# People v. Whitlow

> Illinois Supreme Court · February 19, 1982 · 89 Ill. 2d 322

URL: https://www.frixlaw.com/law-library/cases/9743466

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FOREST P. WHITLOW Et Al. (James Marando, Appellant); THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FOREST P. WHITLOW Et Al. (Forest P. Whitlow Et Al., Appellees)
- **Court:** Illinois Supreme Court
- **Decided:** February 19, 1982
- **Citations:** 89 Ill. 2d 322; 60 Ill. Dec. 587; 433 N.E.2d 629; 1982 Ill. LEXIS 236
- **Precedential status:** Published
- **Opinion:** Dissent by Underwood
- **Judges:** Moran, Simon, Underwood
- **Cited by:** 136 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/9743466

## How later opinions describe it (automated extraction)

- holding that if there is some evidence presented to the grand jury from which defendant’s illegal conduct can be inferred, the reviewing court will not inquire into the “adequacy of that evidence”
- holding that scienter is an essential element of a claim alleged under § 12(1) of the Illinois Security Law
- acknowledging rule but holding that case included some direct evidence

## Opinion text

JUSTICE UNDERWOOD, dissenting:
The defendants were found guilty of all charges in a 12-count indictment at the conclusion of a lengthy and complex trial in which the evidence of guilt is overwhelming. I cannot agree with the majority opinion which now reverses those convictions on the basis of alleged prosecutorial misconduct consisting of isolated comments, most of which were unobjected to, and many of which were legitimate inferences with substantial evidentiary support. Unfortunately, my reasons for dissenting cannot be adequately stated in other than extended form.
Most of the allegedly improper remarks occurred during the State’s rebuttal argument. Of the many rebuttal remarks cited by the majority as error, the only one preserved for review by timely objection concerned Royal National’s rental arrangements and the prosecutor’s allegation that $400 a month was “going in Mr. Gibson’s pocket.” The majority states that the allegation is “totally unsupported” by any evidence (89 Ill. 2d at 340), and that the error is compounded because there is evidence in the record which shows the State had reason to know its allegation was false. The evidence to which the majority refers is an affidavit of W. Leonard Evans, president of Gibson’s landlord, Tuesday Publications, which was submitted after trial in support of defendant Gibson’s post-trial motion. Evans states that the rental payments for Gibson’s law office did not materially increase when Royal National began to share the space, and that he informed a representative of the State of this fact prior to trial. He further states that had he been asked he would have denied the allegation that Gibson received any portion of the rent paid by Royal National. In contrast to Evans’ statement, the ledger sheets of Tuesday Publications, stipulated into evidence, at all times show Gibson as the sole tenant, but conclusively demonstrate that the rental payments increased more than $350 a month when Royal National also began to use Gibson’s law office. During the period when the space was shared, Royal National paid the entire rent, approximating $625 per month. When Royal National ceased sharing the space, the rent which Gibson resumed paying returned to approximately $275 per month. Evans claimed, however, that the rent was always $600 per month, and his explanation regarding the discrepancy was that Gibson could not afford to pay the entire $600 per month when he had to pay his own rent, and because of his past relationship with the company, he was allowed to pay a lesser amount with the understanding that he would pay the deficiency when he was financially able to do so.
The irregular rent pattern lends support to the prosecutor’s assertion that something was amiss. Although the State’s allegation was refuted in part by Evans’ post-trial affidavit, I am not convinced that the State was required to accept Evans’ unlikely explanation of the irregularity in the payments, particularly in view of the fact that Gibson had been counsel for Tuesday Publications and his testimony was somewhat to the contrary. He stated that while his rent did not increase, “The rent for Royal National went up.” Despite Evans’ denial that Gibson received any portion of the rent payments, it is clear that Royal National paid Gibson’s entire law office rent during the time it shared his office, and the amount was in excess of $400. Thus, while Gibson may not have been literally “pocketing” $400 a month, he was literally benefiting by more than $400 a month during the period that Royal National shared his law office. In view of this, it seems to me that the majority’s reference to the prosecutor’s allegation as “totally unsupported by any evidence from which the inference could be derived” (89 Ill. 2d at 340) is simply not true.
The majority also characterizes as unsupported by any evidence and an improper statement of personal belief the prosecutor’s comment that it was Gibson, not the corporation, who would have benefited had the sludge project been successful. Although Gibson introduced evidence that showed he had spent considerable time and effort promoting the sludge project, there was also considerable evidence that he was acting on his own behalf rather than for the benefit of Royal National. As the appellate court noted, the jury was presented with the factual question as to how much, if any, of Gibson’s activities relating to the sludge project were performed on behalf of Royal National.
