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Appellate Court Date: 2017.07.19
11:13:40 -05'00'
People v. Austin, 2017 IL App (1st) 142737
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARCUS AUSTIN, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-14-2737
Filed April 25, 2017
Rehearing denied May 31, 2017
Decision Under Appeal from the Circuit Court of Cook County, Nos. 10-CR-21499,
Review 10-CR-21500, 10-CR-21501; the Hon. Stanley J. Sacks, Judge,
presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Jonathan Krieger, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Marci Jacobs, Assistant State’s Attorneys, of counsel), for the
People.
Panel PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion.
Justices Pierce and Mason concurred in the judgment and opinion.
OPINION
¶1 Defendant Marcus Austin was convicted by a jury of armed robbery, aggravated vehicular
hijacking, and aggravated assault. He argues on appeal that (i) after a Batson challenge, the
trial court improperly collapsed the three-step procedure, (ii) the trial court erred by refusing to
instruct the jury on exclusions to the definition of “firearm,” (iii) the prosecutor’s closing
argument improperly commented on Austin’s silence at the time of his arrest, and (iv) the
evidence to sustain his conviction for armed robbery was insufficient.
¶2 We affirm (i) the defense did not establish a prima facie showing of discrimination
resulting from the State’s peremptory challenges of two black venirepersons, (ii) the trial
court’s refusal of the defense’s proffered instruction was not error because the jury instruction
as given apprised the jury of the relevant law, (iii) taken in context and in its entirety, the
prosecutor’s closing argument was nothing more than a summation and not an improper
comment on Austin’s right to silence after his arrest, and (iv) the evidence proved beyond a
reasonable doubt that Austin committed an armed robbery.
¶3 BACKGROUND
¶4 Jury Selection
¶5 During voir dire, the State used three peremptory challenges to exclude prospective jurors.
Defense counsel challenged the State’s peremptory removal of two black venirepersons. In
addition, the State excused a third prospective juror, who was not black. Three black
venirepersons were accepted to serve on the jury.
¶6 Without the defendant making a prima facie showing that the prosecution exercised
peremptory challenges based on race, the trial court asked the State to provide race-neutral
reasons for striking the two black jurors. The prosecutor pointed out that the defense had “not
made a prima facie showing,” to which the court replied, “I’m not sure they have either, but tell
me the reason.” The prosecutor then stated that one of the excluded venirepersons had a
domestic battery conviction that he did not disclose (the venireperson had been arrested 19
years earlier for domestic battery and the charges were dropped). The prosecutor told the court
the other black venireperson had “indicated several things that her brother [(actually,
brother-in-law)] was a CPD police officer that was beat up by [Calumet] Park Police Officers.
She says she reads the Bible. She says she is a youth minister. Those are all the reasons where
the State struck her.” The third juror stricken was not black but had four prior convictions.
When the trial court asked defense counsel if he had anything else to argue, defense counsel
responded, “No, Judge.”
¶7 The State attempted to put on the record that the defense did not make a prima facie
showing, to which the trial court replied, “I’m not saying that they did. We just went a little
quicker to get that out of the way” and “I’m not accusing anybody of anything. It just makes it
quicker to get it done. That’s all. The reasons you gave I think are more than sufficient easily.”
The trial court reiterated that one had a prior conviction he did not disclose and the other “the
situation with the police.”
¶8 Moments later, the trial court stated, “I wasn’t giving the parties a hard time about that
race-neutral stuff. There is no issue in my mind that there was a prima facie case. I just jumped
it forward to save a little time. There was no issue in my mind of any discrimination
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whatsoever. So let’s move on.”
¶9 Trial
¶ 10 Austin and a codefendant were charged with aggravated vehicular hijacking of Takiyah
Stephenson and armed robbery of Anthony Younger for taking money and a coat from
Younger by threat or force while carrying a firearm. Before trial, the two defendants’ cases
were severed.
¶ 11 Around 11 p.m. on November 13, 2010, as Stephenson sat alone in the front passenger seat
of her friend’s car, a man approached and tried to open the locked driver’s side door. The man
asked Stephenson for a lighter and came around to the passenger side where the window was
partially down. He stuck a gun through the opening, pointed it at her head, and told her to
unlock the door. Stephenson grabbed the gun and “held it up.” Another man (codefendant)
approached on the driver’s side with a gun and demanded that Stephenson unlock the door. She
got out and ran. The two men took off in Stephenson’s friend’s car.
