People v. Taylor

2020 IL App (3d) 160589-U

• Court: Appellate Court of Illinois
• Decided: January 27, 2020
• Docket: 3-16-0589
• Status: Unpublished

Opinion

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).

2020 IL App (3d) 160589-U

Order filed January 27, 2020 Modified upon denial of rehearing March 31, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois Plaintiff-Appellee, ) ) Appeal No. 3-16-0589 v. ) Circuit No. 15-CF-280 ) DURELL TAYLOR, ) Honorable ) Clark E. Erickson, Defendant-Appellant. ) Judge, Presiding ____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court. Justice Holdridge concurred in the judgment. Justice McDade dissented. ____________________________________________________________________________

ORDER

¶1 Held: Trial court did not err when it denied defendant’s motion for a directed verdict. The State did not commit prosecutorial misconduct during closing arguments. Defense counsel was not ineffective.

¶2 Defendant Durell Taylor was found guilty on a number of charges relating to an armed

robbery and police chase. The jury convicted him on all charges and the trial court sentenced him

to terms of imprisonment on each count. He appealed. We affirm. ¶3 FACTS

¶4 Defendant Durell Taylor was charged with two counts of armed robbery (720 ILCS 5/18-

2(a)(1), (2) (West 2014)) and one count each of unlawful possession of a weapon by a felon (720

ILCS 5/24-1.1(a) (West 2014)), criminal trespass to a residence (720 ILCS 5/19-4(a)(2) (West

2014)), aggravated fleeing or attempting to elude a police officer (625 ILCS 5/11-204.1(a)(4)

(West 2014)), and child endangerment (720 ILCS 5/12C-5(a)(1) (West 2014)). The charges arose

from incidents where Nicholas Woods, a codefendant, took a cell phone and money from one

person and a cell phone from another individual. Woods also forced the second victim to the

ground at gunpoint. According to the victims, Taylor was driving a car down the alley where they

lived, following Woods, who was on foot. After the robberies, Woods jumped into the car and it

fled the scene. The police located the vehicle and a chase ensued, ending when the car was hit

going through an intersection. Taylor, the driver, and Woods, the passenger, both jumped out of

the car and fled. A shotgun was found sticking out the passenger side front window. Taylor’s

seven-month-old stepson was discovered in the back seat of the car.

¶5 The State proceeded on an accountability theory against Taylor, alleging he planned the

robberies with Woods, who was the actual perpetrator. Woods pleaded guilty to the armed

robberies and Taylor proceeded to a jury trial. Before the trial started, Taylor moved in limine

seeking to bar the State from impeaching him with his prior armed robbery conviction. The trial

court denied the motion, finding the fact of Taylor’s prior conviction was admissible for

impeachment. The trial ensued. During opening statements, defense counsel twice attempted to

argue that Woods maintained he committed the robberies without Taylor’s involvement. The trial

court sustained the State’s objections to the argument, finding the statements to be inadmissible

hearsay.

2 ¶6 Victim Victoria Turngren testified that she was sitting on her back porch when she saw a

man walking down the alley with a silver car following behind him. She did not pay attention to

the man and did not get a close look at him but estimated he was shorter than her height and had

an Afro hairstyle. She walked to the alley and saw the car parked by her neighbor’s garage. Woods

was standing on the driver’s side of the car. She estimated him to be a couple inches taller than her

six foot height. When he noticed her, he hid his face with a bandana and approached her yelling,

“What? What? You thought you—you think you saw something? What?” Woods grabbed for her

cell phone but she would not it let go. He slammed her to the ground, where they scuffled until

Turngren surrendered her cell phone. As Woods walked back to the car, Turngren stood up and

began yelling for help. Woods turned around, reapproached her, pointed a gun, and told her to lay

on the ground. She followed his orders and Woods got into the silver car, which drove out of the

alley. Turngren returned to her house, called the police and provided the license plate number of

the silver car.

¶7 Turngren could not recall if she saw the second man and could not see when the car left

whether there was more than one person in the vehicle. It was probable that she initially told a

police officer that “both” got in the car and she would trust her first statement. Officers drove her

to the police station for a showup. She stayed in the squad car and officers separately brought out

two men for her to identify. She could not identify the first man with 100% certainty, although he

could have been the man she saw walking down the alley. She identified the second man brought

out, Woods, as the man who assaulted her. At the time of the assault, he wore a black hooded

sweatshirt with the hood up. After the showup, she went to the emergency room so her injuries

could be treated. Her injuries included a broken toe, injured ankle, scraped knees and elbows, and

gashes on her finger and toe.

3 ¶8 Victim Richard Simms testified that he and his wife, Janice Simms, were returning home

and saw a man walking down the alley behind their house. The man was wearing a black sweatshirt

with the hood pulled up. Richard also saw a silver car parked across the alley by their neighbor’s

garage. He could not recall if anyone was in the car. Richard pulled into his garage and was helping

Janice out of the car when a man said, “Give me your money.” He was pointing a gun at Janice.

Richard told the man to leave Janice alone and the man turned the gun on him. Richard pulled bills

out of his pocket and laid them on the hood of the car. He estimated he had $5 to $10 in singles.

Woods asked for Richard’s cell phone. He took the money and cell phone and left. Richard closed

the garage door and called 911. Richard then heard a woman yelling for help.

¶9 Victim Janice Simms testified similarly to her husband. In her recollection, no one was in

the silver car when it was parked. The man who robbed them was wearing sports shorts and a black

sweatshirt. After he left the garage, her neighbor yelled and she heard a car door slam and a car

drive away. Both Richard and Janice identified Woods as the man walking in the alley and as the

man who robbed them. They did not identify Taylor and could not identify him in court.

¶ 10 Zachary Jordan testified that the day of the offenses, he checked on his barking dog and

saw a man on top of his dog. The man was wearing a white tee-shirt and jeans. He charged Jordan

and pushed his way through the back door of Jordan’s house and into the kitchen, where the men

wrestled. The man said he had been attacked, was in trouble and needed help. Jordan saw a police

officer outside and went to talk to him. The man fled and was caught by the police. Jordan

identified Taylor in court as the man in the encounter.

¶ 11 Michael Surprenant, a Kankakee police officer, testified that he conducted a show-up for

Turngren, who was not able to identify Taylor. She thought he could have been one of the

perpetrators.

4 ¶ 12 Kevin Orms, a Bradley patrol officer, testified he heard the dispatch about the armed

robberies and began to follow a silver car matching the license description provided by Turngren.

The car drove away when he turned on his emergency lights. The car went through two stop signs

and was hit going through an intersection. Taylor and Woods ran away, although both were soon

discovered and arrested. Taylor’s seven-month-old stepson was discovered in the back seat and

was taken to the hospital. A single barrel shotgun was found sticking out of the passenger side

front window. The two cell phones stolen in the robberies were discovered along the route on the

south side of the street, indicating they were tossed from the passenger seat. They were not tested

for fingerprints.

¶ 13 Solo-Veno Pena, a Bradley police officer, testified that he saw a shotgun sticking out of

the passenger side front window when he responded to the crash. He also saw a child in a car seat

that was tipped over in the back seat. The child’s feet were dangling over the floor and the seatbelt

was across his neck. The child was not crying or moving but was drooling.

