People v. Woods

• Decision Date: 11 September 1997
• Docket Number: No. 4-96-0065,4-96-0065
• Citation: 292 Ill.App.3d 172,684 N.E.2d 1053
• Parties: , 226 Ill.Dec. 57 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrance WOODS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1053

684 N.E.2d 1053

292 Ill.App.3d 172, 226 Ill.Dec. 57

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrance WOODS, Defendant-Appellant.

No. 4-96-0065.

Appellate Court of Illinois,

Fourth District.

Sept. 11, 1997.

Daniel D. Yuhas, Deputy Defender, Khalil Cox, Asst. Defender, Office of State Appellate Defender, Springfield, for Terrance Woods.

Patrick W. Kelley, State's Attorney; Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, David E. Mannchen, Staff Attorney, State's Attorneys Appellate Prosecutors, Springfield, for the People.

Presiding Justice STEIGMANN delivered the opinion of the court:

In November 1995, a jury convicted defendant, Terrance Woods, of first degree murder, home invasion, and armed robbery (720 ILCS 5/9-1, 12-11, 18-2 (West 1994)). The trial court later sentenced him to consecutive terms of 60, 30, and 30 years in prison, respectively. Defendant appeals, arguing only that the prosecutor committed reversible error by commenting during closing argument on defendant's failure to call an alibi witness. We affirm.

I. BACKGROUND

We review the trial evidence only to the extent necessary to put defendant's argument in context. Springfield police officer Tim Young testified that as part of his investigation into the murder of Bill Meyers, Young questioned defendant, who told Young that on the night of the murder he had been at his mother's house with his mother, Dorothy Williams, and his girlfriend, Ira Jean Bolden. At trial, defendant presented an alibi defense through the testimony of Williams, who corroborated the story defendant gave Young. Defendant did not testify.

During closing argument, the prosecutor made the following comments:

"But remember what the [d]efendant said to the police. He said my mother and my girlfriend, [Bolden], can back up my story. They can verify that I was home all day at my mother's house.

And we heard a little bit about [Bolden]. * * * [B]ut at some point, somebody decided that they didn't want you to hear what [Bolden] had to say."

Defendant objected but the trial court overruled the objection, noting that defense counsel had indicated in his opening statement that he would call Bolden to testify regarding defendant's whereabouts on the night of the shooting. In fact, defense counsel had made no mention of Bolden as an alibi witness in opening statement.

II. THE PROSECUTOR'S CLOSING ARGUMENT

Defendant argues the prosecutor committed reversible error by commenting during closing argument on defendant's failure to call Bolden as an alibi witness. The State concedes the trial court mischaracterized defendant's opening statement but argues that the prosecutor's comments were nevertheless proper in light of Williams' testimony. We agree with the State.

In People v. Fly, 249 Ill.App.3d 730, 736, 189 Ill.Dec. 120, 124, 619 N.E.2d 821, 825 (1993), quoting People v. Eddington, 129 Ill.App.3d 745, 777, 84 Ill.Dec. 887, 909, 473 N.E.2d 103, 125 (1984), this court wrote the following:

" 'As a general rule, it is improper for the prosecution to comment on a defendant's failure to present witnesses when such witnesses are equally accessible to both parties. [Citation.] An exception to the rule exists where potential alibi witnesses are interjected into the case by the defendant but are not produced at trial.' "

Further, in People v. Kubat, 94 Ill.2d 437, 498, 69 Ill.Dec. 30, 58, 447 N.E.2d 247, 275 (1983), the supreme court addressed the defendant's contention that the prosecutor improperly commented upon the defendant's failure to present an alibi witness where the State initially had brought out at trial the name of the defendant's alibi. In Kubat, a police officer testified that in response to officers' questions after his arrest, the defendant stated that he was with a female friend in another state on the date of the offense. A witness later testified for the defense that she saw the female friend with a man fitting defendant's description on either the day before or the day of the offense. Consistent with People v. Blakes, 63 Ill.2d 354, 348 N.E.2d 170 (1976), the supreme court in Kubat, 94 Ill.2d at 498, 69 Ill.Dec. at 58, 447 N.E.2d at 275 held that "where a defendant injects into the case the name of an alibi witness and then fails to call the witness, the prosecutor may legitimately comment on the lack of such evidence although it may not be relied upon as proof of the charge."

