ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Carbajal, 2013 IL App (2d) 111018
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MIGUEL A. CARBAJAL, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-1018
Filed March 7, 2013
Held Defendant’s conviction for burglary of a school was reversed and the
(Note: This syllabus cause was remanded for a new trial, since the evidence concerning
constitutes no part of defendant’s intent was closely balanced, and even though defense counsel
the opinion of the court waived any objection to the State’s closing arguments, the arguments
but has been prepared which misstated the law and shifted the burden of proof to defendant
by the Reporter of constituted plain error.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Lake County, No. 11-CF-1925; the
Review Hon. Daniel B. Shanes, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Thomas A. Lilien and Sherry R. Silvern, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
and Scott Jacobson, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices Zenoff and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Miguel A. Carbajal, was found guilty of burglary (720
ILCS 5/19-1 (West 2010)). The trial court sentenced defendant to 24 months’ probation and
ordered him to pay restitution. In this direct appeal, defendant argues that the State’s
improper remarks during closing argument amounted to plain error under Illinois Supreme
Court Rule 615 (eff. Jan. 1, 1967). We agree and therefore reverse and remand.
¶2 I. BACKGROUND
¶3 On July 13, 2011, defendant and codefendant LaDerrion Preacely were charged by
indictment with burglary. The single count alleged that on June 15, 2011, the two entered,
without authority, Webster Middle School (the school) with the intent to commit a theft.
¶4 Defendant’s individual trial commenced on August 25, 2011. During the State’s opening
argument, the prosecutor argued that defendant, his friend Preacely, and a third, undisclosed
individual formulated a plan to enter the school at night to perform a theft. After Preacely
shattered a window to the school, the three entered the building to find money to buy late-
night snacks. Unable to find any money, they decided to leave but encountered the police.
¶5 Defense counsel challenged the State’s theory by arguing that defendant was innocent of
burglary. According to defense counsel, defendant made a “dumb decision” by entering a
school “when he wasn’t supposed to.” While they were in the school, Preacely told defendant
that he wanted to look for money so he could buy snacks at a gas station. However, defendant
did not take anything or intend to take anything.
¶6 Officer Thomas Donnan testified first on behalf of the State. On June 15, around 10 p.m.,
Officer Donnan was dispatched to the school after the alarm was activated. Shortly afterward,
Officers Paulsen and Shepherd also arrived and notified Officer Donnan that there was a
broken window on one side of the school. Officer Donnan then stood near the main entrance
of the school and saw two individuals running inside. One of the individuals, later identified
as Preacely, exited the building, and Officer Donnan took him into custody. No money was
found on Preacely. The other individual, later identified as defendant, did not exit the school
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but stopped and ran in another direction. With the assistance of a canine unit, defendant was
found inside the school awhile later.
¶7 Sergeant Scott Thomas testified that he interviewed Preacely, who said he was with two
other individuals during the incident. Sergeant Thomas searched the school from top to
bottom, which took about 90 minutes. The last room to be checked was the boiler room,
where defendant was found lying on some pipes in the ceiling. Defendant was told to come
down, and he did. Defendant was taken into custody, where he spent the night.
¶8 Detective Michael Taylor testified that he interviewed defendant the next day, on June
16. Defendant admitted that he went inside the school with his friend Preacely, who had
kicked in the window. He also admitted that he was found hiding in the boiler room. Initially,
defendant said that he entered the school to play basketball. Defendant’s story subsequently
changed, and he said that Preacely had the “munchies” and was looking for change in
different rooms to buy a snack. Defendant also said that a third individual was with them, but
he did not know his name. The third person was a friend of Preacely’s.
¶9 Defendant gave a written statement to Detective Taylor. The written statement, which
was read to the jury, stated as follows:
“We were coming from my house on the way to [Preacely’s] house when we seen
[sic] [the school] and decided to go in. He kicked the window and we went inside. He
was talking about him being hungry and maybe find a dollar or maybe some change so
we can go to the store and buy snacks. We couldn’t find any change so we decided to
leave. I was suggesting going to the gym, maybe play some ball or some stupid stuff, but
that was dumb so we just left. As we were leaving, we seen [sic] police lights and got
scared so we decided to run. I separated from [Preacely] and went downstairs to the
boiler room and decided to sit in there.”
