People v. Williams

2019 IL App (1st) 170985-U

Opinion

2019 IL App (1st) 170985-U No. 1-17-0985 Order filed November 22, 2019 Fifth Division

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 DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 15747 ) ARSEAN WILLIAMS, ) Honorable ) Diane Cannon, Defendant-Appellant. ) Judge, presiding.

JUSTICE DELORT delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for aggravated battery to a peace officer is affirmed. Although the State misstated the law during its rebuttal closing argument, the misstatement was corrected and was harmless error.

¶2 Following a jury trial, defendant Arsean Williams was convicted of aggravated battery of

a peace officer and escape, and sentenced to concurrent terms of nine years’ imprisonment. On

appeal, defendant only challenges the aggravated battery conviction, arguing that he was denied No. 1-17-0985

a fair trial because the State misstated the law in its rebuttal closing argument and diminished its

burden of proof in the eyes of the jury. We affirm.

¶3 Defendant was charged by information with three counts of aggravated battery to a peace

officer causing bodily harm (720 ILCS 5/12-3.05(d)(4) (West Supp. 2015)), and one count of

escape (720 ILCS 5/31-6(c-5) (West 2014)), arising from an incident in Chicago.

¶4 Parole Commander Alexsei Norton testified that on August 29, 2015, at approximately

9:30 a.m., he and his partner, Agent Donald Kelly, went to the 7200 block of South Champlain

Street in Chicago to arrest defendant for violating parole. Norton explained that parolees are

required to stay at a host site approved by the Illinois Department of Corrections (IDOC).

Defendant, who was on electronic monitoring, was allowed to be away from his host site at

certain times, but IDOC was alerted because defendant’s ankle monitor failed to communicate

with his host site’s phone line since 11:25 p.m. the prior night.

¶5 Norton and Kelly arrived at the host site, and a teenage male advised that defendant was a

few doors down the street. The teenager left, and brought defendant back to the agents.

Defendant stated he had only been down the street for a few minutes, but Norton knew this was

not true and handcuffed him. Norton advised defendant that he was subject to an arrest warrant

for his failure to return to his host site. Norton and Kelly placed defendant in their vehicle and

transported him to the parole office.

¶6 Another commander instructed Norton to take defendant to the Stateville Correctional

Center (Stateville), so Norton and Kelly escorted defendant back to their vehicle. Kelly and

defendant went to the rear passenger side door. Norton waited at the rear driver side seat to

receive defendant and secure his seat belt, but defendant “bumped” into Kelly and fled. Kelly

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lost his footing, slipped, got up, and gave chase. Norton also chased defendant until he turned

down an alley. Then, Norton returned to the vehicle and continued looking for defendant.

¶7 Norton picked up Kelly, who had continued the chase on foot, and called backup agents.

When Norton and Kelly spotted defendant, Kelly exited the vehicle and chased him. Defendant,

still handcuffed, was apprehended by the backup agents on a building’s third floor porch. Norton

identified a photograph of the apartment, and noted that the address was 8011 South Evans and

not 8015 South Evans as he wrote in his report. Norton stated that when defendant fled from

Kelly, he saw “exactly” what had happened even though the vehicle’s closed door was between

himself, Kelly, and defendant.

¶8 On cross-examination, Norton clarified that he kneeled on the seat of the vehicle in the

passenger area and saw the incident through the vehicle’s rear passenger window. Kelly did not

complain of any injuries after he regained his footing and did not limp while pursuing defendant.

¶9 Kelly testified to substantially the same events as Norton. After Kelly and Norton were

assigned to transport defendant from the IDOC office to Stateville, Kelly led defendant to the

vehicle, and Norton went to the driver’s side rear door. Kelly approached the vehicle’s rear

passenger side door, holding a chain that connected defendant’s handcuffs with his right hand.

With his left hand, Kelly reached to open the back door. Defendant then “threw himself” into

Kelly, “blindsid[ing]” him, and ran out of the parking lot. Defendant’s left shoulder and the left

side of his face struck Kelly’s face and right shoulder blade, causing Kelly to lose his footing and

fall on the vehicle’s trunk.

¶ 10 Kelly chased defendant, but lost sight of him and called Norton, who picked him up in

the vehicle. They drove for 5 or 10 minutes trying to locate defendant, and called backup agents.

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Kelly saw defendant, exited the vehicle, and helped arrest him on the third floor porch.

Afterwards, Kelly removed his vest because he “felt pain” and noticed a red welt down the right

side of his shoulder blade.

