People v. Guerrero

• Decision Date: 04 June 2020
• Docket Number: No. 1-17-2156,1-17-2156
• Citation: 2020 IL App (1st) 172156,164 N.E.3d 1267,444 Ill.Dec. 692
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel GUERRERO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 172156

164 N.E.3d 1267

444 Ill.Dec. 692

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Daniel GUERRERO, Defendant-Appellant.

No. 1-17-2156

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed June 4, 2020

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Daniel Guerrero, was found guilty by a jury of first degree murder and sentenced to 45 years with the Illinois Department of Corrections (IDOC). On appeal, he claims (1) that certain remarks made by the prosecutor during the State's rebuttal closing argument constituted prosecutorial misconduct and (2) that his sentence is excessive when compared to the lesser sentence of a codefendant. For the following reasons we affirm his conviction and sentence.

¶ 2 I. BACKGROUND

¶ 3 On appeal, defendant raises no issues concerning the sufficiency of the evidence against him. We, therefore, summarize the evidence below.

¶ 4 The State's evidence at trial established that, on May 29, 2010, at midnight, a group of men, who belonged to the same gang, approached two men on a nearby street because one of the two men was wearing a red shirt, which was the color of a rival gang. One of the two men, Mario Gallegos, was able to escape, and he testified at trial as an eyewitness. The other man, Alan Oliva, who was wearing the red shirt, was beaten to death. Gallegos identified defendant as the first person to strike the victim. Gallegos testified that defendant swung a baseball bat at the victim, thereby knocking the victim to the ground, whereupon the other men beat and stabbed the victim until he stopped moving. The victim later died from his wounds

.

¶ 5 After listening to closing arguments and jury instructions, the jury found defendant guilty of first degree murder. After considering factors in aggravation and mitigation, the trial court sentenced defendant to 45 years with IDOC. On July 11, 2017, defendant filed a timely notice of appeal, and this appeal followed.

¶ 6 II. ANALYSIS

¶ 7 A. Rebuttal Closing

¶ 8 Defendant argues that the State committed prosecutorial misconduct by making certain prejudicial remarks in its rebuttal closing.

¶ 9 1. Standard of Review

¶ 10 While the State has wide latitude in both its opening statements and closing arguments and may comment on the evidence, it is still improper for the State to make comments that have no other purpose than to arouse the prejudices and passions of the jury. People v. McNeal , 2019 IL App (1st) 180015, ¶ 43, 2019 WL 7373340 ; People v. Jones , 2016 IL App (1st) 141008, ¶ 21, 410 Ill.Dec. 1, 69 N.E.3d 226. Even if the remarks were inappropriate, reversal is required only if they engendered substantial prejudice against the defendant such that it is impossible to tell whether the verdict of guilt resulted from them. People v. Wheeler , 226 Ill. 2d 92, 123, 313 Ill.Dec. 1, 871 N.E.2d 728 (2007) ; McNeal , 2019 IL App (1st) 180015, ¶ 43. If the reviewing court cannot determine whether the prosecutor's improper remarks contributed to the defendant's conviction, then it must grant a new trial. Wheeler , 226 Ill. 2d at 123, 313 Ill.Dec. 1, 871 N.E.2d 728 ; McNeal , 2019 IL App (1st) 180015, ¶ 43.

¶ 11 This court has applied, in different cases, both a de novo standard and an abuse of discretion standard when reviewing a prosecutor's closing arguments. McNeal , 2019 IL App (1st) 180015, ¶ 44 ; People v. Johnson , 2015 IL App (1st) 123249, ¶ 39, 389 Ill.Dec. 496, 26 N.E.3d 586 ("[t]his court has noted confusion regarding the appropriate standard of review regarding alleged errors occurring during closing arguments"); see also People v. Boston , 2018 IL App (1st) 140369, ¶ 82, 2018 WL 6843718 ; People v. Johnson , 385 Ill. App. 3d 585, 603, 325 Ill.Dec. 611, 898 N.E.2d 658 (2008) ("Since Wheeler , appellate courts have been divided regarding the appropriate standard of review."). An abuse of discretion occurs when the trial court's decision is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the position adopted by the trial court. See, e.g. , McNeal , 2019 IL App (1st) 180015, ¶ 28. De novo consideration means that the reviewing court performs the same analysis that a trial judge would perform. See, e.g. , McNeal , 2019 IL App (1st) 180015, ¶ 29. In the case at bar, we need not resolve this dispute, because the outcome would be the same under either standard of review, as we explain below.

