## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Adam s , 2012 IL 111168

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOI S, Appellant, v. ROMNEY ADAMS, Appellee

.

Docke t No. 111168

Filed J anuar y 20, 2012

Held ( Note : This syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where no evidenc e was introduced that these conseque nces would occur , it was improper to arg

ue to the jury that a p o l i ce office r’s testimony should be believed beca

us e h e woul d not risk his cre dibilit y , job and fre edom by lying; and, wher e not plain err or, never theless such comm e nts could not be condone d and should be avoided.

Dec ision Under Review Ap p eal from the Appellate Court for the Third District; hear d in t h at court on appea l from the Circuit Court of Wi ll County
, the Hon. Carla Alessio Policandriotes, J udg e, pre siding.

J udg ment Appellate c ourt judg ment reve rsed; cir cuit court judg ment aff irmed.Counsel on

Appea l L isa Madig an, Attorney Gene ral, of Springf ield, and J ames W. Glasg ow, State’s Attorney
, of J oliet (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and David A. Simpson, Assi stant Attorney s Gene ral, of Chicag o, and Patrick Delfino, Terr y A. Mertel and Thomas D. Ara do, of the Offic e of the State’s Attorney s Appellate Prosecutor, of Ottawa, of counsel), f

or the People.

Michae l J

. Pelletier, State Appellate Def ender
, Peter A. Ca

r u s o n a , D ep uty Def ender
, and Br

yon S

. Kohut, Assistant Appellate Def ender
, of the Offic e of the State Appellate D efe nder, of Chicag o, for a

ppellee.

J ustices J USTI CE BURKE de livered the judgme nt of the cour t, with opinion. Ch ie f Ju s ti c e Kilbride and J ustices Fr eema n, Thomas, Gar

man , K a r me ie r , and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 The primary issue in this appea l is whether a prosec utor may proper ly argue to a jury that

a police office r’s testimony should be believed beca use he would not risk “his cre dibilit y , his job, and his fre edom” by lying, when no evidenc e that those conseque nces would occur was introduced at trial. The appellate court held that such arg ument was improper and, under the fac ts of this c ase, constituted plain err or. 403 I ll. App. 3d 995. We a g ree with the appellate
court that the prosec utor’s arg ument was improper but disag ree with the court’s conclusion that the ar gument amounted to plain er ror.

¶ 2 Ba ckground ¶ 3 T h e d ef

endant, Romney Adams, was indicted in the circ uit court of Wil l C o u n t y fo r unlawful possession of a controlled substance. At defe ndant’s jury trial, Serg eant J oe Boe rs of the Wil l County s h er i ff’s police testified for the State. Boe rs told the jury that on the evening of Marc h 3, 2006, he was on patrol in his police car with Offic er Hillary Buc k of the New L enox pol i ce d ep artment and Deputy Kevin Schumache r of the Wil l County For est Preser ve police when he observe d a tan Oldsmobile sitti ng in a liquor store parking lot. Boe rs enter ed the car ’s license plate number into a police computer and lear ned that the reg istered

owner was de fenda

nt and that his driver’ s license ha d been suspe nded. ¶ 4 Boe rs testified that he followed the Oldsmobile into the parking lot o f a gro cery store

acr oss the street, switched on h i s em erg ency lights and initiated a traff ic stop. Boe rs approa ched defe ndant, who was the only occupa nt of the vehicle, confirme d his identification, and h ad h i m ex it the car

. Boe rs then handcuf fed defe ndant and place d him under a rre st for drivingwith a suspended lice nse.

-2-¶ 5 Boe rs told the jury that while conducting a sear ch of defe ndant incident to the arr est, he

found a small plastic sandwich bag containing a white powder y substance in defe ndant’s left front pocket. Boe rs ran a preliminary field test on the substance, which indicated the prese nce of cocaine. Boer s stated t hat, after returning to the pol ice station, he turned the pl astic bag

an d i t s contents over to a crime scene investiga tor. Boe rs testified that he never saw t h e plastic bag , or any

other item, on the ground duringthe stop of def endant. ¶ 6 C y

n t h i a Ko u l is, a fore nsic scientist with the I llinois State Police, also testified for the State. Koulis stated t hat t he white powder in the bagrec overe d by Boe rs was 0.8 g rams of

coca ine. ¶ 7 Def

endant testified on his own behalf

. Def endant told the jury that he went to the liquor
store to buy a lottery ticket and then drove acr oss the street to buy some ice and water