¶ 14 Greg Glidwell, a Bradley firefighter and paramedic testified that the child was hanging in

the car seat by its neck and frothing at the mouth, which indicated possible strangulation. Once the

child was released from the car seat, he was dazed.

¶ 15 Steven Hunter, a Kankakee detective, testified that he joined in the chase of the silver car.

One suspect was wearing a white shirt. He identified Taylor in court. He searched Taylor prior to

interviewing him and discovered one $10 bill, one $5 bill and nine $1 bills on him. Hunter’s

interview with Taylor was recorded and the video recording played for the jury. The interview

depicted Taylor explaining the silver car belonged to his girlfriend. The baby in the back seat was

her child. Taylor and his girlfriend dropped her daughter off at day care earlier in the day and then

Taylor dropped his girlfriend at work. He took her son to see her at lunchtime and bought her lunch

5 at Subway inside her workplace. He went home after lunch but could not remember any details

about what he did as he and his girlfriend were fighting and he was “zoned out.” Taylor ran from

the police because he was on parole and driving without a license. He denied the gun belonged to

him. He did not know how or when the gun was placed in the car. He denied robbing anyone.

¶ 16 The State entered a certified copy of Taylor’s conviction that established he was convicted

of armed robbery in March 2012 and rested its case. The defense moved for a directed verdict on

all counts, which the trial court denied.

¶ 17 The defense presented its case. Woods testified. He was admonished regarding his fifth

amendment right to remain silent and Woods testified he was waiving the right. He had known

Taylor for a short time when he spent the night at the apartment where Taylor lived with his

girlfriend and her children. He had stolen a shotgun two weeks earlier as he needed it for

protection. He stored the gun in various places, usually hiding it at night. On the morning of the

robberies, he asked Taylor to take him to pick up some clothes he had stashed at a vacant house.

Taylor gave Woods the car keys and Woods went on his own. He placed the gun in the car when

he picked up his clothes. He and Taylor went to Walmart at some time during the day. The son of

Taylor’s girlfriend was also with them. Taylor had lunch with his girlfriend, after which she and

Taylor argued on the phone. He told Taylor to stop in the alley so he could use the outdoor

facilities. His actual intent was to hide the gun in the alley so he could return for it later. Woods’s

brother lived about a block from the alley and Woods planned to spend the night with him. When

he was trying to hide the gun, a car with two people in it drove by. He believed they saw him trying

to hide the gun so he robbed them. He also robbed Turngren.

¶ 18 According to Woods, Taylor was not involved in the armed robberies. Taylor did not see

Woods take the gun out of the car because Taylor was on the phone and not paying attention. He

6 and Taylor did not converse about the shotgun or about robbing anyone. After assaulting Turngren,

Woods returned to the car and forced Taylor to drive to the north side. He pointed his gun at Taylor

and warned him not to speed out of the alley. He admitted he lied to the police and gave different

statements. He said he was untruthful in both interviews. Defense counsel attempted to ask Woods

regarding whether he spoke to the police about Taylor’s lack of involvement but the State objected

and the court sustained the objection. Defense counsel also attempted to present a letter Woods

wrote denying Taylor’s involvement and the court again sustained the State’s hearsay objection.

On cross-examination, Woods acknowledged that he initially told the police that he gave Taylor

money and also admitted he lied when he told the police he paid someone to drive him to Bradley.

¶ 19 Taylor testified he lived with his girlfriend and her children at the time he was arrested.

His girlfriend worked at the Walmart pharmacy. Woods had spent the night with them because

Taylor was helping him obtain a job through the temporary employment service where Taylor

worked. His girlfriend let Taylor have the car after he dropped her at work. When he returned

home, Woods wanted Taylor to drive him somewhere so Woods could pick up his clothes. He

gave Woods the car and stayed home with his stepson, who needed a breathing treatment. He and

Woods took the child to his girlfriend’s workplace at lunchtime. He bought her a sandwich at the

Subway inside Walmart and put the change in his pocket. He also stopped for gas, where he put

the change from a $20 bill into his pocket, as well as change from buying cigarettes.

¶ 20 After they left Walmart, Woods asked Taylor to pull into an alley. Taylor was not paying

attention to Woods because he and his girlfriend were arguing on the phone. Woods told him he

had to go to the bathroom.A few minutes after Woods exited the car, Taylor saw the passenger

door open and noticed a gun. He told Woods his son was in the car and Woods could not have the

gun. Woods was “bugged out and panicky.” Woods entered the car and told Taylor to drive. He

7 threatened Taylor and directed the escape route. Taylor did not know Woods had committed any

crime but thought Woods might be mad because they missed his appointment at the temporary

employment agency. Taylor did not stop for the police because he was afraid of Woods. He

admitted he told the police he did not stop because he lacked a driver’s license.

¶ 21 After the crash, he tried to get his son but he noticed the police with guns and he did not

want to be shot or have his son hit by a ricocheting bullet. He told the police he did not know there

was a gun in the car or how it was placed in the car. He also admitted he told the police he only

knew Woods by the nickname, “G,” although he knew Woods’s real name. He denied bursting

into Jordan’s house, saying Jordan let him enter. Taylor insisted that part of the interview with

police where different facts were revealed was not recorded or not presented at the trial. He denied

participating in any armed robbery and denied knowing that Woods was going to rob anyone.

¶ 22 The defense rested and a jury conference took place. The State presented a jury instruction

indicating Taylor had been previously convicted of armed robbery. Taylor objected, arguing the

State only needed to prove Taylor had a prior conviction for a forcible felony. The trial court

determined it would give the State’s instruction as presented. The State also presented Illinois

Pattern Jury Instructions, Criminal, No. 5.03 (approved Oct. 28, 2016) (hereinafter IPI Criminal

No. 5.03), in which the State had included the following language from the committee notes:

“intent to promote or facilitate the commission of an offense may be shown by evidence that the

defendant shared a criminal intent of the principal or evidence that there was a common criminal

design.” The trial court ordered the State to remove the committee language from the instruction.

¶ 23 The defense renewed its motion for a directed verdict after the State’s rebuttal case. The

trial court denied the motion, closing arguments took place and the case was presented to the jury.

Following deliberations, the jury found Taylor guilty on all counts. He moved for a new trial,

8 which the trial court heard and denied. The trial court sentenced Taylor to 35 years’ imprisonment

on each count of armed robbery, which included the mandated 15-year firearm enhancement, 7

years’ imprisonment for unlawful possession of a weapon by a felon, 4 years’ imprisonment for

criminal trespass, 3 years’ imprisonment for aggravated fleeing and eluding, and 364 days’

imprisonment for child endangerment. Taylor moved to reconsider his sentence, which the trial

court denied. He appealed.

¶ 24 ANALYSIS

¶ 25 There are three issues on appeal: whether the trial court erred when it denied Taylor’s

motion for a directed verdict; whether the State committed prosecutorial misconduct during

closing argument; and whether defense counsel was ineffective.

¶ 26 We first address whether the court should have granted Taylor’s motion for a directed

verdict at the close of the State’s case-in-chief. Taylor argues that the trial court erred when it

denied his motion for a directed verdict on the armed robbery and unlawful possession of a weapon

by a felon charges. Taylor argues that the State did not establish that he intentionally aided Woods

prior to or during the robberies and failed to establish that Taylor possessed the shotgun used in

the robberies.

