People v. Wheeler

Docket No. 102550.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

JACOBY WHEELER, Appellant.

Opinion filed June 21, 2007.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

On March 12, 1999, Demetrian Forrest was found dead, slumped

over in the driver’s side of his car, in Decatur, Illinois. The State

alleged that defendant, Jacoby Wheeler, and his codefendant,

Shannon Hunter, murdered Forrest to prevent him from testifying

against Wheeler in a separate criminal case. Both men were charged

with first degree murder. 720 ILCS 5/9–1(a)(1) (West 1998).

On September 19, 2001, a jury in the circuit court of Macon

County found defendant and Hunter guilty. Subsequently, the jury

found them both eligible for the death penalty because they (1)

murdered Forrest to prevent him from testifying (720 ILCS

5/9–1(b)(8) (West 1998)), and (2) committed the murder in a cold,

calculated and premeditated manner pursuant to a preconceived plan

(720 ILCS 5/9–1(b) (11) (West 1998)). Defendant waived a jury for

sentencing.

On January 2, 2002, the trial court sentenced defendant to 55

years’ imprisonment, finding sufficient mitigating factors to preclude

a sentence of death. Defendant appealed his conviction and sentence.

The appellate court initially affirmed unanimously. After defendant

petitioned for rehearing, one justice dissented. No. 4–02–0131

(unpublished order under Supreme Court Rule 23).

Defendant appealed to this court pursuant to Rule 315 (210 Ill. 2d

R. 315). Defendant contends that: (1) the State failed to prove him

guilty beyond a reasonable doubt; (2) the prosecutor’s comments in

closing arguments denied him a fair trial; (3) the trial court erred in

refusing to allow evidence that William Ellzey killed Forrest; (4)

defense counsel was ineffective for eliciting details of other-crimes

evidence; and (5) the trial court erred in not excusing juror Brian

Thomas.

BACKGROUND

On the evening of March 12, 1999, Decatur police officer Shane

Brandel and Detective Daniel Street were investigating a burglary,

unrelated to this case. As Brandel and Street were speaking with the

occupants of a house at 1329 East Main Street in Decatur, they heard

gunshots. Stepping outside onto the front porch and heading toward

the street, Brandel and Street saw two men running toward them

through a vacant lot.

Brandel testified that the faces of the two men were dark and thus

he inferred they were black. One suspect wore a black coat while the

other wore a dark coat and seemed to be three or four inches taller

than the other. Street testified that both men wore dark clothing and,

at the time, he believed them to be roughly the same height and build.

Brandel stated that the man in the black coat lifted his coat and

reached under his waistband. Though he did not see the black-coated

man pull anything out, Brandel reached for his pistol. At that point

both suspects turned around and began running north. Street testified

that after Brandel said something along the lines of “Stop, police[!]”

the two suspects turned and ran north. Brandel pursued the suspects

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on foot while Street returned to his vehicle and drove west on Main

Street, listening to Brandel’s reports on the radio.

While Brandel was pursuing the suspects on foot he lost sight of

them twice. The first time, he lost sight of them for four to five

seconds as he rounded a corner into an alleyway between East Main

and East Prairie Street. The second time, he lost sight of the suspects

for about 20 seconds when they darted between some houses on East

Main. Brandel testified that, when the suspects again came into view,

he was certain, based on their clothing and build, they were the same

suspects he had been chasing. Eventually, the suspects parted, each

running on an opposite side of a motor home parked in a lot between

1212 and 1228 East Main Street. Brandel followed the closest

suspect, the one in the blue coat, and arrested him on the front porch

of the house at 1212 East Main. That suspect was Shannon Hunter.

Brandel testified that he did not see any other persons during his

pursuit.

Brandel was unable to recall whether Hunter was short of breath

or perspiring when he was arrested. Brandel stated that he did not see

either suspect discard anything during the chase. He did not believe

the suspects were wearing masks or eyewear and did not notice any

stripes or different colors on their coats, describing them only as solid

blue or black. Defendant’s counsel showed Brandel a black coat with

white stripes that other police officers found in a driveway between

the houses at 1229 and 1237 East Main Street, a few blocks away

from the scene of the shooting. Brandel could not identify it as a coat

worn by either suspect.

During the chase, Brandel noticed a car parked 150 feet northeast

of the point where he first spotted the suspects. The police later

discovered Forrest’s dead body in that car. He had been shot in the

head, left arm, left thigh, and right thigh. Though the car was in

neutral and the stereo was blaring, it was not running. The driver’s

side window was shattered and shards of glass were strewn on the

street in front of 120 North Stone Street and at the point where the car

had come to rest slightly northwest of that location. Two bullet holes

were found in the driver’s door, one bullet was found on the front

passenger floorboard, and one was found in the panel of the front

passenger door.

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Street testified that as he drove west on Main Street he noticed

police cars with lights on at Jasper Street. He turned left (south) onto

Jasper Street and continued to the intersection of Wood and Jasper.

At the intersection, Street saw a black man in dark clothing run onto

Wood Street from the north.

The man crossed Wood Street and ran toward the east side of

Walgreens at 1201 East Wood. At that point, Street lost sight of him

behind a fence. Street continued south on Jasper Street and, turning

east onto Clay Street, stopped mid-block with his car headlights off.

Street saw the man emerge from between some houses, stop on the

sidewalk, and then walk on Clay Street at a normal pace. Eventually,

the man crouched and hid under a bush at 1304 East Clay Street.

Street testified that, at that point, he had not seen any other foot traffic

on Clay Street.

After he saw the man hide under the bush, Street radioed police

dispatch. Not a minute later, another Decatur police officer, Shawn

Guenther, pulled the man out from under the bush. That man was

defendant, Jacoby Wheeler. Street testified that this was the same

man he saw running toward him after hearing gunshots while he and

Brandel were at 1329 East Main Street.

However, Street was not able to identify Hunter as the other

suspect he saw running toward him. Additionally, he did not notice

either suspect make any drastic change of clothing, nor did he notice

stripes or hoods on the suspects’ coats. Street further admitted that the

black coat shown to him at trial had white stripes down each sleeve

which, had he noticed, he would have described in his report.

Jason Derbort, another Decatur police officer, also testified.

Derbort responded to a report of shots fired, parked his car at the

intersection of Main and Jasper Streets, and turned off his headlights.

Seeing a black man in dark clothing and a dark coat run out of the lot

where the motor home was parked, Derbort turned on his headlights

and emergency lights, got out of his squad car, and yelled at the man

to stop. Derbort testified that the man then headed southeast. Soon

after the event, however, Derbort wrote in his police report that the

man ran south. Regardless, Derbort testified that he followed the man

and could see that the dark coat he was wearing had white stripes

down the sleeves.

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As the man continued to run, Derbort lost sight of him for around

two seconds as he ran through the driveway between 1229 and 1237

East Main Street. When he saw the man again, he was no longer

wearing the dark coat but was now clad in a green and yellow jacket.

The man continued running, crossed Wood Street, fled between 1295

and 1305 Wood Street, and jumped a chain-link fence. Derbort,

unable to jump the fence due to the weight of his full winter gear,

went around the fence in pursuit. He testified that he saw no other

foot traffic as he pursued the man. When Derbort again saw the man,

Officer Guenther was ordering him out from under the bush at 1304

East Clay. As noted, that man was Jacoby Wheeler and he was

wearing the green and yellow jacket Derbort had seen while in

pursuit.