¶ 10 James Gahagan, a school employee, testified that the incident occurred during summer
break when only certain individuals with keys were allowed to enter the school. A brick or
some type of stone was used to break the window.
¶ 11 The State rested, and defendant moved for a directed verdict on the basis that the State
had not shown that defendant entered the school with the intent to commit a theft. The trial
court denied defendant’s motion.
¶ 12 Defendant testified on his own behalf as follows. He was 19 years old and lived at home
with his parents and siblings. On June 15, he and Preacely decided to leave his house and
walk to Preacely’s house. On the way, a friend of Preacely’s, whom defendant had never met,
joined them. Preacely lived a couple of blocks from the school. As they walked through the
school parking lot, Preacely kicked in one of the school’s windows. Prior to that, the three
had not discussed anything about breaking a window.
¶ 13 Preacely went inside the school through the broken window, and defendant “stood around
for a few seconds,” not knowing whether to follow Preacely or “just run and leave.”
Defendant decided to follow Preacely. Once inside the school, Preacely said he was hungry
and wanted to look for some loose change. This idea did not come up until they were in the
school. Preacely opened the door to the school hallway and tried to open some classroom
doors, but they were locked. Defendant suggested checking out the gym and playing “some
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basketball or something.” After that, defendant said “maybe [they] should just get out” of
there. Defendant talked about the gym to divert Preacely and “get his attention off of what
he was trying to do.” Immediately after that, they decided to leave.
¶ 14 As they were leaving, the police arrived, shining their flashlights. The police apprehended
Preacely, who had exited the school, and defendant got scared. Instead of exiting the school,
defendant ran and hid in the boiler room. Later, he was taken into custody and placed in a
holding cell. The next morning, a detective questioned defendant, and defendant gave him
a written statement.
¶ 15 Defendant was questioned about his written statement. Though he wrote that they
“decided” to go in the school, there was no discussion before entering the school; Preacely
was the one who first decided to go in. In his statement, defendant wrote they could not find
change, so they decided to leave. However, defendant did not look for any change, did not
touch anything, did not move anything, and did not take anything.
¶ 16 Defendant denied planning to take anything before entering the school. In addition,
before entering the school, he did not know that Preacely was going to look for change. Once
inside the school, he did not look for anything or help Preacely find anything.
¶ 17 On cross-examination, defendant was questioned further about his written statement.
Defendant admitted that he wrote in his statement that “we” could go to the store and buy
snacks. He used the word “we” because he would have accompanied Preacely to the store
even though he would not have purchased any snacks. Although defendant wrote that “we”
could not find any change, he denied looking for change in the school. According to
defendant, Preacely’s other friend was not looking for change either. Defendant wrote in his
statement that playing basketball was “stupid” because they were not supposed to be in the
school in the first place. Defendant told the detective that he went inside the school only to
stop Preacely, but he admitted that he did not include this information in his written
statement.
¶ 18 The parties rested. During the jury instruction conference, the court agreed to instruct the
jury on the lesser included offense of criminal trespass to real property. The court also
agreed, over defense counsel’s objection, to instruct the jury on the theory of accountability.
¶ 19 The State maintained during its closing argument that defendant, Preacely, and a third
person had a plan to go from defendant’s house to Preacely’s house, but the plan then
changed. The State argued:
“The defendant wants to claim or did claim that his friend got hungry and that his
friend wanted to steal some money to use that money to pay for snacks at a gas station
and that all this was his friend’s idea and he had nothing to do with it.
Even if this self-serving testimony of the defendant is in fact true, it doesn’t matter
in this case, it doesn’t affect the outcome.” (Emphasis added.)
At this point, defense counsel objected. The court admonished the jury that counsel was
allowed to argue; that what counsel said was not evidence; and that the court would instruct
the jury on the law. Following the court’s admonishments, the State argued that “it does not
prove the defendant’s innocence in any way. In any case, it’s irrelevant. And why is it
irrelevant? Because that’s what the law says.” (Emphasis added.)
