No. 2--02--0075

______________________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Jo Daviess County.

		)

	Plaintiff-Appellee,	)

	)	Nos. 	01--CF--45

v.	)	     	01--DT--32

	)

WILLIAM T. LIBBERTON,	)	Honorable

	)	William A. Kelly,

	Defendant-Appellant.	)	Judge, Presiding.

______________________________________________________________________________

	JUSTICE KAPALA delivered the opinion of the court:

	Defendant, William T. Libberton, appeals from his convictions of driving under the influence

of alcohol (DUI) (625 ILCS 5/11--501(a)(1), (a)(2) (West 2000)) (two counts, one of which was

merged into the other) and false report of a vehicle theft (625 ILCS 5/4--103(a)(6) (West 2000)). 

We now affirm.

	I. BACKGROUND

	Defendant was charged by indictment with one count of false report of a vehicle theft and two

counts of DUI.  His case was tried to a jury.  The arresting officer, Steven Jahncke of the Warren

police, testified that on March 3, 2001, shortly after 2 a.m., he was on routine patrol in his squad car. 

The night was very cold and the ground was snow-covered.  As he was driving, he encountered

defendant, who was emerging from a roadside ditch.   He stopped his vehicle, approached defendant,

and asked him what he was doing.  Defendant stated that he was going to a friend's house.  When Jahncke asked him why, he said that he needed to use a phone to call the police because his car had been stolen.  Jahncke asked defendant for identification and then used the car radio to report a stolen

car to the sheriff‛s department.  Right after Jahncke made the report, but during continued radio communication, defendant told Jahncke that he had found his car and that it was stuck in a snowbank

by some grain bins.  

	Jahncke requested that defendant ride with him to the car.  On the way, Jahncke asked

defendant if there was anyone with him, and defendant said that he was with his girlfriend, who was

in the car sleeping.  Jahncke noticed that defendant smelled of alcohol.  They arrived at the car, which

was well back from the street and behind some buildings.  Jahncke asked defendant how he found his

vehicle, and defendant said that he was walking to his home in another town when he found it.  

	Jahncke approached the vehicle and saw a woman in the passenger seat slumped over with

her head between her legs.  (The woman was later identified as Kimberlee Quire (Quire), who, by the

time of trial, had married defendant and changed her name to Kimberlee Libberton.)  Jahncke

attempted to wake her to have her open the locked door, but it took her some time to wake up and,

when she did wake, she had difficulty opening the door.  After Quire answered several questions

posed by Jahncke,  Jahncke requested that a wrecker be dispatched.  Under cross-examination, he

explained that, because defendant was claiming that the car had been stolen, the towing company

would store the vehicle indoors so that it was protected from tampering and the State Police crime

scene investigators would be brought in to process the vehicle.  Jahncke identified a number of the

photographs of the interior of the car as having been taken by the State Police.  

	Deputy Casey Folkes of the Jo Daviess County sheriff's department arrived to assist Jahncke,

and both defendant and Quire were questioned further.  Defendant told Jahncke that the car had been stolen from the lot at Wally's, a bar and that he had found it because, when he walked past the

complex with the grain bins, it had occurred to him that it was a good place to hide a stolen car, and

so he had gone to look.  Jahncke asked him if he had been driving, and defendant initially denied that

he had, but later stated that he had tried to move the car in an attempt to get it unstuck.  Jahncke then

asked defendant to undergo field sobriety tests.  Two of the three tests indicated probable

intoxication.  Jahncke and Folkes then transported defendant and Quire to the Stockton police

department, where defendant was subjected to a Breathalyzer test.  By the testimony of the

Breathalyzer operator, defendant's breath-alcohol concentration was 0.165.  Jahncke also asked Quire

to give a statement, which he wrote out and she signed.  He admitted that he had done the writing

because Quire said that she was too drunk to write.

	The State introduced a number of photographs of the area in which the car had been left.  The

officers called by the State used these to indicate that it would have been difficult to see the car from

the road.

	Quire, called by the State, testified that she had gone with defendant to at least two bars, and

that she and defendant had consumed alcohol at each, but that her memory of that night was poor,

and she had no sense of time for that period.  She stated that she had no recollection of defendant

driving the car from the last bar they had visited, Wally's, to behind the grain bins, but that she

remembered being taken to the police station and answering the questions from which the statement

was prepared.  She said that the statement could not accurately reflect her words because it included

the time she left Wally's and the name of the business that had the grain bins, both of which were

details that she did not know.  Her statement was read into the record.  It states:

	"Bill [defendant] and I were at Wally's until approximately 12:45-1:00 A.M.  Bill and

I had both been drinking.  Bill and I left Wally's, got into his car and drove up to Custom

Grain [the location of the grain bins].  I had no idea where I was.  After he got the car stuck

I fell asleep and the next thing I remember was someone knocking on the window asking me

for my license."

