2020 IL App (1st) 171210-U
FOURTH DIVISION September 30, 2020
No. 1-17-1210
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
) Appeal from the THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) No. 16 CR 14757 ) JERRY PAYNE, ) ) Honorable Defendant-Appellant. ) Diane G. Cannon, ) Judge Presiding. ______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: Reversing defendant’s conviction and remanding for a new trial where defendant was denied a fair trial by the cumulative effect of the following errors: (1) improper evidence of defendant’s other crime was admitted; (2) in the presence of the jury, the trial court commented on defense counsel’s cross-examination of a witness; and (3) during closing arguments, the prosecutor committed misconduct.
¶2 A jury convicted defendant, Jerry Payne, of one count of possession of a stolen motor
vehicle. Defendant was sentenced to six years’ imprisonment. On appeal, defendant requests we
reverse his conviction and remand for a new trial, contending he was denied a fair trial by the 1-17-1210
cumulative effect of the following errors: (1) the trial court admitted improper evidence of
defendant’s other crime; (2) in the presence of the jury, the trial court commented about defense
counsel’s cross-examination of a witness; and (3) during closing arguments, the prosecutor
engaged in misconduct. For the following reasons, we reverse defendant’s conviction and
remand for a new trial.
¶3 BACKGROUND
¶4 On September 18, 2016, two Chicago police officers arrested defendant after they
discovered he was driving a vehicle that was reported stolen and he was not the registered owner.
The State charged defendant with one count of possession of a stolen motor vehicle (625 ILCS
5/4-103(a)(1) (West 2016)).
¶5 Pretrial
¶6 Prior to trial, the State filed a motion in limine requesting that the trial court allow the
introduction of defendant’s entire statement to the police, in which defendant informed the
arresting officers that he knew the vehicle was stolen but he did not steal it. Defendant also
informed the arresting officers that he was driving the vehicle while his friend purchased crack
cocaine, and he was supposed to circle the neighborhood until his friend returned. Defendant also
filed a motion in limine, requesting the trial court prohibit the admission of the statement
regarding an attempted narcotics transaction. At the hearing on the parties’ motions, the court
found that the State may introduce the entire statement.
Trial
¶7 Kinate Bradley testified that he owned a 2008 Chrysler Sebring. On September 16, 2016,
around 4 p.m., Bradley drove the vehicle to a restaurant in Chicago. He parked near the
restaurant and left his key in the ignition. When he returned, the vehicle was missing. Bradley
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testified that he never gave defendant permission to drive the vehicle. Bradley also stated that
there was no broken glass in the area where he parked his vehicle and that there were no
“outward signs” that his vehicle was stolen.
¶8 Asahi Hayden testified that she was an officer for the Chicago Police Department. On the
day in question, Officer Hayden was patrolling with her partner, Nicolas D’Angelo, when they
observed a Chrysler Sebring sitting on a railroad crossing. Defendant was behind the steering
wheel of the Chrysler. When he commenced driving the vehicle, the officers followed him.
Officer D’Angelo ran a vehicle check and discovered that the vehicle they were following had
been reported stolen. The officers called for additional support.
¶9 Officer Hayden testified that they observed the defendant drive through several
residential streets and at no time lost sight of the vehicle. Moreover, she testified that, without
losing sight of the vehicle, defendant drove through the same neighborhood streets in a circular
pattern. When the additional support units arrived, Officers Hayden and D’Angelo pulled the
defendant over. The officers then learned that the defendant was not the vehicle’s registered
owner and he was not authorized to drive it. They arrested him. Officer Hayden testified that,
with Officer D’Angelo present, defendant informed Officer Hayden that he knew the vehicle was
stolen but that he did not steal it. Defendant explained that the reason he was driving the vehicle
was because his friend left the vehicle to purchase crack cocaine and that he was to drive in
circles until his friend returned.
¶ 10 On cross-examination, Officer Hayden testified that she did not record defendant’s
statement using video or audio equipment nor did she ask defendant to write down his statement.
Officer Hayden further testified that she could have had him write a statement. Defense counsel
then asked, “And you are testifying now to what you claim my client said; correct?” The State
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objected, and the trial court sustained the objection. Defense counsel continued, “However, this
is not the same as showing them an actual recorded statement; correct?” The State again
objected, and the trial court sustained the objection. Then, in the presence of the jury, the court
made the following comment to defense counsel: “unless you have evidence that this officer
testified differently *** do not imply that to the jury. If you are going to impeach her on a prior
statement, you can. But if there is no evidence of that, please don’t insinuate *** she is testifying
differently today.” Defense counsel denied she was insinuating that, and the trial court
responded: “you have had the police reports and she has testified previously at a preliminary
hearing, so if there are inconsistencies, you can certainly impeach her. If not, please do not
indicate in any way that she is.”
