No. 2--02--1129

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BYRNE delivered the opinion of the court:

Following a jury trial, defendant, Rudolpho D. Pineda, was convicted of attempted first-degree murder (720 ILCS 5/8--4(a), 9--1(a) (West 2002)) and armed violence (720 ILCS 5/33A--2(West 2002)). The trial court imposed consecutive prison terms of 23 years for the attempted murderand 15 years for the armed violence. The court also ordered that defendant serve 85% of the 38-yearaggregate term. Defendant appeals, arguing that he is entitled to a new trial because (1) theprosecutor indoctrinated the jury during voir dire, (2) the trial court erroneously admitted certainhearsay testimony, and (3) the prosecutor improperly argued that society had an interest in convicting defendant. We reject each of defendant's arguments and affirm his convictions accordingly.

FACTS

The evidence at trial indicated that defendant stabbed Bart Borchers and Tony Bryson duringa New Year's Eve party at the home of Pat Schifter. The defense theory was that defendant actedin self-defense. Defendant arrived at the party with his girlfriend, Jamie Draper, and her friend,Latosha "Nicky" Cowell. There was conflicting evidence as to whether the partygoers ingestedcocaine, marijuana, and large amounts of alcohol. Draper and defendant began arguing soon afterthey arrived, and Cowell saw Draper kissing Borchers while defendant was outside talking withsomeone else. Schifter and Bryson eventually asked defendant, Draper, and Cowell to leave, butDraper refused. Cowell overheard Borchers and Draper agree to check into a motel. Borchers andBryson then confronted defendant in the kitchen and ordered him to leave. Defendant said he wouldleave with "the girls," but Borchers said "no." At trial, the parties disagreed on the details of thealtercation that followed, but there was no question that defendant obtained a steak knife from akitchen drawer and then cut Borchers and Bryson several times.

On direct examination, Cowell testified that she did not see defendant stab anyone. By thetime she ran into the kitchen, Borchers was already bleeding and the other men were attempting torestrain defendant and wrestle the knife from him. However, on cross-examination Cowell admittedthat she provided a different written statement to the police on the night of the incident. Cowellwrote that she saw the entire incident and recalled that Bryson and Borchers did not fight with defendant but instead tried to keep him in the kitchen. According to Cowell's written statement, shesaw defendant grab a knife and stab one of the men in the neck. Cowell admitted at trial that thepeople at the party discussed the events before providing written statements. Cowell's writtenstatement reflected what others had told her rather than her own personal knowledge because thepolice did not tell her to record only what she saw.

During closing argument, defense counsel unsuccessfully objected to the following statementsmade by the prosecutor:

"Ladies and gentlemen, this is not Bart Borchers versus the defendant. This is notTony Bryson versus the defendant. This is the People of the State of Illinois versus the defendant. It's all of us. It's society.

* * *

Society is stating in one clear and unequivocal voice that we will not tolerate senselessviolence. Over what? The defendant tries to kill two people over what? Because he thinkshis girlfriend likes one of those other guys, because his girlfriend won't leave with him,because his girlfriend kisses another guy. That's why in his mind Tony Bryson and BartBorchers deserved to be stabbed. That's why they almost died. That's why Bart Borchersalmost died because he had the gall, the audacity on New Year's Eve at the stroke of midnightto kiss [defendant's] girlfriend. And for that he received a stab to the throat and a stab to thestomach."

The jury found defendant guilty of attempted first-degree murder and armed violence. Thecourt imposed consecutive prison terms of 23 years for the attempted murder and 15 years for thearmed violence. Defendant's timely appeal follows.

ANALYSIS

1. Jury Indoctrination

During voir dire, the prosecutor anticipated that the jury would hear the two inconsistentstatements from Cowell at trial. Cowell's written statement provided on the night of the offensewould inculpate defendant, but her expected recantation at trial would benefit the defense. Thus, theprosecutor asked 7 of 27 potential jurors whether they believed that a witness's statement madeimmediately after an incident is generally more accurate than the witness's testimony at trial severalweeks or months later. Four individuals who eventually served on the jury responded that a statementmade soon after the incident would be more reliable than one offered at trial.

Defendant argues that the prosecutor's hypothetical questions regarding inconsistentstatements were designed to indoctrinate the jury and impeach Cowell before trial. The Stateresponds, with little citation to authority, that a new trial is unnecessary because defendant was notprejudiced by the questions. The State additionally argues that defendant may not complain of theprosecutor's conduct because defense counsel asked potential jurors similar questions to prepare themfor the theory of self-defense. Defense counsel asked several potential jurors whether they "couldall keep an open mind and consider all the evidence before arriving at a verdict even if it is a situationof self defense?" Each responded that he or she could keep an open mind, and one of the individualswho answered the question ultimately served on the jury.