During Gibson’s attorney’s closing argument he asked whether Gibson would have been reporting to the shareholders on the progress of the projects if he was really acting on his own behalf or keeping it all for himself. He also reviewed the evidence which showed the time and effort Gibson devoted to the sludge project. In rebuttal the prosecutor made the following comment:
“Counsel has again brought out that Mr. Gibson worked on these projects before Royal National and he worked on them after Royal National. What this says I believe is that these projects were truly projects of Truman Gibson and had they gone anywhere at all, the shareholders of Royal National might as well have jumped in the Mississippi River because Truman Gibson was going to be on the gravy train and they were going to have to sit around and split up shares of a company that had been dissolved in 1974.”
There was no objection. To hold, as the majority does, that this statement was without any evidentiary support is patently incorrect. Further, it clearly was not intended as an expression of personal belief but only as a statement of the inferences which the prosecutor believed might be drawn from the evidence. The statement does not even remotely resemble those which this court has held improper. For example, in the only case cited by the majority as authority for its holding, People v. Monroe (1977), 66 Ill. 2d 317, 323 , the prosecutor charged that defense counsel’s closing argument was “fraudulent” and that one portion was “the biggest fraud of all.” He further stated:
“That is a preposterous defense. I have never heard of a weaker defense in five years of practicing in criminal law. Do you know why I can’t believe it? Because Mr. Olivero [defense counsel] doesn’t believe it himself.” ( 66 Ill. 2d 317, 323 .)
In People v. Hoffman (1948), 399 Ill. 57, 65 , the State’s Attorney stated, “If I had one slightest reasonable doubt about Stanley Hoffman’s guilt upon my words as a man and as an American, as a father and grandfather, I would say I do not believe he is guilty and I would dismiss this case. But, I know all the facts in this case as you know various people.” Similarly, in People v. Black (1925), 317 Ill. 603, 619 , “Twice the State’s attorney told the jury that he would not ask them to send defendants to the penitentiary if he and his associate were not positive of their guilt.” Finally, in People v. King (1916), 276 Ill. 138, 154 , the State’s Attorney made the following statement in his closing argument:
“I am not in the habit of prosecuting innocent men. It has not been a rule of my office. If the defendant were not guilty he would not be on trial in this court. I know him to be guilty. I am in possession of facts that convince me of his guilt.”
As these cases demonstrate, it is improper for the prosecutor to express his own opinion or belief of a defendant’s guilt, in part because by doing so he effectively makes himself a witness without the opportunity of being cross-examined. But it is entirely proper for the prosecutor to comment on a defendant’s guilt where the comment is based on the evidence (People v. Black (1925), 317 Ill. 603, 619 ; see also People v. Jackson (1981), 84 Ill. 2d 350, 360 ), and it is well established that “ ‘[s] tatements of counsel and argument based upon facts and circumstances proved, or upon legitimate inference therefrom, do not exceed the bounds of proper debate and are not to be discountenanced by the courts.’ ” (People v. Burnett (1963), 27 Ill. 2d 510, 517 , quoting People v. Miller (1958), 13 Ill. 2d 84, 109 ; see also People v. Beller (1979), 74 Ill. 2d 514, 526 ; People v. Williams (1968), 40 Ill. 2d 522, 528 ; People v. Ostrand (1966), 35 Ill. 2d 520, 531-32 .) The quoted comment in this case was not an expression of the prosecutor’s own belief; it was a legitimate rebuttal argument based upon the evidence.
With respect to defendants Whitlow and Delfino, the prosecutor made the comment in rebuttal: “[T] hey know that if you pay five hundred bucks to R. Wayne Everett and Company you can get a list of the people who have been taken before *** and you can tell them a bunch of stories and you know they will fall for it because they have fallen for it before.” Again, no objection was made. The majority cites this as improper argument because it implies that defendants had previously engaged in illegal conduct. The court also' apparently concludes that the comment was not based upon any evidence. First, I do not agree that, in the context in which it was made, it implied previous illegal conduct; second, there was evidence in the record that supported this statement.
Patrick Wilson, one of the State’s witnesses, testified that Delfino came to his home and invited him to Royal National’s East Moline office to discuss the possibility of Wilson working for the firm. He later met with Delfino at his office and discussed sales efforts. He stated that Delfino showed him “lead lists,” secured from Wayne Everett of the Everett brokerage firm, and that Delfino told him that the people on the list were people who had been known to invest money.
Carl ICran, an investor, testified that he received a letter from Wayne Everett and Company advising him that a Mr. Delfino of Royal National would be calling him to discuss a possible investment opportunity. The letter was admitted into evidence. On cross-examination by a defense attorney, ICran testified he had previously invested in a land deal with R. Wayne Everett. On redirect examination by the State, Kran stated that he never recouped his investment.
Further evidence introduced by the State included a check from Royal National to Wayne Everett in the amount of $500. Thus, another allegedly improper comment, made without objection, had evidentiary support. Viewed in context, the prosecutor did not imply that defendants had previously engaged in illegal conduct. Rather, the inference was that Everett and Company had a list of people who had previously invested in questionable deals, and that the defendants were able to obtain those names for a $500 fee.
