Opinion
No. 1-16-0418
06-28-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CEZAR LOPEZ, Defendant-Appellant.
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). Appeal from the Circuit Court of Cook County. No. 14 CR 11770 Honorable Thomas J. Byrne, Judge Presiding. PRESIDING JUDGE DELORT delivered the judgment of the court.
Justices Cunningham and Connors concurred in the judgment.
ORDER
¶ 1 Held: Certain statements in the State's closing argument did not constitute plain error. Defendant therefore forfeited the issue. Affirmed. ¶ 2 A jury found defendant Cezar Lopez guilty of two counts of aggravated battery of a transit employee (720 ILCS 5/12-3.05(d)(7) (West 2014)) and the circuit court sentenced him to three years' imprisonment. On appeal, he contends that the State's closing argument was improper. We affirm.
¶ 3 BACKGROUND
¶ 4 A grand jury indicted defendant on two counts of aggravated battery for attacking a Chicago Transit Authority (CTA) bus driver (720 ILCS 5/12-3.05(d)(7) (West 2014)) . The record shows that, on June 7, 2014, defendant initiated an altercation with CTA employee Charles Wynn after uttering racial slurs at Wynn, striking the windows and door of Wynn's bus, and then attempting to board the bus. Bus passengers separated defendant and Wynn, before pushing defendant off the bus. When defendant attempted to re-board, there was a second altercation, after which defendant was again removed from the bus. ¶ 5 At defense counsel's request, the circuit court ordered an evaluation of defendant's fitness to stand trial. The reporting psychologist concluded that defendant was fit to stand trial, stating defendant "is not suffering from a mental condition that would compromise his ability to understand the nature of the proceedings against him or assist in his defense." A Forensic Clinical Services report also indicated that defendant's sister had reported defendant had been diagnosed with schizophrenia and hospitalized several times for psychiatric treatment. ¶ 6 After meeting with defendant, defense counsel requested another evaluation of defendant's fitness to stand trial, with or without medication, and for an evaluation of defendant's sanity at the time of the offense. The court granted the request and the psychiatrist concluded defendant was fit to stand trial and he was legally sane at the time of the offense. ¶ 7 At trial, the State played a surveillance video recorded by the surveillance camera located above Wynn's head. The video has no accompanying audio track, so we describe the actions and movements of defendant, Wynn, passenger Masciopinto, and other passengers without noting what they said in the table below. ¶ 8
| Time Stamp on Video | Event(s) Occurring |
| 0:07 | Wynn pulls his bus away from the curb, driving west on ChicagoAvenue. Wynn passes approximately four newspaper racks andthen stops the bus with the door in front of a garbage can. |
| 0:10 | Defendant walks into frame and is visible through the frontpassenger window. |
| 0:11 | Wynn begins moving the bus forward and toward the curb,simultaneously pointing to a clear space past the garbage can. |
| 0:12 | Defendant begins tapping on the glass of the front passengerwindow with an open palm. |
| 0:14 | Wynn finishes pulling forward and stops the bus. It appears hemoved the bus no more than ten feet. Wynn opens the door. |
| 0:17 | Defendant steps onto the bus. As he steps onto the bus, defendantmakes a questioning gesture with both hands, palms up. At thistime, Wynn leans forward and points at defendant. |
| 0:19 | Wynn sits back in his chair and defendant goes to scan his fare card.Almost immediately thereafter, Wynn leans forward in his chair tocover the fare card reader with his right hand. |
| 0:20 | Wynn moves his right hand off the scanner and waves it, palm out,toward defendant. At this time, defendant drops his hands to hissides, then gestures his left hand, palm up, toward the back of thebus. |
| 0:22 | Defendant takes a step toward Wynn with his right leg and gestureshis left hand toward himself. At this time, Wynn points with hisright hand past defendant and through the open bus door toward thecurb. |
| 0:24 | Wynn points back toward the garbage can where the bus wasstopped before Wynn pulled it forward to let defendant board. |
| 0:25 | Defendant gestures behind him toward the curb. |