Voir dire serves the dual purpose of enabling the trial court to select jurors who are free frombias or prejudice and ensuring that attorneys have an informed and intelligent basis on which toexercise their peremptory challenges. People v. Gregg, 315 Ill. App. 3d 59, 65 (2000). The right toa jury trial guarantees a fair trial by a panel of impartial jurors. It is well established that limitationof voir dire questioning may constitute reversible error where such limitation denies a party a fairopportunity to probe an important area of potential bias or prejudice among prospective jurors. Theprimary responsibility of conducting the voir dire examination lies with the trial court, and the mannerand scope of such examination rest within the discretion of the trial court. The trial court possessesgreat latitude in deciding what questions to ask during voir dire. Gregg, 315 Ill. App. 3d at 65. Thestandard for evaluating a court's exercise of discretion during voir dire is whether the questions posedand procedures employed created a reasonable assurance that prejudice would be discovered ifpresent. People v. Stewart, 343 Ill. App. 3d 963, 977 (2003).

In People v. Stack, 112 Ill. 2d 301 (1986), the supreme court found reversible error in a trialjudge's refusal to question prospective jurors about their attitudes toward the insanity defense, anissue that affected which verdict form would be used. The Stack court cited the especiallycontroversial nature of the insanity defense as the reason for requiring more focused questioning ofthe venire on that topic. Stack, 112 Ill. 2d at 312-13.

However, in People v. Howard, 147 Ill. 2d 103, 135-36 (1991), the supreme court affirmeda trial court's denial of a defense request to ask prospective jurors about their attitudes towardhandguns. The Howard court distinguished the insanity defense issue in Stack, noting that "theoffender's use of a handgun as his weapon in committing the crimes charged was not a central issueat trial, much less pertinent to any of the forms of verdict." Howard, 147 Ill. 2d at 135-36. Thesupreme court has since cited Howard approvingly, stating that "[w]hile it is appropriate to askprospective jurors whether they will follow the law [citation], the purpose of voir dire is not toascertain prospective jurors' opinions with respect to evidence to be presented at trial." People v.Buss, 187 Ill. 2d 144, 179-80 (1999), abrogated on other grounds by In re G.O., 191 Ill. 2d 37, 46-50(2000).

Defendant argues that this case is similar to People v. Bowel, 111 Ill. 2d 58 (1986), in whichthe defense attempted to disclose its theory of mistaken identity to members of the venire. The trialcourt declined to ask potential jurors whether they had ever mistaken a person for someone else, orhad themselves been mistaken for someone else. The supreme court held that the trial court did notabuse its discretion in barring the questions because they were not designed to uncover bias orprejudice but, rather, "were for the purpose of educating jurors as to the defendant's theory of defenseprior to trial, and as a means of selecting a jury that was receptive to that defense." Bowel, 111 Ill.2d at 65. The court held that the proposed questions were improper because "[r]esolution ofquestions of mistaken identity depends upon the credibility of the witnesses and the weight ofevidence, rather than upon a juror's predisposition toward a defense." Bowel, 111 Ill. 2d at 65.

The prosecutor in this case posed the question regarding the prior inconsistent statement toascertain whether prospective jurors would credit Cowell's inculpatory written statement at thehospital. Like in Bowel and Howard, the question at issue in this case focused on the credibility ofa witness and the weight of the evidence. Therefore, we reject the State's assertion that the questionwas "innocuous." However, we distinguish this case from Bowel and Howard, and conclude that thetrial court did not abuse its discretion in selecting a fair and impartial jury. See Gregg, 315 Ill. App.3d at 65.

In Bowel and Howard, the supreme court held that the respective trial courts did not abusetheir discretion in barring questions about evidence that would be offered at trial. However, in thiscase, the trial court permitted questions about such evidence. In light of the deferential abuse-of-discretion standard that applies to a review of voir dire, we conclude that the affirmance of theexclusion of the questions in Bowel and Howard does not mandate a reversal of the allowance ofsimilar questions here.

