FIFTH DI VISI ON April 25, 2008

No. 1-06-1483 THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) NICHOL AS MEEKS, ) ) Honorab le Defend ant-App ellant. ) Ev el yn B . C la y, ) Judge Presi ding. JUSTICE O’MARA F ROSSARD del ivered t he opinion

of the co urt: Following a jury

trial, defendant Nicholas Meeks was convicted of a rmed robbery

and aggravated unlawf

ul restraint and sentenced to concurrent, re spective prison terms of 12 years and 3 yea rs. On appeal, defendant contends that the prosec utor misstated the law and diminished the State’s burden of proof during closing a rgument. Additionally, de fendant contends that the trial court erred in allowing evidence that defendant’s photograph was containe d in a police computer databas e. Defe

ndant doe s not chal lenge t he suffi ciency

of the Sta

te’s pro of of his g

uilt, accordingly , only a brief r ecitation of the trial evidence is necessary here; additional evidence will be summarized as it becomes relevant to the discussion of specific issues. For the following

reasons , we aff

irm. BACKGROUND During defendant’s pretrial motion to suppress identification and a t his trial, he was1-06-1483

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identified by John Maras as the individual brandishing a gun while demanding Maras ha nd over his wallet at approximately 2 a.m. on Dec ember 17, 2004. Maras testified that after handing over his wallet, defendant fled with an accomplice. Mara s contacted police and provided a description of the man who pointed the gun at him as “black, 5' 8" or 5'9", stocky, in his 20's, with a round face, and lazy

eye.” This description and the victim’s statement that the gunman weighed approximately 165 pounds with a medium build were memorialized in a police r eport prepared by Chicag o police officer Ronald Mariani. On December 19 or 20, 2004, Detective Thomas Ka mpenga received a similar description from Maras of the gunman, with the addition that he had a “stocky” build. Kampenga testified that he spoke with his supervisor, Serg eant Brad Redrick, who provided the last name of defendant as someone who fit the descr iption and lived in the area where the robbery oc curred. Kampenga testified that he obtained defendant’s full name, address and photogr aph afte r enter ing his la st name in t

he police computer

system. Maras subseque ntly identifie d defend

ant from a

photogr aphic ar ray and lineu p as the g unman, wh

ich resu lted in defend ant be ing cha rged wi th th e afore menti oned o ffense s. Dur ing def endan t’s t rial K ampen ga acknowledged preparing

reports after defendant’s arr est indicating his height as 6 feet and weig ht as 230 pou

nds. At defendant’s trial, Officer Mark Sede vic testified that he and his partner took defendant into custody after he

voluntarily came to the police station and that he listed defendant’s height as 6 feet 1 inch and weight as 250 pounds in supplemental police repor ts he and his partner prepared. Defendant prese nted an alibi defense through the testimony of his grandmother,1-06-1483

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Menola Meeks, who stated that defendant lived with her, that on Dec ember 17, 2004, defendant went to bed at 1:30 a.m, and that she saw him sleeping in bed at approximately 3 a.m. During closing argument, the pr osecutor commented on the State’s burden to prove defendant guilty

beyond a re asonable doubt, stating “You think it’s something special crea ted for him? The same

burden in

every case in t his court room. I t’s the sa me burde n in ever y c ase in every c ourtroom in this building.” The prosecutor also stated:

“Now there was a lot of talk about what was in the police r eport. What did it say? What is in your report? You know, ladies and gentleman, y

ou know how police reports are. They are so not important. You are not going to get them ba ck there. You are not even.” At this point defense counsel objected, and the trial court reminded the jurors that they heard the evidence, that arg ument was not evidence, and they should disregard argument that does not comport with the evidence. The prosecutor then stated a gain: “[Y]ou are not going to get those police repor ts back with you when you deliber

ate. You don’t get to see them. That’s how not important they are . The only thing y ou are to consider, one of the instructions the Honorable Judge Clay will give you states the evidence y

ou should consider consists only of the testimony of the witnesses and the exhibits received. All you c an consider is what you heard a

nd the exhibits you get in the back. Tha t’s it. Not1-06-1483

4 police reports.” Defend ant faile d to object to these s ubseque nt commen

ts. The jury found de fendant guilty of armed robbery

and aggravated unla

wful restraint and the trial court sentenced him as described above. On appeal, defendant first contends that the prosec utor made statements in closing argument that improperly misstated the law and diminished the State’s burden of proof.

