JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
Appeal from the Circuit Court of Cook County, Criminal Division. No. 09 CR 13562 Honorable Stanley J. Sacks Judge Presiding. JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Pierce concurred in the judgment and opinion.
OPINION
¶ 1 Chicago Police officers Jason Bala, Francisco Iza, and Marc Debose were on patrol in an unmarked squad car when they saw a grey car run a red light. When the officers pulled the car over, defendant Brandon Meyers and codefendant Riley Fleming exited and fled on foot. Officer Iza and Officer Debose chased after defendant and Fleming as they ran across a street and into a vacant lot. Fleming ran through the lot diagonally and down a gangway, successfully evading Officer Debose. Defendant tripped over the curb before reaching the vacant lot but got up and kept running. About halfway through the vacant lot, defendant allegedly turned to his right, pulled a handgun, and fired a single shot. Officer Iza returned fire. Defendant fell to the ground and dropped his gun. Officer Iza placed defendant under arrest. ¶ 2 As it turned out, defendant and Fleming were in the process of fleeing an armed robbery when they ran the red light in the grey car and were pulled over. The robbery victims positively identified defendant and Fleming, and they were charged with a host of criminal offenses related to the armed robbery. None of the charges related to the armed robbery are under consideration here, and Fleming is not a party to this appeal. ¶ 3 In connection with defendant's alleged discharge of a firearm at Officers Iza and Debose, he was separately charged with four counts of attempted first degree murder (counts I through IV) (720 ILCS 5/8-4(a), 9-1(a) (West 2008)) and two counts of aggravated discharge of a firearm in the direction of a peace officer (counts V and VI) (720 ILCS 5/24-1.2(a)(3) (West 2008)). A jury acquitted defendant of the attempted first degree murder charges (720 ILCS 5/8-4(a), 9-1(a) (West 2008)) but found defendant guilty of both counts of aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008). The trial court sentenced defendant to two concurrent 19-year terms of imprisonment. ¶ 4 Defendant appeals his convictions for aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008). He argues that (1) the evidence failed to prove defendant guilty beyond a reasonable doubt, (2) the trial court abused its discretion when it admitted testimonial and photographic evidence of a bullet hole in the siding of a garage at the scene of the shooting, (3) the trial court erred when it limited defendant's cross-examination, and (4) the prosecutor's closing arguments deprived defendant of a fair trial. We affirm.
¶ 5 BACKGROUND
¶ 6 On July 1, 2009, Chicago Police officers Bala, Iza, and Debose were on patrol in an unmarked squad car when they saw a grey car run a red light. Officer Bala made a U-turn, activated his emergency lights, and pulled the car over. Defendant and codefendant Riley Fleming exited the car. As defendant exited, Officer Bala saw him place a handgun in his It's certainly[,] I submit to you[,] consistent with having fired a gun from his left hand." Defendant did not object. ¶ 19 The jury found defendant guilty of two counts of aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)). The jury found defendant not guilty of attempted first degree murder of Officer Iza and Officer Debose (720 ILCS 5/8-4(a), 9-1(a) (West 2008)). Defendant filed a motion for a new trial, which was denied. The trial court sentenced defendant to two concurrent 19-year terms of imprisonment. Defendant appeals his convictions.
Fleming is not a party to this appeal, but his convictions were, nevertheless, affirmed on appeal. See People v. Fleming, 2014 IL App (1st) 113004. --------
¶ 20 JURISDICTION
¶ 21 On March 4, 2011, a jury found defendant guilty of two counts of aggravated discharge of a firearm in the direction of a peace officer. 720 ILCS 5/24-1.2(a)(3) (West 2008). The trial court sentenced defendant on October 3, 2011. On July 12, 2013, defendant filed a postconviction petition alleging that his trial counsel was ineffective for failing to file a notice of appeal. On March 11, 2014, the trial court granted defendant leave to file a late notice of appeal and dismissed his postconviction petition without prejudice. Defendant filed his notice of appeal on the same day. We have jurisdiction to hear defendant's appeal. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Feb. 6, 2014); Ill. S. Ct. R. 606 (eff. July 1, 2014).