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¶ 20 The State advised the jury that the only “real issue here” was intent. To this end, it argued
that defendant broke into the school with his friend with the intention of stealing money or
something of value. Turning to defendant’s written statement, the State argued:
“And what about his contention about diverting attention from his friends? Why
wasn’t that in the statement? It’s a pretty vital fact to include, to let the police know that
the only intention that the defendant had was to persuade his friends and to have him
come out of the school or go play basketball instead of stealing the money. That right
there proves your innocence, and he didn’t put that in his statement.” (Emphasis added.)
Defense counsel objected, and the court advised the jury that, although counsel was allowed
to argue the evidence, defendant was presumed innocent of the charge against him. The court
further advised the jury that the State had the burden of proving defendant guilty beyond a
reasonable doubt; that the jury should use its recollection of the evidence; and that counsel
could argue reasonable inferences from the evidence.
¶ 21 The State went on to argue that defendant and his friend were equally culpable for their
actions. It argued:
“It’s plain and simple. The defendant and his friend carried out a criminal act, and
together they got caught. They should equally be held culpable. They broke into a school
with no authorization and with the intent to steal. And I want to remind you that the act
of stealing is not necessary under this charge, but that the intent is there. In this case the
defendant entered the school with his friend without permission with the intent to find
money and take that money.
Defense counsel’s suggestion that the friend holds the blame, and for that reason you
can’t hold the defendant guilty. The problem with that is that’s not the law.” (Emphasis
added.)
Again, defense counsel objected. The court admonished the jury that it would instruct it on
the law; that counsel was allowed to argue the evidence and reasonable inferences therefrom;
and that what the attorneys said was not evidence.
¶ 22 After discussing the different propositions of burglary, the State concluded that “[i]t is
up to you to take the testimony and evidence presented to you by the State and find the
defendant guilty of burglary.” (Emphasis added.)
¶ 23 The jury found defendant guilty of burglary. Defendant subsequently filed a motion for
judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied
defendant’s motion. The trial court sentenced defendant to 24 months’ probation and ordered
him to pay restitution. Defendant timely appealed.
¶ 24 II. ANALYSIS
¶ 25 A. Plain-Error Review of Improper Remarks
¶ 26 On appeal, defendant argues that several of the State’s remarks during closing argument
were improper and thus denied him a fair trial. Though the majority of the challenged
remarks were objected to during trial, defendant concedes that he failed to include them in
his posttrial motion, resulting in forfeiture. Nevertheless, defendant urges this court to review
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the issue under the plain-error doctrine.
¶ 27 The plain-error doctrine contained in Illinois Supreme Court Rule 615(a) provides a
narrow exception to the general rule of procedural default. People v. Lewis, 234 Ill. 2d 32,
42 (2009). The doctrine allows a reviewing court to consider an unpreserved error when (1)
a clear or obvious error occurs and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of
the error, or (2) a clear or obvious error occurs and that error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless
of the closeness of the evidence. Id. at 42-43. The defendant bears the burden of persuasion
under both prongs of the plain-error test. Id. at 43. Our first step in plain-error analysis is
determining whether any error occurred. Id. at 42.
¶ 28 B. Error Occurred
¶ 29 Overall, defendant lists five remarks made by the State during closing argument that he
contends either misstated the law or shifted the burden of proof. It is well settled that the
State may comment on the evidence, draw inferences therefrom, and comment on the
accused’s credibility. People v. Echols, 382 Ill. App. 3d 309, 318 (2008). Though the State
is given wide latitude in closing arguments (id.), the State is not allowed to misstate the law
or facts of the case, and it is not allowed to diminish its burden of proof (People v. Buckley,
282 Ill. App. 3d 81, 89 (1996)). As we discuss below, we agree with defendant that these five
remarks constituted error.1
¶ 30 The first two challenged comments were made during the State’s discussion of legal
accountability. First, the State argued:
“The defendant wants to claim or did claim that his friend got hungry and that his
friend wanted to steal some money to use that money to pay for snacks at a gas station
and that all this was his friend’s idea and he had nothing to do with it.