¶ 11 On cross-examination, Kelly stated that there were non-working video cameras in the

parole office parking lot. Kelly felt a “pinch” but did not fall, and did not seek medical attention

or photograph his injury. The parties stipulated that Kelly testified at a preliminary hearing that

defendant was arrested at 8015 South Evans.

¶ 12 The court admonished the jury that closing arguments were not evidence. During closing

arguments, the State recited the elements of aggravated battery to a peace officer, including that

defendant knowingly caused bodily harm to Kelly. Defense counsel argued the State failed to

“prove injury” because Kelly “didn’t even know that he was injured until he went home,” did not

seek medical attention, or take photographs. In rebuttal, the State argued, “You can’t shove an

officer in order to get away. There doesn’t have to be bodily harm. You don’t have to hospitalize

an officer.” Defense counsel objected, arguing that the State misstated the law. The court

sustained the objection. The State continued:

“I did misspeak. It’s any bodily harm. Any bodily harm is sufficient to prove an

aggravated battery when the person you’re battering you know to be a peace officer.

It’s an attack on the whole system, the whole way that the community is protected

if you attack a police officer while they’re performing their official duties, and it’s any

bodily harm. It doesn’t have to be a hospitalization of an officer because if you give—if

he had caused—if he had caused Agent Kelly a headache, that would be bodily harm.

Any bodily harm is sufficient.”

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¶ 13 Before deliberations, the court admonished the jury as to the elements of the offense,

including “bodily harm to another person.” The court also told the jury that closing arguments

are not evidence, and to disregard questions “to which objections were sustained.” The jury

began deliberating at 4:30 p.m., and at approximately 5:15 p.m. sent a note to the court asking

whether “both prosecution and defense agree that Donald Kelly was bumped.” By agreement of

the parties, the court responded that the jury heard the evidence and should continue

deliberations. The jurors sent a second note reading: “To the prosecution’s statement regarding

the aggravated battery proposition one, the extent of bodily harm is irrelevant. Example,

headache would constitute bodily harm, true?” Again, the parties agreed to the court’s response

that the jury had the law and should continue deliberating.

¶ 14 At 6:30 p.m., the court received two notes from the jurors. One stated that they had a

verdict on escape, but were “deadlocked on aggravated battery.” The second note stated that one

juror had to leave to care for her children. The jury was again instructed to continue to deliberate.

At 7:30 p.m., the jurors sent another note indicating that “two jurors *** stated unequivocally

they will not sign a guilty form for aggravated battery.” The court then called the jury into the

courtroom and, over defense counsel’s objection, admonished the jury pursuant to People v.

Prim, 53 Ill. 2d 62 (1972). At 8:30 p.m., the jury found defendant guilty of aggravated battery

and escape.

¶ 15 Defense counsel filed a motion for new trial, arguing that the State’s misstatement of the

law regarding bodily harm deprived defendant of a fair trial. The court denied the motion. After a

hearing, the court sentenced defendant to concurrent terms of nine years’ imprisonment.

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¶ 16 On appeal, defendant argues that he was denied a fair trial because the State misstated the

law during rebuttal by stating that Kelly did not have to sustain bodily harm for defendant to be

convicted of aggravated battery of a peace officer. The State concedes that the prosecutor

misspoke, but notes that defense counsel objected, the trial court sustained the objection, and the

prosecutor then correctly stated the law. Therefore, the State posits that the jury was properly

instructed as to the law, and no error occurred.

¶ 17 As defendant objected to the prosecutor’s argument at trial and included his claim in his

posttrial motion, he preserved this issue for review. People v. Hillier, 237 Ill. 2d 539, 544 (2010)

(both a contemporaneous verbal objection and a written postsentencing motion are required to

preserve an issue for review). Therefore, the State bears the burden of persuasion that the

prosecutor’s misstatement was harmless error. People v. Donahue, 2014 IL App (1st) 120163,

¶ 111.

¶ 18 Initially, the parties disagree regarding the standard of review. Defendant, citing People

v. Wheeler, 226 Ill. 2d 92 (2007), argues that de novo review is proper as to whether statements

by a prosecutor are so egregious that they warrant a new trial. Wheeler, 226 Ill. 2d at 121

(applying de novo review). In People v. Blue, 189 Ill. 2d 99 (2000), however, the supreme court

also stated that abuse of discretion is the appropriate standard of review. Blue, 189 Ill. 2d at 128

(“regulation of the substance and style of the closing argument is within the trial court’s

discretion, and the trial court’s determination of the propriety of the remarks will not be

disturbed absent a clear abuse of discretion” (internal quotation marks omitted)). This court has

explained that no conflict exists between Wheeler and Blue, as “a reviewing court applies an

abuse of discretion analysis to determinations about the propriety of a prosecutor’s remarks

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during argument,” but “reviews de novo the legal issue of whether a prosecutor’s misconduct,

like improper remarks during argument, was so egregious that it warrants a new trial.” People v.