¶ 27 A defendant may move the court to enter a not guilty finding or direct the jury to find him

not guilty when the State’s evidence is insufficient to sustain every element of the offense beyond

a reasonable doubt. 725 ILCS 5/115-4(k) (West 2014). In considering a motion for a directed

verdict, the trial court considers the evidence in a light most favorable to the State and determines

whether a reasonable person could conclude the defendant was guilty beyond a reasonable doubt.

People v. Withers, 87 Ill. 2d 224, 230 (1981). We review de novo a trial court’s determination on

a motion for a directed verdict. People v. Williams, 2017 IL App (1st) 152021, ¶ 26.

9 ¶ 28 A defendant is accountable for another’s criminal conduct when before or after an offense

is committed “and with the intent to promote or facilitate that commission, he or she solicits, aids,

abets, agrees, or attempts to aid the other person in the planning or commission of the offense.”

720 ILCS 5/5-2(c) (West 2014). To sustain a conviction under an accountability theory, the State

must prove beyond a reasonable doubt that the defendant shared the principal’s criminal intent or

common criminal design. People v. Perez, 189 Ill. 2d 254, 266 (2000). The shared-intent theory

requires the State to demonstrate the defendant had actual knowledge of the other’s criminal intent.

People v. Fernandez, 2014 IL 115527, ¶ 21. A defendant’s shared intent may be inferred from the

circumstances of the offense and the defendant’s character or acts. People v. Stanciel, 153 Ill. 2d

218, 234 (1992). A common-design theory provides that when two or more people agree on a

criminal plan, acts committed by one party that further the plan are considered the acts of all the

parties and they are all equally responsible for the acts. In re W.C., 167 Ill. 2d 307, 337-38 (1995).

¶ 29 A person’s presence at the commission of the offense is insufficient to establish

accountability. Stanciel, 153 Ill. 2d at 237. However, the State is not required to prove active

participation or words of agreement to sustain a conviction on an accountability theory. People v.

Turner, 375 Ill. App. 3d 1101, 1104 (2007). Factors to be considered when deciding accountability

include the defendant’s presence at the scene without disapproving the criminal offenses, flight

from the scene, failure to report the crime, sharing the proceeds from the criminal act, and

destroying or disposing of evidence. People v. Taylor, 164 Ill. 2d 131, 141 (1995).

¶ 30 Taylor does not dispute that he drove Woods and that he was present at the scene. Rather,

he contends that he was unaware of Woods’s intent or commission of the offenses until after they

had occurred. The evidence suggests otherwise. Victims Richard and Janice Simms testified that

they drove past a man walking in their alley and noticed a car parked across the alley in front of

10 their neighbor’s garage. Richard did not recall seeing anyone in the parked car and Janice testified

no one was in the car. Victim Victoria Turngren testified she first noticed a man walking in front

of a car as it moved down the alley behind her house. She described the man who was walking as

shorter than her height and the man who assaulted her as taller than her. This testimony suggests

that Taylor was more than an innocent driver, that he too, was surveying the alley for criminal

purposes. At the least, Turngren’s testimony allows the inference that Taylor did not unwittingly

turn into the alley merely so Woods could relieve himself. Both Richard and Janice testified that

they were robbed at gunpoint, necessitating Woods to have removed the gun from the back seat

when he exited the car to walk down the alley or after the car was parked when Taylor was

allegedly sitting in the front seat.

¶ 31 Turngren also stated the man who robbed and assaulted her was standing on the driver’s

side of the silver car when he put on a bandana and attacked her. It would be reasonable to infer

that Taylor, seated in the driver’s seat as he claimed he was, would have necessarily seen Woods

cover his face and attack Turngren. At the least, he would have heard Turngren’s screams for help.

After Woods assaulted Turngren, he jumped into the car carrying the shotgun. Turngren told the

police that “they both got into the car” and she believed her initial statement to be more trustworthy

than her later recollection. These facts raise a reasonable inference that Taylor was not merely the

driver who waited unknowingly in the car but planned and was present and aware of the crimes as

they were being committed.

¶ 32 Taylor took no action to disapprove Woods’s criminal acts. At the time the Simmses were

robbed, he was either sitting in the car across the alley or out of the car and somewhere on foot in

the alley. Based on the Simmses’ perspective, Taylor would have been in a position to see Woods

enter their garage. As mentioned above, Woods retrieved the gun from the back seat prior to his

11 confrontation with the Simmses as he used it when he robbed Richard. According to Woods’s

version of events, he had to rob the Simmses because they saw him carrying the gun when they

drove by him as he walked in the alley. Woods also asserted he secreted the gun in the back seat

in such a manner that Taylor was unable to see it. It follows that Woods retrieving the gun from

its secured position would entail more than simply reaching into the back seat and grabbing the

gun. Even if distracted on his cell phone, it would be unlikely Taylor would be unaware of Woods’s

actions. For Woods to be carrying the gun down the alley, Taylor would have had to stop the car

to let Woods out and allow him to grab the gun. As Taylor followed Woods down the alley, it is

improbable that he was unable to observe the gun, particularly in light of Woods’s testimony that

he was forced to act because he thought Richard and Janice saw him with the gun. The reasonable

inference from this evidence is that Taylor and Woods agreed on a plan or formed a shared intent

to rob who they could find in the alley prior to Woods getting out of the car with his gun to walk

down the alley with Taylor trailing him.

¶ 33 As further evidence of a common plan or shared intent, Taylor did not try to stop Woods

from confronting the Simmses or Turngren with the gun or check on them after the robberies. He

did not order Woods out of the car with the gun or refuse to drive out of the alley. He did not exit

the car and take his stepson with him. He did not call 911. Instead, he aided Woods in fleeing from

the scene. Taylor claims he was forced at gunpoint by Woods to drive. As the trier of fact, the jury

was tasked with assessing Taylor’s credibility and found his version that he drove under threat to

be incredible. There is no evidence to dispute its conclusion.

¶ 34 Other evidence from which a reasonable person would infer Taylor’s guilt includes his

flight from the car after he crashed it. It is unlikely that Woods would have forced him to flee, as

Woods himself was in flight. We consider it significant that Taylor left his injured child in the

12 back seat of the car when he fled. In our view, a reasonable person would find Taylor’s conduct

concerning his stepson to be evidence from which guilt could be inferred. Taylor said he attempted

to open the back door of the car to retrieve his child but it would not open. The dashcam video

shows Taylor stop at the back door before fleeing. Even if he had not been able to open the door

as he claimed, what Taylor would have seen through the car window was his son in a tipped car

seat “suspended with his feet dangling over the floor” and the seatbelt running across his neck.

Medical personal observed the infant was frothing at the mouth, which indicated strangulation. A

reasonable person would consider that Taylor’s concern for the legal consequences of the criminal

acts outweighed his concern for his child and would infer guilt. Other evidence of guilt includes

the small bills the police found on Taylor when he was arrested, including nine $1 bills, which

corresponded to the amount and type of currency Simms said was taken from him. A reasonable

person would infer that Taylor shared in the proceeds from the robberies committed by Woods.

This inference is supported by the facts that no bills were found on Woods or in the vehicle. We

find the State’s evidence was sufficient for the jury to find Taylor guilty of armed robbery and

supported the trial court’s denial of his motion for a directed verdict.