Retracing the route the suspects had taken, police found various

items. Where the suspects initially turned and ran from Brandel and

Street, police found a .22-caliber revolver containing five live rounds

and one spent round. Along the suspects’ route of flight, police found

a ski mask lined with a pair of nylon stockings, a black neoprene

mask, a stocking cap, and a .357 Magnum chrome revolver

containing two live rounds and four spent rounds. The neoprene

mask, stocking cap, and .357 Magnum revolver were not found in the

initial police search. Instead, those items were found in a search just

after midnight on March 13, 1999, when police discovered that more

than one gun might have been involved in the shooting. Brandel noted

that those items were found at a time when the area was no longer

secured. Brandel explained that to be secured means that an area is

controlled in such a way that the integrity of the crime scene is

maintained and no unauthorized persons are allowed into or out of the

area.

In addition to the above, police also found two right-hand brown

jersey gloves on the front bumper of the motor home where the

suspects parted company. Further, they found a black coat with the

sleeves turned inside out and the white lining facing upward in the

area where Officer Derbort had lost sight of the man who he claimed

turned out to be Jacoby Wheeler. Police wore gloves in picking up

each item of evidence, but did not change their gloves from one item

to the next. Additionally, each item was photographed where it lay

and the photographs were admitted into evidence at trial.

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The day after the murder, Deosha Singleton, defendant’s

girlfriend of seven years, told Detective Gannon that she overheard

defendant and Hunter speaking to each other on the day of the

murder. According to Singleton, she heard someone saying “I’ll do it.

I’ll do it” and someone saying “do it” and the other saying “no.” At

trial, however, she testified that she had lied to Gannon because she

wanted to leave the police interview room. Teronica Jones, with

whom codefendant had a son, testified that Hunter used her car on

March 12, 1999. She further testified that she picked up the car the

next morning at Main and East Streets. Jones acknowledged,

however, that she had made a contradictory written statement that she

retrieved the car about 2½ blocks southwest of where Forrest was

killed.

Two women, neither of whom knew defendant or Hunter, but

both of whom lived near the alley where Forrest was found dead, also

testified. Misty Gilman testified that she heard gunshots the night of

March 12, 1999. After hearing the shots, she looked outside her

apartment at 1423 East Prairie Street and saw two persons in the alley

and three persons on the sidewalk head toward Prairie Street. One of

the men in the alley wore a red and black Chicago Bulls jacket.

Gilman acknowledged that she made a contradictory written

statement that she had seen only three persons, two in the bushes right

off the alley and another going north. Tamara Hodges testified that

she heard a car pull up near her home at 1363 East Prairie around

8:45 p.m. on March 12, 1999, and just sit there. She heard gunshots,

looked out her window, and saw two black men run north on Stone

Street, jump into a sports car, and drive west on Prairie Street.

Hodges further testified that when the car drove off in a westerly

direction she did not remember hearing any tires squealing or similar

noises.

Little forensic evidence tied defendant directly to the items of

evidence found by police. Eric Young, a forensic scientist

specializing in trace chemistry, testified that if someone had stepped

on broken glass, it was likely, though not certain, that fragments of

the glass would become embedded in the soles of that person’s shoes.

He further testified, however, that such fragments could become

dislodged by running. While some glass was found in defendant’s

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shoes, that glass did not match the glass from Forrest’s shattered car

window.

The ski mask and stocking cap found by police contained human

head hairs that did not come from either defendant or Hunter. No

blood was found on either man’s clothing. The firearms and

ammunition recovered by police did not yield fingerprints. No

gunshot residue was found on the jacket defendant was wearing when

he was apprehended. However, gunshot residue was found on

Hunter’s coat, the brown gloves, and the black coat with white stripes

police found along defendant’s purported path of flight. Defendant

challenged the accuracy of the residue finding, though, by introducing

testimony establishing that failure to change gloves or clean evidence-

processing surfaces can result in gunshot particles being transferred

from one exhibit to another.

Travis L. Hindman, a forensic pathologist called by the State,

testified that it was his opinion that Forrest suffered a fatal head

wound at point-blank range from either a .22- or a .25-caliber bullet.

Moreover, he testified that the leg wounds Forrest suffered came from

a medium-class pistol such as a .357 Magnum or a .38 caliber while

the hollow-point bullet in Forrest’s left arm definitively came from a

.357 Magnum handgun. Robert J. Hunton, a forensic scientist called

by the State, also concluded that the bullet from Forrest’s left arm

came from a .357 Magnum handgun. Moreover, Hunton concluded

that the bullet came from the exact .357 Magnum chrome revolver

police recovered in this case. His opinion was based upon rifling

marks on the bullet that were distinctive to bullets fired from that

particular weapon. Using the rifling-mark technique a second time,

Hunton concluded that the bullet on the passenger floorboard and the

one in the passenger front door also came from that revolver.

Evidence at trial indicated that defendant and Hunter associated

with each other before the murder. Winifred Forrest, Demetrian

Forrest’s grandmother, testified that defendant and Hunter played

billiards together multiple times a week during the summer and fall

of 1998. She also testified that defendant had previously been friends

with Demetrian.

Michael Cunningham, an acquaintance of defendant, saw

defendant and Hunter at a party days before the murder. Cunningham

testified that everyone at the party, including himself, was drinking

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alcohol and smoking marijuana. Though his memory was hazy,

Cunningham remembered mentioning that if he were Jacoby Wheeler,

he would pay Forrest not to testify. Though he was not completely

certain, Cunningham also remembered Wheeler, or perhaps someone

else, remarking that he did not want to go back to prison.

Cunningham further testified that he saw that defendant had at least

one handgun with him when he left the party with Hunter.

Though Cunningham denied making any deal with the State for

his testimony, he did indicate that he could not remember everything

that happened. Further calling into question his testimony, a defense

investigator, Dean Paisley, testified that Cunningham admitted to him

that anything he had told the police was a “combination of what he

recalled from his mental state of drinking and using drugs and his

desire to get any sentence he may receive reduced.” Cunningham,

however, denied making that statement.

In support of its case, the State elicited testimony to establish that

defendant had a motive to murder Demetrian Forrest. Macon County

State’s Attorney Scott Rueter testified that in 1998, while he was an

assistant State’s Attorney, he was assigned to prosecute a case,

eventually scheduled to go to trial on March 16, 1999, in which

defendant was charged with the attempted first degree murder and

aggravated battery with a firearm of Angelo Williams. Rueter

testified that during discovery in that case, he disclosed Demetrian

Forrest as a witness. Rueter indicated that it was his belief that

Forrest’s testimony would, along with other evidence, implicate

defendant. Lisa Holder White, defendant’s attorney at the time Forrest

was disclosed as a witness, testified that while she was aware that the

State might call Forrest as a witness she did not know that for sure.

To rebut any suggestion that Forrest was killed because he was to

be a witness against defendant in the Williams case, the defense

proffered evidence that Forrest was an informant in other cases and

had testified against William Ellzey, the highest ranking member of

the Gangster Disciples in Decatur. That evidence would have shown

that Ellzey had received a sentence of imprisonment for life in an

unrelated criminal proceeding; that Forrest had “lost” some of

Ellzey’s drugs; that Forrest had been behind in payments to Ellzey;

that Forrest had been physically “disciplined” for coming to Ellzey

with a gold necklace instead of a cash payment; and that Forrest had

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some relationship with Ellzey’s girlfriend. In addition to the above

evidence, Hunter made an offer of proof that Demetrian Forrest’s

grandmother Winifred Forrest feared for his safety and was

uncomfortable because of his testimony against William Ellzey. The

defense contended that their proposed evidence would have shown a

theory for which the jury could infer that someone other than

defendants murdered Demetrian Forrest.

The trial court ruled that the information regarding Ellzey was too

speculative to be allowed before the jury. The court ruled that the

defense could not ask Winifred Forrest if she feared for Demetrian’s

safety. Moreover, the court told defendants that while they were free

to argue that someone else murdered Forrest, “as far as arguing that

someone else in particular did it” such evidence was “way too

speculative to allow to go before the jury.”

