our first case on the call the docket today wednesday september fourteenth two thousand and eleven is agenda number six case number one one one one six eight people versus animes the counsel for court counsel assistant attorney general david simpson on behalf of the people of the state of illinois the defendant in this case raises for claims of error all arising from comments that the prosecutor made during closing argument each of these comments could have been addressed or corrected if defendant had raised them below but defendant did not object to them at trial and he did not mention them in his post trial motion and as a result he has forfeited every claim now before this court and so the question in this case is whether these repeatedly forfeited comments nevertheless and title defendant reversal of his conviction under this court's plain there are rules for either of two reasons they do not first under this cour and under what the people believe to be the better rule the comments were not plain error because they were not so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten the deterioration of the judicial process  claim is preserved this court must find both the comments were improper and then that they caused substantial prejudice such that real justice was denied so there's a built in prejudiced determination after for every closing argument claim after finding that the analysis so it's not just enough to say that two witnesses have disagreed about something the the the court emphasized that it is a common sense analysis that the court must undertake to see whether the case was a close one here your honor what we have is the logical testimony of two police officers that is facially credible but weighed against that we have a facially incredible story from the defendant the defendant testified that that there just happened to be an open bag of drugs lying in the middle of a parking lot in the exact spot where he happened to be pulled over and where the officers happened to search him and then for no reason apparent on the record to police officers decided to lie about it in court and pin it on him u nder these sorts of facts it is true that the case rests on on on contending credibility determinations but the evidence wasn't close given that these you have two facially credible stories weighed against one facially incredible story the contin is true there's no specific testimony in the record in that regard but this court's precedents make clear that a prosecutor may comment on any reasonable inference from the evidence whether somebody is a police officer it is reasonable to infer that someone risks their credibility by lying that they risk their job by committing a crime and that they risk their freedom by committing a felony so the comments that the that the prosecutor made regarding those we believe were not improper in the first instance because those are all that was it was within it wasn't regard to a police officer and it was intended it to to argue that the police officers would be credible the question though is not just whether it was arguing that the police officer should be more credible but whether it was unfair for the prosecutor to have argued that the police officers would be more credible and because those all of the arguments in that regard were based on raw reasonable inferences sort of commonsense inferences from the evidence it there is a split in illinois law regarding whether comments of that nature are improper or not as a result it simply cannot be said that the error here was plain and clear or obvious given the split i'd like to reversal unless he can show that the prosecutor's comments were so inflammatory that he could not have received a fair trial or so flagrant as to threaten deterioration of the u dishful process and before i do i'd like to lay out at the three standards that we have an issue because there's a lot of abstract language and i think it makes sense to lay them out if they outset the first standard issue is the evidence is closely balanced standard and that's probably one of this court's current disjunctive plain error rule the second standard issue is substantial prejudice such that real justice was denied or that the verdict resulted from the error that is the standard that is built into every closing argument claim even if the closing argument claim is preserved it's just and same way that a prejudiced showing is built into a strickland claim or brady claim and that is higher than the closely balance standard we know that from this court's two thousand and five decision in people versus johnson and then the last stand and we haven't seen him play is that error affected the fairness of the trial and challenge the integrity of the applying it consistently so in this court in this case the appellate court held first that the prosecutor's comments were improper and then that the evidence was closely balanced and then every sin that that entitle defendant reversal but that was a mistake if the error had been preserved defendant would have to show substantial prejudice such that real justice was denied or that the verdict resulted from the error in other words the appellate court held the defendant to a lower standard of prejudice than he would have been required to show to show if his claim had been preserved and for that reason that the appellate court actually get granted the defendant a winfall in this case and for that reason alone this court should clarify that but the second problem is the more fundamental is that and it's that even when the player rule is properly applied it does not discourage defendants from forfeiting their claims or encourage them to raise timely objections in the trial court to tame reversal on a preserve closing argument claim as i've discussed a defendant my show substantial prejudice such that real justice was denied or that the verdict resulted from the error the additional requirement that the defendant show that the evidence is closely balanced adds nothing to that showing it makes it no more difficult for the defendant to obtain reversal than it would have been if he had preserved the error and so that is why we believe the court should be refining its play never will as it applies to closing argument cases  want to make a couple of things clear about what we are not asking the court to do today we are not asking this court to adopt the federal plain error standard from united states forces alone no we are not asking this court to overrule hair