# People v. Keene > Illinois Supreme Court · November 2, 1995 · 169 Ill. 2d 1 URL: https://www.frixlaw.com/law-library/cases/9516923 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. WILLIAM CLAIR KEENE, Appellant - **Court:** Illinois Supreme Court - **Decided:** November 2, 1995 - **Citations:** 169 Ill. 2d 1; 214 Ill. Dec. 194; 660 N.E.2d 901; 1995 Ill. LEXIS 203 - **Precedential status:** Published - **Opinion:** Concurrence by Nickels - **Judges:** Freeman, Nickels, Harrison - **Cited by:** 368 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9516923 ## How later opinions describe it (automated extraction) - holding there was "no basis" upon which to reach the claimed error, pursuant to plain-error review, because, "[a]ssuming that prior consistent statements in fact were used improperly to bolster [the witness's] credibility," the claim did not implicate a substantial right - concluding that "no basis exists" to reach defendant's claim of plain error because, "[a]ssuming that prior consistent statements in fact were used improperly to bolster [the witness's] credibility * * * the claim does not implicate a substantial right" - finding plain error doctrine inapplicable and explaining that even assuming that prior consistent statements were used improperly to bolster the witness's credibility, the claim did not implicate a substantial right - stating the prosecutor’s comment the evidence was uncontradicted was not improper where there were other witnesses besides the defendant who could have provided contrary proof - finding it improper for a prosecutor to give jurors a “theatrical description of the stripping away of [the defendant’s] presumption of innocence” ## Opinion text JUSTICE NICKELS, concurring: I concur in the judgment of the court but write separately to address two issues: (1) the trial court’s denial of funds for an expert pathologist, and (2) the trial court’s failure to reinstruct the jury as to the accomplice instruction at the death eligibility stage of sentencing. I I concur in the majority’s judgment concerning the denial of funds for a pathologist, but disagree with its reasoning. I believe that under the facts presented in the majority opinion, funds were necessary "to prove a crucial issue in the case.” (Glover, 49 Ill. 2d at 82.) That crucial issue was whether the person who cut the victim’s throat held the knife in his left or right hand. The issue was crucial to the defense because defendant is left-handed and would more likely hold a knife in his left hand than the other two right-handed co-felons. Moreover, the only other inculpatory evidence offered on this issue was the inherently weak accomplice testimony of Hoover. The determination that defendant slit the victim’s throat was especially crucial to defendant because it was the sole aggravating factor found to have made him eligible for the death penalty. The majority finds this issue not crucial to the defense because: (1) the pathologist did not testify that only a left-handed person could have cut the victim’s throat; and (2) the primary evidence against defendant on this issue was Hoover’s testimony. (169 Ill. 2d at 8-9.) This finding, however, overlooks the strength of the pathologist’s testimony and the inferences drawn from it, as well as the inherent weakness of Hoover’s accomplice testimony and the role the pathologist’s testimony played in corroborating it. While it is true the pathologist could not exclude the possibility that the knife was wielded with the right hand, the pathologist testified "to a reasonable degree of medical certainty” that the knife was held in the offender’s left hand. Moreover, the inference drawn from the pathologist’s testimony is clear in the record from the comments of the trial judge: "I think the doctor’s testimony [on direct examination] *** was that it would have been by a left-handed person.” The pathologist’s testimony thus left the strong inference that a left-handed person had slit the victim’s throat. The State’s only other evidence to prove defendant slit the victim’s throat was the testimony of Hoover, an accomplice. Accomplice testimony is to be viewed with suspicion due to its "inherent weaknesses, being testimony of a confessed criminal and fraught with dangers of motives such as malice toward the accused, fear, threats, promises or hopes of leniency, or benefits from the prosecution.” (People v. Holmes (1990), 141 Ill. 2d 204, 242 , citing People v. Hermens (1955), 5 Ill. 2d 277, 285 .) Hoover, in fact, had a strong motivation to testify for the State and against defendant: he received a 40-year sentence in exchange for his testimony and in the process exculpated himself from the throat slitting. The State’s pathologist corroborated Hoover’s inherently weak testimony. An expert pathologist testifying for defendant might very well have discredited the State’s pathologist and convinced the jury that reasonable doubt existed as to who cut the victim’s throat. Thus, the issue was crucial for defendant. While I disagree with the majority’s reasoning, I do nonetheless agree that the trial court’s denial of funds to retain an expert pathologist at the time the request was made was not error. Prior to trial and before answering discovery, defendant filed a pro se motion for experts that included a request for a pathologist. At the hearing on the motion, defendant informed the court that he needed a pathologist because (1) the State sought to prove that defendant had slit the victim’s throat, and (2) a pathologist would determine whether a left-handed or right-handed person had slit the victim’s throat. Defendant argued that he would use the pathologist’s report to prove that he did not slit the victim’s throat. However, defendant did not specify how a pathologist could prove he did not cut the throat: defendant did not inform the court that (1) he was left-handed and the other two co-felons were right-handed, or (2) he believed the pathologist would conclude that a right-handed person cut the victim’s throat. Moreover, the record does not reflect that the trial court knew the specifics of defendant’s theory at this time. The trial court found defendant’s motion premature and noted defendant had not alleged any specific defenses at that time which would require expert testimony. Thus, the court found it appropriate to deny the motion until defendant raised such a defense. Defendant and standby defense counsel, who later assumed control of defendant’s case, never raised this issue again during trial. I therefore concur in the majority’s decision because the trial court found only that defendant had not yet, at that preliminary stage of the proceedings, shown that such an expert was necessary to prove a crucial issue in the case. In doing so, the court suggested that defendant raise the issue at some later point in the proceedings when it would be clearer why such an expert was needed. Defendant, having never raised the issue again until after trial, and having never fully presented the issue to the court until after trial, cannot now complain of the trial court’s decision. II Concerning the waiver of the accomplice instruction at the death eligibility phase, I believe the trial court should have reinstructed the jury as to accomplice testimony. I do not agree with the majority that the general witness credibility instructions ensured that fundamental fairness resulted. However, based on facts not discussed in the majority opinion, I agree that no fundamental unfairness resulted in this case. During the jury instruction conference, the trial court noted that the IPI committee comments did not address whether the jury should be reinstructed as to accomplice testimony at the eligibility phase of a death penalty hearing. The trial judge refused to give the instruction again because he thought it would be repetitive. However, the trial court informed defense counsel that it would be proper to argue to the jury that it was to follow the law as given during the guilt-innocence phase and to argue that the accomplice instruction still applied to Hoover’s testimony. Defense counsel did so, informing the jury that the accomplice instruction given during the guilt-innocence phase was still the law at the eligibility phase and arguing that Hoover’s testimony should be viewed with suspicion. For this reason, I believe that fundamental fairness was met for purposes of waiver. I therefore concur in the judgment of the court. JUSTICE HARRISON joins in this concurrence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516923. Public record. Not legal advice.