¶ 35 We further find the State also presented sufficient evidence to prove possession of the

shotgun. To prove constructive possession, the State was required to establish that Taylor knew

the gun was present in the car and exercised immediate and exclusive control over the area where

the gun was found. People v. Spencer, 2012 IL App (1st) 102094, ¶ 17 (citing People v. McCarter,

339 Ill. App. 3d 876, 879 (2003)). The following factors are used to determine whether a defendant

had knowledge that a weapon was in a car: the visibility of the gun from the defendant’s position

in the car, the amount of time the defendant had to observe the weapon, gestures or movements

suggesting an attempt to conceal or retrieve the weapon, and the weapon’s size. People v.

13 Hampton, 358 Ill. App. 3d 1029, 1033 (2005) (citing People v. Bailey, 333 Ill. App. 3d 888, 891-

92 (2002)).

¶ 36 A reasonable person would infer from the facts that Taylor was aware of the shotgun. The

gun was on the floor of the back seat, where Taylor placed his stepson. In order to place his child

in the car seat, Taylor would be required to reach into the vehicle in such a manner that the floor

would have been visible, even if the seats were reclined back. Per Woods, the gun was in the car

for the entirety of the trip to Walmart and then in the alley. Taylor said he kept his seat tilted far

back so he could check on his stepson, which would give him visual access to the gun during the

trip. Thus, regardless of Woods’s claim that he placed the gun in the vehicle without Taylor’s

knowledge, it would be impossible for someone not to see a long gun in a compact car, particularly

when it was placed on the back seat floor, which Taylor accessed to seat his stepson.

¶ 37 As discussed above, in order for Woods to have the gun while he walked down the alley,

he would have had to pull it out of the back seat, which action would be unlikely to occur without

Taylor’s awareness of the gun. Taylor admitted he was aware of the gun once the crimes were

committed. It was found visible in the front passenger seat after the accident. At that point, Taylor

did not exit the vehicle after crashing it, surrender and turn the gun over to the police. Although

the car belonged to Taylor’s girlfriend, it is undisputed that he was in possession and control of it.

Supposedly, the gun was placed in the vehicle earlier in the day and prior to Taylor and Woods’s

travelling in the car together throughout the day. Even after seeing the gun, Taylor did not separate

himself from it or insist it be removed from the vehicle he controlled. Woods testified that they

were fleeing back to Taylor’s residence after the robberies, where the gun was likely to remain in

the car or be brought into Taylor’s residence. Taylor’s participation in fleeing from the scene

suggests his attempt to distance himself from the gun. From this conduct it can be inferred that

14 Taylor had knowledge and control over the gun. Thus, we agree with the trial court that the State

proved beyond a reasonable doubt that Taylor constructively possessed the shotgun. It did not err

when it denied Taylor’s motion for a directed verdict on this count.

¶ 38 The next issue for our review is whether the State committed prosecutorial misconduct

during closing arguments. Taylor complains that the State’s comments were improper and denied

him a fair trial. He points to the State’s comments that Woods was not a credible witness and to

alleged misstatements of law and fact. Because Taylor did not preserve this issue for appeal, our

review is only appropriate under the plain error doctrine. People v. Enoch, 122 Ill. 2d 176, 187

(1988). For the doctrine to apply, there must first be plain or obvious error. People v. Piatkowski,

225 Ill. 2d 551, 565 (2007). If there was plain error, review is proper where (1) the evidence was

closely balanced or (2) the error was so serious it threatened the integrity of the justice system,

regardless of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

¶ 39 The State owes a criminal defendant a duty of fairness throughout the trial. People v.

Rowjee, 308 Ill. App. 3d 179, 185 (1999). A prosecutor may comment on the facts in evidence and

make reasonable references from those facts but he cannot misstate the facts or the law. People v.

Carbajal, 2013 IL App (2d) 111018, ¶ 29. A prosecutor breaches that duty when his comments in

closing argument include inferences based on deliberate misrepresentations of fact. People v.

Amaya, 255 Ill. App. 3d 967, 974 (1994). The improper comments must be a material factor in the

conviction. People v. Linscott, 142 Ill. 2d 22, 28 (1991) (citing People v. Lyles, 106 Ill. 2d 373,

391 (1985)). The question is whether the jury could have reached a contrary verdict had the

improper comments not been made. Id. (citing People v. Witted, 79 Ill. App. 3d 156, 168 (1979)).

¶ 40 We first look at the State’s argument to the jury that Woods had nothing to lose by taking

sole responsibility for the criminal conduct because he had already pleaded guilty to it. Taylor says

15 the State, however, knew that Woods admitted his lone role prior to trial and the State’s comments

mislead the jury to improperly infer that Woods was not credible as to his claims at trial that Taylor

was not involved in the crimes. Taylor uses the court’s admonishment to Woods regarding his fifth

amendment rights prior to his testimony as indication the State believed Woods did have

something to lose. We consider that the prosecutor’s comments were made as part of an

explanation of the jury’s role as fact finder. He commented that the jury was to assess witness

credibility and continued with a discussion regarding Woods’s credibility. It was not improper

argument. People v. Hudson, 157 Ill. 2d 401, 444 (1993) (State may comment on the defendant’s

credibility and the believability of the defense’s theory of the case if based on the evidence or

reasonable inferences from it).

¶ 41 Taylor challenges the following comments by the State in closing argument as

misstatements of law. Taylor argues the State’s analogy mislead the jury because the driver must

knowingly be driving the getaway car. In discussing accountability, the State compared Taylor’s

role in the crimes to that of the driver of the “getaway” car in a bank robbery. The prosecutor said

that there would be no crime without the escape, which Taylor claims was a misstatement of law

because robbery is completed after the property has been taken and flight is not an element of the

offense. People v. Dennis, 181 Ill. 2d 87, 103 (1998) (offense of armed robbery complete when

victim parts with property against his will because of force or threat of force from defendant). The

prosecutor stated that “[w]ithout the defendant there is no crime[,]” because Taylor provided the

means of transportation. According to Taylor, this comment misstated the law by suggesting

Taylor was guilty by association. The prosecutor’s comments were made in the context of an

explanation regarding accountability, that is, if Taylor had not driven the car to and from the

robbery, he would not be accountable for Woods’s crimes. The State did not have to prove Taylor

16 knew Woods was going to commit the robberies when he drove Woods to the alley and could

establish his knowledge by his actions before, during or after the crime.

¶ 42 The State commented that Taylor was not believable when he said he had no knowledge

of the gun because the weapon was a shotgun and the car Taylor was driving was a compact car.

According to Taylor, the State improperly conflated the two elements of possession: knowledge

and control and misstated the law by arguing that actual possession was established as Taylor

drove around with the gun in the car. Contrary to Taylor’s claims, the prosecutor properly defined

possession according to the jury instruction and fully explained the difference between actual and

constructive possession.

¶ 43 Next, Taylor claims error where the State told the jury that it was “almost duty-bound under

the law to disregard” Taylor’s testimony. Taylor contends the jury must only disregard evidence

the court struck or refused to admit. In our view, it was not improper for the prosecutor to comment

on Taylor’s credibility and his view that the evidence overwhelmingly supported a guilty verdict.

