THE PEOPLE OF THE STATE OF ILLINOIS, | ) | Appeal from |
Plaintiff-Appellee, | ) | Circuit Court of |
v. | ) | Sangamon County |
KENNETH R. BELER, | ) | No. 98CF1080 |
Defendant-Appellant. | ) | |
) | Honorable | |
) | Steven H. Nardulli, | |
) | Judge Presiding. |
JUSTICE STEIGMANN delivered the opinion of the court:
In August 1999, a jury convicted defendant, Kenneth R.Beler, of (1) possession of a controlled substance (720 ILCS570/402(a)(2)(B) (West 1998) (effective July 30, 1998)); (2)possession of a controlled substance with intent to deliver (720ILCS 570/401(a)(2)(B) (West 1998) (effective June 19, 1998)); (3)possession of drug paraphernalia (720 ILCS 600/3.5(a) (West1998)); and (4) possession of cannabis (720 ILCS 550/4(a) (West1998)). The trial court later sentenced him to 12 years inprison with 181 days' credit for time served prior to sentencing. The court also ordered defendant to pay (1) a $50 crime lab fee,(2) a $2,000 mandatory drug assessment, (3) a $6,380 street-valuefine, (4) a $25 "Crime Stoppers" fee, and (5) court costs.
Defendant appeals, arguing that (1) he was denied afair trial when (a) a State's witness testified regarding plea-related negotiations, and (b) the prosecutor made improperremarks in opening statements and closing arguments; (2) he isentitled to two additional days' sentencing credit; (3) he isentitled to a $915 credit against his fines, pursuant to section110-14 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS5/110-14 (West 1998)); and (4) the trial court lacked authorityto order him to pay $25 to Crime Stoppers. We affirm in part,reverse in part, and remand with directions.
Because the parties are familiar with the evidencepresented at defendant's trial and defendant does not challengethe sufficiency of the evidence, we review it only to the extentnecessary to put his arguments in context.
Around 7 p.m. on November 23, 1998, Illinois StatePolice Officer Timothy Hansen was patrolling the "Mechanicsburgblacktop," a two-lane paved road, when he saw defendant standingon the shoulder of the road. As Hansen pulled over to see ifdefendant needed assistance, he observed a Chevy Blazer in theditch along the side of the road. Defendant told Hansen that hehad driven off the road and someone else had gone to get help. Hansen had defendant accompany him to the Blazer and stand at thehood of the car. Hansen asked defendant for his identification. Defendant pulled his wallet out of his jacket pocket and"slammed" it on the hood. At the same time, what looked toHansen like a rock of crack cocaine bounced and came to rest onthe hood. After a second, defendant swept the "rock" off thehood into the grass.
When Hansen later searched defendant, he found thefollowing: (1) in defendant's right front jacket pocket (thesame pocket where defendant's wallet had been), three large rocksof crack cocaine; (2) in his inside-left breast pocket, a compressed brick of powder cocaine; (3) in his left jacket pocket, acrack pipe and a poker; (4) in his pants pocket, a small bag ofcannabis; and (5) in his wallet, $540 in cash.
George T. Bonnett, a Springfield police detectiveassigned to the Illinois State Police Drug Task Force, testifiedthat he interviewed defendant on November 23, 1998, at "District9 Headquarters." The main objective of the interview was todetermine whether defendant would reveal his supplier or participate in a controlled drug buy. Bonnett testified regarding thatobjective as follows:
"Q. [PROSECUTOR:] Inspector, you wereasked questions about *** your role at thispoint to see if the defendant wanted to cooperate. Could you give us an idea of what youmean by that?
A. A lot of times somebody who getscaught with a large amount of narcotics--
DEFENSE COUNSEL: Well, your Honor, I'mgoing to object to this. It goes beyond thescope of cross. I didn't elicit this information.
THE COURT: All right. Sustained.
Q. [PROSECUTOR:] [Defense counsel]asked you the question that the defendantdidn't cooperate in this case and nothingever came of this and that's what you wantedto do, but that's not what happened, do youremember that question?