At the beginning of his closing argument, after thanking the jury

for its attention and determination, the prosecutor made the following

comment, which defendant now challenges before this court:

“MR. CURRENT [Prosecutor]: A murder case is an

unusually difficult type of case for the prosecution to prove

because the defendant has killed the main prosecution

witness. The deceased never gets to testify. The deceased

never gets to tell his side of the story.

Then, who is left to take up his cause and try to speak for

him? Often, it’s a lone prosecutor, a stranger, who is left to

champion the deceased. A solitary figure appears in Court

bearing the burden of avenging another’s death and presenting

the truth to a jury and the Court. But, often time [sic], justice

only requires a solitary champion because truth and justice is

not a load as heavy as it appears. The load has an unspeakable

lightness.”

Throughout the course of the rest of his argument, the prosecutor

made a number of other comments that defendant also challenges:

“MR. CURRENT: I would suggest to you that you jurors

lead sheltered lives. You stepped into a world, over a month

ago, that to many of you never existed. You have no idea

what kind of criminals and serious crime are lurking out there.

There are dangerous people. There are mean streets. Not

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everyone lives in a peaceful neighborhood like you or has safe

neighborhoods.

The police are often referred to as ‘the thin blue line’.

Well, what does that mean, ‘the thin blue line’? The police

are there to protect you from the likes of Kenneth Lovelace,

Gregory Williams, Andre Eubanks, Sean Marshall, Timothy

Glass, Franklin Small. Who do citizens call–citizens of this

County call when they need assistance? Who do citizens call

when someone is breaking into their house or assaulting

them? The police do not call Kenneth Lovelace, Gregory

Williams, Andre Eubanks, etc.

When you get up in the morning or your spouse gets up in

the morning or a family member gets up in the morning and

you go to work, are you risking your life to earn a paycheck?

Are you putting your life on the line when you go to the office

or your work? Yet, police-bashing seems to be a semi-popular

sport until a citizen is in distress. Then, that same officer is

expected to come to a citizen’s salvation.

Well, who do citizens want to serve and protect them in

times of need? I would submit they want officers like Shane

Brandel and Dan Street and Jason Derbort.

Shane Brandel, you look at him, he looks like the boy who

grew up next-door. The boy who grew up in the neighborhood

who’s finally an adult.

Dan Street. Here’s a man who served 4 years in the United

States Marine Corps and then continued his service with the

Decatur Police Department. A reserved, deliberate, low-key

man.

That’s the advantage of a Jury Trial. You get to eyeball a

witness when he testifies. You get to see him. You get to see

how he reacts to questions, prosecution questions, defense

questions. You get an idea for what kind of person you are

dealing with.

I would suggest to you that Shane Brandel and Dan Street

are part of the new breed of policeman. These are men who

are educated, intelligent, and well-spoken. They’re not the

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coarse, musclebound brutes who can’t find any other way of

making a living.

***

MR. CURRENT: Your eyes have, also, noticed that each

defendant has two attorneys for a total of four attorneys

representing these defendants. And contrary to representations

made to you during the jury selection or voir dire, you have

seen with your own eyes these are not two completely

different independent teams of lawyers. You watch with your

own eyes as they converse frequently. One will go back and

ask another for assistance; one will talk to another attorney;

then go back and start asking the same questions or different

questions.

MR. BAXTER [counsel for Wheeler]: Objection, your

honor.

THE COURT: Sustained.

MR. BAXTER: Thank you.

MR. CURRENT: You have four lawyers with in excess

of 100 years of legal practice and 75 years of school grilling

Shane Brandel.

MR. MATTINGLEY [counsel for Hunter]: Again,

objection.

THE COURT: Sustained.

MR. BAXTER: Thank you.

MR. CURRENT: Consider who was questioning Shane

Brandel and Dan Street; for Shane Brandel, an entire

afternoon and an entire morning, and for Dan Street, four

hours.

MR. BAXTER: Same objection, Your Honor.

THE COURT: Overruled.

MR. CURRENT: Don’t you think that vast array of legal

talent who have had 2½ years to study this case inside out, top

to bottom, is going to find some discrepancy with which they

can hurl their mighty harpoons? If you didn’t know it now,

you do know trial lawyers are Monday morning quarterbacks.

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MR. CURRENT: Every Monday morning, they can tell

you all the bad decisions the quarterback made the previous

day while he was being double-blitzed.

A trial lawyer can dissect, bisect, and magnify any past

action, all with the benefit of 20/20 hindsight and all with the

benefit of time and numbers. But, in the final analysis, the

attorneys weren’t there risking their lives on March the 12th

of 1999. They were not in the arena.

MR. BAXTER: Objection, Your Honor.

MR. MATTINGLEY: Objection.

THE COURT: Overruled.

You may continue, Mr. Current.

MR. CURRENT: The policemen were in the arena. So, in

light of all this, is it too surprising that the defense attorneys

obtained what they thought were some points in their favor?

But, the rules of the game at which attorneys defend, operate,

and go under seem to require a complete perfection on the

part of a witness. If a witness isn’t perfect, then, the skill of

the attorney has revealed the witness to be a liar, the witness

to be stupid, or the witness to be confused–

MR. BAXTER: Objection, Your Honor.

THE COURT: Overruled.

MR. CURRENT: –any of which render the witness

unworthy of belief. But, in the everyday real life world in

which we all live, there is no perfection. In the real world, we

judge each other by a less exacting standard. We realize that

most people are hard-working, conscientious, capable, honest,

and good-hearted people who do their best in a difficult and

trying world. Can you think of any 2 minutes in your life in

which you could withstand a full day of cross-examination by

a four-lawyer team?

MR. DAVIS: Judge, I object. He’s placing the Jury–

THE COURT: Sustained.

MR. CURRENT: Could you withstand–

MR. DAVIS: I object, Judge. He’s asking–he’s putting the

Jury in the place of the parties.

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THE COURT: That objection is overruled.

MR. CURRENT: The attorneys made a great deal to[-]do

about the police reports of Shane Brandel and Dan Street.

Now, as a citizen, when you call the police, you expect an

instant response. Even sooner if your life is at stake. You

don’t want to call 911 only to be told by the dispatcher the

following message: ‘All available police officers are typing

police reports at their typewriters and word processors at the

present time. As soon as they are done performing their

secretarial duties, they will be sent out on the street. And for

your information, most of these officers just came in from a

murder case, and we know how exacting[ly] the defense

attorneys will cross-examine them.’

MR. BAXTER: Objection.

THE COURT: Sustained.

MR. BAXTER: Ask the Jury to be instructed and to

disregard that.

THE COURT: The Jury is instructed to disregard the last

comment.

Proceed, Mr. Current.

MR. CURRENT: ‘We know how closely their words will

be examined; so, you can expect an additional 4 or 5 hours

before the officers will be available so they can make sure

that every word i[s] perfect, all syntaxes.’

MR. BAXTER: I object to that.

THE COURT: Overruled.

MR. CURRENT: Your honor–

THE COURT: Continue, Mr. Current.

MR. CURRENT: –I would like to–

THE COURT: Go ahead.

MR. CURRENT: ‘Every word is perfect, all syntaxes are

acceptable, and all paragraphs are sufficiently long enough

to gain approbation from anyone.’

***

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Mr. CURRENT: *** Then, last Thursday, you

experienced a very sad and disgusting day when Lisa Holder

White took the Witness Stand. A judge is a lawyer, but a

judge, also, takes an oath to support and defend the

Constitution of the United States and the Constitution of the

State of Illinois and to enforce the laws of this State. Her

testimony, last Thursday, at the behest of Jacoby Wheeler’s

attorney was revolting to any person who values the truth.