¶ 11 The State rested. Defendant made a motion for a directed verdict, which was denied.
¶ 12 Defendant testified that at approximately on midnight, September 18, 2016, he was
walking to a gas station, when his friend Johnny, and Johnny’s girlfriend, Patricia, pulled up in a
vehicle. They asked defendant if he could drive the vehicle and bring them to a Walgreens
because defendant had a driver’s license. When defendant was arrested and brought to the police
station, no police officer questioned him. Defendant did not tell any police officer that he knew
the vehicle was stolen prior to his arrest or that it had been reported stolen.
¶ 13 On cross-examination, defendant testified that he asked Johnny and Patricia whether he
could drive Johnny’s vehicle to his father’s house, which was nearby. Defendant left his friends
at the liquor store and departed for his father’s house. Defendant did not remember stopping on
train tracks, and when asked whether his path of travel was in the shape of a square, he denied it.
When the police stopped him, he cooperated because he did not believe he had done anything
wrong. Defendant denied that he informed the police he knew the vehicle was stolen or that he
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dropped off his friend to buy crack cocaine. Defendant further testified that he was never
questioned or read his Miranda rights; he was handcuffed to a bench and left there.
¶ 14 Defendant rested. In rebuttal, the State first called Officer D’Angelo, who testified that on
September 18, 2016, he was patrolling with Officer Hayden. Around 1 a.m., he and Officer
Hayden placed defendant into custody and read defendant his Miranda rights. Officer D’Angelo
denied that defendant mentioned Johnny, Patricia, Walgreens, or defendant’s father. On cross-
examination, Officer D’Angelo testified that defendant stated that he knew the vehicle was stolen
but he did not steal it and that he was driving the vehicle while his friend went to a residence to
purchase drugs.
¶ 15 The State rested, and the parties made closing arguments. During the State’s closing
argument, the prosecutor explained to the jury that, to determine whether defendant knew the
vehicle was stolen, the jury must consider whether defendant made the statement to Officers
Hayden and D’Angelo. The prosecutor argued that the circumstances surrounding defendant’s
alleged statement made the statement reliable and believable. The prosecutor noted that one of
those circumstances was the content of the statement itself, and referring to defendant’s alleged
statement, the prosecutor made the following argument: “He doesn’t know how that vehicle was
stolen. He doesn’t know if there were men with guns and masks that stole the car.” The
prosecutor continued, “What he does know is he doesn’t want to be the one that is blamed for
being the guy in the ski mask if there was a guy in a ski mask with a gun.” Defense counsel
objected, and the trial court sustained the objection. The trial court, however, did not admonish
the jury to disregard the statement made by the prosecutor.
¶ 16 The prosecutor further argued that defendant’s statement was reliable, stating as follows:
“Like any good confession *** he added details. He added details that wouldn’t hurt him, that
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weren’t crimes but maybe reflected poorly upon him and made it look like he was being honest.”
The prosecutor elaborated: “Not only did he say I didn’t steal the vehicle *** but he also talked
about his friend and the buying of crack. There is no crime in dropping someone off to buy
crack.”
¶ 17 The prosecutor concluded by emphasizing the severity of defendant’s alleged offense:
“To take that car that you knew was stolen because it would make it a little bit easier to go to
your crack dealer is—”. At that moment, defense counsel objected, and the objection was
sustained.
¶ 18 After closing arguments, the trial court instructed the jury that arguments are not
evidence, and that it must disregard arguments that were not based on evidence. The jury found
defendant guilty of possession of a stolen motor vehicle. Defendant subsequently moved the trial
court to set aside the jury verdict. The trial court denied the motion and sentenced defendant to
six years in the Illinois Department of Corrections. This appeal followed.
¶ 19 ANALYSIS
¶ 20 On appeal, defendant argues that we should reverse his conviction and remand for a new
trial because (1) the trial court erred by allowing evidence of defendant’s other crime, (2) the
trial court erred by commenting on defendant’s cross-examination of a witness, and (3) during
closing arguments, the prosecutor committed misconduct which requires reversal. We address
each argument in turn.
¶ 21 Admission of Other-Crime Evidence
¶ 22 Defendant argues that the trial court erred by admitting irrelevant and prejudicial
evidence of other crimes. Specifically, by admitting defendant’s alleged statement that he had
dropped off his friend to purchase crack cocaine. To prove possession of stolen motor vehicle,
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the State was required to prove that defendant knew the vehicle was stolen. Defendant argues
that the admission of the other-crime evidence was not necessary to prove knowledge. According
to defendant, its only purpose was to paint him as a “criminal and drug addict out to get his next
fix.”