| 0:26 | Both Wynn and defendant point toward the back of the bus.Although the video lacks an audio track, defendant's body languagesignals escalating volume—he leans his head toward Wynn and hisgestures become increasingly emphatic. |
| 0:28 | Defendant drops his left hand to his side and Wynn points towarddefendant's chest. At this time, Masciopinto walks into frame,approaches the bus door, and waits outside. |
| 0:29 | Defendant goes to swipe his fare card again and Wynn moves toblock him. |
| 0:30 | Wynn leans forward out of his seat and defendant begins walkingpast Wynn toward the back of the bus. Wynn turns his shoulder asdefendant passes such that he continues facing defendant. |
| 0:31 | Wynn reaches with his right hand toward defendant's right arm.Due to the camera angle, it is unclear exactly how Wynn toucheddefendant's arm. However, it appears Wynn lightly grabbedDefendant's upper arm, with his fingers between defendant's upper |
| arm and torso and his thumb on the outside of defendant's upperarm. At this time, defendant and Wynn appear to be no more thanthree feet apart. | |
| 0:32 | Immediately after Wynn touches him, defendant punches Wynn.With his left fist, defendant strikes the right side of Wynn's headthen immediately moves in to grapple him. |
| 0:33 | Defendant has Wynn in a headlock with his left arm and the two arewrestling. |
| 0:36 | Masciopinto has moved onto the bus and begins separatingdefendant from Wynn. |
| 0:37 | Defendant still has Wynn in a headlock, Masciopinto has defendantin a headlock, and Wynn has his arm around defendant's waist. Thethree struggle toward the bus door and, |
| 0:39 | Wynn and Masciopinto force defendant outside then follow him out.By this time, other passengers have moved toward the front of thebus. |
| 0:42 | Wynn gets back on the bus while defendant and Masciopintocontinue wrestling. |
| 0:46 | It appears defendant knocked Masciopinto down. |
| 0:51 | Another passenger leans out the bus door and begins talking todefendant. While defendant is looking at this other passenger,Masciopinto rushes forward and pushes defendant hard, knockinghim down. Defendant then gets to his feet as passengers board the |
| bus. | |
| 1:08 | Defendant begins moving toward the bus door and appears to beyelling at Wynn and Masciopinto, who are standing together on thebus. |
| 1:10 | Defendant points toward the curb and continues yelling. Anotherpassenger pushes defendant away as Masciopinto appears to bespeaking to defendant. Defendant continues to pace and standoutside the bus while yelling at Wynn and gesturing. |
| 1:35 | Wynn gets back in the driver's seat and passengers continue re-boarding. |
| 1:38 | Defendant gets back on the bus. Wynn gets up out of his seat asdefendant continues to yell at him. |
| 1:41 | Wynn begins punching defendant about the head with both fists. |
| 1:44 | Masciopinto goes between Wynn and defendant and pushesdefendant off the bus. Masciopinto then places his forearms oneither side of the bus door to bar defendant from entering the bus.While standing outside, defendant continues yelling at Masciopinto.It appears Masciopinto is yelling back at defendant. Defendantbegins walking away and the passengers shuffle toward their seats. |
| 1:58, | Wynn starts closing the bus doors. Before the doors close,Masciopinto lunges forward and leans out of the bus. He gesturestoward—presumably—defendant (who is no longer visible in thevideo) and other passengers pull him back onto the bus. |
| 2:16 | The door opens again to admit another passenger. |
| 2:41 | The door closes and passengers begin returning to their seats.Wynn drives away. |
"[T]he defendant doesn't get any more or any less consideration [than the State's three witnesses]. So consider the way that the defendant testified when he claims to you that he felt threatened by what Mr. Wynn did. First of all, the defendant flatout [sic] tells you, he can't really remember a lot of what happened. Actually, his words when he first began testifying were that he could remember a little bit more once he viewed the video today. But he couldn't provide a lot of details on a lot of different things. Then what he did tell you, some things just didn't make sense. He couldn't tell you specifically about certain actions or certain words which he was claiming that Mr. Wynn had said to him when he was getting on the bus. And he was waffling back and forth as to whether or not he was pissed off. And think about that, ladies and gentlemen, because he doesn't want to make it sound as bad as it really was. But you know because not only could you see from the video, but again, common sense. ***