. After he g ot out of hi s ca r, a police car pulled up, and office rs Boe rs, Buc k and Schumache r approa ched him. Def

endant stated that, when Boe rs asked defe ndant for his driver’ s license, he pulled out two traff

ic citations from his shirt pocket and beg an to explain that he had been told that he could drive on the citations. Acc ording to defe ndant, Boe rs then stated that “you can’ t dri v e o n a citation in the State of I llinois ” and place d defe ndant under arr est. Boe rs walked defe ndant to the rea r of the police car and told him to place his hands behind his back, but did not handcuf f him. Def

endant stated that Boe rs and Offic er Buc k then beg an to

sear ch him. ¶ 8 Def

endant testified a s to what happe ned next: “[Boer s sai d ] what is this, and I looked toward him and she [Buck] looked toward him too. I said, what? He moved his f oot, looke d down on the g round. Ther e wa s a piece of plastic lay

ing the re w ith a white substance in it. It wasn’t sea led or tied up

or nothing. It was just a piece of plastic. So I said, I don’t know. He said, you’re not g oing to sa

y Idropped it. I

said, you know I

didn’t drop it. [Defense counsel:] W hy

did you say

that? [Defenda nt:] Be cause my

hands wa s behind my

back. [Defense counsel:] Had you seen this piece of plastic bef ore? [Defenda nt:] No. I never seen it bef

ore.” ¶ 9 L ater , on cross-e x amination, defe ndant provided additional descr ipti o n of the item on the
g round:
“It didn’t look like a bag to me. I t looked l ike a flat pi ece of paper with somet h i n g white.

***
It wasn’t knotted up or tied up or nothing. It was lay

ing f lat on the ground. [P rosec utor:] Okay

. [Defenda nt:] Idon’t know how it could have been in a nyone’s poc ket.” Def endant testified that he never saw an office r drop or place any thing on the ground and that the first time he saw the piece of paper or plastic was when Boe rs pointed to it with his foot. ¶ 10 Def

endant stated that afte r the office rs finished sear ching him, he was place d in the bac k

-3-of the police car

. Boe rs sat in the front seat. Acc ording to defe ndant, Boe rs asked defe ndant

whether he knew any drug deale rs or had “any information on any killings or guns,” and told defe ndant that if he c ould not provide him with information he “would be lookingat up to a couple y ear s in prison.” Def endant told B oers that he did not know any thing. ¶ 11 Def

endant further testified that, afte r being take n t o t h e W i l l C o u n ty jail, a booking office r “tried to trick [ him] into signing paper s saying [ he] had over 30 g rams of heroin i n [hi s] pos session.” Ac cordingto defe ndant, he r efuse d to sign the pa pers. ¶ 12 Deputy Schumache r testified in rebuttal for the State. Schumache r corr oborate d the main points of Boe rs’ testimony
, telling the jury that he saw Boe rs pull the bag of coca ine out of defe ndant’s pocke t and that B oers ne ver dr opped or r etrieve d any thing f rom the ground. ¶ 13 The jury found defe ndant guilty

. The trial court denied defe ndant’s posttrial motion and
sentenc ed def

endant to five y ear s’ imprisonment. ¶ 14 On appea l, defe ndant contende d for the first time t h at t h e p ro s ec u t o r en gage d i n misconduct when he argued to th e j u ry t hat Boe rs and Schumache r would not risk their

cre dibilit y , reputations, jobs, and fre edom by lying on the witness stand, when no evidenc e that such repe rcussions would occur was introduced at trial. After acknow ledg ing a split of authority among the appellate districts on the issue, the appellate court conclude d t hat the
prosec utor’s statements wer e improper. Th e court then went on to hold that, beca use the evidenc e in this case was closely balanc ed, the prosec utor’s statements amou n t ed to plain

err or. 403 I ll. App. 3d 995. This appeal f ollowed. I ll. S. C t. R. 315 (eff. F eb. 26, 2010).