We find the prosecutor did not misstate the law.

¶ 44 We next look at whether the State’s comments, that if there had not been a car chase, the

shotgun would have gone home with Taylor or stayed in his car, were improper. Taylor argues the

comments were not based on any evidence and were in contradiction to Woods’s claimed

ownership of the gun. We consider the comments were based on the evidence. According to

Woods’s testimony, he planned to hide the gun in the alley and retrieve it later. Because that plan

failed, the logical inference was that Woods would return to Taylor’s residence with the gun still

in the vehicle. Similarly, the prosecutor’s comment that Taylor had some role in providing the gun

to Woods before Woods confronted Turngren was a reasonable inference based on the evidence.

According to Turngren, after he took her cell phone, Woods walked to the car and returned quickly

17 with the gun. By Taylor’s own account, he was sitting in the car and would have at least seen

Woods grab the gun. Moreover, based on Turngren’s recollection of the time sequence, Taylor

could have assisting Woods in retrieving the gun.

¶ 45 Taylor contends the State misstated the facts. The prosecutor told the jury that Woods never

explained how the gun got into the car. Taylor says that Woods did explain, testifying that he

placed the gun in the car earlier in the day when Taylor had loaned the car to him. The prosecutor

actually said that Woods never rationally explained how the gun ended up in the car. Woods’s

explanation consisted of vague references to collecting his gun from one location and moving it to

hide elsewhere, which he claimed he was doing in the alley. The prosecutor also said Woods did

not explain why they were in the alley but mentioned giving the gun to someone else. Taylor says

Woods testified his brother lived nearby and he wanted to stash the gun because he was going to

his brother’s house that evening. Woods also told Taylor that he needed to stop in the alley to use

the outdoor facilities. The State’s comments were directed at the witness’s credibility and were not

misstatements of the facts.

¶ 46 Taylor also complains the prosecutor misstated the evidence in arguing that Richard and

Janice said they saw the man walking in the alley did not have a gun while Woods said they saw

him with the gun. Both Richard and Janice explained they noticed the man in the alley and were

apparently alert to his presence. They each testified regarding the gun he used when he robbed

them in the garage. Even if the witnesses did not expressly state the man walking in the alley was

not carrying a gun, a reasonable inference from the facts would be that they would have testified

he had a gun if they saw him with one. It is further reasonable to infer that had they noticed a gun,

they would have kept driving or immediately closed the garage door after entering the garage.

18 ¶ 47 The State commented that Taylor and Woods bragged and laughed in the car after the

robbery. The prosecutor also said, “What are they doing? I don’t know. *** Maybe they’re—

they’re bragging. Maybe they’re laughing. Who knows?” The prosecutor threw out as examples

that Taylor and Woods were laughing or bragging but expressly stated he did not know what they

were doing. Similarly, the State also said that Taylor testified there were 16 guns pointed at him

after the car crash and that was why he ran. Taylor says his testimony was actually that one officer

was “drawing his weapon.” The prosecutor exaggerated Taylor’s statements to the police during

his videotaped interview that there were “all these guns.” He did so in discussing Taylor’s

credibility as he testified at trial that he only saw one gun. The comments were not improper. See

People v. Roe, 228 Ill. App. 3d 628, 638 (1992) (prosecutors afforded wide latitude in closing

argument and hyperbole based on the evidence not improper).

¶ 48 Next, Taylor argues the prosecutor improperly appealed to the jurors’ emotions, shifted the

burden of proof and failed to accord him the presumption of innocence. Taylor says the State

improperly focused on his character in calling him an animal on the prowl, leaving a seven-month-

old with breathing problems in the back seat of the car, in stating he was looking for prey and fled

after the target was found, and in suggesting Taylor did not care about his stepson by stating,

“[w]hat kind of person would not say get this gun out of my car. My little kid’s in the back” and

that Taylor risked the child’s life to commit the crime. Taylor was charged with child

endangerment and the State’s comments were directed to Taylor’s actions regarding his stepson,

who he allowed to share a back seat with a gun and left dangling in the car seat after he crashed.

The comments were not inappropriate or directed at the jury’s emotions but were based on the

evidence.

19 ¶ 49 The prosecutor challenged Woods’s testimony that Taylor was unaware the crimes were

being committed, Taylor’s denials of the events and his invitation for the jury to compare the

evidence from the State and its witnesses to determine who to believe. According to Taylor, the

comments instructed that the jury could decide guilt based on who was more credible, which

improperly shifted the burden of proof. The State may comment on the credibility of witnesses

and the comments here did not impermissibly shift the burden of proof. See People v. Phillips, 127

Ill. 2d 499, 527 (1989) (“Not every prosecutorial statement questioning relevance or credibility

rises to an impermissible shifting of the burden.”). He also claims the State improperly shifted the

burden of proof when it commented that the only cash found was in Taylor’s pocket, suggesting

Taylor had to establish money was also found on Woods or in the car. The evidence established

that nine $1 bills were found on Taylor and no other money was found on Woods or in the car.

Richard Simms testified that he had between $5 and $10 in $1 bills stolen from him. That the facts

present Taylor in a negative light does not make comments about the facts improper. We conclude

the State’s comments did not shift the burden of proof but merely restated the evidence. Finally,

Taylor attacks the prosecutor’s statements that the case was solved due to good police work

resulting in the arrest of the guilty parties, arguing it denied him the presumption of innocence by

implying his guilt was established when he was arrested. Arrest does not equate to guilt and the

jury was tasked with determining guilt, not the police or the prosecutor, as it was instructed. See

People v. Attaway, 41 Ill. App. 3d 837, 850 (1976) (arrest cannot be considered evidence of guilt).

¶ 50 The State did not misstate the facts or the law, appeal to the jury’s emotions, shift the

burden of proof and ignore the presumption of innocence. There was no error, much less plain or

obvious error. Thus, plain error review is not appropriate and we find the issue of prosecutorial

20 misconduct is forfeited. See People v. Petty, 2017 IL App (1st) 150641, ¶ 45 (counsel is not

ineffective when he or she does not make meritless objections).

¶ 51 Taylor further submits that if plain error review fails him, trial counsel was ineffective for

failing to preserve the errors. As discussed above, there were no errors and counsel cannot be

ineffective for failing to object. Even if there were errors, Taylor cannot show that they prejudiced

him such that the result of the trial would have been different. The jury was instructed by the court

that closing arguments did not constitute evidence and the prosecutor told the jury that if he

inadvertently misstated anything, it was not in an attempt to deceive them. Taylor cannot use a

claim of ineffective assistance of counsel to obtain review of this issue and we reject his attempt

to do so.

¶ 52 The third issue for our review is whether trial counsel was ineffective during other portions

of the trial. Taylor argues his trial counsel provided ineffective assistance when he failed to request

that the interrogation video be redacted, to amend the jury instructions to exclude specifics

regarding his prior felony and to object when the trial court sua sponte changed the accountability

instruction.

¶ 53 To establish ineffective assistance of counsel, a defendant must show that his counsel’s

performance fell below an objective standard of reasonableness and there is a reasonable

probability that, but for counsel’s deficient performance, the result of the trial would have been

different. Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶ 54 First, Taylor submits his attorney performed deficiently when he failed to redact the video

of Taylor’s interrogation, which Taylor says contained numerous irrelevant and inflammatory

comments and included details about his involvement in a prior armed robbery.