¶ 12 Stephenson testified the gun was steel but she could not describe the gun’s make or
whether it was automatic or semiautomatic. She knew it was a gun because her father was in
the military and she had fired guns. On cross-examination, Stephenson admitted she could not
tell the difference between a pellet gun and other guns.
¶ 13 Both Stephenson and the car’s owner testified that a white jacket recovered from the car
was not there before it was stolen.
¶ 14 About one-half hour later, Anthony Younger was robbed of money and a Pelle leather
jacket. The day after the robbery, Younger described his jacket as a “cream-colored leather
Pelle jacket.” Younger testified that the jacket recovered from the car later was not his.
Younger described the robber as black, in his twenties, and looking similar to Younger. He
testified the robber had a gun; on cross-examination, he stated he did not know if the gun was
real or a pellet gun and could have been a toy. Although Younger signed a lineup advisory
form, he claimed he had not read it. After signing the form, Younger viewed a lineup but stated
he did not pick anyone out. Younger did not identify Austin in court. The State impeached
Younger with a prior conviction for a drug offense.
¶ 15 Chicago police detective Donald Hill testified that he interviewed Younger the morning
after the robbery. Younger described his stolen jacket as a Pelle “white leather coat with studs
on it.” Hill explained the lineup advisory form to Younger; both Hill and Younger signed the
form, and Younger identified Austin in the lineup.
¶ 16 Chicago police officer Thomas Raines was on patrol on November 13, driving a marked
squad car with Chicago police officer Matthew Gozdal as passenger. Just before midnight,
they saw a car matching the description of the stolen car and followed it. The car soon stopped,
and two men got out and ran. Austin was on the passenger’s side holding a black gun in his
right hand, which looked to Raines like his own gun. Raines chased Austin, telling him to stop.
While running, Austin pointed a gun at Raines. Raines fired at Austin eight times. Raines lost
sight of him but 30 to 60 seconds later saw Austin in front of a nearby building. Raines
identified Austin on the scene as the same man who had pointed a gun at him.
¶ 17 Gozdal, Raines’s partner, testified he saw a black handgun in Austin’s right hand as Austin
ran. Gozdal pursued the driver and heard three gunshots.
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¶ 18 Around 11 p.m., Chicago police officer Jose Pedraza and his partner received a “flash
message” about a carjacking, including a description of the car and the license plate number.
They pursued the car, which lost control and hit a curb. Two men jumped out and ran. Pedraza
joined Raines and Godzal, who were chasing Austin. Pedraza saw a “blue steel handgun,
semi-automatic pistol” in Austin’s right hand. Austin turned and pointed the gun at Raines
before Raines fired at Austin. At this point, Pedraza fell and lost sight of Austin.
¶ 19 Officer Brian Lohse arrived after the other officers had started to run after the car’s
occupants. Lohse encountered Austin, who put his hands in the air, saying, “I’m the guy you’re
looking for.” Lohse handcuffed Austin and turned him over to Pedraza. No gun was found.
¶ 20 The defense presented no witnesses.
¶ 21 Closing Argument
¶ 22 During closing arguments, defense counsel argued that one of the elements of both
offenses was that Austin had a firearm and then raised the possibility that the weapon seen by
witnesses was a BB gun. Defense counsel argued that Stephenson admitted that she did not
know the “differences of a gun” and had never shot a pellet gun. Defense counsel then
theorized: “Where is the gun? What type of gun was it? Was it a real gun? Was it a BB gun[?]
Those questions remain.” Further, “I asked [Younger], can you describe the gun, can you tell
me what kind it was, how big was it? He said he didn’t know. Could it have been a toy gun?
Yes, it could have been a toy gun.”
¶ 23 In rebuttal, the State argued: “Now he wants you to believe that maybe that was a BB gun.
If that was the case, wouldn’t you want the officer to know, hey, it was just a gun, a BB gun, a
toy, whatever, a starter pistol?” The trial court overruled defense counsel’s objection. The
prosecutor continued: “Wouldn’t he want the officers to know that? But no. He hides it
because he knows it’s a real gun. He knows what the consequences are.”