A. Yes.
Q. Now, did the [d]efendant ever makeany attempts to cooperate with you?
A. Yes, he did.
Q. Please describe those for the[c]ourt?
A. He agreed to page Larry Neal to seeif he couldn't get him to deliver some cannabis that night.
Q. And, what was the result when the[d]efendant made that page in order to cooperate?
A. We never got a page back. He neverdid call us."
In his closing argument, the prosecutor referred to Bonnett'stestimony as follows:
"Do you remember when [defendant] wasbeing interviewed at District 9 in regards towhere his supply came from, who he was delivering to? The reason the trooper took himback to District 9, to the Central IllinoisEnforcement Group, was in order to gain hiscooperation. You heard inspector Bonnett'searlier testimony. He testified that theywere trying to do a controlled buy, or findout what his source was. The [d]efendantpaged an individual to assist. *** He pagedan individual that never did call back. Soeven in District 9, the [d]efendant was beginning to attempt to cooperate with the druginvestigation *** in this case. Again, it'soverwhelming, obvious evidence of [d]efen-dant's knowledge."
During defense counsel's closing argument, he arguedthat the State had failed to prove its case, in part, because ithad failed to obtain fingerprint evidence from the seized items. In rebuttal, the prosecutor made the following argument:
"That's kind of like the fingerprintargument. Let's take this marker, righthere. I put it in my pocket. I take thismarker out--actually, let's say the bailifftakes this marker out of my pocket, then whenI'm speaking with the clerk, later, I tellher, yeah, I possessed this marker.
Now, we come into court and there's nofingerprint evidence from the marker. Doesthat mean it wasn't in my coat? Does thatmean the bailiff didn't take it out of mypocket? Does that mean I didn't admit it tothe clerk? Of course not; of course not. It's a smoke screen. Your job is to determine the truth."
The jury convicted defendant, and the trial courtsentenced him as stated. This appeal followed.
Defendant first argues that he was denied a fair trialwhen (1) the jury heard testimony related to plea negotiations,and (2) the prosecutor made improper remarks in his openingstatement and closing arguments. Defendant did not object to theallegedly improper testimony and argument at trial, nor did heraise these issues in a posttrial motion. Thus, he has forfeitedthese issues on appeal unless the plain error rule applies. People v. Alvine, 173 Ill. 2d 273, 297, 671 N.E.2d 713, 724(1996). Under that rule, a reviewing court may consider a trialerror that was not properly preserved (1) when the evidence isclosely balanced, or (2) where the error is so fundamental and ofsuch magnitude that the defendant has been denied a fair trial. People v. Williams, 193 Ill. 2d 306, 348-49, 739 N.E.2d 455, 477(2000). Defendant does not argue that plain error occurred basedon closely balanced evidence, only that the claimed errors deniedhim a fair trial.
Defendant first contends that Bonnett's testimony aboutdefendant's willingness to cooperate with the police investigation constituted testimony regarding plea negotiations, which isinadmissible pursuant to Supreme Court Rule 402(f) (177 Ill. 2dR. 402(f)). We disagree.
Supreme Court Rule 402(f) provides as follows:
"If a plea discussion does not result ina plea of guilty, or if a plea of guilty isnot accepted or is withdrawn, *** neither theplea discussion nor any resulting agreement,plea, or judgment shall be admissible againstthe defendant in any criminal proceeding." 177 Ill. 2d R. 402(f).
"Not all statements made in hopes of some concession are necessarily plea discussions." People v. Jones, 315 Ill. App. 3d 500,506, 734 N.E.2d 207, 213 (2000) rev'd on other grounds, jurisdiction retained, & remanded with directions, 197 Ill. 2d 346, 757N.E.2d 464 (2001). In determining whether a particular statementis plea related, courts must consider (1) whether the accusedexhibited a subjective expectation to negotiate a plea, and, ifhe did, (2) whether his expectation was reasonable under thetotality of the circumstances. People v. Friedman, 79 Ill. 2d341, 351, 403 N.E.2d 229, 235 (1980). When a defendant's subjective expectations are not explicit, a court may look to theobjective circumstances surrounding the statement to determinewhether it was plea related. Friedman, 79 Ill. 2d at 353, 403N.E.2d at 236. "Before a discussion can be characterized as plearelated, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guiltyin return for concessions by the State." Friedman, 79 Ill. 2d at353, 403 N.E.2d at 236.
