dissenting:
I respectfully dissent. The majority has seized on a personal anecdote of the prosecutor and a reference to police reports in closing argument to reverse a jury verdict. This is not a case where cumulative error compels a due process analysis such as our supreme court undertook in People v. Blue, 189 Ill. 2d 99 (2000). It is not a case such as People v. Green, 74 Ill. 2d 444, 386 N.E.2d 272 (1979), where the errors at trial are of such gravity that the integrity of the judicial process is threatened.
The majority opinion here fairly sets out the facts of the case and does not quarrel with the evidence admitted: Ida Smith identified her attacker in a lineup within days of the incident. At the police station she identified a coat and hat recovered from defendant’s home as the coat and hat worn by her attacker. Two other witnesses identified defendant at trial and testified to strikingly similar attacks. The three similar attacks took place over a span of 11 days in January 1996. The majority concedes that, absent the alleged errors, the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt. The thrust of the opinion is that remarks of the prosecutor about a personal experience and a reference to police reports (which the State insists were invited by defense counsel) are enough to justify a new trial.
As the State pointed out in its appellate brief, defendant’s comparison of the remarks of the prosecutor in this case to those of the prosecutor in People v. Hayes, 183 Ill. App. 3d 752, 539 N.E.2d 355 (1989), and People v. Barraza, 303 Ill. App. 3d 794, 797, 708 N.E.2d 1256, 1258 (1999), ignores the critical factual differences between the cases. In Hayes and Barraza, the prosecutors made reference to the impact the kind of crime charged had on their own lives. In Hayes, a sexual assault case, the prosecutor melodramatically described her own near-rape experience. In Barraza, also a sexual abuse case, the prosecutor referred to a conversation he had with his daughter about sexual abuse. Here, the prosecutor described an incident with his son to set up an analogy that stressed the difference between identification based on physical description and one based on recognition. His experience did not relate to the crimes charged in the case. He did not indulge in the kind of melodramatic pathos (as in Hayes) designed to transfer sympathy from himself to the victim. He did not, as in Hayes and Barraza, refer to the crimes with which defendant was charged as part of his own experience.
The test for reversing a conviction based on the remarks of a prosecutor is well settled: “ whether the jury would have reached a contrary verdict had the improper remarks not been made.” (Emphasis added.) People v. Heard, 187 Ill. 2d 36, 73, 718 N.E.2d 58 79 (1999). It is perhaps even more forcefully put in People v. Cisewski, 118 Ill. 2d 163, 514 N.E.2d 970 (1987). “To constitute reversible error, the complained-of remarks must have resulted in substantial prejudice to the accused, such that absent those remarks the verdict would have been different.” (Emphasis added.) Cisewski, 118 Ill. 2d at 175, 514 N.E.2d at 976, citing People v. Morgan, 112 Ill. 2d 111, 132, 492 N.E.2d 1303, 1311 (1986). This is not a standard of recent invention:
“Complaints of improper arguments of counsel have frequently been considered by this court and judgments have sometimes been reversed on account of them. In Gallagher v. People, 211 Ill. 158, [169, 71 N.E. 842, 847 (1904)], the court said ***: ‘It is very difficult to lay down an inflexible rule as to the proper limit of an argument upon the facts and circumstances of a case, and unless the court can see that statements are unprovoked or so foreign to the case as to be calculated to produce a result which otherwise would not have been reached, a judgment of conviction will not be reversed on that ground.’ ” (Emphasis added.) People v. McCann, 247 Ill. 130, 170, 93 N.E. 100, 114 (1910).
McCann, decided by our supreme court in 1910, contains an excellent survey of the standard, which dates to at least 1888.
The majority conclusion that the verdict “might” have been different if the remark had not been made misstates the standard as set out by the supreme court and by the case the majority cites, People v. Montefolka, 287 Ill. App. 3d 199, 212, 678 N.E.2d 850, 885 (1997). A quibble over “would” and “might” in contexts that do not involve the reversal of jury verdicts “might” be just that — a quibble. But in a case such as this, where the evidence of guilt is very strong, and the remarks of the prosecutor are well below an inflammatory level, a reversal suggests a relaxed standard of review that the supreme court has never endorsed, except in rare cases, such as Blue, where cumulative error infected the entire trial. I would not reverse this case, because I do not believe a reasonable jury who heard the evidence in this case would have acquitted this defendant, but for the remarks of the prosecutor.