Even if this self-serving testimony of the defendant is in fact true, it doesn’t matter
in this case, it doesn’t affect the outcome.” (Emphasis added.)
Second, the State argued:
“It’s plain and simple. The defendant and his friend carried out a criminal act, and
together they got caught. They should equally be held culpable. They broke into a school
with no authorization and with the intent to steal. And I want to remind you that the act
of stealing is not necessary under this charge, but that the intent is there. In this case the
defendant entered the school with his friend without permission with the intent to find
1
In this case, we note that closing argument was delivered by a student pursuant to Illinois
Supreme Court Rule 711(c)(2)(ii) (eff. Feb. 10, 2006), which allows a qualifying law student or
graduate to participate in criminal trial proceedings as an assistant of a supervising, licensed
attorney. While we laud the program of allowing students to participate in trials and encourage its
continued application, we caution that the rule itself requires the supervising attorney to “be present
and responsible for the conduct of the proceedings.” Ill. S. Ct. R. 711(c)(2)(ii). Appropriate
supervision is critical to the functioning of the rule.
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money and take that money.
Defense counsel’s suggestion that the friend holds the blame, and for that reason you
can’t hold the defendant guilty. The problem with that is that’s not the law.” (Emphasis
added.)
Defense counsel objected to both of these comments. On both occasions, the court
admonished the jury that it would instruct it on the law; that counsel was allowed to argue
the evidence and reasonable inferences therefrom; and that what the attorneys said was not
evidence.
¶ 31 Misstatements of law in closing argument can be grounds for reversal (People v. Jackson,
2012 IL App (1st) 092833, ¶ 36), and both of the State’s remarks misstated the law. The
defense theory was that defendant had no intent to steal money when entering the school. See
720 ILCS 5/19-1 (West 2010) (a person commits burglary when without authority he
knowingly enters a building with intent to commit a felony or theft). In terms of
accountability, the defense theory was that defendant had no knowledge of Preacely’s intent
to steal money upon entering the school and that, at most, he was guilty of criminal trespass
to real property. See 720 ILCS 5/5-2(c) (West 2010) (a person is legally accountable for the
conduct of another when either before or during the commission of an offense, and with the
intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or
attempts to aid that other person in the planning or commission of the offense). The State,
on the other hand, argued that defendant was legally accountable for Preacely’s actions in
that he shared Preacely’s intent to steal money upon entering the school.
¶ 32 Contrary to what the State argued, if the jury believed defendant’s testimony that, before
entering the school, he did not have knowledge of Preacely’s intent to steal money, it would
have affected the outcome because defendant would not have had the intent necessary to be
accountable for Preacely’s actions and thus guilty of burglary. The State also misstated the
law by advising the jury that the defense theory, which was that Preacely, alone, held the
blame, could not absolve defendant. By arguing that that was not the law, the State misstated
the law of accountability as to the burglary charge. In other words, had the jury believed
defendant’s version of events, defendant would have lacked the intent necessary to be
accountable for Preacely’s actions, and, at most, he would have been convicted of criminal
trespass to real property.
¶ 33 Defendant is also correct that the State improperly shifted the burden of proof by telling
the jury on two occasions that he failed to prove his innocence. Referring to defendant’s self-
serving testimony, the State argued that “it does not prove the defendant’s innocence in any
way. In any case, it’s irrelevant. And why is it irrelevant? Because that’s what the law says.”
(Emphasis added.) Then, in reference to defendant’s written statement, the State argued:
“And what about his contention about diverting attention from his friends? Why
wasn’t that in the statement? It’s a pretty vital fact to include, to let the police know that
the only intention that the defendant had was to persuade his friends and to have him
come out of the school or go play basketball instead of stealing the money. That right
there proves your innocence, and he didn’t put that in his statement.” (Emphasis added.)