¶ 24 After arguments, defense counsel’s motion for a mistrial was denied.
¶ 25 Jury Instructions
¶ 26 At the jury instruction conference, defense counsel requested Illinois Pattern Jury
Instruction, Criminal, No. 18.35G (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 18.35G),
defining “Firearm”:
“The word ‘firearm’ means any device, by whatever name known, which is
designed to expel a projectile or projectiles by the action of an explosion, expansion of
gas, or escape of gas. [The term does not include ____.]”
The committee note instructs to “[i]nsert in the blank the name or description of any gun or
device excluded *** by subsections (1), (2), (3) or (4) of Section 65/1.1” and to “[u]se the
bracketed material when appropriate.” IPI Criminal 4th No. 18.35G, Committee Note. 1 The
trial court refused to include in the instruction the language regarding exceptions.
1
Defendant sought to include the following language in the jury instructions:
“(1) any pneumatic gun, spring gun, paint ball gun or B-B gun which either expels a single
globular projectile not exceeding .18 inch in diameter and which has a maximum muzzle velocity
of less than 700 feet per second or breakable paint balls containing washable marking colors;
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¶ 27 The jury convicted Austin of armed robbery, aggravated vehicular hijacking, and
aggravated assault. After a bench trial on an armed habitual criminal charge, the trial court
found Austin guilty of the lesser-included charge of unlawful use of weapon (UUW) by a
felon.
¶ 28 Austin was sentenced to concurrent prison terms of 30 years for armed robbery, 30 years
for aggravated vehicular hijacking, 25 years for UUW by a felon, and 3 years for aggravated
assault.
¶ 29 ANALYSIS
¶ 30 Austin raises four arguments that we address in procedural order as they occurred in the
trial court before and during his trial.
¶ 31 Jury Selection
¶ 32 A prosecution’s use of peremptory challenges to exclude prospective jurors based on race
violates a defendant’s right to equal protection under the fourteenth amendment. Kentucky v.
Batson, 476 U.S. 79, 89 (1986). Batson established a three-step process for addressing alleged
racially discriminatory use of peremptory challenges. People v. Rivera, 221 Ill. 2d 481, 500
(2006). First, Batson requires the trial court to determine whether the defendant has established
a prima facie case of purposeful discrimination. Id. Once a prima facie case is shown, the State
has the burden to articulate a nondiscriminatory, race-neutral explanation based on the facts of
the case. Id. Then, considering the State’s explanation, the trial court makes a final
determination as to whether the defendant has shown purposeful discrimination. Id. Any
ambiguities in the record will be construed against the party asserting the claim. People v.
Davis, 231 Ill. 2d 349, 365 (2008).
¶ 33 The party attempting to exercise a peremptory challenge is not required to provide
race-neutral reasons for the exercise of its peremptory challenge if a prima facie case of
purposeful racial discrimination has not been demonstrated. Batson, 476 U.S. at 97. The
burden of establishing a prima facie case of purposeful discrimination in jury selection is on
the party making the Batson claim. Rivera, 221 Ill. 2d at 507. Rivera elaborated: “By
definition, a ‘prima facie case’ entails ‘[t]he establishment of a legally required rebuttable
presumption’ or ‘[a] party’s production of enough evidence to allow the fact-trier to infer the
fact at issue and rule in the party’s favor.’ ” Id. (quoting Black’s Law Dictionary 1228 (8th ed.
2004)).
¶ 34 Our supreme court has warned against collapsing a methodical procedure into an
undifferentiated review of defense and State contentions. People v. Garrett, 139 Ill. 2d 189,
201 (1990) (“If the State were allowed to interrupt the prima facie hearing stage by obtaining
judicial consideration of its explanations even though they would be insufficient to overcome
an already established prima facie case, those explanations would constitute a thumb on the
(2) any device used for signaling or safety and required or recommended by the United State
Coast Guard or the Interstate Commerce Commission;
(3) any device used exclusively for the firing of stud cartridges, explosive rivets or similar
industrial ammunition; and
(4) an antique firearm (other than a machine-gun which, although designed as a weapon, the
Department of State Police finds by reason of the date of its manufacture, value, design, and other
characteristics is primarily a collector’s item and is not likely to be used as a weapon.”
