People v. Moore

• Decision Date: 25 February 2005
• Docket Number: No. 1-04-0085.,1-04-0085.
• Citation: 824 N.E.2d 1162,291 Ill.Dec. 912,356 Ill. App. 3d 117
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bobby MOORE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

824 N.E.2d 1162

356 Ill. App.3d 117

291 Ill.Dec. 912

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Bobby MOORE, Defendant-Appellant.

No. 1-04-0085.

Appellate Court of Illinois, First District, Sixth Division.

February 25, 2005.

Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Sarah Curry, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago(Renee Goldfarb, Kathleen Warnick, Sally Dilgart, and Denise Richards, of counsel), for Appellee.

Justice FROSSARDdelivered the opinion of the court:

Following a jury trial defendant, Bobby Moore, was found guilty of burglary and sentenced to eight years in prison.Defendant appeals his conviction arguing the following: (1)the prosecution made improper and prejudicial comments in closing argument; (2)he was denied effective assistance of counsel; (3) the compulsory extraction of DNA as required by section 5-4-3 of the Unified Code of Corrections(730 ILCS 5/5-4-3(West 2002)) violates his fourth amendment right to be free from unreasonable search and seizure; (4)the State failed to prove him guilty beyond a reasonable doubt; (5)the trial court failed to properly admonish him pursuant to Supreme Court Rule 604(a)(188 Ill.2d R. 604(a)); and (6) his sentence must be vacated because the judge failed to advise him of his right to an examination for substance abuse treatment and failed to consider drug rehabilitative treatment before sentencing.

BACKGROUND

On May 8, 2003, in the vicinity of 5600 West Madison Street in the City of Chicago, defendant was observed sitting in the victim's car and then walking away from the car with a box or bag of audio cassettes and the victim's camera bag.Defendant was detained a short distance away by the victim, Eugene Sample, and his friend, Christopher Rowland.After a jury trial defendant was found guilty of burglary and sentenced to eight years in the Illinois Department of Corrections.The motion for new trial and the motion to reconsider sentence were both denied.This appeal followed.

CLOSING ARGUMENT

Defendant contends the closing argument by the State that the jurors should convict him in order to prevent their insurance rates from increasing deprived him of his due process right to a fair trial.U.S. Const., Amend. XIV;Ill. Const., art. I, § 2.It is well established that the prosecutor is given wide latitude in closing argument and may argue to the jury facts and reasonable inferences from the evidence.People v. Enis,163 Ill.2d 367, 206 Ill.Dec. 604, 645 N.E.2d 856(1994).The trial court has the discretion to determine the proper character, scope, and prejudicial effect of closing arguments.People v. Cloutier,156 Ill.2d 483, 507, 190 Ill.Dec. 744, 622 N.E.2d 774(1993).Improper remarks warrant reversal only where they result in substantial prejudice to the defendant, considering the content and context of the language, its relationship to the evidence, and its effect on the defendant's right to a fair and impartial trial.People v. Peeples,155 Ill.2d 422, 482-83, 186 Ill.Dec. 341, 616 N.E.2d 294(1993).

Defendant contends the following closing argument by the State was calculated solely to prejudice and inflame the passions of the jury:

"After you hear all the arguments and you go back there, you may be tempted to say, `what is the big deal, he took a camera worth a couple of hundred bucks?'It is a big deal because every three months or six months when you get that insurance bill for your car, or multiple cars if you have a couple or more, and your jaw almost drops because of how high it is, it is that high because of burglars like the defendant going into cars and stealing your video camera, taking your stereo, taking the change you have for the tollway.All of that make[s] the insurance rates go up.Who pays for that?The people that pay their insurance bill with their money that they get from work, not from stealing stuff and selling it, people that go to work every day.So, you have the opportunity to make a difference here.It is time for you to do what you can to keep your insurance bill down, and it is time for you to tell the defendant in this case that it is not okay to take cookies from the cookie jar, it is not okay to take cameras from Camrys."