CLOSING

ARGUMENT The regulation of the substance and sty le of closing argument lies within the trial court’s discretion, and thus the court’s determination of the propriety of the remarks will not be disturbed absent a clear abuse of discre tion. People v. Caffey , 205 Ill. 2d 52, 128 (2001). Defendant faces a substantial burden to ac hieve reversal of his conviction based upon improper remarks during closing arg ument. People v. Williams , 332 Ill. App. 3d 254, 266 (2002). A prosecutor is given great latitude in making closing arguments, and the trial court’s de termination of the propriety of

the argument will stand absent a clear a buse of discretion. People v. Cisewski , 118 Ill. 2d 163 (1987). While a prosecutor may not make arguments or assumptions that have no basis in

evidenc e, improp er comme nts or re marks ar e not rev ersible e

rror unl ess they are a material factor in the conviction or cause substantial pre judice to the accused. People v. Tipton , 207 Ill. App. 3d 688, 699-700 (1990). Where there are allegations of prosecutorial misconduct, argu

ments of b oth the pr

osecutor and defe nse coun sel must be

reviewe d in their entirety, and a

llegations of improper comment must be placed in their proper c ontext. Tipton , 207 Ill. App. 3d at 701. Accordingly, the questioned comments must be considere d in the1-06-1483

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context of the closing argument as a whole. A re viewing court will find reversible error ba sed upon improper closing argument only if a defendant can identify remarks of the prosecutor that are both improper and so substantial that a reasonable jury could have reached a differ ent verdict if the improper comments had not been made and thus were a material factor in defendant’s conviction. People v. Wheeler , 226 I ll. 2d 92, 12 3 (2007); People v. Evans , 209 Ill. 2d 194, 225 (2004). We therefore examine the alleged imprope r comments in context of the entire record. In the instant case, we be gin by a nalyzing the prose cutor’s comments during closing argument, specifically

about certain police reports that contained the initial description of the gunman provided by t he victim, John Maras . Init ially , we find

that the prosecut

or’s com ments that the ju ry would not view the r

eports we re not an improper misstateme

nt of the la

w becau se (1) the reports were not admitted in evidence, a nd (2) were inadmissible as a matter of law. People v. Ramos , 318 I ll. App. 3d 181, 191 ( 2000); People v. Shinohara , 375 Ill. App. 3d 85, 113 (2007). Nonetheless, defendant contends that when the prosec utor stated in closing argument that the reports were not important, she implicitly told the jury to disrega

rd the height and weight description of the gunman that Maras ga ve to police shortly afte

r the robbery , descriptions that defenda nt conten ds did not ma

tch his he ight and

weight . In e ssence, defenda nt takes is sue with the manner in which the prosecutor addressed de fendant’s impeachment evidence in her c losing argument, namely , evidence of Maras’ prior statements made to police regarding the heig

ht and weight of the gunman that defenda nt contends cast doubt on his subsequent identification as the gunman.1-06-1483

