People v. Jennings

JUSTICE McLAREN,

dissenting:

I respectfully dissent. I believe that the State committed reversible error when it argued, over objection, that the State had learned only a week before trial that defendant had an alibi defense. The prosecutor contended that the alibi was kept a “secret” from the police when in fact the police were made aware of the alibi defense by defendant’s statement made to an investigating officer on the date the defendant was arrested. The majority states on page 3 of its opinion that Officer Thompkins stated that after he arrested defendant, defendant told Thompkins that he “had been at Granny’s Restaurant on March 23, 1990.” (See 254 Ill. App. 3d at 17.) The police were, in fact, made aware that there was an alibi defense on the day that the defendant was arrested, and the State’s Attorney’s office was told of the alibi defense at least five months prior to trial. To allow the State to argue that the alibi defense was a “secret” until one week prior to trial is not supported by either the State’s own witnesses or the record. Whether the record re-fleets which three alibi witnesses were or were not going to testify is not, in my opinion, ameliorating.

This was a closely balanced case because the only evidence to convict the defendant was the testimony of the victim. The victim’s testimony had to be weighed against the testimony of the defendant and his alibi witnesses, and the jury had to consider the weight and credibility of all the witnesses in determining whether the defendant was guilty beyond a reasonable doubt.

I believe the trial court denied the defendant a fair trial by allowing the State to argue, over objection, that the alibi was fabricated because the State was not made aware of any “secret” alibi defense until one week prior to trial. The record does not support such an egregious representation. To the contrary, “we,” as the State described itself, knew of the alibi defense on the day that the defendant was arrested. I believe prejudicial error occurred because I am not confident that the jury would have returned the same verdict if the State had not so improperly destroyed the alibi defense through a closing argument that was not supported by, but rather contrary to, the evidence contained in the record.