People v. Howard

• Decision Date: 15 July 1992
• Docket Number: No. 1-88-2792,1-88-2792
• Citation: 597 N.E.2d 703,232 Ill.App.3d 386
• Parties: , 173 Ill.Dec. 729 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Flemon HOWARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 703

597 N.E.2d 703

232 Ill.App.3d 386, 173 Ill.Dec. 729

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Flemon HOWARD, Defendant-Appellant.

No. 1-88-2792.

Appellate Court of Illinois First District, Third Division.

July 15, 1992.

Michael J. Pelletier, State Appellate Defender, Chicago (Janice Lynn Triptow, James E. Chadd, Asst. Public Defenders, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Michael Latz, Gregory Vaci, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice TULLY delivered the court's opinion:

Defendant Flemon Howard was charged with two counts of murder and one count of armed violence. After a jury trial, Howard was convicted for the murder of Richard Rainey and sentenced to 30 years in prison.

At trial, defense counsel indicated that the defendant Howard never intended to kill Rainey and that the stabbing was a reckless act. On appeal, defendant raises three issues: (1) Defendant was denied a fair trial due to the prejudicial remarks of the Prosecutor made during closing argument; (2) Defendant was denied effective assistance of counsel where defense counsel failed to tender a jury instruction defining "recklessness" and defendant's mental state was a central issue in the case; (3) the sentence imposed was excessive, in view of mitigating factors and rehabilitative potential.

Defendant Howard lived across the street from Richard Rainey. At trial, defendant stated that he had been best friends with the victim for approximately 16 years. On the evening of January 17, 1987, Howard, along with another man and five women, went to a restaurant around 4 a.m. They had previously been drinking at a nearby bar from midnight until closing. While at the restaurant, two unidentified males began verbally harassing the women who were with the defendant. Defendant asked them to stop and then became engaged in a fist fight with one of the two men. During the fight, the other man dropped a knife. Defendant retrieved the knife and put it in his pocket.

After the fight, defendant drove home, parking his car on Adams Street, one block west of his house, located at 4337 West Jackson. While walking to his house, defendant noticed that the two men, with whom he had just fought, were following him. Instead of going to his own house, defendant went to a house at 4326 West Jackson, where Rainey lives in the basement. In order to awaken Rainey, defendant knocked on the basement window causing it to break. Rainey asked defendant why he had broken the window and then crossed the street with the defendant. Defendant explained what had happened earlier and pointed to the two men, who were then approaching the defendant and Rainey. Defendant took the knife from his pocket, which he had from the previous fight and Rainey grabbed defendant in a "bear hug" in order to prevent another fight. Defendant was very upset and intoxicated. After defendant broke away from Rainey, the two men fled the scene. Rainey picked up a stick and gestured angrily at the defendant for having broken his basement window. Defendant then hit Rainey with the hand containing the knife. Rainey stumbled backwards gasping and fell to the ground.

Defendant testified that he became scared and went to the corner of Jackson and Kostner streets to call the police from a public phone. While standing near the phone, defendant flagged an unmarked squad car and told the officers that he was sick and needed to go to a hospital. During the earlier fight, defendant had injured his right hand which had been previously broken. Defendant subsequently refused help and walked away from the officers.

The only eyewitness to the stabbing was the victim's niece, Karen Rainey, who lived on the first floor of the victim's house. Karen Rainey testified at trial that she was awoken by the footsteps of her uncle, Richard Rainey, coming up the basement stairs. She heard him shouting at the defendant about the broken window. She then looked out the front window of the house and saw her uncle walking arm and arm with the defendant, whom she has known since childhood. She could hear the defendant yelling and the two men crossed the street. She could only see the defendant's back and her uncle, Richard Rainey, was standing on the curb facing her. The defendant was hollering and motioning with both hands. She then saw the defendant take a step towards Richard Rainey, his hand moved and then he walked away. Richard Rainey then fell to the ground. She called the police and then crossed the street, where she found the motionless body of Richard Rainey. She also testified that the defendant and her uncle were friends and they saw each other almost every day.

The medical examiner testified that the victim suffered a stab wound to the neck, approximately one-half inch long and two inches deep. The wound perforated the left lung and penetrated the main blood vessel to the heart. Each chest cavity contained approximately one liter of blood.