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scales that weigh the prima facie submission, which would undermine the very concept of a
prima facie case as outlined in Batson.”).
¶ 35 Austin argues the trial court improperly collapsed the three stages of his Batson inquiry
after he challenged the State’s use of peremptory challenges to strike two prospective black
jurors from the venire. The State responds that Austin forfeited the issue, citing People v.
Jackson, 357 Ill. App. 3d 313, 328 (2005), where this court found forfeiture after defendant
failed to object and “by design” deprived the trial court of the opportunity to prevent or correct
the error. Regardless of forfeiture, the State claims there was no impropriety in the hearing.
¶ 36 The trial judge stated there was “no issue in my mind” regarding “any discrimination
whatsoever” and skipped the initial prima facie stage to “move things along.” Had the factors
relevant to a prima facie showing of discriminatory use of peremptory challenges been
examined, the inquiry would have gone no further.
¶ 37 Our supreme court has articulated several relevant factors a trial court should consider in
determining whether a prima facie Batson violation has been established, including (i) the
racial identity between the party exercising the peremptory challenge and the excluded
venirepersons; (ii) a pattern of strikes; (iii) disproportionate use of peremptory challenges; (iv)
the level of black representation in the venire as compared to the jury; (v) the prosecutor’s
questions and statements of the challenging party during voir dire examination and while
exercising peremptory challenges; (vi) whether the excluded black venirepersons were a
heterogeneous group sharing race as their only common characteristic; and (vii) the race of the
defendant, victim, and witnesses. People v. Williams, 173 Ill. 2d 48, 71 (1996).
¶ 38 The record does not reflect that defense counsel relied on anything other than the number
of peremptories used by the State against prospective black jurors, a relevant factor that
standing alone is not sufficient to make out a prima facie Batson violation. See People v.
Garrett, 139 Ill. 2d 189, 203 (1990) (number of black members of venire peremptorily
challenged, without more, is insufficient to establish prima facie case of discrimination); see
also Rivera, 221 Ill. 2d at 514 (pattern of discrimination not demonstrated “anytime a party
strikes more than one juror of any race”); People v. Shaw, 2014 IL App (4th) 121157, ¶ 25
(“[W]hile evidence of a pattern of discriminatory strikes is one factor a court should consider
when determining whether the party challenging the peremptory strike has established a
prima facie case under Batson, it is not a dispositive factor.”).
¶ 39 Further, “when a Batson claim is made regarding discrimination against a particular race,
the unchallenged presence of jurors of that race on the seated jury is a factor properly
considered [citations] and tends to weaken the basis for a prima facie case of discrimination.”
Rivera, 221 Ill. 2d at 513. Indeed, by the time defense counsel raised his Batson challenge,
three black jurors had already been accepted by the State.
¶ 40 Given this circumstance, at a minimum, the trial court should have required Austin’s
counsel to articulate in more detail the basis for his Batson challenge. But, when given the
opportunity to elaborate further, defense counsel declined. Failing a showing of factors other
than the number of peremptories used against black members of the venire, there was no
prima facie showing of a Batson violation and the State should not have been required to
articulate any reason for striking those jurors.
¶ 41 Any error in a trial court’s finding of a prima facie showing of a Batson violation is
generally rendered moot by a later finding, as here, that no purposeful discrimination has
occurred. Id. at 506 (“[W]hether a prima facie case of discrimination exists at the outset
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becomes a moot point after the trial court finds valid and race-neutral reasons supporting the
peremptory challenge ***.”).
¶ 42 We have recognized that a Batson challenge raised in the middle of jury selection imposes
a burden on the trial court and counsel. See In re A.S., 2016 IL App (1st) 161259, ¶ 27 (“We
recognize that this process interrupts jury selection, but it is the process that Batson requires.”).
Nevertheless, given the seriousness of a Batson challenge and the potential for depriving a
defendant of a fair trial, strict adherence to Batson’s mandate should be maintained. Because
Austin failed to meet his burden to demonstrate a prima facie Batson violation, we reject his
contention of error on this ground.