21 ¶ 55 The statements made by police officers during an interview with a defendant are admissible

when needed to show how the statement affected the defendant or to explain the defendant’s

response. People v. Hardimon, 2017 IL App (3d) 120772, ¶ 35. To be admissible, an officer’s

statements must also be relevant and the probative value of the statements must outweigh their

prejudicial effect. Id. As with any witness, the officer’s opinion may not be admitted if it is not

concerned with statements of facts of which the officer has personal knowledge. People v.

Sprinkle, 74 Ill. App. 3d 456, 464 (1979). However, police officer statements about the ultimate

question of fact, such as the defendant’s guilt, threaten to prejudice the defendant because police

officers are considered authority figures. People v. Munoz, 398 Ill. App. 3d 455, 488-89 (2010).

¶ 56 The comments asserted by the officers during the interrogation regarding their opinion that

Taylor was guilty and about another unconnected robbery earlier the same day were not

inadmissible and counsel’s failure to seek redaction of them was not deficient performance. The

video showed the interrogating officers questioning Taylor about his prior arrest for armed

robbery. The comments were made in response to Taylor asking, “what did I rob?” The statements

did not require redaction. Taylor further complains the comments were improper other-crimes

evidence. However, the copy of his prior conviction for armed robbery was entered into evidence.

Moreover, Taylor himself testified regarding his prior convictions, including that he was on parole

for armed robbery when the instant offenses were committed. The jury did not learn any

information prejudicial to Taylor that it had not already known. Redaction was not necessary and

counsel was not ineffective for failing to request it.

¶ 57 Next, Taylor challenges counsel’s failure to redact the officers’ statements where they

opined that Taylor was guilty. He points to a number of statements by the officers he argues were

improper. When he denied robbing anyone, the officers said that he did rob people that day and

22 that he was lying. They questioned him regarding his role under an accountability theory,

explaining to him that his actions amounted to participation in the crimes. These statements were

intended to encourage Taylor to admit to the crimes and were directed at Taylor’s credibility. They

were not offered to provide an opinion regarding Taylor’s guilt. As such, the statements were not

improper and defense counsel was not ineffective for failing to challenge them.

¶ 58 Taylor further argues that his trial attorney should have proposed alternative language for

the pattern jury instructions regarding his prior felony conviction. The State offered instructions

which specified that Taylor had previously been convicted of armed robbery. He complains

counsel should have presented instructions replacing “armed robbery” with “felony” because of

the prejudice attached to commission of the same crime.

¶ 59 Illinois Pattern Jury Instructions, Criminal, No. 3.13X (approved Oct. 17, 2014) provides

that a prior conviction is generally only considered as to a defendant’s credibility. Because the

State in the instant case was required to prove defendant was convicted of a prior felony to sustain

the weapons charge, the jury could properly consider the prior conviction for the specific offense

only to decide if the State met its burden as to that offense. To prove Taylor guilty beyond a

reasonable doubt of unlawful possession of a weapon by a felon, the State had to establish that he

had previously been convicted of a felony. Illinois Pattern Jury Instruction, Criminal, No. 18.08

(4th ed. 2000). There is no requirement that the specific felony not be mentioned; rather, the court

must weigh its probative value against its prejudice. See People v. Davis, 405 Ill. App. 3d 585,

594 (2010). Evidence of Taylor’s conviction was necessary for the State to prove its case regarding

the possession of a weapon by a felon charge. The probative value of the conviction outweighed

the prejudice, if any, to Taylor. Because Taylor testified to his prior conviction for armed robbery,

23 he was not prejudiced by counsel’s failure to challenge the instruction. We find defense counsel

was not ineffective for failing to challenge the State’s tendered jury instruction.

¶ 60 Lastly, Taylor challenges his attorney’s failure to object to the trial court’s change to the

accountability instruction. After reviewing the instruction, the trial court removed the committee

notes included by the State. According to Taylor, because his intent was a critical issue in the case,

the language from committee notes should have been included and his attorney should have

objected to its removal.

¶ 61 The language at issue in the committee notes stated: “intent to promote or facilitate” may

be shown by evidence of shared criminal intent or common criminal design. IPI Criminal No.

5.03). The accountability instruction provided the jury stated that a person is legally responsible

when “with the intent to promote or facilitate” the commission of an offense, he “knowingly

solicits, aids, abets, agrees to aid, or attempts to aid the other person.” IPI Criminal No. 5.03.

Taylor was not entitled to use of the committee note language and counsel may have had a strategy

for not objecting to its removal. People v. Edwards, 343 Ill. App. 3d 1168, 1176 (2003) (committee

notes are not the law; trial court should deviate from suggested instructions only when necessary

due to unusual facts or new law). Taylor does not explain how removal of the language prejudiced

him, particularly in light of the State’s theory at trial that Taylor and Woods engaged in shared

criminal intent or common criminal design. The trial court did not err when it removed the

committee note language and its removal did not cause any prejudice to Taylor. We find defense

counsel was not ineffective for failing to object to the State’s instruction.

¶ 62 CONCLUSION

¶ 63 For the foregoing reasons, the judgment of the circuit court of Kankakee County is

affirmed.

24 ¶ 64 Affirmed

¶ 65 JUSTICE McDADE, dissenting:

¶ 66 I respectfully disagree with the majority’s decision to affirm the circuit court’s judgment.

For the following reasons, I would hold that the circuit court erred when it denied Taylor’s motion

for a directed finding on the armed robbery and unlawful possession of a weapon by a felon

charges. Further, although it would not be necessary to reach the issue, I also believe that Taylor

was entitled to a new trial based on prosecutorial misconduct that occurred during closing

argument.

¶ 67 Regarding his motion for a directed finding on the armed robbery charge, Taylor contends

that the State failed to prove beyond a reasonable doubt that he intentionally aided Woods either

before or during the robberies.

¶ 68 Section 115-4(k) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-4(k) (West

2016)) provides:

“When, at the close of the State’s evidence or at the close of all of the evidence, the

evidence is insufficient to support a finding or verdict of guilty the court may and on

motion of the defendant shall make a finding or direct the jury to return a verdict of not

guilty, enter a judgment of acquittal and discharge the defendant.” Id.

When a defendant moves for a directed finding, he or she admits the truth of the facts presented

by the State, but asserts that as a matter of law, the evidence is insufficient to support a guilty

verdict or finding. People v. Kelley, 338 Ill. App. 3d 273, 277 (2003). “In considering the denial

of such a motion, we review the evidence presented by the State, in a light most favorable to the

State, to determine whether a reasonable mind could fairly conclude defendant was guilty beyond

25 a reasonable doubt.” People v. Tabb, 374 Ill. App. 3d 680, 691 (2007). This court reviews the

denial of a motion for a directed finding de novo. Id.

¶ 69 In relevant part, section 5-2(c) of the Criminal Code of 2012 (720 ILCS 5/5-2(c) (West

2016)) provides that an individual is legally accountable for the actions of another when:

“[E]ither before or during the commission of an offense, and with the intent to

promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts

to aid that other person in the planning or commission of the offense.