¶ 12 2. Forfeiture

¶ 13 Defendant concedes that he failed to object at trial to the instances of prosecutorial misconduct that he now alleges on appeal.

¶ 14 To preserve an error for appellate review, a defendant must both object at trial and raise the error in a posttrial motion; otherwise it is considered forfeited. People v. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675 ; McNeal , 2019 IL App (1st) 180015, ¶ 82. Even if an error is forfeited, we may still review it under the plain error doctrine. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675 ; McNeal , 2019 IL App (1st) 180015, ¶ 82. Under this doctrine, an error rises to the level of plain error if it is a clear or obvious error and either (1) 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. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675 ; McNeal , 2019 IL App (1st) 180015, ¶ 82. In the case at bar, defendant asks this court to consider the forfeited issues under the first, or closely balanced, prong.

¶ 15 However, the first step of any plain error analysis is to determine whether a clear or obvious error occurred. Sebby , 2017 IL 119445, ¶ 49, 417 Ill.Dec. 756, 89 N.E.3d 675 ; McNeal , 2019 IL App (1st) 180015, ¶ 81. For the reasons explained below, we cannot find a clear or obvious error.

¶ 16 3. Expert

¶ 17 Defendant's first claim regarding the State's rebuttal closing is that the State improperly attacked the defense's expert witness.

¶ 18 At trial, the defense called Dr. Mary Maclin, a psychology professor, as an expert witness to testify generally about potential issues that could affect the reliability of an identification. After the State had an opportunity to voir dire the witness, defense counsel asked the court to qualify Dr. Maclin "as an expert in the field of memory and eyewitness identification." However, the court ruled that it would "allow the witness to testify as an expert in the field of memory." The court did not refer to eyewitness identification, and the defense did not object or follow up. Thus, Dr. Maclin was accepted as an expert in memory only.

¶ 19 During the State's initial closing argument, the State did not mention this expert. However, during the defense closing, the defense argued, "And there's not been one challenge from the state's attorney as to the science here." The State responded during its rebuttal closing, and it is the State's remarks in response that are at issue here. People v. Willis , 2013 IL App (1st) 110233, ¶ 110, 375 Ill.Dec. 636, 997 N.E.2d 947 (the State "may respond in rebuttal to statements of defense counsel that noticeably invite a response"). Defendant quoted in his appellate brief the passages that he objects to, and we quote and discuss each one below.

¶ 20 The first remarks about the expert that defendant quotes are ones in which the prosecutor exhorted the jurors to still use their common sense:

"[S]he thinks that she's got a lot of this stuff figured out what's going on up here of us. What we are able to do.

And I will submit to you that they are in the baby form of that science about figuring it out. We all know through our life and this is where you get to use our common sense. The judge has told you, and I will tell you, your life experiences, you get to bring that to the jury and think about it.

And you will know from your life that things that happen that you are able to see, some of you are able to recognize them, you don't know what parts. You can't analyze it. You can't say it's because it's a distance between their eyes or their nose or anything like that specifically. That's going on in us. That's science has no clue about that. And I submit to you maybe a hundred years from now, they will get a better clue. But from this person that they brought in yesterday, this professor that they brought in, we didn't learn anything about science. Nothing was learned about that science."

See In re Commitment of Gavin , 2014 IL App (1st) 122918, ¶ 61, 383 Ill.Dec. 552, 14 N.E.3d 1163 (a party may argue that an expert's opinion is contrary to common sense and may exhort the jury to "use common sense" in assessing the expert's testimony). Defendant claims that, with the above remarks, the prosecutor was testifying as the State's own expert witness. However, in addition to exhorting the jurors to use their common sense, the prosecutor was building on what the defense expert had testified to. Dr. Macklin had testified that "one of the notoriously difficult things with faces is that they're really hard to describe." Based on this, the prosecutor argued that people identify faces without knowing exactly how they do it—without knowing if it is "the distance between their eyes." Although Dr. Maclin testified about factors that could adversely affect memory such as stress, weapon focus, passage of time, and night viewing, she did not testify about the neurology behind facial recognition or how we humans recognize faces. The prosecutor could be understood as arguing that the jurors had not learned anything "about that science"—namely, facial recognition—from this expert, which would be correct.

¶ 21 The next set of remarks regarding the expert that defendant quotes concerned the expert's own...