The defendant says that he was threatened or felt threatened by the victim because he grabbed him in the arm. But then even as my partner started to ask him more and more questions about, well,
did he grab your arm or didn't he? Well, I think he did. I believe he did, but I could be wrong."The State further argued that defendant did not feel threatened; instead, it claimed that defendant made those statements "to try to justify what he did that day." The State summarized that "based on all the testimony and the evidence and even the defendant's own statements up there, there was no justification," for defendant's acts, and it asked the jury for a guilty verdict. ¶ 41 Defendant's attorney argued as follows:
"On June 7, 2014, Mr. Lopez did what he reasonably believed was [sic] and used self-defense. Now, he testified and you heard his testimony. And some things he didn't remember. Some things didn't make sense. He was illogical, disorganized. Use your common sense as to why he is the way he is and what he said.¶ 42 After closing arguments, the circuit court delivered its instructions to the jury. Among other things, the circuit court instructed as follows:
* * *
[T]he instruction which you'll have is what [sic] [defendant] reasonably believed that such conduct was necessary to defend himself against the imminent use or unlawful use of force.
So you heard the testimony of Cezar Lopez and he told you what he felt and why he did what he did. You can judge his testimony, what he said, and what he didn't say, and what he remembers, and what he didn't remember. Obviously, you can see the video."
"In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in light of all the evidence in the case.¶ 43 The circuit court also delivered Illinois Pattern Jury Instructions, Criminal, No. 1.03 (4th ed. 2000):
You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness."
"Opening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and should be confined to the evidence and to reasonable inferences to be drawn from the evidence.¶ 44 The jury returned a guilty verdict on defendant's aggravated battery charge. The circuit court subsequently sentenced defendant to a term of three years in the Illinois Department of Corrections. This appeal followed.
Neither opening statement[s] nor closing arguments are evidence. Any statement or argument made by the attorneys which is not based on the evidence should be disregarded."
¶ 45 ANALYSIS
¶ 46 Defendant contends that he is entitled to a new trial because the State's closing argument about his confusion and poor verbal memory indicated that he was trying to "fabricat[e] his testimony that he felt threatened before striking the bus driver." Defendant argues that, as noted in the first Forensic Clinical Services report, his poor recollection resulted from "mental health issues," including a purported prior diagnosis of schizophrenia that defendant's sister reported. Defendant asserts that this comment rose to the level of prosecutorial misconduct that prejudiced defendant and contributed to his conviction. Defendant acknowledges that he did not preserve this claim of error by objecting at trial and by raising it in a posttrial motion. Defendant, however, asks that we review this claim as plain error. ¶ 47 To preserve an issue for appeal, a defendant must object at trial and raise the issue in his posttrial motion. The failure to do so results in forfeiture. People v. Belknap, 2014 IL 117094, ¶ 47. Forfeiture is important because a timely objection not only allows a trial court to promptly correct error, but also prevents a party from strategically obtaining a reversal by their failure to act. People v. Roberts, 75 Ill. 2d 1, 11 (1979). ¶ 48 The plain-error doctrine is codified in Illinois Supreme Court Rule 615(a), which states, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. S. Ct. R. 615(a). Plain errors may be noticed if either (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) the 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." People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). A defendant raising a plain- error argument bears the burden of persuasion. People v. Thompson, 238 Ill. 2d 598, 613 (2010). "The first step of plain-error review is determining whether any error occurred." Id.; see also People v. Wilson, 2017 IL App (1st) 143183, ¶ 25 ("Of course, there can be no plain error