on hair and was not a closing argument case instead the question here is not whether herring should be overruled but whether hair in the case that did not involve closing argument should be read to overrule the weight of pre hearing authority on how to deal with closing argument claims and because the problems because of the problems resulting when herring is applied to closing argument claims we believe that hair and should not be so red for those reasons and for the ones in our brief this court should hold as  once did that a defendant cannot that when a defendant forfeits a closing argument claim that claim can entitle him to reversal only where the statement was so inflammatory that defendant could not have received a fair trial are so flagrant as to threaten the judicial process and so if the court has no further questions about that i'll believe onto our our second argument which is that even under this court's current claim their role defendant is not entitled to reversal here at the outset many of the comments that the defendant complains about were not a rony it's much less plainly erroneous as i discuss the prosecutor's references to the the officers risking their credibility jobs and freedom we're all based on reasonable inferences anyone risks their credibility by lying their jobs by committing a crime with their freedom by committing a felony moreover even the clear split in the lower courts on the matter it cannot be said that the error was plain clear or  obvious similarly with regard to the hit the claim that the prosecutor improperly referred to the defendant's post arrest silence this claim simply can't be squared with defendant's own trial testimony defendant himself silence claim were defendant himself testified under oath that he did not remain silent upon his arrest but taking a step back for a moment as i discussed some of the comments that the prosecutor made were not error much less plain there as we'd knowledge in our brief however several but comments that the prosecutor made were improper but none of these comments entitle defendant to reversal of his conviction that is because he cannot show that the evidence was closely balanced nor can he meet the builtin standard for every closing argument claim even when preserved that showing substantial prejudice such that real justice was denied or that the verdict resulted from the er and as i discussed earlier here we have the two facially credible stories of the police officers stating that they found drugs on the defendant incident to a lawful search and as this court again emphasized in people versus white in a qualitative not a quantitative analysis and common sense comes into play and when we weigh these two facially credible stories against defendants facially incredible story it simply cannot be said that this case was a one where the evidence was close where one where there was substantial prejudice to the defendant such that real justice was denied and then as a final note this error did not challenge the integrity of the judicial argument case that is people versus blue and this case is simply not lou as we discussed at length in our brief blue involved a a repeated series of deliberately in the court characterized as cynically prejudicial actions on the part of the prosecutor and and not only that but many of the many of those errors were objected to a trial and were only forfeited because they had not been placed in the defendant's post trial motion and what this court looking at all of the errors that happened in blue said is this simply cannot stand this is a breakdown in the judicial process and a breakdown in the adversary process here however this case is simply not blue there is no challenge to the integrity of the judicial process because there is no breakdown in the adversary system the all of the errors that the defendant raises now could have been addressed or corrected if he had raised them in a timely manner at trial  timely instruction from the trial judge but the defendant did not do so instead he only raised three of the errors for the first time in the appellate court and one of the errors for the first time in this court so if you factually as a state is pointed out to officers sergeant job hours and deputy kevin schumacher testified the cocaine was recovered from mr adams pocket however mr adams testified that police officers picked cocaine up off the ground thus the critical question for the jury specifically acknowledged by the prosecutor in his closing argument and by the state here before this court was credibility of the witnesses but in his closing argument the prosecutor improperly swayed this determination by repeatedly arguing facts that were not in evidence in order to bolster the credibility of his witnesses while at the same time denigrating mr adams credibility by improperly commenting on his post rest silence today mr adams were first discussed the mr adams has identified eight improper comments in four separate categories during the prosecutor's short some nation the state has admitted that several of the prosecutors comments were improper first the prosecutor two years ago he locked himself into this further into his version of events when he wrote his report forty day thereafter that is what he testified to on what however no report was ever materially discussed a trial and the prosecutor prosecutor stated quote a cut of i could have brought in all those up all these are all of those officers if i wanted to created them in front of you and told you what happened and they all would have said the same thing but there is no indication as to what the other three officers would have testified to and the prosecutor properly corroborated the testimony of this witness is using these facts they were not in evidence how many how many officers responded to the this there were five officers present at the time there were three officers in  over schumacher and bach who were the first officers on the scene and then two other officers back them up so there are five officers total two which testified here three did not testify but the prosecutor argued that they would have said the same thing actually put her hand in his his pocket but i don't he he did not state that she recovered anything from well you know you were here yesterday but we had a case dealing with a video dispute but presume that obviously was no video in not inconsistent with innocence there's no paraffin paraphernalia found on his person or in his car and he was not