¶ 43 Jury Instruction
¶ 44 Austin argues the trial court committed reversible error when it denied his proposed
instruction listing the gun types excluded in the statutory definition of “firearm.” 720 ILCS
5/18-4 (West 2012). Citing People v. Hari, 218 Ill. 2d 275 (2006), Austin maintains the
evidence at trial was sufficient to fulfill the requirement of “slight evidence upon a given
theory of a case” and that the instruction as given was misleading on the key issue of
identification of the weapon. The State asserts Austin “failed to preserve the issue,” and
besides, there was no evidence that the weapon used by Austin was anything other than a
firearm. The two victims in their direct testimony stated that Austin used a gun. No weapon
was recovered.
¶ 45 A defendant is entitled to an instruction on his or her theory of the case where some
foundation for the instruction has been introduced in evidence. People v. Jones, 175 Ill. 2d 126,
131-32 (1997) (citing People v. Crane, 145 Ill. 2d 520, 526 (1991)). We review de novo
whether the instructions the jury received accurately conveyed the applicable law by
determining whether the instructions “taken as a whole, fairly, fully, and comprehensively
apprised the jury of the relevant legal principles.” People v. Parker, 223 Ill. 2d 494, 501
(2006). We look to all the circumstances in deciding if defendant received a fair trial,
“ ‘including all the instructions to the jury, the arguments of counsel, whether the weight of the
evidence was overwhelming, and other relevant factors.’ ” People v. Layhew, 139 Ill. 2d 476,
486 (1990) (quoting Kentucky v. Whorton, 441 U.S. 786, 789 (1979)).
¶ 46 A defendant forfeits the issue of jury instruction error unless he or she objects to the
instruction or offers an alternative instruction and raises the instruction issue in a posttrial
motion. See People v. O’Neal, 2016 IL App (1st) 132284, ¶ 77 (posttrial-motion requirement
applies to challenge to jury instruction).
¶ 47 The State’s argument that Austin did not preserve the issue fails. First, Austin proffered the
full instruction. Second, his “Supplemental Defendant’s Motion to Reconsider or For a New
Trial” asserted that the trial court refused to give his proposed definition of a firearm.
¶ 48 Furthermore, the State contends that Austin made a different argument to the trial court
than on appeal. While hypertechnical, contrary to the State’s position, his argument does not
significantly differ from the issue raised at trial; rather, it is a more efficient presentation of the
pertinent sections of the proffered instruction.
¶ 49 We turn to the merits. During cross-examination, Stephenson testified that she could not
tell the difference between a pellet gun and other guns, and Younger admitted that he did not
know if the gun was real or a pellet gun and that what he saw could have been a toy. Based on
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these answers, Austin claims he was deprived of his right for the jury to be instructed on the
law that applied to the evidence in his case. He contends the trial court should have included in
the definition of firearm specific items that do not meet the definition but which may appear,
superficially, to be firearms. Instead, the instruction included the phrase “by expansion of gas
or escape of gas” which would necessarily include a BB gun.
¶ 50 The IPI instruction defines “Firearm” as “any device, by whatever name known, which is
designed to expel a projectile or projectiles by the action of an explosion, expansion of gas, or
escape of gas. [The term does not include _____.].” IPI Criminal 4th No. 18.35G. The
requested instructions are to be used “when appropriate.” Id. The State relies on People v.
Wright, 2015 IL App (1st) 123496, and People v. Jackson, 2016 IL App (1st) 141448, both
finding eyewitness testimony that a defendant had a gun sufficiently established that a
defendant used a firearm. In Wright, this court reversed the defendant’s conviction of armed
robbery on other grounds and thus did not decide the question of whether the trial judge’s
failure to give the instruction sua sponte was error where a BB gun was recovered with the
victim’s wallet. Wright, 2015 IL App (1st) 123496, ¶ 77. In Jackson, this court held that
eyewitness testimony that the offender possessed a firearm, combined with circumstances
under which the witness was able to view the weapon, sufficed to allow a reasonable inference
that the weapon was actually a firearm, though no weapon was recovered. Jackson, 2016 IL
App (1st) 141448, ¶¶ 16-18.