Assistant State's Attorney Lori Levin testified that the defendant rendered two different accounts as to the events. The first account was consistent with the defendant's trial testimony. Levin then told the defendant that Karen Rainey had witnessed the stabbing and that Karen only saw two people, the defendant and Richard Rainey, in front of the house that evening. Defendant then stated that no one had followed him home. He went to Richard Rainey's house because he was upset about the restaurant fight. Rainey walked across the street with him to calm him down. He then pointed at Rainey's chest and stabbed him. Rainey staggered a couple of steps and then collapsed. He then flagged down a police car to aid Richard Rainey.

On appeal, defendant contends the State's closing argument was unduly prejudicial, denying him a fair trial. As a threshold matter, defendant failed to specifically list the objectionable statements in a post-trial motion. In order to preserve an issue on appeal, a party must make a contemporaneous objection at trial and raise it in a post-trial motion. (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124.) Defendant's post-trial motion contained a form objection, generally alleging that the closing-argument statements of the prosecutor were "inflammatory and erroneous * * * designed to arouse the prejudices and passions of the jury." Such a lack of specificity in the post-trial motion fails to preserve the issue for review. (See, People v. Thomas (1983), 116 Ill.App.3d 216, 72 Ill.Dec. 145, 452 N.E.2d 77.) However, where the evidence is closely balanced and the verdict would not have been the same, absent the alleged errors, we may still reverse under the doctrine of plain error. Because we consider this to be a close case, we will review the alleged errors of the prosecutor in closing.

First, the state argued there was no conspiracy among the state, its witnesses and the police. It has been held to be reversible error, where a prosecutor instructs the jury that they must find the State's witnesses are lying in order to believe the defendant. (People v. Cole (1980), 80 Ill.App.3d 1105, 1108, 36 Ill.Dec. 351, 353, 400 N.E.2d 931, 933.) (emphasis added) The statements cited by the defendant in their brief refer to a conspiracy but are not as strong as the remarks in Cole. In addition, the State claims its remarks about a conspiracy were an "invited response" to defense counsel's comment that the State's counsel were "war dogs." We agree.

The comments by defense counsel during closing, accused the prosecution of being "war dogs" and implied that they were only interested in winning the case and not in discovering the truth. The State was entitled to defend itself against the defense's accusations. In a like case, the defense counsel implied that a State's witness was engaged in a conspiracy against the defendant. The court held that where defense counsel invites a rebuttal, it is neither improper nor prejudicial. People v. Johnson (1986), 114 Ill.2d 170, 102 Ill.Dec. 342, 499 N.E.2d 1355.

The second series of remarks by the prosecutor, were unsolicited comments about the defense of manslaughter. Just prior to the retirement of the jury, the prosecutor stated:

"Ladies and gentlemen, involuntary manslaughter does not apply; it is a cop-out and I don't want to insult anyone but it is a cop-out in this case. The evidence is clear and we ask you to find him guilty of murder. Thank you."

In People v. Wilson (1983), 120 Ill.App.3d 950, 961, 76 Ill.Dec. 427, 435, 458 N.E.2d 1081, 1089, the prosecutor repeatedly referred to the insanity defense as a "smoke screen" and implied it was not a proper defense in a rape case. The court held this to be a misstatement of the law and "grossly improper." The court also commented on the cumulative effect of the errors, stating that they cast doubt on the defendant's defense.

In the case sub judice, there is not a scintilla of evidence to support the prosecutor's conclusion that involuntary manslaughter did "not apply" and was a "cop-out." The defendant and the victim were best friends for more than a decade. Indeed, it was this friendship which prompted the defendant to visit the home of the victim after a prior altercation with two strange men. When the defendant encountered the victim, he was intoxicated and very upset. He accidentally broke the defendant's window, while trying to awaken him in the early morning hours. The only witness to the encounter was Karen Rainey, the victim's niece, who overheard her uncle yelling about the broken window. She then saw the two men cross the street, still arguing, their arms in the air. She could only see the defendant's back, then his hand moved towards the victim and he fell to the ground. This corroborated the testimony of the defendant, except he claimed that Richard Rainey picked up a stick and began gesturing at him, angry...