	Defendant was the sole defense witness.  He testified that he had parked his car near Wally's,

leaving the keys in the ignition, but that when he came out after drinking for a while, the car was not

where he had left it.  Defendant said that he thought that his friends were playing a joke so he began

to search for his car.  After searching unsuccessfully, defendant and Quire set out walking toward a

friend's house in another town.  Quire was barely able to walk.  As defendant passed the grain bins,

he noticed his car behind them.  He left Quire with the car and, after remembering that he had a friend

in the same town, started walking toward that friend's house.  He denied trying to drive the vehicle

at any time after leaving Wally's, but admitted that he had been intoxicated.  He stated that he had

gone back to the police the Monday after he was arrested to give them a list of items that he thought

were missing from the vehicle.

	The State, in closing argument, asserted that many aspects of defendant's testimony were

illogical and commented that it was terrible that defendant persisted in claiming that his car had been

stolen in order to escape responsibility for his drunk driving.  

	Defendant's counsel emphasized defendant's right make the State prove its case: 

	"It's not a crime, Ladies and Gentlemen, to profess your innocence.  It's your

constitutional right to have a trial; we all possess that and that's all my client's done.  He said

'I'm not guilty of this' and his only choice when that decision is made is to come here and have

a trial by 12 of his peers.

	Now he does have an option, he could waive jury trial and try for [sic] the Court which is called a bench trial, but that's his decision alone and he made that decision to have

the jury trial; and that's why we're here today because he professes his innocence on this." 

He then argued that defendant's version of events should be taken to be the truth because, as a lie to

avoid trouble, it was much less sensible than other lies defendant could have told.  He argued that

Quire's statement was discredited by her intoxication.  He suggested that the State's photographic

exhibits had been deliberately chosen to overstate the difficulty defendant would have had in locating

his car from the road.  Further, he argued that minor variations in the calibration of the Breathalyzer

made the Breathalyzer data unreliable.  He stated that there were too many holes in the police

evidence for the State to have met its burden of proof.

	The State's Attorney, in rebuttal, stated that the case was a very important one to the people

of the State of Illinois.  He argued that the pictures were accurate and representative, and then

asserted that he "[did not] deal in any kinds of attempts to deceive."  He then stated: 

	"[Defendant's counsel] begins his argument by asking you; there's no other choice for

this Defendant, right?  No other choice.  He's got to take this case to trial and profess his

innocence.  Well, not quite.  Okay?  There is something that about 80 to 90 percent of

Defendants do in this country and that is they be [sic] honest, forthright.  They go into the courtroom and plead guilty.

	MR. NACK [Defense counsel]: Objection, that's grounds for mistrial, Judge.

	THE COURT: Overruled. Go ahead.

	MR. WEBER [State's Attorney]: It happens every day.  You hear about it all the time. 

Right?

	'You know what?  That story I gave was pretty stupid and I think it's time for me to

accept responsibility for my stupidity in driving drunk and filing a false police report and I'll

plead guilty.' "

	He then argued that it is perfectly natural for someone to get tangled in his own lies, stated

that defendant's intoxication was not even at issue because defendant had admitted it, reemphasized

the physical implausibility of defendant's story, and suggested that Quire's renunciation of her

statement could be the result of her bias in favor of her husband.  

	He suggested that defense counsel was attempting to sow confusion:

	"[T]hat's the defense; that's the tactic, right.  Well, Officer Craft did this and the

machine did that and blah-blah, blah-blah, blah.  Folks, that is not even an issue in this case. 

I asked him flat out, 'Were you over the legal limit?'  'Yeah, oh yeah.'  'Beyond .08?'  'Yeah.' 

What do we need a machine for?  But see, that's the way.  That's the tactic, of course, you

know let's get back in the jury room and let's, convince [sic] about the machine and let's convince [sic] about this and dah-dah-dah-dah-dah, and pretty soon there's 12 of you and there's reasonable doubt all over the place because you're thinking about all sorts of things

that have nothing to do with the facts and circumstance and hard evidence in this case." 