if there was no error at all."). ¶ 49 The State is given considerable latitude in making closing arguments. People v. Hall, 194 Ill. 2d 305, 346 (2000). Furthermore, we must review the arguments of both the State and the defense in their entirety, with the challenged portions placed in their proper context. People v. Cisewski, 118 Ill. 2d 163, 175-76 (1987). A significant factor in determining the impact of an improper comment on a jury verdict is whether "the comments were brief and isolated in the context of lengthy closing arguments." People v. Runge, 234 Ill. 2d 68, 142 (2009). In addition, we must presume, absent a showing to the contrary, that the jury followed the trial judge's instructions in reaching a verdict. People v. Simms, 192 Ill. 2d 348, 373 (2000). ¶ 50 While prosecutors have a great deal of latitude during closing argument, they must refrain from making improper prejudicial statements or comments. People v. Hudson, 157 Ill. 2d 401, 441 (1993). "It is blatantly improper to suggest that the defense is fabricated, as such accusations serve no purpose other than to prejudice the jury." People v. Slabaugh, 323 Ill. App. 3d 723, 729 (2001). Nonetheless, even if a prosecutor's closing remarks are improper, "they do not constitute reversible error unless they result in substantial prejudice to the defendant such that absent those remarks the verdict would have been different." People v. Hudson, 157 Ill. 2d 401, 441 (1993). Defendant, citing People v. Walker, 308 Ill. App. 3d 435, 438 (1999), and People v. Hall, 198 Ill. 2d 173, 17 (2001), argues that we should review this issue de novo. The State argues in favor of an abuse of discretion standard. See People v. Blue, 189 Ill. 2d 99, 128 (2000). While the issue of which standard of review should apply is unsettled (see People v. Maldonado, 402 Ill. App. 3d 411, 421 (2010)), we need not resolve this apparent conflict because under either standard, defendant's claim fails. ¶ 51 During the State's closing argument, the prosecutor challenged defendant's credibility and, in a solitary sentence, suggested that defendant was intentionally misstating or misremembering details to make events seem more favorable to him. Defendant argues that the State, knowing it had successfully prevented the defense from introducing evidence of an innocent explanation for defendant's memory lapses and scattered testimony—i.e., a history of schizophrenia as reported by defendant's sister—the State improperly argued that defendant was lying. A statement by a prosecutor during closing argument that a defendant is lying is proper if the statement is based on the evidence. People v. Tiller, 94 Ill. 2d 303, 319 (1982) (citing People v. Weaver, 18 Ill. 2d 108, 115 (1959) and People v. Weathers, 62 Ill. 2d 114, 120 (1975)); see also People v. Smith, 2014 IL App (1st) 103436, ¶ 69 (it is not improper to call the defendant a "liar" if conflicts in the evidence make such an assertion a fair inference); People v. Rivera, 262 Ill. App. 3d 16, 27 (1994). ¶ 52 Based on the stark differences between defendant's testimony and the consistent testimony of Wynn, Picarra, and Masciopinto (as well as our own review of the CTA video), we find there were clear conflicts between the defendant's testimony and the State's evidence. The only evidence suggesting a clinical diagnosis of mental illness was anecdotally reported by defendant's sister, and the jury did not hear testimony or receive evidence related to defendant's mental health. Therefore, considering this conflict, it was eminently fair for the State to argue that the jury should infer that defendant was intentionally misleading when he (1) made statements that were wholly unsupported by both the CTA video and the State's witnesses and (2) claimed he could not recall or describe the events of June 7, 2014. See Smith, 2014 IL App (1st) 103436, ¶ 69. Because the State's arguments were based on a reasonable inference from the evidence, they were proper. ¶ 53 Additionally, the State, in its argument, was not suggesting defendant's claim of self-defense was fabricated. Instead, the State argued that (1) defendant's confused and conflicting testimony could not support his claim of self-defense considering the State's testimonial and video evidence and (2) defendant was intentionally misrepresenting the evidence to make it less damning. Because arguing about the merits of a defense is distinct from arguing that the claim itself is fabricated, the