MR. DAVIS: Objection.

THE COURT: Sustained.

MR. BAXTER: Ask the Jury to be instructed to disregard.

THE COURT: Disregard that comment, Ladies and

Gentlemen.

MR. BAXTER: Thank you.

MR. CURRENT: *** As she [Lisa Holder White]

testified, one had visions of William Jefferson Clinton

flashing before our eyes.

MR. DAVIS: I object to that.

THE COURT: Overruled.

MR. CURRENT: Whether one is a Democrat, a

Republican, or Independent, her performance was vintage Bill

Clinton. While testifying before a Federal Grany Jury and

when pressed on an issue, Clinton responded, ‘It depends on

what your definition of ‘is’ is.’ At a news conference, Bill

Clinton pointed his finger at the camera, while discussing

Monica Lewinski, and declared, ‘I never had sexual relations

with that woman.’

MR. BAXTER: Objection.

THE COURT: Overruled.

MR. CURRENT: I guess it depends on what your

definition of what ‘sexual relations’ is.

***

MR. CURRENT: If you want a frank assessment of John

Platzbecker, the police officer, maybe, his elevator doesn’t

run all the way to the top floor.

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***

MR. CURRENT: Mr. Demetrian Forrest dies March 12th

of 1999, and Dean Paisley is going out June 26th of 2001, in

the middle of the summer, to take some pictures for you. Two

years and three months later, somebody decides, well, it might

be nice to have some pictures and it might be nicer if we took

them in the summertime which is completely different from

the winter as far as foliage and growth and, maybe, the Jury

will fall for it. Donald Hopper–

MR. BAXTER: Objection, Your Honor.

THE COURT: Overruled.

MR. CURRENT: Donald Hopper. He waits until after

jury selection starts. We’re all in here trying to pick a jury,

and he’s out there snapping pictures. Now, it’s two years and

five months later, and he’s out there taking pictures. Now,

how serious are they about giving you accurate and fair

information?

***

MR. CURRENT: *** You’ve also noticed from closing

arguments from the defense, you hear everything twice. You

hear the prosecution’s story once. You hear the defense twice.

It’s almost like being in a room being brainwashed. Just

because you hear it over and over and over doesn’t mean it’s

true. All it means is you’re hearing it more times than you’ve

heard it from the other side.” (Emphases in original.)

The jury found the defendants guilty as charged and eligible for

the death penalty in September 2001. Both defendant and Hunter

waived a jury for sentencing. Having found sufficient mitigating

factors to preclude a sentence of death, the trial court sentenced

defendant (as well as Hunter) to 55 years’ imprisonment. We will

consider each of defendant’s arguments in turn.

ANALYSIS

I. Sufficiency of the Evidence

Defendant claims that the evidence in this case is insufficient to

prove him guilty of first degree murder beyond a reasonable doubt. If

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he is correct, his conviction must be reversed. The Criminal Code of

1961 provides:

“A person who kills an individual without lawful

justification commits first degree murder if, in performing the

acts which cause the death:

(1) he either intends to kill or do great bodily harm to

that individual or another, or knows that such acts will

cause death to that individual or another; or

(2) he knows that such acts create a strong probability

of death or great bodily harm to that individual or

another[.]” 720 ILCS 5/9–1(a)(1), (a)(2) (West 1998).

With this statute in mind, we will consider defendant’s claim.

As this court has noted, “[t]he due process clause of the

fourteenth amendment to the United States Constitution requires that

a person may not be convicted in state court ‘except upon proof

beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.’ ” People v. Cunningham, 212 Ill. 2d

274, 278 (2004), quoting In re Winship, 397 U.S. 358, 364, 25 L. Ed.

2d 368, 375, 90 S. Ct. 1068, 1073 (1970). When reviewing a

challenge to the sufficiency of the evidence, this court considers

whether, viewing the evidence in the light most favorable to the State,

“ ‘any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. (Emphasis in original.)’ ”

People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting Jackson v.

Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781,

2789 (1979); see also People v. Smith, 185 Ill. 2d 532, 541 (1999).

The United States Supreme Court has stated that “the critical inquiry

on review of the sufficiency of the evidence to support a criminal

conviction must be not simply to determine whether the jury was

properly instructed, but to determine whether the record evidence

could reasonably support a finding of guilt beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. at 318, 61 L. Ed. 2d at 573, 99

S. Ct. at 2788-89. This standard of review applies, “regardless of

whether the evidence is direct or circumstantial [citation], and

regardless of whether the defendant receives a bench or jury trial

[citation].” People v. Cooper, 194 Ill. 2d 419, 431 (2000).

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This court will not retry a defendant when considering a

sufficiency of the evidence challenge. People v. Smith, 185 Ill. 2d

532, 541 (1999). The trier of fact is best equipped to judge the

credibility of witnesses, and due consideration must be given to the

fact that it was the trial court and jury that saw and heard the

witnesses. Smith, 185 Ill. 2d at 541-42. Accordingly, a jury’s findings

concerning credibility are entitled to great weight. Smith, 185 Ill. 2d

at 542.

The simple fact that a judge or jury accepted the veracity of

certain testimony does not guarantee reasonableness, however. As we

have previously stated, “[r]easonable people may on occasion act

unreasonably” and, thus, while a fact finder’s decision to accept

testimony is entitled to deference, it is neither conclusive nor binding.

Cunningham, 212 Ill. 2d at 280. Accordingly, a conviction will be

reversed where the evidence is so unreasonable, improbable, or

unsatisfactory that it justifies a reasonable doubt of defendant’s guilt.

Smith, 185 Ill. 2d at 542.

Supporting defendant’s conviction, the State argues that, viewed

in the light most favorable to the prosecution, evidence at trial

showed that: (1) defendant knew and had associated with Hunter and

Forrest; (2) Forrest was a likely State’s witness in a murder trial

against the defendant; (3) defendant’s attorney knew that Forrest

would likely testify against defendant in the murder trial; (4)

defendant found out that Forrest was going to testify against him; (5)

defendant told people that he did not want to go to prison; (6)

defendant had access to and possessed handguns; (7) two men

matching defendant’s and Hunter’s general descriptions ran away

from the murder scene and were spotted by police officers; (8) the

police officers gave chase and found defendant hiding in the bushes;

and (9) gunpowder residue was found on a jacket that defendant

discarded as he fled from police. All of this, the State argues, makes

it neither improbable nor irrational that a jury would convict

defendant of first degree murder.

Defendant, on the other hand, argues that the State’s evidence was

insufficient to meet its burden of proof. Defendant points out a lack

of eyewitnesses. Moreover, defendant believes the lack of forensic

evidence to be critical. As noted in the background, no gunshot

residue was found on defendant. Though there was a good deal of

-17-

blood in Forrest’s car and evidence indicated he was killed at close

range, defendant had no blood on him. While defendant wore soft-

soled shoes conducive to picking up glass and the driver’s side

window of Forrest’s car was shattered, leaving glass strewn about the

street, the only glass found in defendant’s shoes came from some

other source. No fingerprints were found tying defendant to the

murder. Though some human head hairs were found in the mask and

stocking cap recovered by police, those hairs did not belong to

defendant.

Additionally, defendant attempts to reanalyze the evidence,

pointing out situations where the jury could have drawn inferences

tending to exculpate defendant. For example, where the State explains

the lack of blood found on defendant by noting expert testimony that

any blood would have ejected away from the shooter in this situation,

defendant notes that the expert refused to say that no blood came

from the entrance wound and photos in evidence did show small

amounts of blood on the driver’s side roof of the car. This, the

defense contends, could support an inference that whoever shot

Forrest would have been spattered with some blood. Since no blood

was found on defendant, then, it could further be inferred that

defendant was not the murderer.