¶ 15 Analy sis ¶ 16 Duringclosingargument, the prosec utor made the followingstatements to the jury :

“What also doesn’t make sense is that [S erg eant] Boe rs would plant these drug s

on the defe ndant. We are talking about 0.8 grams of coca ine. I f you believe what the defe ndant is saying, then you also have to believe that [S erg eant] Boe rs is risking his

cre dibilit y , his job, and his free dom over 0.8 grams of c ocaine

. And not only is [Serg eant] Boe rs doing that, but [Deputy] Schumac her is doing that as well. He’ s also risking his life–his job and his fre edom and his reputation over 0.8 g rams of c ocaine .” The prosec utor also argued during rebuttal that believi n g defe ndant require d the jury to believe that “these of

fice rs ar e riskingtheir jobs for this, over 0.8 grams of c ocaine .” ¶ 17 Noting that it is improper for a prosec utor to argue assumptions or fac ts not based upon eviden ce in the case (see
, e.g. , People v. Smith
, 141 I ll. 2d 40, 60 (1990))
, defe ndant maintains that these stateme nts were improper be cause there was no evidenc e pre sented at trial reg arding potential conseque nces to the office rs if they testified falsely or manipulated evidence. Def

endant acknow ledg es that this claim was not prese rved below but asks t h i s court to re view the matter for plain e rror

. ¶ 18 In response , the State contends that the prosec utor’s statements wer e not improper. The State observe s that a prosec utor is fre e to “comment on the evidenc e and any fair, rea sonable infere nces it yields” (

People v. Nicholas
, 218 I ll. 2d 104, 121 (2005))
, and maintains that the

-4-prosec utor’s statements in this case “re sted on rea sonable, common-sense infere nces.” Thus,

acc ordingto the State, the appe llate cour t erre d in reve rsingdefe ndant’s convic tion. ¶ 19 Whether a prosec utor may proper ly make th e s t at ements at issue here has divided our appellate court. Compare, e.g. , People v. Fields
, 258 I ll. App. 3d 912, 920-21 (1994) (improper), with People v. Benne tt , 304 I ll. App. 3d 69, 71-72 (1999) (prope r). Howeve r, the weight of authority in other jurisdi ctions, particularly in the fede ral c ourts, holds that such
comments are improper. See, e.g. , United States v. Pungitore
, 910 F.2d 1084, 1125 (3d Cir. 1990); United States v. Gallardo-Trapero
, 185 F.3d 307, 319 (5th Cir. 1999); United States

v. Martinez
, 981 F.2d 867, 871 (6th Cir. 1992); United States v. Swiatek
, 819 F.2d 721, 731 (7th Cir. 1987); United States v. McM ath
, 559 F.3d 657, 668 (7th Cir. 2009); United States

v. W eatherspoon
, 410 F.3d 1142, 1146 (9th Cir. 2005); United States v. Boyd
, 54 F.3d 868, 870 (D.C. Cir. 1995); see also, e.g. , State v. Mussey
, 893 A.2d 701, 705 (N.H. 2006); Spain v. Stat e , 872 A.2d 25, 31 (Md. 2005); City o f W illis ton v. Hegstad
, 562 N.W.2d 91, 94-95 (N.D. 1997)

. ¶ 20 W e agr ee wi t h t h e m aj o rity view. The prosec utor’s comments in this ca s e we re impermissible speculation, as no evidenc e was introduced at trial from which it could be inferr ed that the testifying office rs would risk their car eer s if they testified falsely

. See, e.g. , Gallardo-Trapero
, 185 F.3d at 320 (prose cutor’s argument that ag ents would not lie beca use it would place their car eer s at risk was improper beca use it ref err ed to evidenc e not in the

rec ord); Martinez
, 981 F.2d at 871 (same) ; Pungitore
, 910 F.2d at 1125 (holding argument improper wher e there was “no evidenc e backing the prosec utor’s comments that the U.S. Attorney s and law enfor ceme nt office rs could not have behave d as unscr u p u lo u s ly as defe nse counsel alleg ed they did without violating their oaths of offic e an d j eo pardizing their

car eer s”). Fur

ther, “[ b ] y i nvoking unspecifie d, but assumed, punitive conseque nces or sanctions that might result if a police office r testifies falsely
, a prosec utor’s arguments imply that a police office r has a g reater rea son to testify truthfully than any other wi t n es s wi t h a differ ent ty

pe of job” ( Spain
, 872 A.2d at 32), thus violating the principle that “a prosec utor

m ay not argue that a witness is more cre dible beca use of his status as a pol i ce o ff i ce r” ( People v. Clark
, 1 8 6 I ll. App. 3d 109, 115-16 (1989). See also, e.g. , W eatherspoon
, 410 F.3d at 1146 (comments such as those at issue here constituted improper vouching beca use they “cle arly urg ed that the exis tence of leg al and profe ssional repe rcussions serve d to ensure the cr edibility

of the off icer s’ testimony ”). F or these rea sons, we hold, as di d the appe llate court be low, the prosec utor’s re marks we re imprope r. ¶ 21 Howeve r, we disag ree with the appellate court’s further conclusion that the prosec utor’s statements amounted to plain err or under the fac ts of this case