Defense counsel did not object to the first remark but objected to the second remark. In
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response to the objection, the court admonished the jury that, although counsel was allowed
to argue the evidence, defendant was presumed innocent of the charge against him. The court
also advised the jury that the State had the burden of proving defendant guilty beyond a
reasonable doubt; that the jury should rely on its recollection of the evidence; and that
counsel could argue reasonable inferences from the evidence.
¶ 34 In People v. Phillips, 127 Ill. 2d 499, 527 (1989), our supreme court stated that it is
impermissible for the prosecution to attempt to shift the burden of proof to the defense. The
law presumes the innocence of an accused until he is proven guilty beyond a reasonable
doubt (People v. Tyson, 137 Ill. App. 3d 912, 921 (1985)), and the State is not allowed to
imply that the defendant had to show his innocence (People v. Reyna, 289 Ill. App. 3d 835,
839-40 (1997)). While the State may comment on evidence presented by the defendant,
“[t]here is a great deal of difference between an allegation by the [State] that defendant did
not prove himself innocent and statements questioning the relevance or credibility of a
defendant’s case.” Phillips, 127 Ill. 2d at 527.
¶ 35 Here, the State went beyond commenting on the relevance and credibility of defendant’s
case when it stated, in reference to his self-serving testimony, that it did not prove his
innocence in any way. Instead of challenging the credibility of defendant’s testimony that
before entering the school he had no intent to steal money and did not know of Preacely’s
intent to steal money, the State gave the jury the impression that he was under an obligation
to prove his innocence. Later, when challenging defendant’s written statement on the basis
that it did not include his stated intention to try to divert Preacely from taking money once
inside the school, the State went beyond simply pointing out this omission from the written
statement. Rather, it went as far as saying that including this information in his written
statement would have proven defendant’s innocence, as though he was required to do so, but
he failed to include it. Again, the State’s clear message to the jury was that defendant had an
obligation to prove his innocence, which was error.
¶ 36 Last, defendant refers to the State’s final comment to the jury during closing argument.
After discussing the legal propositions to establish burglary, the State concluded by telling
the jury that “[i]t is up to you to take the testimony and evidence presented to you by the
State and find the defendant guilty of burglary.” (Emphasis added.) Defendant argues that
the State essentially advised the jury that it did not need to consider any evidence from the
defense in reaching its determination, which was a misstatement of the law.
¶ 37 By admonishing the jury to consider the State’s evidence (to the obvious exclusion of
defendant’s evidence), we agree that the comment was an incomplete statement of the law,
in that the correct standard is whether, taking all of the evidence into consideration, guilt as
to every essential element of the charge has been proven beyond a reasonable doubt. See
People v. Young, 347 Ill. App. 3d 909, 927 (2004). This comment, standing alone, was not
nearly as objectionable as the other remarks discussed above; however, the comment
becomes problematic in the context in which it was made. See People v. Beltran, 2011 IL
App (2d) 090856, ¶ 61 (the reviewing court can consider the cumulative effect of improper
argument rather than assess the prejudicial effect of every isolated comment); People v.
Maldonado, 402 Ill. App. 3d 411, 422 (2010) (when reviewing claims of prosecutorial
misconduct in closing argument, a reviewing court will consider the entire closing argument
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in order to place the comments in context). Prior to directing the jury to take the evidence
presented by the State and find defendant guilty, the State improperly advised the jury that
defendant’s testimony did not affect the outcome of the case and was irrelevant; that ignoring
or rejecting the defense theory was the law; and that defendant was under an obligation to
prove his innocence. Therefore, put in context, the State’s comment perpetuated a theme of
misstating the law.
¶ 38 C. Reversible Error Under Plain-Error Doctrine
¶ 39 Having determined that the State did make improper comments during closing argument,
we next consider whether the improper comments amounted to reversible error under the
plain-error doctrine. The defendant faces a substantial burden in achieving reversal of his
conviction based upon improper remarks during closing argument. People v. Meeks, 382 Ill.
App. 3d 81, 84 (2008). This is especially true here, where we review the errors in the context
of the plain-error doctrine as opposed to the standard that applies when an error is preserved.
