People v. Jackson

• Decision Date: 21 May 1980
• Docket Number: No. 79-165,79-165
• Citation: 405 N.E.2d 448,39 Ill.Dec. 695,84 Ill.App.3d 172
• Parties: , 39 Ill.Dec. 695 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earnest JACKSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 448

405 N.E.2d 448

84 Ill.App.3d 172, 39 Ill.Dec. 695

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earnest JACKSON, Defendant-Appellant.

No. 79-165.

Appellate Court of Illinois, Third District.

May 21, 1980.

Thomas A. Lilien, Asst. State Appellate Defender, Mr. Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Edward F. Petka, State's Atty., Joliet, Terry A. Mertel, John X. Breslin, State's Attys. Appellate Service Commission, Ottawa, for plaintiff-appellee.

STOUDER, Presiding Justice:

In this appeal by the defendant, Earnest Jackson, following his convictions on two counts of armed robbery and one count of aggravated kidnapping, issues are raised concerning the propriety of prosecutorial conduct during the cross-examination of the defendant and closing argument. According to the State, the issues raised concerning prosecutorial comment during closing argument have been waived because the defense either failed to object or failed to include the objection in its post-trial motion.

Waiver can certainly result from such inaction (People v. Fowler (4th Dist., 1979), 72 Ill.App.3d 491, 28 Ill.Dec. 787, 390 N.E.2d 1377; People v. Matthews (3rd Dist., 1979), 69 Ill.App.3d 65, 25 Ill.Dec. 553, 387 N.E.2d 10), and issues so waived will be considered on appeal only if the prosecutor's comments were so prejudicial as to deny the defendant a fair trial or so flagrant as to threaten the deterioration of the judicial process. (People v. Smothers (1973), 55 Ill.2d 172, 302 N.E.2d 324; People v. Ross (1st Dist., 1978), 60 Ill.App.3d 857, 18 Ill.Dec. 77, 377 N.E.2d 230).

During rebuttal argument, the prosecutor referred to the defendant as an armed robber, without objection from the defense, and referred to a statement, allegedly made by the defendant, to the effect that Joliet was an easy target, by informing the jury that the return of a not guilty verdict would mean the defendant is correct. To this second point, the defense did object. However, the defense counsel did not state the grounds for the objection and did not request a ruling on the objection. Instead, the defense counsel indicated that the defense was "just" objecting. Furthermore, this alleged error was not specifically included in the defendant's motion for a new trial, although it was there generally alleged that the defendant did not receive a fair trial.

While reference to a defendant as an armed robber is within the bounds of argument in a case involving an allegation of armed robbery, a prosecutor can not refer to a defendant as being a professional robber or comment that robbery was the defendant's occupation. (See People v. Natoli (1st Dist., 1979), 70 Ill.App.3d 131, 26 Ill.Dec. 266, 387 N.E.2d 1096).

In the case at bar, the prosecutor specifically stated:

"He said he came back to his job. Which job? His truck driver job or his armed robbery job?"

While the State argues that this is merely a reference to the incident for which the defendant is being tried, we can not agree. The prosecutor compared the defendant's participation in armed robbery to his truck driving occupation. By implication then, the prosecutor must be referring to armed robbery as the defendant's occupation. And this type of comment has been considered prejudicial error. (People v. Fort (1958), 14 Ill.2d 491, 153 N.E.2d 26; People v. Natoli (1st Dist., 1979), 70 Ill.App.3d 131, 26 Ill.Dec. 266, 387 N.E.2d 1096).

In addition, the State prosecutor's argument concerning the alleged statement that Joliet was an easy target for crime certainly appealed to the fears and prejudices of the jury. While such an error might, under some circumstances, be considered harmless (See, People v. Blackman (1st Dist., 1976), 44 Ill.App.3d 137, 3 Ill.Dec. 50, 358 N.E.2d 50), the combined effect of the prosecutor's improper arguments were certainly not harmless. Of course, the State continues to argue that this issue was waived, but the question of waiver need not be here considered since remandment is required by the prosecutor's reference to the defendant's occupation as armed robbery. It will suffice to indicate that, on remandment, it is expected that the prosecutor will refrain from resorting to an argument appealing to the fears and prejudices of the jury.

Likewise, remandment precludes the necessity of discussing the propriety of the sentences imposed.

For the foregoing reasons, the judgment of the Circuit Court of Will County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ALLOY, J., concurs.

BARRY, J., dissents.

BARRY, Justice, dissenting.

In reversing the defendant's conviction and remanding for a new trial, the majority concludes that plain error was committed during rebuttal argument when the prosecutor made reference to armed robbery as the defendant's occupation, and stated that an acquittal would show that the defendant was correct when he stated that Joliet was an "easy target for crime." I disagree, and accordingly respectively dissent.

The majority relies upon People v. Fort (1958), 14 Ill.2d 491, 153 N.E.2d 26, and People v. Natoli (1979), 70 Ill.App.3d 131, 26 Ill.Dec. 266, 387 N.E.2d 1096, in...