While defendant’s arguments are well-taken, a reviewing court

must give the State the benefit of all reasonable inferences.

Cunningham, 212 Ill. 2d at 280. As already discussed, the evidence

analyzed in challenges to the sufficiency of the evidence must be

considered in the light most favorable to the prosecution. Jackson,

443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Cunningham,

212 Ill. 2d at 280 (citing Jackson for the same proposition). This court

has stated that this “means the reviewing court must allow all

reasonable inferences from the record in favor of the prosecution.”

Cunningham, 212 Ill. 2d at 280.

Defendant contends that the State, and the appellate court on

review, failed to properly consider all of the evidence. In Jackson, the

Supreme Court stated that on appeal “the factfinder’s role as weigher

of the evidence is preserved through a legal conclusion that upon

judicial review all of the evidence is to be considered in the light most

favorable to the prosecution.” (Emphasis in original.) Jackson, 443

U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789. Defendant thus

-18-

argues that appellate review must include consideration of all of the

evidence, not just the evidence convenient to the State’s theory of the

case. We agree.

However, the mandate to consider all the evidence on review does

not necessitate a point-by-point discussion of every piece of evidence

as well as every possible inference that could be drawn therefrom. To

engage in such an activity would effectively amount to a retrial on

appeal, an improper task expressly inconsistent with past precedent.

Smith, 185 Ill. 2d at 541. Indeed, this court has stated that even “the

trier of fact is not required to disregard inferences which flow

normally from the evidence and to search out all possible

explanations consistent with innocence and raise them to a level of

reasonable doubt.” People v. Hall, 194 Ill. 2d 305, 332 (2000). We

have also stated that “[t]he trier of fact need not *** be satisfied

beyond a reasonable doubt as to each link in the chain of

circumstances.” Hall, 194 Ill. 2d at 330. Accordingly, this court is not

required to search out all possible explanations consistent with

innocence or be satisfied beyond a reasonable doubt as to each link

in the chain of circumstances. On the contrary, we must ask, after

considering all of the evidence in the light most favorable to the

prosecution, whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt.

In the present case, we answer that question in the affirmative.

Winifred Forrest and Michael Cunningham testified regarding

defendant and Hunter’s association. Further, Deosha Singleton made

a statement to Detective Gannon wherein she stated that she

overheard defendant and Hunter speaking on the day of the murder.

Considering this evidence in the light most favorable to the

prosecution, it would be reasonable for a jury to conclude that

defendant and Hunter were associates who both knew Demetrian

Forrest.

Scott Rueter testified that Forrest was a witness prepared to testify

and implicate defendant at defendant’s trial for the murder of Angelo

Williams. Michael Cunningham testified that he told defendant that

if he were in defendant’s situation he would pay Forrest not to testify.

Cunningham further testified that defendant expressed his desire not

to go back to prison. Considering this evidence in the light most

favorable to the prosecution, it would be reasonable for a jury to

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conclude that defendant knew Forrest was prepared to implicate him

in the murder of Angelo Williams. From this, it would also be

reasonable for a jury to infer that defendant had a strong motive to kill

Forrest.

Cunningham also testified to seeing defendant in possession of at

least one handgun. Considering that testimony in the light most

favorable to the prosecution, it would be reasonable for a jury to

conclude that defendant possessed or had access to a handgun.

Officers Brandel, Street, and Derbort testified to the events

surrounding the chase and eventual capture of defendant and Hunter.

Moreover, the officers testified to their actions in recovering various

items of evidence. Considering this evidence in the light most

favorable to the prosecution, it would be reasonable for a jury to infer

that defendant and Hunter had just murdered Demetrian Forrest, were

running from the scene of the crime when they were seen by police,

and thereafter fled, dropping evidence along their path (including the

murder weapons and clothing). The officers’ testimony also supports

the inference that defendant was hiding when he was found in the

bushes at 1304 East Clay.

Forensic pathologist Travis Hindman and forensic scientist Robert

Hunton testified regarding the types of handguns and ammunition

they believed were used in the murder of Forrest. Considering their

testimony in the light most favorable to the prosecution, it would be

reasonable for a jury to conclude that the guns recovered by police

were actually used to kill Forrest.

Teronica Jones testified regarding her relationship with Hunter,

including the fact that she had a child with him. She also testified to

the fact that she had lent Hunter her car and picked it up the morning

after the murder. At trial, Jones’ testimony regarding the location of

the car was inconsistent with a written statement she had completed

shortly after the murder occurred, which indicated she found it

somewhere southwest of the scene of the crime. Considering this

evidence in the light most favorable to the prosecution, it would be

reasonable for a jury to trust Jones’ written statement over her trial

testimony and thus infer that defendant was running toward a getaway

car when he was caught at 1304 East Clay, southwest of the scene of

the crime.

-20-

Misty Gilman testified that, after hearing gunshots, she looked out

her window at 1423 East Prairie and saw five persons, including one

wearing a Chicago Bulls jacket. Gilman had completed a written

statement, however, that contradicted this testimony and indicated

that she only saw three persons. Considering her testimony, as well

as her contradictory written statement, in the light most favorable to

the prosecution, it would be reasonable for a jury to conclude that her

testimony should carry little weight or that two of the persons she

reported seeing in her written statement were defendant and Hunter.

Tamara Hodges testified that upon hearing gunshots, she looked

out her window at 1363 East Prairie Street and saw two men run

north on Stone Street, hop into a car, and drive off. She also testified,

however, that the car did not squeal its tires or make any remarkable

sound as it drove off. Considering this in the light most favorable to

the prosecution, it would be reasonable for a jury to conclude that

Hodges’ testimony shed little light at all on the case, or even that the

two individuals she observed jump into a sports car had nothing to do

with the murder.

The above conclusions and inferences are not the only

conclusions and inferences that could be drawn. They are reasonable,

however, and taken together they support a finding that defendant was

guilty beyond a reasonable doubt of the first degree murder of

Demetrian Forrest. This finding is further supported by the fact that

this court has “consistently held that a conviction may be based solely

on circumstantial evidence.” People v. Patterson, 217 Ill. 2d 407, 435

(2005); Hall, 194 Ill. 2d at 330 (“Circumstantial evidence is sufficient

to sustain a criminal conviction, provided that such evidence satisfies

proof beyond a reasonable doubt of the elements of the crime

charged”). Moreover, we have previously utilized motive and flight

in support of a finding that the evidence was sufficient to support a

finding of murder beyond a reasonable doubt. People v. Moore, 171

Ill. 2d 74, 95-96 (1996).

After considering all of the evidence in the light most favorable

to the prosecution, then, we hold that the record evidence reasonably

supports a finding that defendant was guilty of first degree murder

beyond a reasonable doubt in that: (1) defendant or someone for

whose conduct he was legally responsible performed acts that caused

Forrest’s death; and (2) when defendant or someone for whose

-21-

conduct he was legally responsible performed those acts, he intended

to kill or do great bodily harm to Forrest, knew his acts would cause

Forrest to die, or knew his acts created a strong probability that

Forrest would die or suffer great bodily harm. See 720 ILCS

5/9–1(a)(1), (a)(2) (West 1998).

II. Propriety of the Prosecutor’s Closing Argument

Having found the evidence in this case sufficient to convict, we

still must analyze defendant’s claim that the prosecutor’s closing

statements violated his federal and state constitutional rights to a fair

trial, thus entitling him to a new trial. U.S. Const., amend. XIV; Ill.

Const. 1970, art. I, §2; People v. Johnson, 208 Ill. 2d 53, 64 (2003).