. The p l ain-e rror doctrine permits a cour

t of revie w to consider e rror that has bee n forf

eited whe n either “(1) the evidenc e is c lose, reg ardle ss of the seriousness of the er ror, or (2) the err or is serious, reg ardle ss of the closene ss of the ev i d en ce

. In the first instance, the defe ndant must prove ‘pre judicial err or.’ That is, the defe ndant must show both that there was plain err or and that t h e evidence was so closely balanc ed that the err or alone sever ely threatened to tip the scale s of justice ag ainst him. The State, of course , can respond by arguing that the evidenc e was not clo sely balanc ed, but rathe r strong ly weighted ag ainst the defe ndant. In the second instance, the defe ndant must

-5-prove ther e was plain err or and that the err or was so serious that it aff ecte d the fairne ss of the def

endant’ s trial and cha lleng ed the integrity of the judicial proc ess. [C itation.] Prejudice to the defe ndant is pr esumed beca use of the importance of the rig ht involved, ‘ regardless of the streng th of the evidenc e.’ ( Emphasis in origina l.) [C itation.] In both instances, the burden of persua sion rema ins with the defe ndant.” People v . Herron , 215 I ll. 2d 167, 187 (2005). Def endant c annot meet e ither prongof the plain-e rror test. ¶ 22 In deter

mining whether the closely b al an ce d p ro n g h as been met, we must make a “commonsense assessment” of the evidenc e ( People v. W

hite
, 2011 I L 109689, ¶ 139) within the context of the circ umstances of the individual case

. In this case , defe ndant testified that he was alre ady out of his car when the police arr ived but that he did not see any of the office rs place any

thing on the g round. In addition, in explaining why the coca ine could not have been rec overe d from him, defe ndant stated that it could not “have been in anyone’s pocket” beca

use it was lying on a flat piece of paper or plastic that “did not look like a bag .” Thus, the jury hear d from defe ndant th e fo l l o wi n g version of events: A piece of paper or plastic with coca ine on it was sit ting in a p ar k i n g l o t

. Although unsecure d in any way , the cocai n e p o wd er had not been disturbed by wind, weather or traff ic. By coincidenc e, defe ndant p arked his car next to the cocaine. In a further coincidence
, afte r defendant was
approa ched by the police, he was escor ted to and sear ched in a spot on l y inches from the

coca ine. Then, when Boe rs discovere d the coca ine on the g round, he conspired on the spot t o at t ri bute t he drugs to defe ndant i n an appare nt attempt to pressure defe ndant t o provi d e information about other crimes, though there was no indication that the police had ever met defe ndant or would have rea son to believe that he possessed such information. We think it clea r from the fore g o i n g that defe ndant’s explanation of events, though not logic ally impossibl e, wa s highly

improbable. ¶ 23 Fur

ther, the jury was proper ly instructed that counsel’s arguments wer e not evidenc e and that only they wer e the “judg es of the believability of the witnesses. ” I n ad d i t ion, the
prosec utor’s comments, though i mproper, were not of a sort likely to inflame the passions of the jury

. Given these circ umstances, we cannot conclude that the prosec utor’s err oneous statements “seve rely threatened to tip the scale s of justice ag ainst” defe ndant ( Herron
, 215 I ll. 2d at 187), so as to satisfy the closely

balanc ed prongof plain-e rror revie w. 1 ¶ 24 Nor do the prosec utor’s comments amount to plain err or under the fundame ntal fairne ss prong

. To meet that test, the err or m u s t b e “s o s erious that it aff ecte d the fairne ss of the defe ndant’s trial and challeng ed the integ rity of the judicial proce ss.” Herron
, 215 I ll. 2d at 187. The error here does not rise to that level. I n so hold i n g, we emphasize that we do not condone the prosec utor’s comments. Although they do not amount to plain err or, t h e comments wer e improper and ar e to be avoided in the future

.