People v. Strain, 194 Ill. 2d 467 (2000), teaches that, when the trial court errs during voirdire, the degree to which an attorney exacerbates the error during trial is relevant to determiningwhether the error is an abuse of the court's discretion. In Strain, the trial court declined thedefendant's proposed questions regarding the venire's potential gang bias. The supreme court heldthat "when testimony regarding gang membership and gang-related activity is to be an integral partof the defendant's trial, the defendant must be afforded an opportunity to question the prospectivejurors, either directly or through questions submitted to the trial court, concerning gang bias." Strain,194 Ill. 2d at 477. The Strain court emphasized that the trial court abused its discretion in rejectingthe defendant's proposed questions because "gang-related testimony was pervasive" during the trial. Strain, 194 Ill. 2d at 477. The supreme court quoted large portions of the prosecutor's closingargument in which he repeatedly reminded the jury of the importance of gang-related testimony. Strain, 194 Ill. 2d at 478-80. Strain illustrates that irregularities during voir dire should be viewedin the context of the entire trial.

Here, the State posed the challenged question to only 7 of 27 prospective jurors, and only 4of those 7 ultimately served on the jury. Even if the four jurors were predisposed to the State'sinterpretation of Cowell's inconsistent statements, defendant was not prejudiced by the jurors'presence. The prosecutor did not mention the inconsistency of Cowell's statements during hisopening statement or closing argument. The inconsistency was illustrated only during the cross-examination of Cowell, and even then, the prosecutor did not argue that the prior written statementwas more reliable than the trial testimony. We conclude that the trial court did not abuse itsdiscretion because the prosecutor's questions during voir dire did not affect the outcome of the trial.

Because we conclude that the trial court did not abuse its discretion in monitoring the State'squestioning of the venire, we do not consider the State's argument that the defense is estopped fromraising the issue because it offered its own questions regarding self-defense.

2. Admissibility of Alleged Hearsay Statement

At trial, Bryson testified that Draper and Cowell visited him in the hospital emergency roomafter the stabbing. According to Bryson, Draper "thanked [him] for what [he and Borchers] did thatnight," and both Draper and Cowell "apologized for what happened." Draper did not testify. However, Cowell testified that she and Draper went to the hospital because they were concernedabout the safety of Bryson and Borchers. Cowell denied that she or Draper apologized fordefendant's conduct.

Defendant argues that Bryson's testimony regarding Draper's out-of-court statements at thehospital is inadmissible hearsay because "[t]he jury could only conclude that if Draper thankedBryson, she was grateful that he had intervened to protect her from [defendant]." The State arguesthat Bryson's testimony is admissible under the state-of-mind exception to the hearsay rule or, if thetestimony is inadmissible, the trial court committed only harmless error in allowing it.

Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. People v. Doyle, 328 Ill. App. 3d 1, 14 (2002). "Statements that indicate the declarant's state of mindare admissible as exceptions to the hearsay rule when the declarant is unavailable to testify, there isa reasonable probability that the proffered hearsay statements are truthful, and the statements arerelevant to a material issue in the case." People v. Caffey, 205 Ill.2d 52, 91 (2001). The State doesnot explain Draper's unavailability at trial. Moreover, the truthfulness of the hearsay statements isdoubtful because Cowell 's trial testimony conflicts with Bryson's assertion that Draper apologizedfor defendant's conduct. Therefore, we conclude that the trial court should not have permittedBryson or Cowell to testify about Draper's statements at the hospital. However, we conclude thatthe admission of the hearsay is harmless error.

Errors in the admission of hearsay evidence are harmless when properly admitted evidenceis so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant. Admission of hearsay is harmless if there is no reasonable probability the verdict would have beendifferent had the hearsay been excluded. People v. Soto, 342 Ill. App. 3d 1005, 1014 (2003).

We agree with the State that there was overwhelming evidence of defendant's guilt. Both ofthe victims testified that they were in the kitchen with defendant when he flew into a rage, grabbeda steak knife from a drawer, and stabbed Borchers. Borchers testified that when he told defendantto put the knife down, defendant lunged at him and cut him in the neck and abdomen. Brysoncorroborated Borcher's testimony and further stated that he was stabbed three times while attemptingto subdue defendant. The jury clearly credited the victims' testimony. We conclude that there is noreasonable probability that the verdict would have been different had Draper's statements beenexcluded. See Soto, 342 Ill. App. 3d at 1014.