Defendant asserts that reversal of his conviction is required because

of what he contends was the prosecutor’s repeated and intentional

misconduct. In his brief before this court, defendant argues that the

prosecutor improperly vouched for police credibility, attacked the

integrity, tactics, and number of defense counsel, and disparaged

defendant’s former counsel. In his motion for a new trial, defendant

also argued that the prosecutor improperly persisted in stating that he

was representing the victims. Whether statements made by a

prosecutor at closing argument were so egregious that they warrant a

new trial is a legal issue this court reviews de novo. People v.

Graham, 206 Ill. 2d 465, 474 (2003).

This court has expressed concern with the problem of

prosecutorial misconduct several times in recent years. See, e.g.,

Johnson, 208 Ill. 2d at 64-67 (describing the problem of prosecutorial

misconduct in great detail); see also People v. Blue, 189 Ill. 2d 99

(2000); People v. Moss, 205 Ill. 2d 139, 191 (2001) (Freeman, J.,

concurring in part and dissenting in part, joined by Kilbride, J.). We

have pointed out that a criminal defendant, regardless of guilt or

innocence, is entitled to a fair, orderly, and impartial trial. Blue, 189

Ill. 2d at 138. Further, we have noted an “intolerance of pervasive

prosecutorial misconduct that deliberately undermines the process by

which we determine a defendant’s guilt or innocence.” Johnson, 208

Ill. 2d at 66. Additionally, we have noted that “threats of reversal, and

-22-

words of condemnation and disapproval, have been less than effective

in curbing prosecutorial misconduct.” Johnson, 208 Ill. 2d at 66-67.

With this case, we reaffirm our intolerance of prosecutorial

misconduct.

As an initial matter, we address the State’s contention that many

of the prosecutor’s statements to which defendant now objects are

forfeited. To preserve claimed improper statements during closing

argument for review, a defendant must object to the offending

statements both at trial and in a written posttrial motion. People v.

Enoch, 122 Ill. 2d 176, 186 (1988) (“Both a trial objection and a

written post-trial motion raising the issue are required for alleged

errors that could have been raised during trial” (emphases in

original)). Defendant failed to properly observe the above rule

regarding certain specific statements, including all of the prosecutor’s

statements concerning the credibility of the police officers, the

prosecutor’s “sole champion” statement concerning his representation

of the victim, and the prosecutor’s “brainwashing” statement

concerning the integrity, tactics, and number of defense counsel.

Additionally, defendant failed to properly object to the cumulative

effect of the closing argument.

Considering the above we will focus our attention on the

statements properly objected to. We note, however, that closing

arguments must be viewed in their entirety, and the challenged

remarks must be viewed in context. People v. Caffey, 205 Ill. 2d 52,

131 (2001), citing People v. Macri, 185 Ill. 2d 1, 62 (1998) (and cases

cited therein). Accordingly, the simple fact that defendant did not

properly object to a statement does not render that statement as if it

never existed. Indeed, all statements must be considered as part of the

entirety of a prosecutor’s closing argument, and even statements not

properly objected to may add to the context of a remark properly

objected to.

Prosecutors are afforded wide latitude in closing argument.

Caffey, 205 Ill. 2d at 131. In reviewing comments made at closing

arguments, this court asks whether or not the comments engender

substantial prejudice against a defendant such that it is impossible to

say whether or not a verdict of guilt resulted from them. People v.

Nieves, 193 Ill. 2d 513, 533 (2000). Misconduct in closing argument

is substantial and warrants reversal and a new trial if the improper

-23-

remarks constituted a material factor in a defendant’s conviction.

People v. Linscott, 142 Ill. 2d 22, 28 (1991). If the jury could have

reached a contrary verdict had the improper remarks not been made,

or the reviewing court cannot say that the prosecutor’s improper

remarks did not contribute to the defendant’s conviction, a new trial

should be granted. Linscott, 142 Ill. 2d at 28.

Defendant argues that the prosecutor in this case improperly

attempted to gain sympathy from the jury by implying that the State

was disadvantaged considering that each defendant had two attorneys

working together, seeking to trick and deceive the jury. The

prosecutor pointed out that “contrary to representations made to you

during the jury selection or voir dire, you have seen with your own

eyes, these are not two completely different independent teams of

lawyers.” The prosecutor further asked the jurors to “watch with our

own eyes as they converse frequently. One will go back and ask

another for assistance; one will talk to another attorney; then, go back

and start asking the same questions or different questions.” Defendant

points out that while the prosecutor made the above arguments, he

also opposed severance and sought the death penalty, entitling

defendant and Hunter to two attorneys each by supreme court rule.

See 188 Ill. 2d R. 416(d) (“In all cases wherein the State has given

notice of its intention to seek the death penalty *** the trial judge

shall appoint an indigent defendant two qualified counsel”).

Later in his closing, the prosecutor noted that the four defense

attorneys had “in excess of 100 years of legal practice and 75 years of

school grilling Shane Brandel.” The defense objected, the court

sustained the objection, and the prosecutor rephrased his statement,

asking the jurors to consider who was questioning Officers Brandel

and Street. Again the defense objected. This time the court overruled

the objection.

Still later, the prosecutor analogized the defense lawyers to

“Monday morning quarterbacks,” who can “dissect, bisect, and

magnify any past action, all with the benefit of 20/20 hindsight and

all with the benefit of time in numbers. But in the final analysis, the

attorneys weren’t there risking their lives on March [12, 1999]. They

were not in the arena.” After the court overruled an objection by the

defense, the prosecutor continued, noting that “[t]he policeman were

in the arena.” He stated that “the rules of the game at which attorneys

-24-

defend, operate, and go under seem to require a complete perfection

on the part of a witness.” He argued that these rules allow attorneys

to reveal an imperfect witness “to be a liar, the witness to be stupid,

or the witness to be confused.” When another objection was

overruled, the prosecutor noted that this “render[ed] the witness

unworthy of belief. But in the everyday real life world in which we all

live, there is no perfection. In the real world, we judge each other by

a less exacting standard.”

The prosecutor asked the jurors to “think of any 2 minutes in your

life in which you could withstand a full day of cross-examination by

a four-lawyer team.” Following a brief exchange, the prosecutor

noted that the defense attacked the police reports completed by

Officers Brandel and Street and then pointed out that “as a citizen,

when you call the police, you expect an instant response. Even sooner

if your life is at stake.” At this point, the prosecutor argued that you

do not want to call 911 only to be told by dispatch that the police

officers are busy typing reports, will not be sent out to the street until

the reports are finished, and “ ‘for your information, just came in

from a murder case, and we know how exacting[ly] the defense

attorneys will cross-examine them.’ ” The court sustained a defense

objection and informed the jury to disregard the comment.

In his very next statement, however, the prosecutor continued

with his performance as a dispatcher stating: “ ‘We know how closely

their words will be examined; so, you can expect an additional 4 or

5 hours before the officers will be available so they can make sure

that every word i[s] perfect, all syntaxes.’ ” (Emphasis in original).

This time the court overruled the defense objection and allowed the

prosecutor to continue. The prosecutor obliged, stating, “ ‘Every word

is perfect, all syntaxes are acceptable, and all paragraphs are

sufficiently long enough to gain approbation from anyone.’ ”

(Emphasis in original.)

Sometime after the above comments, the prosecutor took issue

with defendant’s former counsel, who testified at trial that she had

“an idea” that Forrest would be a witness against defendant in a

separate murder trial, but did not “know” this to be the case. The

prosecutor characterized her testimony as conducted “at the behest of

Jacoby Wheeler’s attorney” and “revolting to any person who values

the truth.” After the court sustained an objection to that

-25-

characterization and instructed the jury to disregard the comment, the

prosecutor continued, comparing the testimony of defendant’s former

counsel to that of former President Clinton in regards to the Monica

Lewinsky affair.

