 62 Even if we agreed with defendant that the comment was improper, we agree with

the trial court that any potential prejudice caused by that comment was minimal and quickly

- 13 - mitigated by the court. First, the comment was brief and isolated in the context of the closing

argument, amounting to no more than one sentence of 20 pages of transcript. See People v.

Crawford, 2013 IL App (1st) 100310, ¶ 139, 2 N.E.3d 1143 (“A significant factor in determining

the impact of an improper comment on a jury verdict is whether the comments were brief

and isolated in the context of lengthy closing arguments.” (Internal quotation marks omitted.)).

¶ 63 Second, the trial court sustained defendant’s objection to the State’s comment and

instructed the jury (1) to disregard information for which an objection was sustained and (2) that

closing arguments were not evidence. See People v. Ramsey, 239 Ill. 2d 342, 438, 942 N.E.2d

1168, 1221 (2010) (“[T]he act of promptly sustaining the objection and instructing the jury to

disregard such argument has usually been viewed as sufficient to cure any prejudice.” (Internal

quotation marks omitted.)).

¶ 64 Last, any prejudicial effect regarding Harris’s credibility was further nullified by

Harris’s own statements to the police in a recorded interview, which was played for the jury at

trial. In effect, the jury was given two stories to consider—namely, the story told through

(1) Cedeno’s testimony, which was mostly corroborated by Harris’s prior interview statements

and (2) Harris’s implausible trial testimony, which contradicted her interview statements. In

short, it is highly unlikely that the State’s comment regarding Harris’s change of heart years later

could have affected the jury’s view of her credibility more than her own contradictory

statements. Accordingly, defendant was not substantially prejudiced by the State’s comment.

¶ 65 III. CONCLUSION

¶ 66 For the reasons stated, we affirm the trial court’s judgment.

¶ 67 Affirmed.

- 14 -