6

These alleged prior inconsistent statements give n to police were contained in police reports and were elicited by defense counsel during her examination of the off icers who authored the reports. We fin

d that whe

n defens e counse l elicite d this evid ence, she was att

empting to discred it or impea

ch Mara s’ identif

ication o f defen

dant as th e gunma

n. Thus, de fendant ’s efforts to impeach the State’s primary witness were a proper subject for the State to addr ess in closing argument. The State did so by addressing the facts and circumstanc es of the robbery and why those facts and circumstances caused Ma ras to initially provide a desc ription of the gunman’s height and weight that varied somewha t from the defendant’s actual height and weight. People v. Cox , 377 Ill. App. 3d 690, 707 (2007). Defend ant conte nds that th e prosec

utor’s “ not importa

nt” comme

nt about po lice rep orts diminished the importance of his impeachment evidence. However , the record is clear that regardless of the prosecutor’ s police report comments, defendant did introduce evidence of Maras’ initial height and weight descr iption of the gunman through live testimony given by police witnesses. Therefore, this evidence of the victim’s initial description of the gunman was before the jury

. Accordingly , the jury was not pre cluded from considering the evidentiary value of the victim’s initial description by the prosecutor’ s comments. It was the jury ’s role to decide the importance and weight to give the initial description, to rec oncile it with the conflicting evidence of defendant’s height and weig ht, and draw inferences therein. People v. Tenney , 205 Ill. 2d 411, 428 (2002 ). It

was also t

he provin ce of the jury to pass on M aras’ c

redibilit y a nd recon cile his1-06-1483

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initial description with the multiple identifications he made of defendant as the gunman. Tenney , 205 I ll. 2d at 42 8; People v. Cooper , 194 Ill. 2d 419, 430 (2000). We find that the prosecutor’s isolated comments about police reports were not an improper misstatement of the law and further more did not preve

nt the jury

from con sidering

the weig ht and evi dentiar

y va lue of Ma ras’ initial description of the gunman. In addition, the questioned comments must be considered in the c ontext of the closing argument as a whole. Evans , 209 I ll. 2d at 22 5; People v. Nieves , 193 Ill. 2d 513, 533 (2000). Here, e ven if the prosecu tor’s co mments we

re improp er, the t

rial cou rt took pr oper ste ps to minimize an

y pr ejudice to defen dant. The record is clear that the prosecut

or’s two c omments were br ief, and the defe ndant imme diately

objecte d. The tri al court responde d by

specific ally instructi ng the ju rors tha t attorne y a rgumen ts were n ot eviden ce and they

were to c onsider only witness testimony and exhibits in evidence in rendering their verdict. In addition, the trial court both orally and in writing instructed the jury that the be lievability of a witness may be challenged by prior inconsistent statements. I t is well settled that if a timely objection is made at trial, the court can, by

sustaining the objection or instructing the jury to disregard the answer or re mark, usually corre ct the error. People v. Carlson , 79 Ill. 2d 564, 577 (1980). We believe that the trial court’s instructions accomplished this purpose and served to mitigate any of the potential prejudice of which defendant now complains. Wheeler , 226 I ll. 2d at 12 8; Peopl e v. Des antia go , 365 Ill. App. 3d 855, 865 (2006). Moreover, in light of the evidence of def endant’s guilt, we cannot say that the verdict would hav e been d

iffere nt absent the prose cutor’s

comments a

bout the po lice rep orts.1-06-1483

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Specific ally , Maras i dentifie d defend ant as the gunman during a photogr aphic ar ray and ag ain in a police lineup and on three separate occ asions during court proceedings. Unc ontradicted evidence established that the area wher e the robbery

occurred had adequate lig hting and that the robbery oc curred over a 10- to 20-minute period, providing Ma ras ample opportunity to view a nd remembe r the gu nman. I t is well se

ttled that a single witness’ s identifi cation of the acc used 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, 306 (1989). We also fin

d that People v. Andrews , 101 Ill. App. 3d 808 (1981), which defe ndant cites to support his position, is not analogous. Andrews involved t he trial c ourt’s re fusal to a dmit police reports as a past recollection recor ded exception to the hearsay rule, a method for admitting evidence never sought by the defendant in the instant case, and wholly unrelated to the closing argument issue before us. Andrews , 101 Ill. App. 3d at 812. Hence, the totality of the record establishes that the prosecutor’s comments wer e not improper, or if they