Defendant asserts that this case is similar to Peoplev. Hill, 78 Ill. 2d 465, 469-74, 401 N.E.2d 517, 519-22 (1980),in which the supreme court held that the defendant's statementswere plea related even after the assistant State's Attorney toldthe defendant that he did not have authority to enter a pleabargain. Bonnett's testimony regarding defendant's cooperationwith the police is in no way analogous to the statements at issuein Hill. According to the plea-related testimony in Hill, thedefendant's conversation with an assistant State's Attorney beganwith the defendant's statement, "I want to talk a deal" andincluded his offer to confess to two murders and testify for theState in exchange for the minimum sentence. Hill, 78 Ill. 2d at470, 401 N.E.2d at 519-20.
The record before us contains no indication thatdefendant expected to negotiate a plea during the November 23,1998, interview with Bonnett. Defendant did not express aninterest in confessing, pleading guilty, or seeking concessionsfrom the State in exchange for a plea. As this court wrote inJones, 315 Ill. App. 3d at 506, 734 N.E.2d at 212:
"Every guilty person who voluntarilyspeaks to a detective probably hopes to benefit from the conversation, either by convincing the detective that he did not commit thecrime or by obtaining leniency for his cooperation. We should resist an approach thatcharacterizes every conversation between adefendant and a detective as a plea negotiation. The police have an investigatory function that the courts and even the State'sAttorney do not have."
Because none of the circumstances present support ourconcluding that defendant had a subjective expectation of negotiating a plea with Bonnett, the trial court did not err by allowing Bonnett's testimony. See People v. Williams, 193 Ill. 2d 1,27, 737 N.E.2d 230, 245 (2000) ("Before invoking the plain errorexception, however, 'it is appropriate to determine whether erroroccurred at all.' People v. Wade, 131 Ill. 2d 370, 376[, 546N.E.2d 553, 555] (1989)").
Defendant next contends that he was denied a fair trialwhen the prosecutor (1) during his opening statement and closingargument, predicted that the jury would "do the right thing" byfinding defendant guilty; and (2) during rebuttal argument,referred to defense counsel's closing argument as a"smokescreen." We conclude plain error did not occur in eitherinstance.
It is well established that prosecutors are affordedwide latitude in closing argument and may argue facts as well asreasonable inferences drawn from the evidence. People v. Williams, 192 Ill. 2d 548, 573, 736 N.E.2d 1001, 1015 (2000). Inreviewing a challenge to remarks made by a prosecutor duringclosing argument, the comments must be considered in the contextof the parties' closing arguments as a whole. Moreover, thereviewing court must indulge in every reasonable presumption thatthe trial court properly exercised its discretion in determiningthe propriety of the remarks. People v. Simms, 192 Ill. 2d 348,397, 736 N.E.2d 1092, 1125 (2000).
At defendant's trial, the prosecutor concluded hisopening statement to the jury with the following paragraph:
"It is at that time when you apply thelaw to the facts and you use your commonsense that you will retire to the jury roomand deliberate upon your verdict, and it isat that time after considering all the proof,that you will do the right thing and that youwill find the [d]efendant guilty of each ofthe counts that he has been charged with. Thank you."
The prosecutor concluded his closing argument as follows:
"After we finish arguments here thismorning, Judge Nardulli will instruct you asto the law, and it's at that point, you simply apply your common sense to the facts, tothe circumstances of this case. The Peopleof the State of Illinois are confident thatyou will do the right thing and find the[d]efendant guilty of those counts I mentioned."