T he St a t e a s ks tha t, in the event thi s cou rt sho uld hol d tha t def end ant has sat is fi ed the 1 cl ose ly bal anc ed pro ng of pla in-erro r re view, we aba ndon tha t asp ect of pla in-erro r re view in cas es al le ging pro sec uto ri al m is con duc t dur ing cl osi ng ar gum ent

. Beca use we hol d tha t def end ant has not sat is fi ed t he c los el y bala nce d pr ong, we do notre ach th is is sue

.
-6-¶ 25 Def endant also contends that the prosec utor improperly stated during closingargument that Boe rs “locke d himself in” to his testimony when he wrote his police repor t shortly afte r stopping de fendant, even though the contents of the report wer e not discussed at trial; and that the prosec utor improperly bolstered the testimony of Boe rs and Schumache r when he stated that he could have prese nted the testimony of other office rs at defe ndant’s traff ic stop who would have corr oborate d Boe rs’ a nd Schumache r’s testimony
, even though there was

no evidenc e at trial reg arding what these other office rs would h av e s ai d. Def endant acknow ledg es that no objection was made to these comments in the trial court but ag ain asks us to review the comments for pla in error

. ¶ 26 The State, in response , conce des that the prosec utor err ed in ref err ing to the contents of the police repor

t and the potential tes t i m o n y o f other office rs, but maintains that no plain

err or occur

red. We a gree

. For the rea sons disc ussed above with r espec t to defe ndant’s first claim of err or, we hold that the prosec utor’s comments reg arding the police repor t and other potential testimony

do not constitute plain error

. ¶ 27 Finally
, defe ndant contends that the following statements made by the prosec utor during closingargument wer e improper : “What this case is g oing to come down to, ladies and g entlemen, is cre dibilit y

. Who do you believe? Do you believe the eight and a half y ear veter an of the Wil l County Sheriff’ s Depa

rtment, the five y ear veter an of the forest p re s er v e police, or do you believe the defe ndant who had almost two and a half y ear s to come up with the story he told you today .”
In rebuttal, the pr osecutor r epeated this theme: “The only rea son I called Deputy Schumache r is beca use the defe ndant took the stand

an d h e gav e you a cocka mamie story about what he said went down, a story he

cre ated two and a half y ear s later, that he had two and a half y ear s to c ome up with, that if you look at and you say , is this reasonable, that’s not rea sonable.” Def endant contends that, in stating that defe ndant “had two and a half y ear s to come up with”

a story , the prosec utor was “implicitly” attacking defe ndant’s postarre st silence, in violation of Doyle v . Ohio , 426 U.S. 610 (1976). We disagree

. ¶ 28 In Doyle
, the United States Supreme Court he ld that, a fter a defe ndant has rec eived his Miranda war

nings, it is a due proce ss violation for a prosec utor to comment on a defe ndant’s postarre st silence at trial for the purpose of impeaching the defe ndant’s testimony

. That did
not occur here

. In this case , wh en t h e p ro s ecutor made the comment about how defendant “had time to think abo ut and plan [hi s] testimony
, he was mere ly assailing [defendant’ s]

cre dibilit y .” State v. Mendoza
, 262 P.3d 266, 270 (I daho 2011). As one court has explained: “The prosec utor did not use petitioner’s ear lier silence to sug g est that his exculpatory testimony was untrue; instead, he commented on petitioner’s cre dibilit y as a witness by alluding to petitioner’s opportunity to perf ect his acc ount. As the Supreme Court noted in Portuondo v. Agard, 529 U.S. 61, 68 (2000): Allowing comment upon the fac t tha t a d e f e ndant’s prese nce in the courtroom provides him a unique opportunity to tailor his testimony is appropr iate

... to the
centr al func tion of the trial, which is to discover the truth.

-7-The prosec utor’s comment in this case was more like that in Por t uondo than in Doyle ; there was no err or.” Mele ndez v. S cr i bner
, No. CI V S-03-1593, 2006 WL 2520301, at *12 (E.D. Ca l. Aug . 30, 2006). ¶ 29 We agree with this rea soning and hold that the prosec utor did not err when he stated that defe ndant “had two and a half y ear s to come up” with his story

. Se e al s o , e.g. , Tri Dung Nguyen v . Felke r , No. C 07-2479, 2009 WL1246693 (N.D. Cal. Ma y 5, 2009).

¶ 30 Conclusion ¶ 31 For the fore g oing rea sons, the judgme nt of the appellate court is reve rsed. The judgme nt of the c ircuit court is af

firmed.

¶ 32 Appellate c ourt judg ment reve rsed; ¶ 33 circ uit court judg ment aff irmed.

-8-