were, did not jeopardize the integrity

of the judicial process and deny defendant a fair trial. People v. Cisewski , 118 I ll. 2d 163, 1 75 (1987)(commen ts by State wer

e not of su

ch a mag nitude as to have altered the trier of fact’ s determination of defendant’s guilt). Defend ant next contends tha

t he was d

enied a f air tria l by a stateme nt of the prosecut

or in closing argume nt that dimi

nished the

State’s b urden to prove him g

uilty bey ond a rea sonable doubt. As specifically noted a bove, the prosecutor referred to he r burden of proof as one she welcomed, and a standard of proof universa l to prosecutors throughout the criminal court building. Defendant did not object to the prosecutor’s additional comments and ther efore has1-06-1483

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waived objection to the prosecutor’s subsequent comments by failing to object at trial. People v. Woods , 214 I ll. 2d 455, 4 70 (2005) ; People v. Enoch , 122 Ill. 2d 176, 186 (1988). Defenda nt concedes that he failed to object to the comments at trial, but arg ues that we should review the alleged prosecutorial misconduct under the plain e rror rule. We may consider plain e

rrors or defects that affect substantial rig hts, even though the

errors were no t brough

t to the tri al court ’s attent ion. 134 I

ll. 2d R. 615 (a); People v. Herron , 215 Ill. 2 d 167, 187 (2005). However, before we consi der whether the

re was p lain err

or, we mu st first determine whether there was any error at all. People v. Piatkowski , 225 Ill. 2d 551, 565 (2007). We agree that comments by a prosecutor during closing ar gument that suggest that the State’s burden of proof is merely a pro forma

or a minor detail are improper. People v. Frazier , 107 Ill. App. 3d 1096, 1102 (1982). However , both this court, and our supreme court have addressed comments virtually identical to those of the prosecutor in the instant case and found such comments permissable. People v. Kidd , 175 I ll. 2d 1, 40 ( 1996); People v. Gacho , 122 I ll. 2d 221, 255 (1988); People v. Ward , 371 Ill. App. 3d 382, 423 (2007); see People v. Averett , No.1-05-3495, slip op. at 10 (March 31, 2008). We therefore find no e rror, let alone plain error, regarding the prosec

utor’s comments about the State’s burden of proof. ADMISSIB ILITY OF DEF ENDANT’S POLI CE COMPUTER DATABASE PHOTOGRAPH Finally, defe

ndant’s argument that the trial court erre d when it allowed in evidence of the fact tha t defend ant’s pho tograph was in a police da tabase a lso must fa

il. Defe ndant fa iled to include this contention in his posttrial motion and therefore has waived objection to the admission of this evidence under general rule s of forfeiture. Enoch , 122 Ill. 2d at 186.1-06-1483

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Defendant concedes that he failed to r aise this issue in his posttrial motion, but argues that we should again review the allege d prosecutorial misconduct under the plain error rule. 134 I ll. 2d R. 615(a) ; Herron , 215 I ll. 2d at 18 7. Agai n, befor e we con sider de fendant ’s arg ument for plain error, we must first determine whether there was any e

rror at all. Piatkowski , 225 Ill. 2d at 565. Defendant contends that testimony regarding the fac

t that his photograph was in a police databas e was impr

oper evi dence o f other c

rimes. I t is axiomatic

that such evidenc e is generally not admissi

ble to show

a defen dant’s g uilt beca use the ju ry may convict t he defe ndant only because it feels he is a bad person deser ving of punishment. People v. Thingvo ld , 145 Ill. 2d 441, 452 (1991). Other crimes evidence is admissible, where r elevant, to prove modus operandi , intent, identity, motive or absence of mistake. People v. Illgen , 145 Ill. 2d 353, 364 (1991). A trial court’s ruling on the admissibility of othe r crimes evidence will not be reversed a bsent an abuse of discretion. Thingvo ld , 145 Ill. 2d at 452. This court has not addressed this precise issue, but has considered the a dmission of testimony that a de fendant ’s fing erprints were on file with governme