Defendant argues that this case is similar to People v. Davis, 130 Ill. App. 3d 41 (1984), inwhich the trial court permitted the victim of a robbery to testify that the defendant's motherapologized for "what [the defendant] did" and asked the victim to drop the charges. Davis, 130 Ill.App. 3d at 51. The appellate court held that the victim's testimony regarding the out-of-courtstatement was inadmissible hearsay because it was designed "to raise the highly prejudicial inferencethat the defendant's own mother believed him to be guilty of the crimes charged." Davis, 130 Ill.App. 3d at 53.

This case is easily distinguishable from Davis. Here, the out-of-court statements merelyindicated that Draper was concerned for the welfare of Bryson and Borchers and that she felt sorrythat the altercation occurred. Unlike the mother's plea to drop the charges in Davis, Draper'sexpression of remorse, gratitude, and concern for those stabbed in this case does not necessarilymanifest a belief that defendant was guilty of an offense. The defense could have cited Draper'sargument with defendant before the stabbing as evidence that her statement at the hospital reflectedan appreciation for Bryson and Borchers attacking defendant. Therefore, Draper's out-of-courtstatements were equally consistent with defendant's theory of self-defense as with the prosecution'saccount of the events. Although we agree with defendant that the trial court should not haveadmitted Draper's out-of-court statements, we hold that the court did not commit reversible error indoing so.

3. Prosecutor's Closing Argument

Finally, defendant argues that Assistant State's Attorney Eric Kalata committed reversibleerror during closing argument when he told the jury that the case was not brought by the victims, butthat "society" had an interest in convicting defendant. Defendant also cites Kalata's statement that "[society] will not tolerate senseless violence." The State correctly responds that defendant waivedthe issue by failing to raise it in a posttrial motion. See People v. Blue, 189 Ill. 2d 99, 127 (2000) (topreserve an issue for appeal, a criminal defendant must raise the issue at trial and in a posttrialmotion).

Regardless of defendant's waiver of the issue, we conclude that his claim lacks merit. Courtsallow prosecutors great latitude in making closing arguments. Blue, 189 Ill. 2d at 127. In closing,the State may comment on the evidence and all inferences reasonably yielded by the evidence.However, argument that serves no purpose but to inflame the jury constitutes error. Blue, 189 Ill.2d at 128. Closing arguments must be viewed in their entirety and alleged erroneous arguments mustbe viewed in context. " 'The regulation of the substance and style of the closing argument is withinthe trial court's discretion, and the trial court's determination of the propriety of the remarks will notbe disturbed absent a clear abuse of discretion.' " Blue, 189 Ill. 2d at 128, quoting People v. Byron,164 Ill. 2d 279, 295 (1995). A reviewing court employs the abuse-of-discretion standard whenreviewing whether the trial court erroneously overruled a criminal defendant's objection to commentsmade during closing argument. People v. Kirchner, 194 Ill. 2d 502, 554 (2000)

Defendant argues that Kalata's statements are similar to those found to be improper in Peoplev. Johnson, 208 Ill. 2d 53 (2003). In Johnson, the prosecutor stated during closing argument that " '[w]e as a society do not have to live in [the defendants'] twisted world' " but can instead reject theirvalues and " 'stand together.' " Johnson, 208 Ill. 2d at 79. The supreme court interpreted thesecomments as an improper effort to "identify and merge [the prosecutor's] position, on some irrelevantand ethereal level, with the jury, the society and the community." Johnson, 208 Ill. 2d at 79.

We distinguish this case from Johnson on the facts. When Kalata mentioned that society hadan interest in the case, he was not attempting to align the jury and society with the prosecution;Kalata was merely emphasizing that the State, rather than the victims, had initiated the prosecution. Although Kalata urged the jury not to "tolerate [defendant's] senseless violence," we conclude thatKalata's subsequent summary of the evidence shows that he was only illustrating the rashness of defendant's conduct.

Moreover, the Johnson court reversed the defendants' convictions in that case based on thecumulative effect of several improper comments during closing argument: the prosecutor also (1)appealed to the jury to " 'send a message' " of support to law enforcement and to society in general,(2) likened the defendants to animals, (3) cast the prosecution in terms of "good versus evil," (4)mischaracterized evidence and the applicable law to outrage the jury, and (5) suggested that thedefense engaged in deceptive tactics. Johnson, 208 Ill. 2d at 79-80. Kalata did not engage in anysuch misconduct in this case, and we distinguish Johnson accordingly. A review of the entire closingargument reveals that Kalata focused on the facts of the case rather than on abstract notions ofsociety's duty to convict criminal defendants. Therefore, we conclude that the trial court did notabuse its discretion in overruling defendant's objections to these isolated statements.

For the preceding reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.