¶ 23 We review the trial court’s admission of other-crimes evidence under an abuse of
discretion standard and will reverse only if either the trial court’s decision was arbitrary, fanciful,
or unreasonable, or no reasonable person would take the view the trial court adopted. People v.
Braddy, 2015 IL App (5th) 130354, ¶ 27 (quoting People v. Donoho, 204 Ill. 2d 159, 182
(2003)); People v. Ward, 2011 IL 108690, ¶ 21.
¶ 24 Evidence must be relevant for a proper purpose. See People v. Lehman, 5 Ill. 2d 337, 342
(1955). Evidence proving defendants’ propensity to commit crimes is not a proper purpose, and
generally, it is excluded from criminal trials as it tends to be overly persuasive to juries, who
may “ ‘convict the defendant only because it feels he or she is a bad person deserving
punishment.’ ” Ward, 2011 IL 108690, ¶ 24 (quoting People v. Lindgren, 79 Ill. 2d 129, 137
(1980)). Other-crimes evidence, however, may be relevant for any purpose other than to prove
defendants’ propensity to commit crimes (People v. Pikes, 2013 IL 115171, ¶ 11); for example, it
may be admitted to prove intent, modus operandi, identity, motive, or absence of mistake.
Donoho, 204 Ill. 2d at 170.
¶ 25 Even if other-crimes evidence is relevant for a proper purpose, trial courts may exclude it
if its probative value substantially outweighs its prejudicial effect. People v. Johnson, 368 Ill.
App. 3d 1146, 1154 (2006). Trial courts should determine whether the evidence is essential by
considering other methods by which the State could use to establish the facts at issue. People v.
Thigpen, 306 Ill. App. 3d 29, 36 (1999). The more essential the evidence, the higher its probative
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value. See People v. Campbell, 2012 IL App (1st) 101249, ¶ 26.
¶ 26 We find that the probative value of the other-crime evidence was substantially
outweighed by its prejudicial effect. Defendant’s entire statement was that he knew the vehicle
was stolen but did not steal it, that he was dropping off his friend to purchase narcotics, and that
he was to circle around the block until his friend returned. The full statement already contained a
confession that he knew the vehicle was stolen; had the reference to the narcotics transaction
been omitted, the State could have proved defendant’s knowledge just as effectively. See
Thigpen, 306 Ill. App. 3d at 36. The other-crime evidence was not essential to prove defendant’s
knowledge, and it carried little to no probative value. See Campbell, 2012 IL App (1st) 101249, ¶
26.
¶ 27 The State argues the trial court properly admitted the other-crime evidence because it
corroborated Officer Hayden’s testimony about defendant’s path of travel prior to his arrest.
Officer Hayden testified that she and Officer D’Angelo observed the defendant drive through
several residential streets and at no time lost sight of the vehicle. Moreover, she testified that
defendant drove in a circular path over the same neighborhood streets. Evidence that bolsters a
witness’s credibility is not always admissible if the prejudicial effect of the evidence
substantially outweighs its probative value. See People v. Romero, 66 Ill. 2d 325, 330-31 (1977);
People v. Thingvold, 145 Ill. 2d 441, 456-61 (1991). Even if the State wanted to corroborate
Officer Hayden’s testimony about defendant’s path of travel, she could have still testified that
defendant said he was to drive in circles until his friend returned; the reference to the narcotics
transaction was not essential to accomplish this purpose. See Campbell, 2012 IL App (1st)
101249, ¶ 26. The State further argues that the other-crime evidence was necessary to give
context to his arrest and explain why he was there and his path of travel. But providing the jury
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with further context for the alleged confession was again not essential to prove whether
defendant knew the vehicle was stolen. See id.
¶ 28 This other-crime evidence, moreover, carried “an extreme risk of prejudice”; that is, it
carried the risk that the jury would convict defendant because he “is a bad person deserving
punishment.” People v. Felton, 2019 IL App (3d) 150595, ¶ 42 (quoting Donoho, 204 Ill. 2d at
170). Here, the other-crime evidence carried the risk that the jury would convict defendant not
because of the evidence, but because he is a drug criminal. See id. Because the probative value
was substantially outweighed by the prejudicial effect, we find it was an abuse of discretion to
admit this other-crime evidence.
¶ 29 The Trial Court’s Comments
¶ 30 Defendant contends that the trial court’s comments were improper and prejudicial to
defendant.