Defendant contends that by his remarks, the prosecutoressentially told the jury that it was its "job" to convictdefendant and that this case is analogous to cases in whichprosecutors have argued that the jury had a duty to convict underits oath. See, e.g., People v. Castaneda, 299 Ill. App. 3d 779,783, 701 N.E.2d 1190, 1192 (1998) (in which the prosecutoremphasized the jury's duty as part of the justice system andemphatically argued that the State's "unrebutted evidence"required the jury to find the defendant guilty if the jury was tolive up to its oath). We disagree.
In this case, the prosecutor twice indicated that thejury would be "doing the right thing" by finding defendantguilty; once in his opening statement and once in closing argument. Taken in context, we see no danger that these remarkscaused the jury to abdicate its role as fact finder and convictdefendant out of a sense of duty.
Defendant also contends that the prosecutor committedreversible error when he referred to defense counsel's argumentas a "smoke screen." We agree with the State that the prosecutor's remark was properly made in response to defense counsel'sclosing argument. See People v. Hudson, 157 Ill. 2d 401, 441,626 N.E.2d 161, 178 (1993) (the prosecutor may respond to comments by defense counsel that clearly invite a response); Peoplev. Smith, 154 Ill. App. 3d 837, 849, 507 N.E.2d 543, 552 (1987)(the prosecutor's comment during rebuttal that defense counselwas setting up a "smoke screen" was a proper response to defensecounsel's closing argument).
In this case, the prosecutor described defense counsel's attempt to focus on the minor inconsistencies in the caseas a "smoke screen." The prosecutor's remark did not disparagethe integrity of the defense as did the extensive remarks atissue in the two cases cited by defendant, People v. Kidd, 147Ill. 2d 510, 544, 591 N.E.2d 431, 447 (1992) (in which "theassistant State's Attorney did not make just one fleeting,inadvertent remark regarding this 'smoke screen' metaphor. Rather, he commented eight times that defense counsel was 'raising a smoke screen,' or 'filling this courtroom with smoketoday,' or 'hoping that the smoke he raises in this room todaywill strangle the truth like it strangled the life of the tenchildren'" (emphasis in original) who died in a fire set bydefendant), and People v. Emerson, 97 Ill. 2d 487, 497, 455N.E.2d 41, 45 (1983) (in which the prosecutor described the smokescreen as "'composed of lies and misrepresentations and innuendoes'" and said that "all defense attorneys try to 'dirty up thevictim'").
Defendant next argues that he is entitled to twoadditional days' sentencing credit under section 5-8-7(b) of theUnified Code of Corrections (Unified Code) (730 ILCS 5/5-8-7(b)(West 1998)). The State concedes that defendant was in custodyfor 183 days prior to sentencing and that the trial court erroneously awarded him credit for only 181 days. We accept theState's concession.
Defendant next argues that he is entitled to a $915credit ($5 per day for 183 days in custody) against his street-value fine, pursuant to section 110-14 of the Code (725 ILCS5/110-14 (West 1998)). The State concedes that defendant isentitled to such credit, and we accept the State's concession.
Last, defendant argues that the trial court lacked theauthority to order him to pay $25 to Crime Stoppers. The Stateconcedes that no provision of the Unified Code authorizes such afee and we accept the State's concession. As the State pointsout, sections 5-6-3(b)(12) and 5-6-3.1(c)(12) of the Unified Codeprovide for the imposition of fines for the purpose of reimbursing local anticrime programs (730 ILCS 5/5-6-3(b)(12), 5-6-3.1(12) (West 1998)). However, those provisions define possibleconditions of probation, conditional discharge, and supervision. No similar provisions authorize imposition of such a fine when asentence of incarceration is imposed. See 730 ILCS 5/5-9-1, 5-9-1.1, 5-9-1.4 (West 1998). Accordingly, that part of the court'ssentencing order imposing the $25 fine for Crime Stoppers is voidand set aside.
For the reasons stated, we affirm in part, reverse inpart, and remand with directions to modify the sentencing orderas stated.