¶ 22 ANALYSIS
¶ 23 The issues on appeal are (1) whether the evidence presented at trial was sufficient to convict defendant of aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)) beyond a reasonable doubt, (2) whether the trial court abused its discretion when it allowed Officer Iza and technician Huels to testify about the bullet hole in the siding of the garage and admitted the photograph of the bullet hole into evidence, (3) whether admits, that he forfeited his challenges to the remaining comments made by the prosecutor by failing to object to them at trial. Id. Defendant therefore seeks plain error review. People v. Herron, 215 Ill. 2d 167, 178 (2005) (the plain error doctrine allows a reviewing court to reach a forfeited error affecting substantial rights). ¶ 56 We review the prosecutor's first comment de novo and the remaining comments under the plain error doctrine. Wheeler, 226 Ill. 2d at 121 (whether statements made by a prosecutor at closing argument warrant a new trial is a legal issue this court reviews de novo); People v. Belknap, 2014 IL 117094, ¶ 48 (forfeited errors are reviewable under the plain error doctrine). ¶ 57 A prosecutor is given great latitude in making closing arguments and may comment on the evidence and all reasonable inferences stemming from the evidence. People v. Smith, 195 Ill. 2d 179, 200 (2000). Closing arguments must be viewed in their entirety, and the allegedly erroneous argument must be viewed contextually. People v. Blue, 189 Ill. 2d 99, 128 (2000). A prosecutor's comments in closing argument will result in reversible error only when they engender substantial prejudice against a defendant to the extent that it is impossible to determine whether the jury's verdict was caused by the comments or the evidence. People v. Caffey, 205 Ill. 2d 52, 131 (2001). ¶ 58 Defendant first challenges the prosecutor's comment made during the following exchange:
"MS. MULAY [(ASSISTANT STATE'S ATTORNEY)]: "Do you want to know another piece of circumstantial evidence? They tell you he shot with his left hand, the officer did. He shot with his left hand. And that gunshot residue kit, there is a question there of [defendant]. What hand are you? The answer. In that gunshot residue test his left hand"
MR. KOSTOUROS [(DEFENSE ATTORNEY)]: Objection your Honor, there is no evidence of this.
THE COURT: I agree, objection sustained.
MR. KOSTOUROS: I ask that be stricken your Honor.
THE COURT: Objection sustained. The jurors will disregard the comments. Sustained."
¶ 59 The State concedes that there was "no testimony that defendant admitted to Officer Elizabeth Dawson (the evidence technician who administered the gunshot residue test to defendant) that [defendant] was left-handed." Given the State's concession, the parties direct their arguments to whether the trial court's decision to instruct the jury to disregard the prosecutor's comment cured the error. Unsurprisingly, the State argues that trial court cured the error, while defendant argues that the error was of such magnitude that it could not have been cured by an instruction to disregard the comment. ¶ 60 But the parties' arguments, and the State's concession, highlight their failure to recognize an important point: the gunshot residue test kit was in evidence when the prosecutor made her comment. The State and defendant stipulated, in writing, to the admission of the gunshot residue test kit into evidence: "People's Exhibit No. 5." The parties' stipulation included the following statement: "Prior to administering the test, Officer Dawson asked [defendant] certain background and biographical information that she recorded on the test packet." ¶ 61 Whether the gunshot residue test kit contained the question of defendant's handedness and his answer that he was left-handed is unknown because defendant did not include "People's Exhibit No. 5" in the record.
People v.
Carter, 2015 IL 117709, ¶ 19 (defendant has the burden
generally, he made the following statements:
"MR. BERK [(TRACE EVIDENCE ANALYST)]: In order for me to find positive presence [sic] of gunshot residue, I need to find 3 of those unique particles. I also expect to find consistent particles and when in fact I do find at least those
two unique particles I'm able to say that we have a positive test result and that indicates to me the individual typically has either discharged a firearm, has contacted an item that had primer gunshot residue on it or his hands were in the environment of a discharged firearm." (Emphasis added.)
¶ 67 In light of this testimony, the prosecutor's comment was not an improper overstatement or misstatement of the evidence. See
People v.
Crawford, 2013 IL App (1st) 100310, ¶ 144 (restatement of what expert witness stated not improper comment). Having found no error, our analysis under the plain error doctrine stops, and defendant's argument fails.
People v.
Calhoun, 404 Ill. App. 3d 362, 382 (2010) (where there is no error, there can be no plain error). ¶ 68 Finally, defendant argues that the prosecutor's comment that Officer Iza and Officer Debose were "brave" served to inflame the passion of the jury and improperly bolstered their credibility. As defendant admits, he did not preserve this argument for review. We therefore review his argument for plain error and first determine whether an error occurred.
Lewis, 234 Ill. 2d at 43. ¶ 69 We find no error in the prosecutor's statement to the jury that the officers were brave. First, defendant's argument that the prosecutor vouched for the officers' credibility has no basis. Defendant cites
People v.
Williams, 2015 IL App (1st) 122745, in support of his argument, but in
Williams, the prosecutor sent the message to the jury that "the State's Attorney would not put an untruthful witness on the stand."
Id. ¶ 17. A prosecutor's comment that a police officer is brave
sends no such message to the jury. ¶ 70 This is not the first time a prosecutor has characterized police officers or their actions as brave. See
People v.
Walker, 259 Ill. App. 3d 98, 105 (1993) (finding no error where prosecutor commented during closing argument that " 'we look at police officers as being big and strong and brave and somehow magical' " and " '[w]e learn from our families to trust them and respect them' "). The prosecutor's comment was not improper. Having found no error, defendant's argument fails.
Calhoun, 404 Ill. App. 3d at 382.
¶ 71 CONCLUSION
¶ 72 Accordingly, we affirm. ¶ 73 Affirmed.