When 2 or more persons engage in a common criminal design or agreement, any

acts in the furtherance of that common design committed by one party are considered

to be the acts of all parties to the common design or agreement and all are equally

responsible for the consequences of those further acts. Mere presence at the scene of a

crime does not render a person accountable for an offense; a person's presence at the

scene of a crime, however, may be considered with other circumstances by the trier of

fact when determining accountability.” Id.

“Mere presence of a defendant at the scene of a crime does not render one accountable for the

offense.” Taylor, 164 Ill. 2d at 140. Additionally, presence at the scene coupled with knowledge

that a crime is being committed, without more, does not establish that one is accountable for

another’s conduct. Id. Nevertheless, proof of the common design or agreement can be inferred

from the circumstances surrounding the action or actions. Id. at 141. Active participation or words

of agreement are not necessary to find accountability. Id. at 140-41. Factors to be considered in

accountability scenarios include: “[p]roof that defendant was present during the perpetration of the

offense, that he maintained a close affiliation with his companions after the commission of the

26 crime, and that he failed to report the crime[.]” Id. at 141. An additional factor that can be

considered is whether the defendant fled the scene. Id.

¶ 70 Viewing the evidence in the light most favorable to the State, I believe that the evidence

was insufficient to allow a reasonable mind to fairly conclude that Taylor was guilty beyond a

reasonable doubt of armed robbery under an accountability theory. Of critical importance here is

that the State did not present evidence to support many of the inferences it sought from the

evidence. The State presented no evidence to show that Taylor actually knew that Woods intended

to rob anyone prior to the actual robberies or that he contributed in any way to a plan to commit

any crimes. While Taylor drove the vehicle to the alley where the robberies took place, there was

no evidence to indicate that his doing so was anything more than him driving to a location at

Woods’ request. It also seems highly unlikely that a person setting out to commit armed robbery

would take an infant along. Further, even if it were reasonable to infer that Taylor heard Woods’

interaction with Turngren and therefore knew that Woods was committing a crime, there was no

evidence to indicate that he contributed in any way to the planning or commission of that crime.

His mere presence at the scene, without more, was insufficient to establish accountability.

¶ 71 Regarding the shotgun, Woods testified that he placed it in the vehicle during the morning

of June 2, 2015, when he borrowed the vehicle from Taylor. The State presented no evidence to

contradict this testimony or to support an inference that Taylor knew that it was in the vehicle prior

to Woods’ return to the vehicle after committing the robberies. In this regard, even though the

evidence showed that the shotgun was long, it is noteworthy that the State did not present any

evidence related to its size, either independently or relative to the size, shape, or condition of the

interior of the vehicle, especially the floor of the back seat. There are no facts from which one

could reasonably conclude that the shotgun could not have been concealed from sight in the rear

27 of the vehicle. In fact, a photograph of the back seat of the vehicle, which was taken after the

crash, showed the two front seats reclined over the top of the floor of the back seat, indicating that

a shotgun placed there could have been invisible to the driver. Clearly, Taylor knew about the

shotgun when Woods later got into the front passenger seat carrying it, but that fact by itself is not

proof of a shared criminal intent or common design.

¶ 72 While it is true that Taylor was found with one $10 bill, one $5 bill, and nine $1 bills, the

State did not present any forensic evidence to show that any of this money had ever been in Simms’

possession or was in fact robbery proceeds. Taylor testified that he had cash remaining after using

some to purchase food, gas, and cigarettes. Simms was unsure of the amount of money he had. It

is no less reasonable for Taylor to lack knowledge of the exact amount of money he had in his

pocket than it was for Simms to lack such specific knowledge. Absent such specific evidence, and

with a clear showing that it was Woods, not Taylor, who actually robbed Simms, the State has

failed to show it was Simms’ money in Taylor’s possession.

¶ 73 I acknowledge that it appeared to be a particularly egregious act for Taylor to flee the scene

of the accident when his son was in dire straits in a car seat inside the vehicle. However, there was

no evidence that he was aware of the seriousness of the child’s situation and it is undisputed that

he had just committed several traffic violations, including driving without a license, and he

certainly knew by then that Woods had been up to no good. Moreover, the presence of the child

in the car would be strong additional evidence that Taylor was not involved in the planning and

execution of this criminal activity. Not only was there a potential to endanger the child, the child’s

very presence increased the risk of something going wrong with the potential robberies. I would

also note that his presence could have been leverage to undermine Taylor’s ability or desire to

resist Woods’ actions once he became aware of the criminal nature of those actions. Coupling this

28 evidence and inference with the aforementioned lack of factual evidence linking Taylor to the

robberies, Taylor’s flight from the accident scene cannot fairly be construed as proof beyond a

reasonable doubt that he was accountable for Woods’ actions.

¶ 74 Under these circumstances, I would hold that the actual evidence indicated at best that

Taylor was present at the scene of the robberies, possibly, maybe even probably, knew that Woods

committed the robbery of Turngren, drove Woods away from the scene of the robberies, and fled

the scene of an accident. Without more, I would hold that a reasonable mind could not fairly

conclude beyond a reasonable doubt that Taylor was accountable for the armed robberies. Thus,

I would hold that the circuit court erred when it denied Taylor’s motion for a directed finding on

the armed robbery charges.

¶ 75 Regarding his motion for a directed finding on the unlawful possession of a weapon by a

felon charge, Taylor contends that the evidence was insufficient to show that he possessed the

shotgun.

¶ 76 It is undisputed that Taylor was not found in actual possession of the shotgun. Thus, to

establish that Taylor possessed the shotgun in this case, the State was required to prove

constructive possession. McCarter, 339 Ill. App. 3d at 879. Proof of constructive possession

requires “that defendant had knowledge of the presence of the weapon and exercised immediate

and exclusive control over the area where the weapon was found.” Id. “Evidence establishing

constructive possession is often entirely circumstantial.” People v. McLaurin, 331 Ill. App. 3d

498, 502 (2002). Constructive possession exists when an individual has “an intent and capability

to maintain control and dominion” over the contraband. People v. Freiberg, 147 Ill. 2d 326, 361

(1992).

29 ¶ 77 Mere presence in a vehicle in which a weapon is found, without more, is insufficient to

establish constructive possession. Bailey, 333 Ill. App. 3d at 891. “Factors from which knowledge

could be inferred include: (1) the visibility of the weapon from defendant’s position in the car, (2)

the period of time in which the defendant had an opportunity to observe the weapon, (3) any

gestures by the defendant indicating an effort to retrieve or hide the weapon, and (4) the size of

the weapon.” Id. at 891-92.

¶ 78 My review of the evidence presented in this case reveals reasonable doubt as to whether

Taylor constructively possessed the shotgun. As previously mentioned, Woods testified that he

placed the shotgun in the vehicle during the morning of June 2, 2015, when Taylor let him borrow

the vehicle, and the State presented no evidence to contradict this testimony. It is true that the

shotgun was long, but, as noted above, there was no evidence that it could not have been placed in

the vehicle in such a manner that Taylor would not have noticed it. Again, there is a photo in the

record that suggests that it could have been concealed from Taylor’s view given how far back the

front seats were set. The evidence further suggested that Taylor was aware of the shotgun once

Woods got back into the front passenger seat after committing the robberies, but there was no

evidence to suggest that Taylor intended or attempted to exert control over the weapon from that

point on. Under these circumstances, I would hold that a reasonable mind could not fairly conclude

that Taylor constructively possessed the shotgun beyond a reasonable doubt. Thus, I would hold

that the circuit court erred when it denied Taylor’s motion for a directed finding on the unlawful

possession of a weapon by a felon charge.

