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People v. Stewart
State: Illinois
Court: 5th District Appellate
Docket No: 5-02-0427 Rel
Case Date: 07/30/2003
Decision filed 07/30/03. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-02-0427

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
                   Plaintiff-Appellee, ) Madison County.
)
v. ) No. 01-CF-61
)
OTIS STEWART, ) Honorable
) Charles V. Romani, Jr.,
                  Defendant-Appellant. ) Judge, presiding.

JUSTICE KUEHN delivered the opinion of the court:

Robert Mike and Otis Stewart grew up together in Alton, Illinois. Along the way,Stewart acquired the moniker "Chucky." That is how Mike referred to him throughout thetrial. We will call him "the defendant."

The defendant, Robert Mike, and Patrick Thomas spent much of their January 7, 2001,evening at an Alton hangout called Club CTW. Mike and the defendant got into a heatedargument at the club. We are not told what sparked the dispute.

Mike and Thomas decided to leave the defendant, and they departed to Mike's house. Thomas left Mike's house, but shortly after 3 a.m., he returned with the defendant. Mikegreeted them at the door, thinking that the defendant had come to express his regret over hisearlier conduct. Much to Mike's surprise, an apology was not forthcoming. As the defendantand Thomas entered Mike's house, the defendant pulled a handgun and trained it on his oldbuddy. The defendant demanded money.

This rather bizarre turn of events was about to get even weirder. Mike convinced thedefendant that Mike needed to look for money upstairs, and he departed the company ofThomas, the defendant, and the handgun for an upstairs sanctuary. When he got upstairs,Mike did not look for money. Instead, he picked up the telephone and summoned the police.

Mike stalled for time with the police en route. As he pretended to rummage for cash,he heard a gunshot. Thomas had been shot in the leg.

About the same time, the Alton police department, in the person of four separateofficers, began to arrive in response to a possible home invasion in progress. Officer BrentBertschi was the first to discover the defendant and a companion leaving the scene. Whenhe ordered them to halt, they ran. The defendant fired off four rounds at Officer Bertschi ashe fled.

Officer Shane Gibbs was standing near the defendant's route of flight. With hisweapon drawn, he ordered the defendant to drop his gun. The defendant slowed his gait andstarted to point his gun in Officer Gibbs' direction. Officer Gibbs did not hesitate. He firedoff two rounds at the defendant.

To everyone's good fortune, no one was able to hit their target. However, OfficerGibbs' gunfire kindled the defendant's attention. Shooting at police officers was obviouslymore to the defendant's liking than being shot at by them. He tossed his gun away and fellto the ground. The defendant was immediately arrested. The gun that he used to fire uponthe police officers was found. So were spent cartridges scattered along the path of thedefendant's flight from Officer Bertschi. Ballistics testing matched the cartridges to the gun. The person who had been with the defendant when Officer Bertschi confronted them,and who had also run, got away.

The only witness to the aggravated battery, the victim, Thomas, initially refused tocooperate with the investigation. He later stated that Rico Long, not the defendant, was theman who had shot him. Thomas refused to testify at the trial. Neither side called him as awitness.

The defendant stood trial before a Madison County jury on charges of home invasion,aggravated battery with a firearm, and aggravated discharge of a firearm. The jury found himguilty of home invasion and aggravated battery and found him not guilty of aggravateddischarge of a firearm. The defendant was sentenced to consecutive prison terms. Hecurrently serves his punishment of 35 years' imprisonment for having committed homeinvasion. When he completes that sentence, he must serve another 25 years' imprisonmentfor having committed aggravated battery with a firearm.

The defendant asks us to overturn his convictions and grant him a new trial, basedupon prejudicial closing arguments tendered by the person who prosecuted him. Hecomplains of two sets of arguments, the first of which he claims intended to convey animproper message that the defendant's acquittal would leave the Alton community andneighborhood vulnerable to additional violent crime. The defendant claims the secondargument improperly envelops the jurors into the justice system as an integral part of the lawenforcement team. He contends that the argument casts the jurors as the final part of lawenforcement work and conveys the message that an acquittal would not be doing their partin support of that work. The defendant maintains that the remarks suggested that anythingother than a guilty verdict would waste the fine efforts of law enforcement officers,prosecutors, and judges, all of whose efforts would stand for naught in the face of anacquittal.

Here is the first set of challenged closing remarks:

"All of these people involved in this have got some problems. But it is thepeace and dignity of the State of Illinois, and of that neighborhood in particular, thatI want you to consider during your jury deliberations.

* * *

The thing that they [the police officers who testified at the trial] are justgunslingers, they just want a notch on their gun, well then maybe the next timesomebody is in trouble in a case like this, you ought to call a plumber instead of apoliceman. These are men that put their life [sic] on the lines.

And Officer Bertschi's wife could be a widow today if this guy had been a bitluckier on his shooting."

None of these remarks were objected to when made. Nor did they form the basis ofa claim of trial error in any part of the defendant's posttrial motion. Any error in their beingmade lays forfeit by this omission. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124,1129 (1988). Moreover, a prosecutor's comments during closing argument will constitutereversible error only when the comments engender substantial prejudice against thedefendant, raising a likelihood that the improper remarks, rather than the evidence as awhole, were a part of the reason a guilty verdict was reached. People v. Kirchner, 194 Ill.2d 502, 549, 743 N.E.2d 94, 118-19 (2000). Even had this issue been properly preserved forreview, the overwhelming evidence of the defendant's guilt is far more likely the reason forthe guilty verdict than any of the challenged comments.