Cook, 2018 IL App (1st) 142134, ¶ 64; People v. Davis, 2018 IL App (1st) 152413, ¶ 68; but see

People v. Phagan, 2019 IL App (1st) 153031, ¶ 48 (finding “the abuse of discretion standard is

the correct one”). In this case, defendant’s claim of error fails under either standard.

¶ 19 “A prosecutor has wide latitude in making a closing argument.” People v. Glasper, 234

Ill. 2d 173, 204 (2009). A closing argument must be viewed in its entirety, and the challenged

remarks must be viewed in their context. People v. Buss, 187 Ill. 2d 144, 244 (1999). The factors

to consider when determining whether a misstatement of the law entitles a defendant to a new

trial include, but are not limited to, “whether the prosecutor correctly stated the law in other parts

of the argument and whether the defendant objected to the misstatement of the law.” People v.

Lozada, 211 Ill. App. 3d 817, 824 (1991). Further considerations are “whether the judge properly

instructed the jury on the law and reminded the jury that the arguments of the attorneys did not

constitute evidence; and whether the misstatement of the law constituted a material factor in the

defendant’s conviction.” Id. Where admonishments are given by the court, the jury is presumed

to follow those instructions. People v. Rodriguez, 2012 IL App (1st) 072758-B, ¶ 65. “Reversal

is warranted only if the prosecutor’s remarks created substantial prejudice,” which occurs where

the remarks “constituted a material factor in a defendant’s conviction.” (Internal quotation marks

omitted.) People v. Johnson, 385 Ill. App. 3d 585, 604 (2008).

¶ 20 Relevant here, a person commits battery if he or she knowingly, without legal

justification and by any means, causes bodily harm to an individual. 720 ILCS 5/12-3(a) (West

2014). Bodily harm involves “some sort of physical pain or damage to the body, like lacerations,

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bruises or abrasions, whether temporary or permanent.” People v. Mays, 91 Ill. 2d 251, 256

(1982). “To establish that there has been bodily harm in a battery case, there is no requirement

that the evidence demonstrate a visible injury such as bruising, scratching or bleeding.” People v.

McEvoy, 33 Ill. App. 3d 409, 411 (1975). As charged here, a person commits aggravated battery

when, in committing a battery, he or she knows the individual battered to be a peace officer

performing his or her official duties. 720 ILCS 5/12-3.05(d)(4)(i) (West Supp. 2015).

¶ 21 At trial, Kelly testified that defendant blindsided him by throwing himself into him.

Later, Kelly noticed a painful, pinching feeling and saw a red welt on his right shoulder blade.

Defense counsel challenged the extent of Kelly’s injury. His cross-examination of both Norton

and Kelly focused on Kelly’s delayed physical pain, the lack of medical attention, and lack of

photographs of the injury. Defense counsel referenced the same points during his closing

argument. During the State’s initial closing argument, the prosecutor correctly stated the law

regarding the elements needed to prove aggravated battery of a peace officer. However, the

prosecutor misstated the law during rebuttal by stating “[t]here doesn’t have to be bodily harm”

to Kelly, and the trial court sustained defense counsel’s objection. The prosecutor corrected

himself, stating that any bodily harm was sufficient to prove aggravated battery when the person

battered is a peace officer, and added that the bodily harm required did not have to cause the

“hospitalization of an officer.” Afterwards, the court instructed the jury regarding the elements of

aggravated battery, including “bodily harm to another person,” directed the jury to disregard

testimony and evidence to which objections were sustained, and admonished that closing

arguments were not evidence.

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¶ 22 Viewing these circumstances together, we find the State’s misstatement of the law was

harmless. The trial court cured the State’s misstatement, not only by sustaining the defendant’s

objection, but by informing the jury that closing arguments were not evidence and giving proper

instructions on the elements required to sustain a conviction for aggravated battery to a peace

officer. See People v. Simms, 192 Ill. 2d 348, 396-97 (2000) (finding that a trial court may cure

errors in closing arguments by giving proper instruction on the law, informing the jury that

closing arguments are not evidence, or sustaining the defendant’s objections); see also People v.