I agree the prosecutor’s questions about other corporations and shareholders Gibson was using, and the remark, “[M]aybe this time he will get caught,” were improper. Nevertheless, there was no objection, and the error here was not so substantial as to constitute “plain error.” (People v. Jackson (1981), 84 Ill. 2d 350, 360 .) Nor was the evidence so “closely balanced” as to justify our review of this error. (People v. Carlson (1980), 79 Ill. 2d 564, 576 .) With the exception of the comment concerning the rental arrangement, none of these allegedly improper remarks were even brought to the trial court’s attention until after the jury had been instructed and retired to deliberate.
During the in-chambers voir dire of one of the jurors, Mrs. Hicks, the prosecutor made the improper statement: “ [I] think it should be clear that it is not the People, Your Honor, asking these questions.” Thereafter, while the defense attorneys expressed their displeasure with the prosecutor’s comment, none objected to Mrs. Hicks’ continued presence on the jury, despite the fact that two alternate jurors had yet to be chosen. No one expressed the view that Mrs. Hicks could no longer be an impartial juror. (Cf. People v. Harris (1979), 74 Ill. 2d 472, 474-75 (the trial judge did not abuse discretion in failing to discharge a juror on defendant’s motion because of the alleged prejudicial effect of the trial court’s in-chambers remarks to- a juror).) Only after the guilty verdicts were returned and the defense attorneys learned that Mrs. Hicks had been chosen as forewoman did the matter ever come up again. Hence, the issue is waived. See People v. Ford (1960), 19 Ill. 2d 466, 478-79 ; People v. Adams (1954), 4 Ill. 2d 453, 458 ; see also Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 919 ; Allen v. Dorris (1974), 16 Ill. App. 3d 980, 983-84 .
In the prosecutor’s opening statement he made two comments which the majority holds objectionable because of the subsequent failure to produce evidence. One such comment was that the investors were told their money would partly be used to build condominiums. As the majority points out, however, one of the State’s witnesses testified that he was told of the company’s desire to acquire mortgage money for a housing project in the Bahamas. Recently, we held that an opening argument can include a discussion of matters that may reasonably be inferred from the evidence. (People v. Warmack (1980), 83 Ill. 2d 112, 125-26 (opening arguments need not be limited to a discussion of direct evidence; “[s]ufficient evidence was presented from which the jury could reasonably infer that defendant owned the clothing, and such circumstantial evidence was sufficient to support the assertions of the prosecutor in his opening argument”).) I cannot believe that the slight variance between what was said on one point in the opening statement and the actual evidence was of any consequence in this trial. (Cf. People v. Allen (1959), 17 Ill. 2d 55, 63 (prosecutor’s reference in his opening statement to an admission by defendant was not reversible error despite the lack of such evidence).) Moreover, this particular point was not raised in any of the. defendants’ post-trial motions and has been waived. 73 Ill. 2d R. 366(b)(2)(iii); People v. Adkisson (1980), 83 Ill. 2d 1, 7 ; People v. Tannenbaum (1980), 82 Ill. 2d 177, 181 ; People v. Foster (1979), 76 Ill. 2d 365, 380 .
The prosecutor also informed the jury in his opening statement that the investors were not told that the one legitimate bill incurred by Royal National was not paid. As the majority notes, this allegation was improper because the bill was incurred after the last shares of stock were sold. Nevertheless, the prosecutor cited numerous misrepresentations and omissions by defendants that would have influenced an investor’s decision on whether to purchase stock, and considerable evidence was produced in support thereof. Further, the jury heard the actual evidence which disclosed when this bill was incurred. Thus, the reference in the opening statement to the unpaid bill the investors were not told about was not reversible error. See People v. Allen (1959), 17 Ill. 2d 55, 63 .
Nor do I believe that Perry Streeter’s testimony justifies a reversal. Considering all of the evidence in this lengthy record, and the number of witnesses who testified concerning the defendants’ misrepresentations, the Streeter testimony could not, in my opinion, have been a material factor in the conviction of these defendants. (People v. Dukett (1974), 56 Ill. 2d 432, 444 , cert. denied (1974), 419 U.S. 965 , 42 L. Ed. 2d 180 , 95 S. Ct. 226 .) Some 23 witnesses testified on behalf of the State. Their testimony, together with the voluminous documentary and other evidence, overwhelmingly established defendants’ guilt. Contrary to the representations made to the investors that each defendant had contributed $50,000 in corporate capital, the largest such contribution was $220. Despite their assertions that no salaries were being paid them, more than 60% of the money invested by the victims was disbursed to defendants in the form of salaries and expenses. Numerous other misrepresentations and failures to disclose were testified to as occurring prior to and during Royal National’s brief existence. In sum, I simply cannot believe that this verdict could have been otherwise had any of the other alleged errors not occurred. People v. Jackson (1981), 84 Ill. 2d 350, 360 .
I would affirm the convictions of all defendants.
JUSTICE SIMON joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9743466. Public record. Not legal advice.