Here is the second set of challenged closing remarks:

"You know in the West, when they used to play cards, playing poker, theywould have a buck knife. And when it was your deal, they would put the buck knifein front of you, and as the deal passed, the buck would pass. That is how you get thephrase, what Harry Truman had on his desk, ['][T]he buck stops here.[']

Well, during this investigation, the police had a duty to respond. And the buckknife was right in front of them. This was their job[;] they had to. Hostage, peopleshooting at me, I don't care. It is 4:00 [sic] in the morning[;] I want to go home[;] I'mgoing to have to go out and get shot at.

They did their duty. They collected the evidence. They collected all of theevidence that was necessary. Maybe we didn't do every possible test in the world, butwhy should you do all these tests when you have got absolutely[] positive, credible,uncontradicted testimony as to who shot the gun. There is no reason to do those tests.

Later on it became Detective Simmons' duty and the grand jurors' duty to dotheir job in this case. The buck knife was in front of them. They did their job.

After that, it became my job to marshal some of the evidence, to present theevidence. Mr. Daugherty comments in his argument that whether I do a good job ornot[,] you should make your decision. That's not it[;] I hope I did a good job. If Ididn't, don't hold that against the State. It was my duty to do that. The buck knife wasin front of me.

Time and time the judge had to rule on the evidence. He did. The buck knifewas in front of him. And even Mr. Daugherty had a job[-]the buck knife was in frontof him to do what he could for his client.

But right now the buck knife is right here. Right in front of you twelve. Andif you don't have the courage and the wisdom to convict this defendant on thesecounts, we are not going to have law and order. And what we are not going to haveis peace and dignity in Alton."

These closing remarks came at the very end of the prosecutor's rebuttal closingargument. He budgeted a goodly amount of time to make them, despite the fact that theybore no relationship to any evidence or to any earlier arguments of counsel. The remarkswere carefully crafted and were designed to divert thought away from the evidence, focus itupon law enforcement effort and performance of duty, and tie that effort and duty to whatwas expected of jurors when it was their turn to perform. The argument passes the buck,enlisting patrolmen, detectives, grand jurors, prosecutors, and judges, all of whom performedtheir jobs admirably when duty called. The argument is a very persuasive exhortation tosupport law enforcement officials in their efforts rather than to decide the case upon theevidence presented. It implies that everyone who worked for a conviction would be betrayedin the absence of a guilty verdict. It also implies that the jurors have a duty to convict. Jurorsare told that in the absence of courage and wisdom to convict, law and order cannot prevailand peace and dignity cannot be found.

The argument offers a sophisticated and insidious way to convey an improper messagethat a trial's outcome is the measure of a juror's support for righteous, effective lawenforcement and its goals. See People v. Threadgill, 166 Ill. App. 3d 643, 651, 520 N.E.2d86, 91 (1988); People v. Moman, 201 Ill. App. 3d 293, 317, 558 N.E.2d 1231, 1246 (1990);People v. Montgomery, 254 Ill. App. 3d 782, 795-96, 626 N.E.2d 1254, 1263 (1993). Whileprosecutors can certainly charge jurors to do their duty and to return guilty verdicts inaccordance with the proofs, they are not at liberty to substitute emotion for evidence andblame jurors for handing us a lawless society in the event of an acquittal. They need to avoidtelling jurors that their lack of courage and wisdom to convict someone of a crime willdeprive a community of peace and dignity.

While jurors in this case did not need to know that law and order, in general, and thepeace and dignity of the City of Alton, in particular, were both at stake in the trial of thisdefendant, we are not inclined to grant a new trial because of the arguments that were made. The foregoing argument was objected to at the trial, and the objection was erroneouslyoverruled. However, the error was not properly preserved for review by allowing the trialjudge an opportunity to address it in a posttrial motion. Trial errors that are not raised in atimely filed posttrial motion lay forfeit because of that fact. Enoch, 122 Ill. 2d at 186, 522N.E.2d at 1129.

We decline the option of reviewing the arguments under the plain error doctrinebecause the evidence adduced at the trial did not present a close call. We are not concernedthat the argument effected the outcome reached. The defendant did not tender much of adefense, with good reason. He had tried to escape the scene of the home invasion. His effortwas so desperate that he actually fired upon policemen who demanded his surrender. Thepolice found a smoking gun that the defendant tossed away in the process of capitulating toreturn gunfire. The gun discharged the shell casings later found along the path of thedefendant's flight. The evidence of guilt was indisputably strong.

For these reasons, we affirm.



Affirmed.



HOPKINS, P.J., and DONOVAN, J., concur.

 

NO. 5-02-0427

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
                   Plaintiff-Appellee, ) Madison County.
)
v. ) No. 01-CF-61
)
OTIS STEWART, ) Honorable
) Charles V. Romani, Jr.,
                  Defendant-Appellant. ) Judge, presiding.

Opinion Filed:  July 30, 2003


Justices: Honorable Clyde L. Kuehn, J.

Honorable Terrence J. Hopkins, P.J., and

Honorable James K. Donovan, J.,

Concur


Attorneys Daniel M. Kirwan, Deputy Defender, Janet Gandy Fowler, Assistant

for Defender, Office of the State Appellate Defender, Fifth Judicial

Appellant District, 730 East Illinois Highway 15, P.O. Box 2430, Mt. Vernon,

IL 62864-0047


Attorneys Hon. Bill Mudge, State's Attorney, Madison County Courthouse, 157

for N. Main Street, Edwardsville, IL 62025; Norbert J. Goetten, Director,

Appellee Stephen E. Norris, Deputy Director, Trent M. Marshall, Staff Attorney,

Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois

Highway 15, P.O. Box 2249, Mt. Vernon, IL 62864


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