under the influence there's absolutely no other evidence to show he does possess this other than the testimony of the officers then in direct contrast to these admittedly improper comments that serve to significantly and hansen's witnesses credibility the prosecutor improperly argued that mr adams testimony was a recent fabrication because he unlike bowers dorell the case that created the constitutional rule the defendant testified that when he was arrested when he was i'm sorry when he was told the reason for his arrest he said i don't know what you were talking about thus the rule applies torrie statements that are not inconsistent with trial testimony furthermore this court rejected the state's present argument and heritage and it should reject it here as well in cases such as hair where the defendant told the arresting officer that he had never been to the area in question nics where the defendant told the arresting officer he knew who the real killer was and beller where the defendant had asked police if an accomplice had been arrested this court held  prosecutor improperly commented on the defendant's post arrest silence even though the defendant's and make comments to the police the prosecutor consequently the prosecutor improperly argued that mr adams never offered his version of the event between the time he was arrested and his trial in order to show that his testimony was not credible because it was not corroborated in contrast to coerced testimony and such comment was  however as this court's holding in johnson indicates this is a two i believe is a two thousand five cases issued after haren that the two prongs are not the same there that this court held that although the evidence was hoarsely balance defendant was not substantially prejudiced by the air thus they are they are different tests on the prosecutor also argued facts that were not in evidence and improperly bolstered the credibility of the officers when he argued that they would not risk their credibility reputation jobs and freedom by planting cocaine on defendant or setting him up the prosecutor can comment on the credibility of a police officer however what he did here it was he introduced additional facts to where the the jury could use these facts in order to find that testimony the officer was credible there wasn't a case here where said well you saw him on the stand you saw him testify you saw his body language you determine whether he's credible or not the prosecutor introduce the civic facts consequences that that the officers would risk by testifying falsely or otherwise manipulating the evidence actually said planting the evidence that the officers would suffer in order to bolster their credibility simply stated on that particular disappoint counsel you're indicating that the of a gram of cocaine and there's no indication that the prosecutor never argued perjury he argued playing evidence and there's no evidence of any consequences to the police officers by planting that scent and that by planting evidence even if this comment is a reasonable inference from the facts here are without any testimony as to the potential consequences then prosecutors could argue that every police officer would not risk their job by testifying falsely in every case however this is not true of all  risk and therefore be more likely to tell the truth but a police officer testimony is viewed as is to be viewed just like that of any other witness and this comment was therefore pro next mr adams was substantially prejudiced by these improper comments this case boiled down to a credibility contest the jury was provided with two as justice freeman pointed out the jury was provided with two divergent versions of the same  is for the jury to determine which witness is more or more credible and which of which version of the event to believe however the prosecutor improperly skewed the critics credibility determination by repeatedly arguing facts that were not in evidence ous statement that you say is the introduction of facts not in evidence that was argued to the closing in my opinion your honor that it would be out that the presentation of the argument that sergeant powers report he generated or a report on this matter shortly after the stop so what sergeant told you today from the stand is what he stated happened two years ago he locked himself into his version of events when he said when he wrote his report shortly there mr adams testimony the obvious implication was that the officers through the substance on the ground and confronted mr adams with it so they could get him to turn over information regarding criminal activity in the area this is not entirely implausible in any event it was a question for the jury to determine free of prosecutorial improprieties however instead of allowing the church to make its credibility determination based solely on the evidence the prosecutor repeatedly argued facts that were not in evidence in order in order to bolster his witnesses credibility the prosecutor then juxtaposed this evidence with improper argument stating that mr adams failed to offer his defense prior to trial thereby denigrating his credibility thus the prosecutor's improper finally honors the state our use of this court should have been in the closely balanced on the plane or review in closing argument cases this court should reject this request the court has considered and rejected the state's imitation to bow to abandon the closely balanced prong the state argues of the closely bounce pran requires the same showing this is essential prejudice from arbor as noted previously discourse how that they are not the same even if both problems did require the same showing the defendant has an incentive to object in order to gain an acquittal especially in a case such as this where he's subject to probation and he will serve his time before this case why it's way through the process even if the defendant has no incentive to object the state's sandbagging argument wrongly assume that a criminal defense attorney would risk an ineffective assistance of counsel claim disciplinary action and a potential malpractise suit by intentionally ignoring a known er and short state has failed to show compelling reasons for changing this court's established law and a different standard is not necessary just who don't want to go back just briefly to the officers who are believe the state use the defense brought the record of during the course examination does that make any difference you can fact that