In Blakes, the supreme court held that it was not improper for the prosecutor to comment on the defendant's failure to produce any witnesses from the club where the defendant had testified he spent five hours on the night of the offense. The supreme court reasoned as follows:

" '[I]f it is developed in a trial that a witness exists, presumably under the control of a defendant, who can throw light upon a vital matter, and he is not produced, certainly a jury may fairly consider that fact, and, likewise, counsel would have a legitimate right to comment thereon. * * *

* * * [T]hough failure to call a witness or produce evidence may not be relied on as substantial proof of the charge, nonetheless, if other evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.' " Blakes, 63 Ill.2d at 359-60, 348 N.E.2d at 174, quoting People v. Williams, 40 Ill.2d 522, 528-29, 240 N.E.2d 645, 649 (1968).

Here, although the State initially brought up defendant's alibi when Young testified about his conversation with defendant at the detective bureau, defendant clearly injected Bolden's name into this case when Williams testified for the defense that defendant had been with her and Bolden on the night of the murder. Also, we note that defendant had indicated his intention to inject Williams and Bolden into the case as alibi witnesses irrespective of any State witness' testimony. Prior to trial, defendant disclosed to the State that he intended "to tender an alibi defense at any hearing or trial in this matter," and he specifically listed Bolden and Williams as two of four alibi witnesses. See People v. Nevitt, 135 Ill.2d 423, 451, 450, 142 Ill.Dec. 854, 865, 553 N.E.2d 368, 379 (1990) (where the supreme court held that the prosecutor improperly commented on defendant's failure to call alibi witnesses "when there is no that evidence a witness exists" and "[d]efendant's only reference to an alibi was contained in a pretrial pleading not in evidence").

Under these circumstances--where defendant clearly injected Bolden's name into this case through Williams' testimony--we conclude that the prosecutor's comments regarding defendant's failure to call Bolden as an alibi witness were not improper.

In so concluding, we note that the cases defendant relies upon are inapposite. In Eddington, 129 Ill.App.3d at 776-77, 84 Ill.Dec. at 909, 473 N.E.2d at 125, this court held that the prosecutor committed reversible error by commenting on the defendant's failure to call three alibi witnesses. However, crucial to this decision was the fact that the existence of these potential alibi witnesses was interjected into the case solely through a witness for the State. As the Eddington court noted, "the only evidence that [the three potential witnesses] could offer alibi testimony was elicited by the State from its own witness." Eddington, 129 Ill.App.3d at 777, 84 Ill.Dec. at 909, 473 N.E.2d at 125. In contrast, here, defendant called Williams to testify in support of his alibi, and she testified defendant was with her and Bolden on the night in question.

To the extent People v. Lawrence, 259 Ill.App.3d 617, 197 Ill.Dec. 630, 631 N.E.2d 852 (1994), holds that this court's decision in Eddington stands for anything more than the proposition that the State may not comment on a defendant's failure to produce alibi witnesses when the State, and the State only, suggests such alibi witnesses exist, we decline to follow it. Moreover, we note that in Lawrence--unlike the present case--the defendant had attempted to subpoena at least one of the alibi witnesses upon whom the State had commented in closing, and the evidence was close and came down to the complainant's testimony versus the defendant's.

People v. Popely, 36 Ill.App.3d 828, 345 N.E.2d 125 (1976), is likewise distinguishable. In Popely, the court concluded that the defendant was denied a fair trial by the prosecutor's prejudicial comments regarding the defendant's failure to call a potential third-party witness to the crime. Popely involved an occurrence witness, not an alibi witness who could be expected to testify favorably to the defendant. The court in Popely specifically noted that the defendant "in no way indicated that this third party would support his theory of the case." Popely, 36 Ill.App.3d at 836, 345 N.E.2d at 131.

In sum, the prosecution may properly comment on a defendant's failure to call alibi witnesses in certain circumstances. In general, the State may do so whenever the defendant has injected the existence of such witnesses into a case. A defendant may do so by suggesting in opening argument that such witnesses exist and will be produced at trial. He may also inject alibi witnesses into a case through the testimony of other defense witnesses (as in this case) or his own testimony. We fail to see what difference it makes whether the defendant is testifying on cross-examination or on direct--in either case he chooses to take the witness stand voluntarily. See People v. Talley, 152 Ill.App.3d 971, 984, 105 Ill.Dec. 800, 808, 504 N.E.2d 1318, 1326 (1987) (when a defendant gives such limited testimony on direct "that the assertion of an alibi, as well as the names of potential alibi witnesses, are raised first on cross-examination, he is not automatically insulated...