See People v. Euell, 2012 IL App (2d) 101130, ¶ 22 (“when a defendant preserves this issue
for review, we may affirm if we deem the comments harmless beyond a reasonable doubt,
reversing only where the improper remarks resulted in substantial prejudice to the
defendant’s right to a fair trial” (emphasis omitted) (internal quotation marks omitted)); see
also People v. Hampton, 387 Ill. App. 3d 206, 220 (2008) (the reviewing court asks whether
the State’s comments during closing argument engendered substantial prejudice against a
defendant such that it is impossible to say whether a verdict of guilt resulted from them). As
this court recently noted in Euell, 2012 IL App (2d) 101130, ¶ 22, “[i]f we do not
automatically reverse in light of a preserved misstatement of the burden of proof, certainly
we may not automatically reverse in light of a forfeited one.” (Emphases in original.)
Therefore, in accordance with the plain-error rule, we will reverse only when (1) a clear or
obvious error occurs and the evidence is so closely balanced that the error alone threatened
to tip the scales of justice against the defendant, regardless of the seriousness of the error, or
(2) a clear or obvious error occurs and that error is so serious that it affected the fairness of
the defendant’s trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence. Lewis, 234 Ill. 2d at 42-43.
¶ 40 D. Evidence Was Closely Balanced
¶ 41 Defendant contends that both prongs of the plain-error doctrine are satisfied in this case.
Beginning with the first prong, he argues that the evidence was closely balanced because his
guilt depended on his intent at the moment Preacely kicked in the window and entered the
school. According to defendant, his testimony revealed that he was merely following
Preacely; there was no discussion of what Preacely was going to do before he kicked in the
window and entered the school; and it was not until after they entered the school that
Preacely brought up the idea of looking for money to buy snacks. Defendant concludes that,
had the jury not been told to ignore this evidence, it would have acquitted him of burglary
based on accountability and perhaps convicted him of criminal trespass to real property.
¶ 42 It is undisputed that defendant entered the school after Preacely broke the window and
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that he hid in the boiler room when police arrived. Defendant’s flight from police is proof
of consciousness of guilt. See People v. Harris, 225 Ill. 2d 1, 23 (2007) (evidence of flight
is generally admissible as proof of consciousness of guilt). However, defendant is correct that
this evidence could have led the jury to find defendant guilty of criminal trespass to real
property as opposed to burglary.
¶ 43 For the burglary charge, this case did boil down to his intent at the moment he entered
the school. The intent necessary to commit burglary is usually established by circumstantial
evidence since it is rarely susceptible of direct proof. See People v. Davis, 233 Ill. App. 3d
878, 880 (1992). In determining defendant’s intent, the jury could consider his in-court
testimony as well as his written statement.
¶ 44 On the one hand, defendant’s written statement supported an inference that defendant had
the intent necessary to commit a burglary upon entering the school, in that the statement
repeatedly used the word “we.” Defendant said in his statement that “we” saw the school and
decided to go in; Preacely kicked the window and “we” went inside; Preacely “was talking
about him being hungry and maybe find a dollar or maybe some change” so “we” could go
to the store and buy snacks; and “[w]e” could not find any change so “we” decided to leave.
On the other hand, the written statement did not indicate when Preacely first talked about
looking for money in the school, the most critical issue in terms of intent. However,
defendant offered specific testimony on this issue. Defendant testified that there was no
discussion of what Preacely was going to do before they entered the school and that it was
not until after they entered the school that Preacely brought up the idea of looking for money
to buy snacks. Given that defendant’s written statement was ambiguous as to when Preacely
developed the intent to look for money in the school, and that defendant denied that Preacely
voiced such an intent prior to entering the school, the evidence was closely balanced on the
issue of defendant’s intent.