¶ 51 Stephenson’s experience with guns and her opportunity to observe—the gun protruded
through the car window pointing at her head and she grabbed the barrel and pushed it
up—cannot be characterized as equivocal. On cross-examination she admitted she was not
familiar with certain types of toy guns, but she did not waver in her testimony. Younger, a
noncooperative witness, on direct examination testified the robber had a gun and only agreed
with defense counsel when he suggested the gun Younger saw could have been a toy.
¶ 52 State’s Rebuttal Argument
¶ 53 Austin requests a remand for a new trial on the basis that the State’s closing rebuttal
argument improperly commented on his postarrest silence in violation of Doyle v. Ohio, 426
U.S. 610 (1976).
¶ 54 A prosecutor has great latitude in closing arguments, including the right to comment on the
evidence and reasonable inferences it yields. People v. Runge, 234 Ill. 2d 68, 142 (2009). The
prosecution also may respond to defense counsel when he or she invites or provokes a response
and highlight inconsistencies in defendant’s argument. People v. Hodges, 264 Ill. App. 3d 785,
788 (1993). Allegations of prosecutorial misconduct require us to review the arguments of
both the prosecutor and defense counsel in their entirety and in context. See People v. Tipton,
207 Ill. App. 3d 688, 701 (1990).
¶ 55 Reversible error only occurs if the comments “engender substantial prejudice against a
defendant such that it is impossible to say whether or not a verdict of guilt resulted from them.”
People v. Sandifer, 2016 IL App (1st) 133397, ¶ 53 (citing People v. Nieves, 193 Ill. 2d 513,
533 (2000)).
¶ 56 The defense’s opening statement and closing argument drew attention to the State’s lack of
proof as to whether Austin possessed a firearm. During closing arguments, defense counsel
argued that because neither eyewitness unequivocally stated that the item Austin was holding
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was a real gun, the witnesses may have seen a BB gun, and not a firearm, a necessary element
of the offenses against Austin.
¶ 57 On cross-examination, Stephenson admitted that she did not know the “differences of a
gun” and had never shot a pellet gun. Defense counsel in closing theorized: “Where is the gun?
What type of gun was it? Was it a real gun? Was it a BB gun[?] Those questions remain.”
Further, “I asked [Younger], can you describe the gun, can you tell me what kind it was, how
big was it? He said he didn’t know. Could it have been a toy gun? Yes, it could have been a toy
gun.”
¶ 58 In its rebuttal, the State argued: “Now he wants you to believe that maybe that was a BB
gun. If that was the case, wouldn’t you want the officer to know, hey, it was just a gun, a BB
gun, a toy, whatever, a starter pistol?” Defense counsel objected, and the trial court overruled
the objection. The prosecutor continued: “Wouldn’t he want the officers to know that? But no.
He hides it because he knows it’s a real gun. He knows what the consequences are.”
¶ 59 After closing arguments, the jury received an instruction that what the lawyers said during
argument was not evidence and should not be considered as evidence.
¶ 60 As this court has stated repeatedly, the standard of review for error in closing arguments is
unclear. Sandifer, 2016 IL App (1st) 133397, ¶ 55; People v. Kelley, 2015 IL App (1st)
132782, ¶ 74. Our supreme court has employed both a de novo standard of review (People v.
Wheeler, 226 Ill. 2d 92, 121 (2007)) and an abuse-of-discretion standard (People v. Blue, 189
Ill. 2d 99, 128 (2000)). Ultimately, the Sandifer and Kelley courts decided not to resolve the
dispute regarding the appropriate standard of review as either standard leads to the same result.
Sandifer, 2016 IL App (1st) 133397, ¶ 55; Kelley, 2015 IL App (1st) 132782, ¶ 76. Likewise,
whether considering the State’s closing arguments de novo or for an abuse of discretion, our
holding is identical.
¶ 61 The State characterizes the prosecutor’s remarks as a reference not to Austin’s purported
postarrest silence but instead “what he did not do or say during the commission of his crimes,
prior to being arrested and given Miranda warnings.” Officer Lohse testified he handcuffed
Austin and turned him over to the other officers after Austin came out of the house and told
him, “I’m the guy you’re looking for.” No evidence was presented at trial that Austin made any
statements after being handcuffed, but Austin characterizes the prosecutor’s comment as
referencing his silence “during the entire investigation.” This is an assumption we do not
make. There is nothing to establish whether Austin exercised his right to silence after his arrest
or he gave a statement of any sort.