Still later, the prosecutor brought up photographs introduced by

the defense and showing the alley where Brandel claimed to have

chased the suspects. During trial, the prosecutor had objected to the

photographs on the ground that the foliage was different. Defense

counsel responded that the photos were offered only to show physical

structures and layout and offered to stipulate that the pictures did not

fairly and accurately portray the vegetation around the alley in March

1999. The court found defendant’s argument persuasive and noted

that the photos were not admitted to show the vegetation around the

alley. In closing argument, the prosecutor argued that over two years

later “somebody decides, well, it might be nice to have some pictures

and it might be nicer if we took them in the summertime which is

completely different from the winter as far as foliage and growth and,

maybe, the Jury will fall for it.” After a defense objection was

overruled, the prosecutor rhetorically asked, “How serious are they

about giving you accurate and fair information?”

Defendant asserts that these statements constituted personal

attacks upon the defense attorneys, beyond the limits of propriety, and

were calculated solely to inflame the passions and prejudice of the

jurors. Defendant argues that the prosecutor’s strategy was to attack

the honesty, integrity, and intelligence of those who opposed or

inconvenienced his efforts to win a conviction. The jury could either

rely on the testimony of the testifying police officers or face a

situation where no officers were available to respond to 911 calls

because they were too busy wasting their time writing painstakingly

complete and accurate police reports. Defense counsel, like

defendant’s former attorney, were dishonest because they parsed

words like former President Clinton and introduced evidence that

inaccurately portrayed the facts.

Defendant argues that in a closely balanced case such as this,

where no forensic evidence tied defendant directly to the crime, and

the credibility of police testimony was key, the improper tactics used

by the prosecutor amounted to a material factor in the conviction.

Without the prosecutor’s use of personal attacks, undermining

-26-

defense counsel’s efforts to question police credibility, the jury could

have acquitted the defendant. Supporting his position defendant

points to People v. Beringer, 151 Ill. App. 3d 558 (1987). In that case,

the defendant, Joseph Beringer, was tried for murder jointly with his

brother. Though the court believed the evidence sufficient to sustain

a conviction, it reversed because “[t]he State’s brazen misconduct

insured that the defendant would not receive a fair trial.” Beringer,

151 Ill. App. 3d at 564. Evaluating various challenged remarks made

by the prosecution, the Beringer court noted that “[a]ccusations of

deceptions between the defense counsels and personal attacks on

defendant’s attorney served no purpose except to prejudice the

jury.”Beringer, 151 Ill. App. 3d at 564.

The State argues that the portions of the prosecutor’s closing

argument that were preserved for review, even if viewed as improper,

were not so egregious that they created an unfair trial or were a

material factor in the verdict. According to the State, the jury’s

verdict was based upon the fact that defendant had a strong motive to

kill Forrest, fled from the police leaving a trail of evidence, and was

eventually caught hiding in a bush. The prosecutor’s rhetoric, the

State asserts, had nothing to do with the verdict.

Additionally, the State argues that defendant’s reliance on People

v. Beringer is misplaced. In Beringer, the prosecutor personally

attacked a defense attorney, stating he thought her “ ‘incapable of

courtesy to other people.’ ” Beringer, 151 Ill. App. 3d at 563.

Moreover, the prosecutor in Beringer violated this court’s decision in

People v. Nuccio, 43 Ill. 2d 375, 381 (1969), by suggesting through

cross-examination that a witness solicited payment for his testimony

without presenting rebuttal evidence to support the charge. Beringer,

151 Ill. App. 3d at 559-60. Here, the State points out, the prosecutor’s

conduct did not amount to a direct personal attack on defense

attorneys, the prosecutor did not commit a Nuccio violation, and the

prosecutor did not argue that defense counsel suborned perjury.

Further, the State asserts that the trial court acted to reduce any

chance of prejudice by sustaining several of defendant’s objections,

instructing the jury to disregard some of the prosecutor’s comments,

and by instructing the jury on the proper view of attorney arguments.

The State points out that in People v. Moore, 171 Ill. 2d 74, 105-06

(1996), this court held that “[t]he act of sustaining an objection and

-27-

properly admonishing the jury is usually viewed as sufficient to cure

any prejudice.”

We agree with the State that there are significant differences

between this case and Beringer. Further, we acknowledge and

reaffirm the proposition that the act of sustaining an objection and

properly admonishing a jury is generally sufficient to cure prejudice

engendered by improper closing argument. We do not believe that

ends the analysis, however.

Closing argument must serve a purpose beyond inflaming the

emotions of the jury. People v. Nicholas, 218 Ill. 2d 104, 121 (2005);

Johnson, 208 Ill. 2d at 87-88 (“Our system of justice requires that a

defendant’s guilt or innocence be determined based upon relevant

evidence and legal principles, upon the application of reason and

deliberation by a jury, not the expression of misdirected emotion or

outrage by a mob”). A prosecutor cannot use closing argument simply

to “inflame the passions or develop the prejudices of the jury without

throwing any light upon the issues.” People v. Halteman, 10 Ill. 2d

74, 84 (1956). Moreover, it is improper for a prosecutor to utilize

closing argument to forge an “us-versus-them” mentality that is

inconsistent with the criminal trial principle that a jury fulfills a

nonpartisan role, under the presumption that a defendant is innocent

until proven guilty. Johnson, 208 Ill. 2d at 80.

The prosecutor’s closing argument in this case, considered in its

entirety, appears deliberately designed to forge just the sort of “us-

versus-them” mentality decried by this court in Johnson and foster a

situation where jurors might feel compelled to side with the State and

its witnesses in order to ensure their own safety. At the very outset of

his remarks, the prosecutor suggested that he was the “lone” and

“solitary figure” left to “champion the deceased” while “bearing the

burden” of “avenging another’s death.” Later, he proposed that he

was outnumbered by the defense attorneys, who were not interested

in presenting the jury with accurate information but only strove to

prove the police witnesses as liars. Moreover, through his mock

presentation of a 911 call, he suggested that if the jurors felt that

previously completed written police reports had to precisely

corroborate police testimony at trial, police officers will no longer be

able to effectively respond to emergencies, and the jurors might, in

effect, compromise their own safety in the future. This strategy flows

-28-

throughout the prosecutor’s closing and is particularly evident when

the statements properly objected to are considered in view of the rest

of his closing argument and in context.

The prosecutor told the jurors that they lived “sheltered lives” but

a different dangerous world existed, “full of dangerous people” and

“mean streets.” He argued that while Shane Brandel and Dan Street,

“the new breed of policeman,” “men who are educated, intelligent,

and well-spoken,” formed the “thin blue line” to protect the jurors,

witnesses called by the defense would not be called when “someone

is breaking into their house or assaulting them.” The prosecutor stated

that his opinion of a witness who testified unfavorably to the State

was that “his elevator doesn’t run all the way to the top floor.”

Finally, in wrapping up his argument on rebuttal, the prosecutor

cautioned the jury away from “being brainwashed” by the fact that

“you hear everything twice” from the defense while it only gets the

chance to “hear the prosecution’s story once.”

We acknowledge that the trial court sustained some of

defendant’s objections during the prosecutor’s closing arguments and

instructed the jury that closing arguments are not evidence and any

statements or arguments made at closing that are not based on the

evidence should be disregarded. We point out, however, that we have

previously held that “[i]nstructing the jury that arguments are not

evidence will not, in every instance, cure the defect caused by

introduction of such evidence.” Blue, 189 Ill. 2d at 132.

