People v. King

• Decision Date: 16 July 1979
• Docket Number: No. 78-260,78-260
• Citation: 392 N.E.2d 750,73 Ill.App.3d 1030
• Parties: , 30 Ill.Dec. 95 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor KING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 750

392 N.E.2d 750

73 Ill.App.3d 1030, 30 Ill.Dec. 95

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor KING, Defendant-Appellant.

No. 78-260.

Appellate Court of Illinois, Third District.

July 16, 1979.

Mark W. Burkhalter, Asst. State Appellate Defender, Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Michael M. Mihm, State's Atty., Peoria County, Peoria, Martin P. Moltz, Phyllis J. Perko, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

STOUDER, Presiding Justice:

After a jury trial the defendant, Victor King, was found guilty of the offense of the unlawful delivery of cocaine. He was sentenced by the circuit court of Peoria County to a term of imprisonment of from 3 to 9 years.

On this appeal the defendant argues the trial court erred first in failing to award him a new trial because unfair and prejudicial remarks of the State's Attorney deprived him of a fair trial and second, in failing to provide him with sufficient information to enable him to meaningfully select between two possible punishment statutes. We affirm.

For the purpose of resolving issues on this appeal it is sufficient to say the evidence tended to show the defendant, Victor King, sold cocaine to George Murray, an undercover agent. The undercover agent testified in detail about the transaction and his conversations with the defendant. Defendant denied making the sale or knowing the undercover agent.

During his rebuttal argument, referring to George Murray, the prosecutor stated:

"And, furthermore, you have to risk your very life to protect the society in which we live. If he was discovered at any time during the time that he was undercover he was a dead man."

Defense counsel immediately objected and moved for a mistrial. The objection was sustained, the motion for a mistrial denied and the jury was instructed to disregard the remark.

Even though the trial court cautioned the jury to disregard the remarks of the prosecutor, defendant claims that he was deprived of a fair trial. We believe the remarks were improper because not supported by evidence. (People v. Beier, 29 Ill.2d 511, 194 N.E.2d 280.) Comments which are outside the record are improper because they are the unsworn testimony of the prosecutor. (People v. Bitakis, 8 Ill.App.3d 103, 289 N.E.2d 256.) Although not claimed as justification for the remarks at the time, the prosecution on this appeal also suggests the remarks were proper because invited by argument of defense counsel.

Standing alone we believe the remarks are improper, but nevertheless we believe they were harmless and did not prejudice the defendant's right to a fair trial. The remarks related to a collateral issue having nothing to do with the credibility of any of the witnesses and we fail to see how the remarks could have had any effect on the jury's deliberations. (See People v. Berry, 18 Ill.2d 453, 165 N.E.2d 257 and People v. Wilbourn, 56 Ill.App.3d 1022, 14 Ill.Dec. 595, 372 N.E.2d 874.) Accordingly, we hold that the court did what was appropriate under the...