¶ 31 First, although defendant failed to object to the trial court’s comments during trial, we
find that under the Sprinkle doctrine (People v. Sprinkle, 27 Ill. 2d 398, 401 (1963)), we may
review the issue. Ordinarily, a party that fails to object during trial forfeits review of that issue on
appeal. People v. McNeal, 405 Ill. App. 3d 647, 660 (2010). But the Sprinkle doctrine holds that
a reviewing court may relax the forfeiture rule if a trial court overstepped its authority in the
presence of the jury. People v. Thompson, 238 Ill. 2d 598, 612 (2010). Here, we relax the
forfeiture rule because, as explained below, we find the trial court overstepped its authority.
¶ 32 Defendants are guaranteed the right to fair and impartial jury trials—trials free from trial
courts’ improper and prejudicial comments, intimidation, or influence. People v. Mitchell, 228
Ill. App. 3d 167, 169 (1992); People v. Heidorn, 114 Ill. App. 3d 933, 936 (1983). “Rarely, if
ever, is a judge called upon to comment on the evidence during trial except where necessary in
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ruling upon its admissibility and under no circumstances should he express an opinion as to its
veracity *** .” People v. Tyner, 30 Ill. 2d 101, 104 (1964). The trial court must avoid influencing
jurors, remain impartial, and not display prejudice or favor toward any party. People v. Eckert,
194 Ill. App. 3d 667, 674 (1990). “Jurors are ever watchful of the attitude of the trial judge and
his influence upon them is necessarily and properly of great weight, thus his lightest word or
intimation is received with deference and may prove controlling.” People v. Wiggins, 2015 IL
App (1st) 133033, ¶ 46 (quoting People v. Marino, 414 Ill. 445, 450-51 (1953)). We will not
disturb a jury verdict unless the court’s comments constitute a material factor in the conviction or
unless prejudice to defendant appears to be their likely result. People v. Walker, 228 Ill. App. 3d
76, 83 (1992).
¶ 33 The trial court made the following comments about defense counsel’s cross-examination
of Officer Hayden: “unless you have evidence that this officer testified differently *** do not
imply that to the jury. If you are going to impeach her on a prior statement, you can. But if there
is no evidence of that, please don’t insinuate *** she is testifying differently today.” The trial
court further stated as follows: “she has testified previously at a preliminary hearing, so if there
are inconsistencies, you can certainly impeach her. If not, please do not indicate in any way that
she is.” According to defendant, these comments suggested to the jury that Officer Hayden
testified consistently at a prior hearing, and thus they were improper prior-consistent statements
that bolstered Officer Hayden’s testimony.
¶ 34 We find that prejudice to defendant appears to be the likely result of the trial court’s
comments. The trial court stated that Officer Hayden testified at a prior hearing and directed
defense counsel not to imply that she was testifying differently unless counsel had evidence. We
note that the trial court did not state that the witness testified consistently at a prior hearing;
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nevertheless, from the court’s comments, the jury, “ever watchful of the attitude of the trial
judge,” was likely to conclude that Officer Hayden testified consistently. See Wiggins, 2015 IL
App (1st) 133033, ¶ 46. Additionally, witnesses generally may not be rehabilitated by admitting
prior statements consistent with their testimony. People v. Matthews, 2012 IL App (1st) 102540,
¶ 24. Therefore, these comments were inadmissible prior-consistent statements which likely
prejudiced defendant, and the trial court erred by making them. See Walker, 228 Ill. App. 3d at
83.
¶ 35 Prosecutor’s Closing Remarks
¶ 36 Finally, defendant argues that during closing arguments the prosecutor engaged in
misconduct which prejudiced defendant. Specifically, defendant argues that the prosecutor made
arguments, unsupported by evidence, that defendant “had violently stolen the car while armed
with a gun and was a drug addict who had done so in order to more easily purchase drugs.”
¶ 37 Whether a prosecutor’s arguments warrant a new trial is a matter of law that courts
review de novo. People v. Graham, 206 Ill. 2d 465, 747 (2003). Prosecutors are afforded wide
latitude in closing argument. People v. Cisewski, 118 Ill. 2d 163, 175 (1987). A prosecutor may
argue facts and reasonable inferences drawn from the evidence, even if these inferences are
unfavorable to the defendant. People v. Anderson, 407 Ill. App. 3d 662, 667 (2011). A prosecutor
commits misconduct by misstating the evidence or misleading the jury as to what inferences it
may draw. People v. Wilson, 92 Ill. App. 3d 370, 383 (1981). Closing arguments must be
reviewed in their entirety, and the challenged remarks must be viewed in context. People v.