State's argument in this case was not improper. See Slabaugh, 323 Ill. App. 3d at 729 (finding a prosecutor's closing argument to be improper where the prosecutor suggested the defense witnesses "concocted a defense"). For this additional reason, the State's argument in this case was properly within the wide latitude given the State in closing arguments. See Hall, 194 Ill. 2d at 346. ¶ 54 Moreover, even if the State's closing argument was improper, the State did not commit reversible error because its argument did not result in such "substantial prejudice to the defendant such that absent these remarks the verdict would have been different." Hudson, 157 Ill. 2d at 441. The State's argument did not prejudice defendant because the State's evidence overwhelmingly rebutted defendant's claim of self-defense. Considering that evidence, we find that the outcome of the trial would not have been different even if the State had not made its purportedly improper remarks. Moreover, the State's allegedly improper statement challenging defendant's credibility consisted of—at most—25 lines in a 12-page closing argument. The State spent only one sentence suggesting that defendant intentionally miscast the evidence to make it appear more favorable to him. Because these comments were brief and isolated in the context of the State's argument, their effect did not rise to the level of prejudice such that the outcome of defendant's trial would have been different had the State not made them. See Runge, 192 Ill. 2d at 142. Defendant's claim of error is therefore without merit, and thus forfeited. See Wilson, 2017 IL App (1st) 143183, ¶ 25 (holding that, if there is no error, there is no plain error). ¶ 55 Finally, even assuming, arguendo, that the State committed error by making an improper closing argument, defendant's claim would fail under the plain error doctrine. To begin, the first prong of the plain error doctrine does not apply because the evidence was not close. Wynn, Picarra, and Masciopinto testified consistently that defendant initiated the altercation by striking Wynn after Wynn reached back to touch defendant's shoulder. The CTA video corroborates their statements and refutes defendant's rendition of events. Indeed, the circuit court was correct in characterizing the evidence against defendant as "overwhelming" when it denied his posttrial motion. Thus, the first prong of the plain error doctrine is inapplicable. ¶ 56 Furthermore, the second prong of the plain error doctrine does not arise here because we do not consider the alleged errors in this case to be so serious that they "affected the fairness of the defendant's trial and challenged the integrity of the judicial process." People v. Herron, 215 Ill. 2d 167, 187 (2005). The trial court instructed the jury, inter alia: (1) to base its verdict only on the evidence (and reasonable inferences therefrom); and (2) that opening and closing arguments are not evidence and they are entitled to disregard any argument which is not based on the evidence. Defendant provides nothing to rebut the presumption that the jury followed the judge's instructions. See People v. Simms, 192 Ill. 2d 348, 373 (2000). Because the circuit court properly instructed the jury and defendant has not shown that the jury disregarded the court's instructions such that the fairness of his trial was compromised, the second prong of the plain error doctrine is inapplicable. See People v. Glasper, 234 Ill. 2d 173, 215 (2009) (holding an improper closing argument was not "so serious that the second prong of the plain-error test is satisfied"). Accordingly, even assuming plain-error review was warranted, defendant's claim must be rejected.
We note that defendant's attorney broached defendant's history of mental illness for the first time in her redirect examination. The State, objecting to this question, did not articulate a basis for its objection before the circuit court sustained it. In any case, the objection was properly sustained because the question was beyond the scope of redirect examination.
See n.1, supra. --------
¶ 57 CONCLUSION
¶ 58 Defendant's claim of error is forfeited, and defendant has not offered compelling reason why we should review his claim for plain error. In any case, the State's closing argument did not deny defendant a fair trial because it did not result in substantial prejudice such that, absent such remark, the verdict would have been different. ¶ 59 Affirmed.