Affirmed in part and reversed in part; cause remandedwith directions.
MYERSCOUGH, J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
The majority concludes there was no plea discussion inthis case because the defendant did not satisfy the technicalrequirements necessary to establish that a particular statementis plea related. "The record before us contains no indicationthat defendant expected to negotiate a plea during the November23, 1998, interview with Bonnett." Slip order at 8.
Consider this hypothetical. During questioning by thepolice, defendant is asked if he is interested in making a dealwhich would result in a lighter sentence. The defendant fails torespond. Would the prosecutor be allowed to argue to the jurythat defendant's willingness to consider a deal demonstrated hisguilt, that an innocent person would have rejected any suggestionof a deal for a lighter sentence? Would the lack of any "indication that defendant expected to negotiate a plea" allow theprosecutor to argue that defendant was interested in a negotiatedplea?
I would not exclude, as plea-related, a defendant'sexplanation of the facts surrounding the commission of theoffense simply because defendant expected to gain some benefit bytelling the police what had happened. I would, however, excludea defendant's inquiry whether a deal is possible, particularlywhen that inquiry is not accompanied by any discussion of thefacts of the case. See Jones, 315 Ill. App. 3d at 506-07, 734N.E.2d at 213, rev'd on other grounds, jurisdiction retained, &remanded with directions, 197 Ill. 2d 346, 757 N.E.2d 464.
What occurred in this case is particularly inappropriate. It was defendant's theory that the jacket he was wearing atthe time of the offense, in which the contraband was located,belonged to his brother. Defense counsel asked Officer Bonnettwhether he had checked out defendant's brothers, what happened tothe jacket, and whether the papers in the jacket had been fingerprinted to determine to whom they belonged. Bonnett basicallyanswered "I don't know" to all those questions. Accordingly,defense counsel asked Bonnett whether he and Baird were thedetectives investigating this offense. Bonnett did not answerthat question but volunteered "our main objective was that he wasgoing to cooperate in other" investigations, help with hissupplier, or "make a controlled delivery." Defense counsel,diverted from his inquiry, told Bonnett that "none of thathappened in this case, right," and Bonnett agreed. When Bonnettcontinued to volunteer statements about whether defendant wouldhelp the police, defense counsel asked Bonnett just to answer hisquestion yes or no. On redirect, the prosecutor immediatelyasked about Bonnett wanting to see whether defendant wouldcooperate. The court sustained an objection, but the prosecutorkept coming back to the subject, falsely stating that defensecounsel "asked you the question that the [d]efendant didn'tcooperate in this case." During closing argument, the prosecutorargued that defendant's willingness and attempt to cooperate withthe police demonstrated defendant's guilt.
The majority cites Friedman for its view that in theabsence of a formal plea negotiation Rule 402(f) does not apply. Friedman, however, reversed a conviction where defendant hadinquired about making a deal and stated, "If I'm convicted, Iwould rather go to a Federal prison as opposed to a Stateprison." Friedman, 79 Ill. 2d at 350, 403 N.E.2d at 234. "Wecannot agree with the State that an essential element of a pleadiscussion is the requirement that the statement sought to beexcluded be made 'as an integral part of a bona fide negotiation'with the appropriate parties in attendance." Friedman, 79 Ill.2d at 352, 403 N.E.2d at 235. Friedman does not espouse theharsh rule set out by the majority. Instead Friedman recognizesthe significance of the negotiation process to the administrationof justice and the devastating effect of the introduction ofplea-related statements in the trial of the accused. Friedman,79 Ill. 2d at 351, 403 N.E.2d at 235. "The purpose of our ruleis to encourage the negotiated disposition of criminal casesthrough elimination of the risk that the accused enter pleadiscussion at his peril." Friedman, 79 Ill. 2d at 351, 403N.E.2d at 235.
If it is improper for a prosecutor to refer to clearplea negotiations which do not result in a plea, it should beeven more improper for a prosecutor to suggest that unclear pleanegotiations were an acknowledgment of guilt on the part of thedefendant.