holding that prosecutor’s comments during closing argument referring to “ ‘each and every one of us, and all our loved ones,’ ” did not constitute an improper alignment of the prosecution with the jury, or the prosecutor acting as a “ ‘thirteenth juror’ ”
How later courts described this case
- holding that prosecutor’s comments during closing argument referring to “ ‘each and every one of us, and all our loved ones,’ ” did not constitute an improper alignment of the prosecution with the jury, or the prosecutor acting as a “ ‘thirteenth juror’ ”
- “[a] defendant should not be allowed to benefit from his own counsel’s misconduct which invited the State’s response”
- it is not reversible error when a prosecutor overstates evidence that is partially corroborated
- “A defendant should not be allowed to benefit from his own counsel’s conduct which invited the State’s response.”
Written by the judges who cited it.
The opinion
PRESIDING JUSTICE EGAN, specially concurring:
I agree with the judgment affirming the conviction and all that is said in the opinion save in one respect. I do not agree that the statement of Sandra Davis made to her mother, in which she inculpated the defendants, was admissible as a spontaneous declaration exception to the hearsay rule.
Her mother saw her at 7:30 a.m. and noticed that she was crying and upset and that her face was swollen and scratched. When her mother asked what was wrong, Sandra did not answer and went to bed. Four and one-half hours later Sandra came out of her room, still upset and crying. Her mother again asked her what was wrong, and again Sandra did not answer. Her mother saw that she “didn’t want to talk” but her mother “insisted” that Sandra tell her what happened. It was only then that Sandra told her mother that the defendants had raped her. In my judgment, that evidence fails to establish the spontaneity required under the rule.
I am aware that cases have held that lapse of time itself is not determinative, and some have held that the fact alone that the statement was made in response to a question does not render the evidence inadmissible. But I do not believe the cases cited by the majority support its holding. The Chatman case involved a statement by a four-year-old boy to the first person he encountered. In Gacho the statement was made in response to a question, but the victim had suffered multiple gunshot wounds and was discovered in a trunk by the police. In both Chatman and Gacho the statements were made at the first opportunity the victim had to speak. The Watson case involved a statement by a three-year-old child in a hospital emergency room.
In Parisie, the decedent was lying along a road with his shirt covered with blood. When the police arrived the decedent, in response to a question, said that he had been shot, that he did not know who shot him, that the man pulled out a gun and asked him for his wallet and that he did not know where his car was. Another conversation took place between the police and the decedent about two hours later at the hospital, where the decedent again told the police that he did not know who shot him, that he had met the fellow at 5th and Jefferson Streets in Springfield, that they went for a ride around the lake and that they had not parked. This court said that the first statement was admissible as an exception to the rule but, significantly, not the second. The court held that the admission of the second statement was error, but not reversible.
Similarly, in Robinson, also referred to in the majority opinion, the court held that admission of statements made to the victim’s sister under circumstances more favorable to the State than in this case “would do utter violence to the rule.” (Robinson, 73 Ill. 2d at 199.) However, the court held that it was not reversible error. I view the evidence the same way as the appellate court did in Parisie and the supreme court in Robinson. To accept this evidence as an exception to the rule “would do utter violence to the rule” in my judgment. But I do not believe the admission of the evidence was prejudicial to the defendants. If anything, the evidence militated in favor of the defendants as evidenced by the use to which it was put in the defendants’ closing argument. It is reasonable to assume that the defendants themselves would have brought out the fact that Sandra had been questioned by her mother and had refused to answer questions. The State in turn would have been entitled to show that Sandra at first said nothing because of her fear of the defendants. (See People v. Weisberg (1947), 396 Ill. 412, 430 , 71 N.E.2d 671, 681 .) In short, it seems clear that all of this evidence would have been heard anyway; but not as a spontaneous declaration.