is correct makes absolutely no difference charge because it's the prosecutor's argument or not it did not highlight that was the answer that was in the report i'm sorry he said seven forty two that was in the report hours that said yes but the defense counsel never brought up the fact that it whether it was contemporaneous with your astronaut and more importantly the content of the report was never discussed so there's no indication on the record i heard a prosecutor possibly prior to the prosecutor's argument that the report actually bolster or corroborated ballers testimony that i'd like you comment on this it seems to me the state is bringing up the specter that defense counsel's them is better off not objecting to what would be objectionable closing argument because the same standard would be applied by this court in determining whether to grant a new trial whether the comments were lamma torreon prejudicial and therefore there's no opportunity to correct what could be corrected in a trial and immigration would you comment o assuming that a defendant would would not stand by her claim and in a case like this in it assumes that i'm sorry let me back up just a moment  criminal defendant has an interest in getting acquitted he he would not stand by a claim and sit in prison for three years waiting for this to wind its way through the occult process hoping that this court would overturn his conviction action in conclusion or honors the prosecutor made eight improper comments and a short closing argument he argued the facts they were never presented to the jury bolster the credibility of us witnesses then juxtaposed against this improper bolstering the supermarket that rate just before the supermarket was closing where the people were around it it was certainly not in the middle of a cornfield no your honor with others around it as far as i know there were there were at prints extracted from the well i course i'm now i'm no expert on it but i i think they could it was it was military plastic bag and there was no testimony indicating you know any any any testing actually i believe there was no certainly there was no fingerprints recovered from that from the item there was no testimony as to any d n a d n a from the item it was a plastic corner bag and i don't know if they could recover i imagine that they could in specific circumstances maybe maybe not i really don't know the answer that you know but there was none recovered thank you your honors i'd like to touch on at least touch on just three points very quickly first regarding the discussion of the comments about the officers risking their jobs credibility and freedom as i discussed before there is a clear split  committing a crime their credibility by lying or their freedom by committing a felony that does not mean that a defendant is barred from from arguing contrary reasonable inferences there is almost in every case going to be numerous reasonable inferences that can be drawn from the same facts given that both sides are free to argue competing reasonable inferences it cannot be said that anything was unfair about what the prosecutor did here drawing one reasonable reasons we've discussed in our brief there are there the built in prejudice standard that that is involved in every closing argument claim makes this a unique area of illinois law and one that is deserving of a  unique rule while i would agree that it is generally a good idea to have this court's rules to be as simple as possible it is that it i would add the caveat that it the rule should still be serving its intended function and as we discussed we don't believe that the current playing their role as applied to closing arguments serves its intended function finally i just wanted to touch on some of the factual details here and is going  to whether the evidence was closely balanced or not as defense counsel pointed out when defendant was searched he was already under arrest for driving with a suspended license so there is no need at this point for the officers to trump up charges in order to arrest him have already been placed under arrest and then just to clarify exactly what the defendant testified to the key portions of his testimony or at page two ninety nine and three hundred and then that page three twenty four and three twenty that's correct your honor so the the officers testified that they were that they were they were running license plates as cars went by and then this pulled up as that the driver had a suspended license come in how was it quiet what they what was my understanding is that they saw the defendant leaving the parking lot and going across the street into a different parking lot at that point they turned on their lights i don't recall that they turned on sirens but i i just don't remember from the record and pulled them over in a parking lot of mediately across the street how many cars one car you're under three officers in one car and then after defendant had been arrested other other officers other officers arrived on the scene as well the taking a look at a defendant's testimony what what the defendant testified on on on page three twenty four of the record i'm sorry on page three twenty five of the record he said it didn't look like a bag to me it looked like a flat piece of paper with something white right that was laying on the ground like a corner bag it wasn't knotted up or anything it was lying flat on the ground i don't know how it could have been in anybody's pocket now i think this sort of defendant's own words here i think run contrary to the idea that the police officers just drop something on the ground the if if the bag is lying flat and open and again this is we're talking about a small amount of cocaine here point eight grams of cocaine that's not the something you could the sort of thing you could pull out of your pocket and drop as a matter of fact defendant himself thought it was something that couldn't have been in someone's pocket under these circumstances it really does seem to be that defendant story was that this this very small there to this  bag was lying open and untouched in exactly the same place where he happened to be arrested and happened to be search now that's not that's not completely outside the realm of possibility but it is fantastically improbable and so we way that when we weigh that against the the facially the facially credible or facially logical stories of the two police officers it simply cannot be said that the evidence in this case was close so i