Opinion
NO. 4-15-0644
12-22-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL BROOKS, 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 Circuit Court of McLean County
No. 14CF1162
Honorable Paul G. Lawrence, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Steigmann and Knecht concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, finding the prosecution did not vouch for the credibility of a witness during rebuttal argument.
¶ 2 In March 2015, a jury found defendant, Samuel Brooks, guilty of unlawful delivery of a controlled substance. In April 2015, the trial court sentenced him to 15 years in prison. Defendant appeals, arguing the prosecution improperly vouched for the credibility of a witness during rebuttal argument. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In October 2014, a grand jury indicted defendant on unlawful delivery of less than one gram of a controlled substance within 1000 feet of a church (count I) (720 ILCS 570/407(b)(1) (West 2014)) and unlawful delivery of less than one gram of a controlled substance (count II) (720 ILCS 570/401(d)(i) (West 2014)). Both counts were based upon
allegations that defendant delivered less than one gram of a substance containing cocaine to confidential police source Tina Brown on September 30, 2014. Defendant pleaded not guilty.
¶ 5 In March 2015, defendant's jury trial commenced. The State moved to dismiss count I against defendant, which the trial court allowed. Tina Brown testified she was a confidential source for the Bloomington police department. She stated that on September 30, 2014, she called defendant to arrange the purchase of crack cocaine. Tina agreed to meet defendant at a gas station. Detective Stephen Brown searched her person, including her purse, for illegal contraband, and then gave her $100 to purchase the drugs. Tina left Detective Brown's unmarked vehicle and walked toward the gas station parking lot. When defendant arrived at the gas station, Tina gave defendant the money and defendant gave her the crack cocaine. Defendant also gave her a partial pack of cigarettes with change in the bottom of the package. Tina testified she asked defendant to bring her the cigarettes and change. Tina walked back toward Detective Brown's vehicle and handed him the drugs. Detective Brown again searched Tina, including her purse. On cross-examination, Tina stated Detective Brown paid her $250 for her work as a confidential source.
¶ 6 Bloomington police detective Kevin Raisbeck testified he conducted surveillance of the controlled buy. He watched as Tina Brown approached the gas station parking lot. She stood on the south side of the gas station and waited approximately 10 minutes before defendant approached the gas station parking lot on a bicycle. Raisbeck had an unobstructed view of the gas station parking lot and recorded the controlled buy. In the surveillance video, defendant "handed [Tina] Brown a pack of cigarettes and then got back into his pocket, appeared to hand her something else, and there was a hand-to-hand exchange ***." The video was played for the jury and admitted into evidence.
¶ 7 Bloomington police detective Jared Bierbaum testified he also conducted surveillance of the controlled buy. He had an unobstructed view of Tina Brown as she left Detective Brown's unmarked vehicle and walked to the gas station parking lot. After Tina left the gas station parking lot, Bierbaum followed defendant as he bicycled from the gas station to the West Market grocery store. Defendant went into the grocery store for two to three minutes. Upon exiting the grocery store, he was arrested by street-crimes officers. Bierbaum stated he searched defendant and found $80 in cash, which he identified as exhibit No. 4. Bloomington police officer William Wright recovered $20 from a cash register inside the grocery store, which he identified as exhibit No. 8. According to Wright, defendant used the $20 to purchase goods in the grocery store. Bierbaum testified the $80 taken from defendant and the $20 recovered from the grocery store matched the photocopied money used in the controlled drug buy.
¶ 8 Bloomington police detective Stephen Brown testified Tina Brown agreed to work as a confidential source for the Bloomington police department. She identified defendant as an individual who was selling drugs in Bloomington. Prior to the transaction with defendant, Detective Brown gave Tina $100 after searching her and finding no contraband. Detective Brown was present when Tina called defendant and arranged a meeting at the gas station to purchase cocaine. He observed Tina walk to the gas station but did not witness the actual exchange of money and cocaine from his position. A short time later, Tina returned to his unmarked vehicle and handed him a small Baggie of a substance containing cocaine. Detective Brown again searched Tina, finding no contraband. Tina was paid $250 for this case.
¶ 9 Defendant did not testify. Following closing arguments, the jury found defendant guilty of unlawful delivery of a controlled substance. In March 2015, defense counsel filed a motion for a new trial, arguing the State failed to prove defendant guilty beyond a reasonable
doubt. In April 2015, the trial court denied the motion. Thereafter, the court sentenced defendant to 15 years in prison. This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 Defendant argues the prosecution improperly vouched for Tina Brown's credibility during rebuttal argument, thereby denying him a fair trial. We disagree.