30 ¶ 79 While the aforementioned analysis would be sufficient to reverse the circuit court’s

judgment, I would also find reversible error in his prosecutorial misconduct argument. 1

¶ 80 It is undisputed that Taylor failed to preserve this issue for review. See People v. Sebby,

2017 IL 119445, ¶ 48 (holding that preservation of an issue for appeal requires both an objection

at trial and raising the issue in a posttrial motion). However, Taylor requests this court to review

the issue under the plain-error doctrine.

¶ 81 The plain-error doctrine allows a reviewing court to address the merits of a forfeited claim

if clear or obvious error occurred and either (1) the evidence was closely balanced, or (2) the error

was so serious that it impacted the fairness of the trial and threatened the integrity of the judicial

process. Id. ¶ 48. Thus, it is necessary to determine first whether clear or obvious error occurred.

Id. ¶ 49.

¶ 82 A prosecutor has a duty to ensure that a defendant receives a fair trial. People v. Sales, 151

Ill. App. 3d 226, 233 (1986); see also People v. Oden, 20 Ill. 2d 470, 483 (1960) (stating that “it is

the rule that the State’s attorney in his official capacity is the representative of all the people,

including the defendant, and it is as much his duty to safeguard the constitutional rights of the

defendants as those of any other citizen”). It is well settled that:

“[p]rosecutors are afforded wide latitude in closing argument. [Citation.] In

reviewing comments made at closing arguments, this court asks whether or not the

comments engender substantial prejudice against a defendant such that it is impossible

to say whether or not a verdict of guilt resulted from them. [Citation.] Misconduct in

closing argument is substantial and warrants reversal and a new trial if the improper

An instructive commentary on the pervasiveness of prosecutorial misconduct in closing 1

argument can be found in Combating Prosecutorial Misconduct in Closing Arguments, 70 Okla. L. Rev. 887 (2018). 31 remarks constituted a material factor in a defendant’s conviction. [Citation.] If the

jury could have reached a contrary verdict had the improper remarks not been made, or

the reviewing court cannot say that the prosecutor’s improper remarks did not

contribute to the defendant’s conviction, a new trial should be granted.” People v.

Wheeler, 226 Ill. 2d 92, 123 (2007).

¶ 83 Taylor challenges as false, speculative, and prejudicial the following multitude of

statements made by the prosecutors during both their initial closing argument and their rebuttal

argument: (1) that Woods had nothing to lose by testifying that Taylor was not involved in the

robberies; 2 (2) about accountability and the example of a getaway driver in a bank robbery; (3)

about the law of possession; (4) about the jury being “almost duty-bound” to disregard Taylor’s

testimony; (5) that Woods did not testify as to how the shotgun got into the vehicle; (6) that Woods

did not explain why they were in the alley; (7) that Taylor testified there were 16 police officers

pointing their guns at him; (8) that the Simmses testified that Woods did not have a gun when they

saw him walking in the alley; (9) about what Taylor and Woods were doing in the vehicle after the

robberies; (10) that without the car chase, the shotgun would have either remained in Taylor’s car

or gone to Taylor’s house; (11) that Taylor had “a little more than something to do with” Woods

retrieving the shotgun during his encounter with Turngren; (12) that likened Taylor to an animal

because he was “on the prowl” and “looking for prey”; (13) that Taylor did not care about his son;

(14) about Taylor’s testimony that he did not know what was going on during the robberies; (15)

about the money found in Taylor’s pocket when he was arrested; and (16) that this case was solved

due to good police work resulting in the arrest of two guilty people.

The circuit court, however, cautioned Woods that he was giving up his right to claim fifth 2

amendment protection because 30 days had not elapsed from his own conviction. 32 ¶ 84 My review of the challenged statements reveals numbers 4 to 11, 15, and 16 to be examples,

to varying degrees, of prosecutorial misconduct. Some of these comments show that the

prosecutors misstated facts and evidence, which was unquestionably improper. People v.

Marzonie, 2018 IL App (4th) 160107, ¶ 47 (holding that “[i]t is *** improper for a prosecutor to

misstate the evidence or argue facts not in evidence”). Further, the wholly speculative comment

that Taylor and Woods may have been laughing in the car after the robberies appeared to be aimed

solely at inflaming the passions of the jury, which is also improper. People v. Redmond, 2018 IL

App (1st) 151188, ¶ 30 (holding that “comments intending only to arouse the prejudice and passion

of the jury are improper”). I would also find improper the comments made about the money found

in Taylor’s pocket and about the case being solved due to good police work that resulted in the

arrest of two guilty individuals. Both comments operated to shift the burden of proof away from

the State and to intrude upon the presumption of innocence afforded an accused. In addition, I

would find improper the comment made during a discussion of alleged inconsistencies in Taylor’s

testimony—i.e., when the prosecutor told the jury that “as finders of fact you are absolutely entitled

and almost duty-bound under the law to disregard what [Taylor] says.” On the contrary, jurors are

duty bound to consider all of the evidence and certainly should not disregard the testimony of the

defendant who takes the stand, takes the oath to tell the truth, and testifies in his own defense.

While a prosecutor may comment on witness credibility during closing argument (People v.

Richardson, 123 Ill. 2d 322, 356 (1988)), it is important to note that it is the responsibility of the

trier of fact to assess witness credibility (People v. Valko, 201 Ill. App. 3d 462, 471 (1990)) and

that the prosecutor “may not invade the province of the jury or act as a ‘thirteenth juror’ ” (People

v. Enoch, 189 Ill. App. 3d 535, 552 (1989)). I believe that telling the jury it is “almost duty-bound”

to disregard testimony goes beyond the permissible bounds of reflecting upon witness credibility.

33 Even if no single comment was sufficient to constitute a material factor in Taylor’s convictions,

the cumulative impact of these comments leaves me with the compelling impression that the jury

was prejudiced and that the comments constituted a material factor in Taylor’s convictions. See

People v. Whitlow, 89 Ill. 2d 322, 341 (1982).

¶ 85 Having determined that error occurred, the next task is to determine whether that error was

reversible under one of the two prongs of the plain-error doctrine. Taylor asserts that first-prong

plain-error applies—i.e., that the evidence was closely balanced such that “the error alone severely

threatened to tip the scales of justice.” Sebby, 2017 IL 119945, ¶ 51. I agree with Taylor that the

evidence in this case was closely balanced. As I discussed earlier, the State’s evidence was sorely

lacking on the armed robbery and unlawful possession of a weapon by a felon charges. After

“evaluat[ing] the totality of the evidence and conduct[ing] a qualitative, commonsense assessment

of it within the context of the case” (id. ¶ 53), I would conclude that the prosecutors’ comments

substantially and materially violated Taylor’s rights such that, if I were not persuaded to decide

the first issue in his favor, I would have held that he would be entitled to a new trial based on

prosecutorial misconduct.

¶ 86 Lastly, based on my analysis of his first two arguments, I would not reach the merits of his

argument based on ineffective assistance of counsel.

¶ 87 For the foregoing reasons, I respectfully dissent.