¶ 62 Austin cites cases where error occurred when a prosecutor asked in closing argument why
the defendant failed to tell the police about a defense. See People v. Pegram, 124 Ill. 2d 166
(1988) (prosecutor’s cross-examination of defendant and comment on defendant’s failure to
offer exculpatory explanation at time of arrest or any time before trial were improper); People
v. Sanchez, 392 Ill. App. 3d 1084 (2009) (where defendant did not testify, improper for State to
elicit testimony from detective that defendant did not mention alibi); People v. Moody, 199 Ill.
App. 3d 455, 464 (1990) (“Due process precludes a prosecutor from impeaching defendant’s
exculpatory testimony, offered for the first time at trial, by cross-examining defendant
regarding his failure to inform police of his explanation after receiving Miranda warnings at
the time of his arrest.”). These cases are inapposite—all involved testimony referencing the
defendants’ postarrest silence and prosecutors’ comments to the juries. The arresting officer
testified only about what Austin said to him before he was handcuffed.
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¶ 63 Austin cites People v. Herrett, 137 Ill. 2d 195 (1990), where the prosecutor’s comments
during rebuttal argument on the defendant’s failure to testify and his postarrest exercise of his
right to remain silent were improper but not so fundamental as to constitute plain error. Id. at
215. The prosecutor’s comments pointedly referred to the absence of other testimony or
evidence to explain the defendant’s presence at the crime scene. Id. at 212.
¶ 64 Our review of the closing arguments in their entirety determines that the prosecutor’s
comments during rebuttal did not violate Austin’s right to due process.
¶ 65 Proof of Guilt Beyond a Reasonable Doubt
¶ 66 Finally, Austin contends that the State did not prove him guilty of armed robbery of
Younger beyond a reasonable doubt. Austin argues that (i) the evidence as to the weapon used
was contradictory, (ii) Younger did not identify Austin at trial, (iii) the physical evidence
linking Austin to the robbery was nonexistent, and (iv) Younger’s description of the offender
was too generic. The State responds that the identification issues and physical evidence, or lack
of it, were issues before the trier of fact. Moreover, Austin’s argument “ignores a slew of
evidence” corroborating the identification and establishing physical evidence.
¶ 67 The trier of fact resolves conflicts in the testimony, weighs the evidence, and draws
reasonable inferences. People v. Brown, 2013 IL 114196, ¶ 48. When reviewing the
sufficiency of evidence, we decide “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” People v. Evans, 209 Ill. 2d 194, 209 (2004). We also
resolve all reasonable inferences in the prosecution’s favor (People v. Bush, 214 Ill. 2d 318,
326 (2005)) and may not substitute our judgment for that of the trier of fact regarding the
weight of the evidence or the credibility of the witnesses. People v. Cooper, 194 Ill. 2d 419,
431 (2000). Unless the evidence is deemed so improbable or unsatisfactory as to create a
reasonable doubt of defendant’s guilt, we will not set aside a criminal conviction. People v.
Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009). Where the finding of the defendant’s guilt
depends on eyewitness testimony, we decide whether the fact finder could reasonably accept
the testimony as true beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 279
(2004). “A single witness’ identification of the accused is sufficient to sustain a conviction if
the witness viewed the accused under circumstances permitting a positive identification.”
People v. Slim, 127 Ill. 2d 302, 307 (1989).
¶ 68 Despite Younger’s equivocal testimony, detective Hill’s testimony established Younger
identified Austin in a lineup the day after the robbery. And despite Younger’s denial that it was
his jacket in the stolen car, the recovered jacket matched the description Younger gave on the
night of the robbery.
¶ 69 Arguably, the identity of the weapon was in dispute as no weapon was recovered. But, Carl
Sagan’s cliché “absence of evidence is not evidence of absence” applies to remind us that the
jury heard three police officers testify that Austin had a “black” or “blue-steel” handgun in his
right hand as he ran, in addition to both Stephenson and Younger who testified that Austin
possessed a gun. Stephenson’s and Younger’s uncertainty regarding the possibility they saw a
toy does not rise to the level of reasonable doubt.
¶ 70 Affirmed.
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