Macri, 185 Ill. 2d 1, 62 (1998). A prosecutor’s comments will result in reversible error only if
they substantially prejudice a defendant, and it is impossible to determine whether the jury found
against defendant because of the comments or because of the evidence. People v. Caffey, 205 Ill.
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2d 52, 131 (2001).
¶ 38 Defendant challenges several of the prosecutor’s remarks. First, defendant challenges the
prosecutor’s remark in which the prosecutor claimed that defendant “doesn’t know how that
vehicle was stolen. He doesn’t know if there were men with guns and masks that stole the car.”
The prosecutor further claimed that “[w]hat he does know is he doesn’t want to be the one that is
blamed for being the guy in the ski mask if there was a guy in a ski mask with a gun.” Next,
defendant challenges the following statement, in which the prosecutor explains why defendant’s
alleged statement is credible: “Like any good confession *** he added details. He added details
that wouldn’t hurt him, that weren’t crimes but maybe reflected poorly upon him and made it
look like he was being honest.” The prosecutor further explained: “Not only did he say I didn’t
steal the vehicle *** but he also talked about his friend and the buying of crack. There is no
crime in dropping someone off to buy crack. It looks bad for you. *** The police officer might
think you are telling the truth.” Finally, defendant challenges the prosecutor’s remark, cut off by
defendant’s objection, that “[t]o take that car that you knew was stolen because it would make it
a little bit easier to go to your crack dealer is—”.
¶ 39 We find the prosecutor’s arguments substantially prejudiced defendant and leave it
impossible to determine whether the jury convicted defendant because of these arguments or
because of the evidence. See Caffey, 205 Ill. 2d at 131; Wilson, 92 Ill. App. 3d at 383. Read in
context of the prosecutor’s closing arguments, we find that these comments misled the jury to
infer that defendant violently stole the vehicle to purchase crack cocaine more easily. See Macri,
185 Ill. 2d at 62; Caffey, 205 Ill. 2d at 131. These inferences, moreover, were not based on
evidence—there was no evidence that defendant stole the vehicle or that he was purchasing crack
cocaine for himself.
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¶ 40 The State argues that these defects were cured by the trial court’s sustained objections to
the prosecutor’s remarks and the court’s instructions to the jury that it should disregard any
arguments not based on evidence. The trial court did sustain defense counsel’s objection after the
prosecutor argued that “[w]hat he does know is he doesn’t want to be the one that is blamed for
being the guy in the ski mask if there was a guy in a ski mask with a gun.” Despite this objection,
the prosecutor persisted with his improper line of argument, and “[s]uch persistence eliminates
the salutary effect of the court’s ruling in sustaining objections to the argument.” People v.
Williams, 333 Ill. App. 3d 204, 213 (2002) (quoting People v. Weinstein, 35 Ill. 2d 467, 471
(1966)).
¶ 41 Moreover, as to the court’s jury instructions, we have explained as follows: “[i]nstructing
the jury that arguments are not evidence will not, in every instance, cure the defect caused by
introduction of such evidence. Whether the remarks and/or evidence constitute error depends, in
each case, on the nature and extent of the statements and whether they are probative of
defendant's guilt.” Id. at 214 (quoting People v. Blue, 189 Ill. 2d 99, 132 (2000)). Painting
defendant as a criminal who violently stole a vehicle to purchase crack cocaine, these arguments
were not probative of whether defendant was guilty of possession of a stolen vehicle. See id.;
People v. Campbell, 2012 IL App (1st) 101249, ¶ 26. This line of argument, furthermore,
pervaded the prosecutor’s closing arguments. See Williams, 333 Ill. App. 3d at 214 (quoting
Blue, 189 Ill. 2d at 132. Thus, the trial court’s sustained objections and jury instructions were
insufficient to cure the prosecutor’s improper arguments.
¶ 42 The Cumulative Impact of Errors
¶ 43 Each of the following amounted to reversible error: (1) the allowance of defendant’s
other-crime evidence; (2) the comments, in the presence of the jury, on defense counsel’s cross-
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examination of Officer Hayden; and (3) the prosecutor’s arguments, which were not based on
evidence and led the jury to infer that defendant violently stole a vehicle to purchase crack
cocaine more easily. Even if any of the above were not reversible error, the cumulative impact of
these errors prejudiced defendant and denied him a fair trial. See People v. Bunning, 298 Ill.
App. 3d 725, 732 (1998). Therefore, the cumulative impact of these errors requires a new trial.
See id.
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed,
and the matter is remanded for a new trial.
¶ 46 Reversed and remanded.