Moreno, 238 Ill. App. 3d 626, 636 (1992) (prosecutor’s erroneous statement during closing

argument held harmless where the trial court properly instructed the jury on the law). The State

itself correctly stated the bodily harm required in its initial closing argument and at the end of its

rebuttal. See People v. Duckworth, 98 Ill. App. 3d 1034, 1039 (1981) (holding State’s

misstatement of standard for insanity was harmless where State identified the correct standard at

the beginning and end of its closing argument). Moreover, Norton and Kelly testified

consistently about the harm Kelly suffered and the jury accepted their testimony as credible. As

such, defendant’s argument as to the prosecutor’s misstatement of the law regarding “bodily

harm” fails.

¶ 23 Notwithstanding, defendant argues the prosecutor improperly suggested the jury could

find bodily harm if Kelly sustained a “headache.” According to defendant, this comment focused

the jury on facts not in evidence, minimized the State’s burden of proof, and compounded the

prosecutor’s earlier assertion that a finding of bodily harm was unnecessary for a conviction.

¶ 24 Defendant concedes that he forfeited review of this issue by failing to timely object at

trial and only including the matter in his motion for a new trial. See People v. Enoch, 122 Ill. 2d

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176, 186-87 (1988). However, he claims this court may still reach the issue under the plain error

exception to the forfeiture rule. Additionally, defendant argues that trial counsel was ineffective

for failing to preserve the error in closing argument by objecting at trial.

¶ 25 The plain error doctrine is a “narrow and limited exception” to the general forfeiture rule.

Hillier, 237 Ill. 2d at 545. Pursuant to the doctrine, a reviewing court may address forfeited

claims when (1) “a clear or obvious error occurred and the evidence is so closely balanced that

the error alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error,” or (2) “where a clear or obvious error occurred and that error is so

serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence.” (Internal quotation marks omitted.)

People v. Harvey, 2018 IL 122325, ¶ 15. A defendant must first show that a clear or obvious

error occurred to obtain relief under this rule. Hillier, 237 Ill. 2d at 545.

¶ 26 In this case, we find no error. As explained, the prosecutor’s misstatement was

nonprejudicial and the jury was correctly instructed on the law, including that bodily harm is an

element of aggravated battery and that its existence is a question of fact. With the jury properly

instructed, the prosecutor was allowed to provide examples for applying the law to the facts. See

People v. Jackson, 333 Ill. App. 3d 962, 969-70 (2002) (the State “may give examples

illustrating the application of the law to the facts, and where the prosecutor correctly states the

law, there can be no prejudice to the opposing party” (internal quotation marks omitted)). Thus,

viewed in context, the State’s argument that a headache could constitute bodily harm did not

distract the jury from the facts or minimized the State’s burden of proof. Rather, as Kelly

testified that he “felt pain” and suffered a visible “red welt,” facts in evidence supported a

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finding that he suffered bodily harm. As no error occurred, defendant’s claim of ineffective

assistance also fails. People v. Moon, 2019 IL App (1st) 161573, ¶ 47 (declining to address

ineffective assistance of counsel where no error occurred).

¶ 27 Defendant posits that the jury’s notes establish that the State’s example confused the jury,

but the record does not support this conclusion. The jury’s first note asked for clarification about

whether the parties agreed that Kelly was bumped, and does not demonstrate confusion or

inappropriate reliance on the State’s bodily harm example as defendant claims. The jury’s second

note, which asked if “the extent of bodily harm is irrelevant” and whether a headache would

constitute bodily harm, was not incompatible with the law as the jury had been instructed.

Moreover, defendant did not object to the trial court’s response, which instructed the jury to

continue deliberating. Having acquiesced to the manner in which the court proceeded, defendant

cannot now assert a challenge to that conduct. People v. Jaimes, 2019 IL App (1st) 142736, ¶¶

38-40. Therefore, neither note demonstrated what defendant purports.

¶ 28 Defendant’s contention regarding the meaning of the remaining notes, which indicated

that the jury was deadlocked on the aggravated battery verdict, is also unsupported by the record.

There was no indication that the jurors were confused by any of the evidence presented at trial.

As there was no error, plain error analysis is unwarranted. Moreover, though defendant raises

this issue about the notes the jury sent to the trial court in his brief, he does not support it by

citation to relevant authority. Defendant therefore fails to satisfy the requirements of Supreme

Court Rule 341(h)(7) (eff. May 25, 2018), and his contention is forfeited. People v. Hunt, 234 Ill.

2d 49, 67 (2009).

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¶ 29 In sum, we find that the State’s misstatement of the law during its rebuttal closing

argument was harmless. Therefore, the judgment of the trial court is affirmed.

¶ 30 Affirmed.

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