¶ 45 In cases where the evidence was not closely balanced on the issue of intent, the evidence
of the defendant’s intent was much greater than what is present here. See People v. Land,
2011 IL App (1st) 101048, ¶¶ 22, 101-03 (the court found that the evidence on the issue of
whether the defendant intended to kill or injure an animal was not closely balanced where
it would have taken four to six weeks for a heavy tow chain to become embedded in the
dog’s neck, there was expert testimony regarding the injury, and the defendant’s testimony
was inherently incredible); see also People v. Carter, 405 Ill. App. 3d 246, 253 (2010) (the
court found that the evidence of the defendant’s intent to commit aggravated criminal sexual
abuse was overwhelming where the underage victim and an eyewitness testified regarding
the sexual incident); People v. Wells, 184 Ill. App. 3d 925, 934-36 (1989) (evidence not
closely balanced on the central issue of the defendant’s intent to deliver drugs under an
accountability theory where the defendant counted the money during a drug deal).
¶ 46 Having determined that the evidence was closely balanced on the issue of defendant’s
intent, we agree with defendant that the State’s improper comments during closing argument
severely threatened to tip the scales of justice against defendant. By arguing that defendant’s
self-serving testimony had no effect on the outcome, and that it was “not the law” that
defendant could be absolved if Preacely, alone, held the blame, the State essentially advised
the jury that, even if it believed defendant’s version of events, it did not matter; he would still
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be guilty of burglary. In addition to misstating the law of accountability, the State twice
stated that defendant had not proved his innocence. See People v. Brooks, 345 Ill. App. 3d
945, 951 (2004) (“the number of times the jury is confronted with a misstatement of law is
relevant in evaluating the nature and extent of the harm”). As stated, this court can consider
the cumulative effect of improper argument (Beltran, 2011 IL App (2d) 090856, ¶ 61), which
here advised the jury not only that defendant had a duty to prove his innocence, but also that
his theory of defense was not valid.
¶ 47 On this issue, People v. Gutierrez, 239 Ill. App. 3d 536 (1992), is instructive. In
Gutierrez, the evidence concerning the defendant’s voluntary-intoxication defense was
closely balanced. Id. at 544. During closing argument, the State implied that voluntary
intoxication was not a valid defense and repeatedly stated that the defendant and defense
witnesses did not “prove” or “establish” the intoxication defense. Id. Reasoning that the
State’s closing argument could be interpreted only as a statement that the defendant had to
prove his defense of voluntary intoxication, the court found that the State’s misstatements
of the law amounted to plain error. Id. at 544-45; see also People v. Derr, 316 Ill. App. 3d
272, 275 (2000) (the State’s repeated references to the defendant’s failure to present evidence
to prove his innocence and testify denied the defendant a fair trial); People v. Giangrande,
101 Ill. App. 3d 397, 401-02 (1981) (it was improper for the State to ask, “ ‘where’s the
evidence that defendant didn’t do it?’ ” (emphasis omitted), because it suggested that the
defendant was required to present evidence tending to prove his innocence).
¶ 48 In addition, the fact that the trial court admonished the jury as to the applicable law after
three out of the five improper remarks does not affect our conclusion. “[T]he prejudicial
effect of an improper argument cannot always be erased from the minds of the jury by an
admonishment from the court.” Buckley, 282 Ill. App. 3d at 90; see also Derr, 316 Ill. App.
3d at 276 (“[i]t is reversible error for the State to attempt to shift the burden of proof to the
defense, notwithstanding the fact that the jury is properly instructed regarding the burden of
proof”).
¶ 49 Finally, though the evidence regarding defendant’s intent was closely balanced, there was
sufficient evidence to convict defendant of burglary, meaning there is no double jeopardy
impediment to a new trial. See People v. Wheeler, 226 Ill. 2d 92, 134-35 (2007) (because the
evidence was sufficient to convict the defendant, there was no double jeopardy impediment
to a new trial). Our resolution of this case on the first prong of the plain-error doctrine
obviates the need to consider defendant’s argument under the second prong.
¶ 50 III. CONCLUSION
¶ 51 The State’s improper remarks during closing argument, which misstated the law and
shifted the burden of proof, amounted to plain error because the evidence was closely
balanced. Accordingly, the judgment of the circuit court of Lake County is reversed and the
cause is remanded for a new trial.
¶ 52 Reversed and remanded.
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