While a prosecutor may discuss the evil of crime and exhort the jury to fearlessly administer the law, the prosecutor may not make inflammatory appeals to the fears and passions of the jury.People v. Gutirrez,205 Ill.App.3d 231, 263, 151 Ill.Dec. 395, 564 N.E.2d 850(1990).In the instant case, the prosecutor went beyond discussing the evil of crime.Rather, the prosecutor argued that because of burglars like defendant, insurance rates go up.It is improper for the prosecution to direct the jury's attention away from the elements of the crime by commenting on issues irrelevant to the question of guilt or innocence.People v. Fluker,318 Ill.App.3d 193, 252 Ill.Dec. 261, 742 N.E.2d 799(2000)(finding reversible error where prosecutor's remarks improperly directed jury's attention from identification of shooter to disapproval of gangs).

The prosecutor argued that the jury should find defendant guilty, not because the evidence proved him guilty beyond a reasonable doubt, but because "It is time for you to do what you can to keep your insurance bill down * * *."That argument failed to address the question of guilt or innocence and improperly suggested that by his conduct, defendant was responsible for what the jurors paid for insurance.SeePeople v. Terry,312 Ill.App.3d 984, 993-94, 245 Ill.Dec. 587, 728 N.E.2d 669(2000)(argument that defendant was generally responsible for drug dealing was inflammatory reversible error by prosecution).It is improper for the prosecutor to personalize in this manner during closing argument.SeePeople v. Johnson,208 Ill.2d 53, 78-79, 281 Ill.Dec. 1, 803 N.E.2d 405(2003), quotingPeople v. Martin,29 Ill.App.3d 825, 829, 331 N.E.2d 311(1975)("`The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law'").The prosecutor improperly advised the jurors to convict defendant in order to bring down their own insurance premiums and to protect insurance rates generally, rather than to deliberate on defendant's guilt or innocence based on the evidence.Those remarks served no purpose other than to appeal to the jurors' fears, prejudice defendant, and inflame the passions of the jury.People v. Ford,113 Ill.App.3d 659, 662-63, 69 Ill.Dec. 347, 447 N.E.2d 564(1983)(appealing to jurors' fears about drug dealers has been found to be reversible error).

Moreover, there was no mention of auto insurance during trial.The prosecutor's argument was not based on the evidence.There was no evidence that the victim, Sample, had car insurance or made a claim with his insurance company.There was no evidence that if Sample made an insurance claim, insurance premiums in general would rise.These comments by the prosecution were improper as there was no evidence at trial to support them.People v. Henderson,142 Ill.2d 258, 323-26, 154 Ill.Dec. 785, 568 N.E.2d 1234(1990).A closing argument is improper if it is not based on relevant evidence.People v. Bell,152 Ill.App.3d 1007, 1018, 106 Ill.Dec. 59, 505 N.E.2d 365(1987).These comments were an improper attempt by the prosecutor to further persuade the jury to find defendant guilty, not based on the facts, but based on irrelevant speculation.The comments served no purpose other than to prejudice defendant and undermine defendant's right to a fair trial.

We note defense counsel failed to object to any of the improper closing argument.Failure to object during trial and failure to preserve the issue in a posttrial motion waives the issue.People v. Enoch,122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124(1988).However, we will consider this issue, which otherwise would be waived, because defendant contends the failure to object during trial and to preserve the issue in a posttrial motion was due to ineffective assistance of counsel.People v. Eddmonds,101 Ill.2d 44, 64-65, 77 Ill.Dec. 724, 461 N.E.2d 347(1984).We next address the issue of ineffective assistance in the context of the closing argument, as well as the cross-examination by defense counsel of two key witnesses for the prosecution.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends trial counsel rendered ineffective assistance by failing to object to the prosecution's closing argument, by failing to preserve the issue regarding closing argument in a posttrial motion, and by eliciting incriminating hearsay evidence during cross-examination of two key prosecution witnesses.The United States and Illinois Constitutions guarantee the right to effective assistance of counsel.U.S. Const., amends. VI, XIV;Ill. Const. 1970, art. I, § 8.The standard of review for an ineffective assistance of counsel claim was enunciated in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).The Strickland standard was adopted by the Illinois Supreme Court in People v. Albanese,104 Ill.2d 504, 85 Ill.Dec. 441, 473 N.E.2d 1246(1984).Under Strickland,a defendant claiming ineffective assistance of counsel must demonstrate that counsel's performance fell below an objective standard of reasonableness and the performance prejudiced the defense of the case.Strickland,466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.Prejudice exists where there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.Strickland,466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the proceedings.Strickland,466 U.S. at 694, ...