¶ 12 Initially, we note defendant acknowledges defense counsel did not object to the State's rebuttal argument and did not raise the issue in a posttrial motion. Thus, the issue is forfeited on appeal. See People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324 (2005) (a defendant must object at trial and raise the issue in a posttrial motion to preserve the issue for review). Defendant, however, asks this court to review the issue as a matter of plain error.
¶ 13 The plain-error doctrine allows a court to disregard a defendant's forfeiture and consider unpreserved error in two instances:
"(1) where 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 and (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 ***." People v. Belknap, 2014 IL 117094, ¶ 48, 23 N.E.3d 325.
¶ 14 Under both prongs of the plain-error analysis, the burden of persuasion remains with the defendant. People v. Wilmington, 2013 IL 112938, ¶ 43, 983 N.E.2d 1015. As the first step in the analysis, we must determine whether any error occurred at all. People v. Eppinger, 2013 IL 114121, ¶ 19, 984 N.E.2d 475. "If error did occur, we then consider whether either
prong of the plain-error doctrine has been satisfied." People v. Sykes, 2012 IL App (4th) 111110, ¶ 31, 972 N.E.2d 1272.
¶ 15 "Every defendant is entitled to [a] fair trial free from prejudicial comments by the prosecution." People v. Young, 347 Ill. App. 3d 909, 924, 807 N.E.2d 1125, 1137 (2004). Nevertheless, "[a] prosecutor has wide latitude in making a closing argument and is permitted to comment on the evidence and any fair, reasonable inferences it yields." People v. Glasper, 234 Ill. 2d 173, 204, 917 N.E.2d 401, 419 (2009). Moreover, "statements of counsel and argument based upon facts and circumstances proved, or upon legitimate inference drawn from them, do not exceed the bounds of proper debate." People v. Bowen, 241 Ill. App. 3d 608, 621, 609 N.E.2d 346, 357 (1993). A reviewing court "will find reversible error only if the defendant demonstrates that the improper remarks were so prejudicial that real justice was denied or that the verdict resulted from the error." People v. Runge, 234 Ill. 2d 68, 142, 917 N.E.2d 940, 982 (2009).
¶ 16 In the case sub judice, defendant takes issue with the prosecutor's following statement on rebuttal:
"There was a level of inherent trust, and the evidence shows that. When you watch the whole video, she doesn't have anything in her hand. She's clutching a drink. It was a hot day. And I guess I could have asked every detective, [d]id she go into her purse when she was walking back? Did she do that? Did she have it in her hand? But there's no evidence that any of that happened, none."
Defendant argues it was reversible error for the State to vouch for the credibility of Tina Brown with the above statement where her testimony was essential to the conviction in this case.
Defendant relies on the First District's opinion in People v. Williams, 2015 IL App (1st) 122745, ¶ 20, 30 N.E.3rd 511, wherein the court found reviewing courts should use a commonsense approach when determining whether the prosecutor's statement improperly vouched for the credibility of a witness. Williams, 2015 IL App (1st) 122745, ¶ 20, 30 N.E.3rd 511.
¶ 17 Unlike the prosecutor in Williams, the prosecutor here did not convey to the jury that he had personal or specialized knowledge that Tina Brown was a credible witness, that he had other information not otherwise available, or that the government somehow approved Tina's credibility. See Williams, 2015 IL App (1st) 122745, ¶ 20, 30 N.E.3rd 511. Instead, the prosecutor simply argued for Tina's credibility based upon the evidence presented at trial. "[A] prosecutor may comment on a witness' credibility *** when such remarks are based on facts in evidence or reasonable inferences drawn therefrom." People v. Pope, 284 Ill. App. 3d 695, 706, 672 N.E.2d 1321, 1328 (1996). Moreover, "for a prosecutor's closing argument to be improper, he must explicitly state that he is asserting his personal views ***." (Emphasis in original.) Pope, 284 Ill. App. 3d at 707, 672 N.E.2d at 1329. Defendant admits "the State did not explicitly say that it personally believed that [Tina Brown's] testimony was credible." Accordingly, we find no error or improper argument from the State.
¶ 18 III. CONCLUSION
¶ 19 For the reasons stated, we affirm the trial court's judgment. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 20 Affirmed.