nt agen cies, an d also his DNA was c ontained

in a DNA d

atabase of convic ted crimi nals. The cases in volving f ingerprints upheld the

admission o f testimon

y that a def

endant’ s finge

rprints w ere obta

ined fro m a state agency . People v. Jackson , 304 I ll. App. 3d 883, 894 ( 1999); People v. Hopkins , 229 Ill. App. 3d 665, 676 ( 1992); People v. Prewitt , 160 Ill. App. 3d 942, 949 (1987). However , this court found it improper to admit evidence that a defendant’s DNA prof ile was stored in a state DNA database. People v. Jackson , 372 Ill. App. 3d 112, 123 (2007), appeal allowed , 225 Ill. 2d 653 (2007).1-06-1483

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We reasoned in the fingerprint cases that e vidence of a defendant’s fing erprints in the government’s possession would not imply that a defendant had a criminal backg round, specifically be cause it is common knowledge that crime victims, governme nt employees and security personnel also have their fingerprints on file with the g overnment. Jackson , 304 I ll. App. 3d at

894; Hopkins , 229 I ll. App. 3d at 676; Prewitt , 160 I

ll. Ap p. 3d a t 949. We distinguished fingerprints from a defenda nt’s DNA profile, based on the common perception that DNA databases are strictly used to store only DNA pr ofiles of convicted criminals. Jackson , 372 Ill. App. 3d at 123. The State contends that the fingerprint cases a pply here, be cause both fingerprints and photographs are taken and stored in g overnment databases for reasons other than c riminal activity, such as photog

raphs taken in connection with the issuance of a driver’ s license or stateissued identification cards. Such databases also contain pictures of victims, witnesses or informants. Defendant argues that the te stimony about his picture in the police databa se was analog ous to evid

ence tha t a DNA pr

ofile wa s stored in

a DNA da

tabase a nd found im

proper i n Jackson

. We agree with the State, specifically because, as we noted in Jackson , there i s a qualitative difference between a police database containing finger prints or photographs and a DNA database. Jackson , 372 Ill. App. 3d at 123. Photographs are similar to fingerprints, which are commonly known to be stored in government databases for re asons unrelated to criminal activity , and unlik

e the col lection a

nd storag e of DNA

in a DNA d

atabase , which is c ommonly known to store only DNA prof iles of convicted criminals. Jackson , 372 Ill. App. 3d at 123.1-06-1483

12

Because we find no error , there can be no plain error, which only applies if an error occurred. People v. Patterson , 217 Ill. 2d 407, 445 (2005). Fo r t he fo re go in g r ea so ns , w e a ff ir m t he ju dg me nt of

th e c ir cu it co ur t o f C oo k C ou nt y. Affirmed. FITZG ERALD SMITH, P.J., and GALLAGH ER, J., concur.1-06-1483

13 REPORTER OF

DECI SION S - IL

LI NOI S APPEL LATE

COURT

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, Plaintiff-Appellee

v. NICH OLAS MEEKS, Defendant-Appellant

No. 1-06-1483 Appellat e Court of

Illinois First District, FIFTH

DIVI SION April 25, 2008

Justice Mar

garet O'Mar a Frossa rd author ed the opi nion of the

court: Presiding Justice Fitzgerald Smith and Justice Gallagher concur. Ap pe al fr om th e C ir cu it Co ur t o f C oo k C ou nt y. The Ho n. Eve lyn B. Cla y, Judge P resid ing.

COUNSEL FOR APPELLANT Patricia Unsinn of the Office of the State Appellate De fender, Chicago, I L 60601 OF COUNSEL: Emily

R. Atwood

COUNSEL F OR APP ELLEE Richard A. Devine, Cook County State' s Attorney, Chicag o, IL 60602 OF CO UN SE L: J am es E. Fi tz ge ra ld an d E ve Re il ly1-06-1483

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