Further, we have held that the salutary effect of sustaining an

objection is eliminated where a prosecutor persists in continuing that

improper argument. People v. Weinstein, 35 Ill. 2d 467, 471 (1966).

In this case, while some of defendant’s objections were sustained, in

certain situations, the trial court improperly allowed the prosecutor to

continue the same line of argument unchecked. This situation is

clearly evident in the exchange between defense counsel, the court,

and the prosecutor regarding the mock 911 call.

Considering the above, we find that a chief goal of the

prosecutor’s closing argument in this case was to inflame the passions

and prejudices of the jury, uniting the interests of the jurors in their

own safety with that of the interests of the State in convicting

defendant. Such a goal is improper. The prosecutor in this case was

not content to rely upon the strength of the State’s evidence. He did

-29-

not make a few solitary improper remarks. Instead, he utilized

improper remarks, some unsupported by the evidence, to advance an

“us-versus-them” theme. This theme was built piece by piece and is

evident from the very beginning as the prosecutor launched his

closing by portraying himself as a lone avenging champion. The

theme continued throughout the prosecutor’s argument and was

advanced over objection and in spite of admonishment. The

prosecutor suggested that police efficiency and expedience were more

important than accuracy, and thereby urged the jurors to consider

their own safety in deliberation rather than deliberating only on the

actual guilt or innocence of defendant. See People v. Erickson, 117

Ill. 2d 271, 290 (1987) (where this court noted that the jury serves a

truth-seeking role and is impaneled to decide a defendant’s guilt or

innocence).

We believe that in a case like this, relying heavily on the

credibility of the testifying police witnesses, the prosecutor’s

utilization of closing arguments to inflame the passions and

prejudices of the jury constituted a material factor in defendant’s

conviction. Without those arguments, a contrary verdict could have

been reached. We cannot say with confidence that the prosecutor’s

improper remarks did not contribute to defendant’s conviction.

Accordingly, a new trial should be granted. This finding makes it

unnecessary for this court to address defendant’s arguments regarding

ineffective assistance of counsel and trial error in refusing to excuse

juror Brian Thomas. We still must consider, however, defendant’s

arguments regarding the offers of proof concerning William Ellzey.

III. Refusal of the Defendants’ Offers of Proof Regarding William

Ellzey

Finding that defendant is entitled to a new trial, we will address,

for the purposes of that new trial, defendant’s claims regarding certain

offers of proof. Defendant argues that the trial court erred in refusing

to allow evidence showing that William Ellzey, a reputed gang leader

and drug supplier against whom Forrest had testified, also had a

motive to kill Forrest. This court has recognized that evidentiary

rulings are within the sound discretion of the trial court and will not

be disturbed absent a clear abuse of discretion. People v. Robinson,

217 Ill. 2d 43, 62 (2005); People v. Pulliam, 176 Ill. 2d 261, 276

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(1997). The controlling principles concerning the admissibility of

evidence are well settled. The court must ask whether the proferred

evidence fairly tends to prove or disprove the offense charged and

whether that evidence is relevant in that it tends to make the question

of guilt more or less probable. People v. Caffey, 205 Ill. 2d 52, 114-15

(2001), quoting People v. Ward, 101 Ill. 2d 443, 455-56 (1984). It is

entirely within the discretion of the trial court to “reject offered

evidence on grounds of irrelevancy if it has little probative value due

to its remoteness, uncertainty, or possibly unfair prejudicial nature.”

People v. Harvey, 211 Ill. 2d 368, 392 (2004), citing Ward, 101 Ill.

2d at 455.

Defendant points to the principle that each party is entitled to

present evidence which is relevant to its theory of the case. People v.

Molsby, 66 Ill. App. 3d 647 (1978). Moreover, defendant notes that

one accused of a crime may prove facts and circumstances tending to

show that the crime was committed by someone other than himself.

People v. Dukett, 56 Ill. 2d 432, 450 (1974), quoting People v. Nitti,

312 Ill. 73, 90 (1924). While this is true, it is also true that defining

the precise limits controlling the admission of such evidence is

difficult and if the evidence is too remote in time or too speculative

to shed light on the fact to be found, it should be excluded. Dukett, 56

Ill. 2d at 450, quoting Nitti, 312 Ill. at 90.

The defense argues that its proffered evidence regarding Ellzey

would have countered and weakened the motive evidence presented

by the State. Specifically, defendant argues that showing the jury that

Forrest was an informant in other cases and had testified against

William Ellzey, the highest ranking Gangster Disciple in Decatur,

would show that someone other than defendant had a motive to kill

Forrest. This evidence would have been bolstered by the rejected

evidence that Forrest lost some of Ellzey’s drugs; was behind in

payments to Ellzey; had been physically disciplined for presenting

Ellzey with a gold necklace instead of a cash payment; and had some

relationship with Ellzey’s girlfriend. Additionally, the evidence would

have been supported by testimony from Forrest’s grandmother, which

the trial court did not allow, expressing her apprehension about

Demetrian’s safety after he testified against Ellzey.

Evaluating evidentiary rulings, this court only finds an abuse of

discretion where “the trial court’s ruling is arbitrary, fanciful,

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unreasonable, or where no reasonable person would take the view

adopted by the trial court.” Caffey, 205 Ill. 2d at 89. This is not such

a case. In People v. Morgan, 142 Ill. 2d 410, 440 (1991), rev’d on

other grounds, Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492,

112 S. Ct. 2222 (1992), we held that the fact that a third party had

threatened the victim with a handgun a week before the victim’s

murder was not enough to link that third party to the murder. We held

the evidence concerning the third party’s threat “remotely speculative

*** at best” because the defendant in that case presented no other

evidence linking the third party to the crime. Accordingly, we found

the proffered evidence properly excluded. Morgan, 142 Ill. 2d at 442.

In this case, the evidence concerning Ellzey is even more

speculative. As our appellate court pointed out, Ellzey had no

connection to the scene of the crime and, in fact, was in prison at the

time of the murder. No evidence was offered that Ellzey arranged for

Forrest’s murder. No evidence was offered establishing that any other

member of the Gangster Disciples was present at the scene of the

crime nor was any evidence offered indicating that other members of

the Gangster Disciples even cared about Ellzey’s downfall.

Further, we agree with the appellate court that the testimony of

Demetrian Forrest’s grandmother concerning her apprehension due

to his testimony against Ellzey was irrelevant. Her testimony did not

tend to make the existence of any fact of consequence to the

determination of defendant’s guilt more or less probable than it would

be without the evidence. See People v. Illgen, 145 Ill. 2d 353, 365-66

(1991). Furthermore, we note that the trial court informed defendant

that he was free to argue that someone else murdered Forrest, just not

Ellzey in particular. Accordingly, we find that the trial court did not

abuse its discretion in refusing defendant’s offers of proof.

CONCLUSION

Because we believe that statements made by the prosecutor during

closing arguments in this case warrant the granting of a new trial, we

reverse the judgments of the appellate and circuit courts and remand

to the trial court. We do so, however, having established that the

appellate court was correct in deciding that the evidence in this case

was sufficient to convict defendant and that the trial court acted

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within its discretion when it excluded evidence offered by defendant

to show that William Ellzey, in particular, killed Forrest.

We note that because we found the evidence in this case sufficient

to convict defendant, there is no double jeopardy impediment to a

new trial. People v. Roberts, 214 Ill. 2d 106, 126 (2005); People v.

Fornear, 176 Ill. 2d 523, 535 (1997). We further note, however, that

our analysis regarding the sufficiency of the evidence is not indicative

of any finding as to defendant’s guilt that would be binding on retrial.

Roberts, 214 Ill. 2d at 126; Fornear, 176 Ill. 2d at 535.

Judgments reversed;

cause remanded.

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