	In arguing against defense counsel's claim that defendant's story was unlikely to be a lie

because it was not in his self-interest, he said:

	"I'll tell you why he would [persist in his story], okay?  I will answer that question for

you.  Because he wants to escape responsibility for his crime; because he wants to escape

because he wants to walk; because he wants to get back out on the street, back out after the

verdict and yuck it up with the officers, 'Hey-hey, you know, hey look at what I did and got

away with it.' "

	The jury found defendant guilty on all counts, and defendant moved to arrest judgment, for

a new trial, and for a judgment not withstanding the verdict.  Issues raised included claims that the

indictment for false report of a vehicle theft was inadequate in that it failed to allege that a third party

had been harmed by the report, that such an allegation was a necessary element of the offense, and

that the State's proof was inadequate because it failed to make any showing of this same purported

element.  Defendant did not raise any issue relating to the State's closing argument.  The motions did

allege that the State committed a discovery violation by failing to provide information about certain

physical evidence to defendant until just before the trial.  During oral argument on the discovery issue,

the State's Attorney indicated that the car had been dusted for fingerprints, although none were found

that could be used for identification.  Defendant's motions were denied and defendant was sentenced

to 180 days' periodic imprisonment and 2 years' probation.

	II. ANALYSIS

	On appeal defendant contends that (1) his conviction of the false report of a vehicle theft

violated his substantive due process rights under the United States and Illinois Constitutions; and (2)

the State's closing arguments were improper and violated his right to a fair trial.  We address each

contention.

A.  Substantive Due Process

	We begin by noting that defendant has cited provisions of both the Illinois Constitution (Ill.

Const. 1970, art. I, § 2) and the United States Constitution (U.S. Const., amends. V, XIV) in support

of his first contention; however, his arguments relate only to the Illinois constitutional provision. 

Consequently, defendant has waived any argument under the federal constitution (188 Ill. 2d R. 341

(e)(7)) and our analysis will be so confined.  Defendant argues that because he "told the officer of the

theft of his own car in response to questions by the officer, immediately informed the officer that he had located his car, did not accuse another citizen of the purported theft, and did not seek to profit

from the conveyance of the false information, the prosecution of [defendant] as a Class-2 felon

violated his right to substantive due process."  Defendant contends that his "report" is not the type

of report envisioned by the legislature to be within the scope of the offense of falsely reporting a

vehicle theft.  We disagree. 

	Defendant directs us to People v. Morris, 136 Ill. 2d 157 (1990).  In Morris, the defendant had altered a temporary vehicle registration permit displayed on a vehicle he owned to show a later

expiration date.  He was convicted of violating section 4--104(a)(3) of the Illinois Vehicle Code (Ill.

Rev. Stat. 1987, ch. 951⁄2, par. 4--104(a)(3)), which makes it a Class 2 felony to possess "any ***

temporary registration permit *** knowing it to have been stolen, converted, altered, forged or

counterfeited."  The issue in Morris, pertinent to this appeal, was whether the penalty for possession of an altered temporary registration permit applied in that case violated the defendant‛s right to substantive due process under the Illinois Constitution (Ill. Const. 1970, art. I, §2).  Morris, 136 Ill. 2d at 161-62.  The court explained that in order " '[t]o be a valid exercise of police power, the

legislation must bear a reasonable relationship to [the interest] which is sought to be protected, and

the means adopted must constitute a reasonable method to accomplish such objective.' " Morris, 136 Ill. 2d at 161, quoting City of Carbondale v. Brewster, 78 Ill. 2d 111, 115 (1979).  The court then declared that "[t]he purpose of the anti-theft laws 'is to protect automobile owners against theft and

to protect the general public against the commission of crimes involving stolen automobiles.' " 

Morris, 136 Ill. 2d at 162, quoting People v. One 1979 Pontiac Grand Prix Automobile, 89 Ill. 2d 506, 510 (1982).  The court then found that the defendant altered the temporary registration of his

own vehicle and that there was no evidence that the alteration contributed in any way to any vehicle

theft-related crime.  Morris, 136 Ill. 2d at 162.  Our supreme court concluded:

	"A Class 2 penalty for a person who alters a temporary registration permit for a vehicle which

he or she owns or to which he or she is legally entitled is not reasonably designed to protect

automobile owners against theft, nor is it reasonably designed to protect the general public

against the commission of crimes involving stolen motor vehicles.  Such a penalty is violative

of the due process clause of our constitution, and may not stand." Morris, 136 Ill. 2d at 162.

	Applying the analysis from Morris to this case, we must determine whether a Class 2 penalty for a person who falsely reports a theft of his own motor vehicle is reasonably designed to protect

automobile owners against theft, or reasonably designed to protect the general public against the

commission of crimes involving stolen motor vehicles.  We conclude that, under the facts of this case,

an application of a Class 2 penalty to defendant is reasonably designed to meet those legitimate state

interests.

	In this case, defendant's actions did have harmful consequences, the prohibition of which

protects automobile owners against theft and protects the general public from the commission of

crimes involving stolen motor vehicles.  Contrary to defendant‛s contention, his actions caused a misdirection of police resources.  It is important to note that although defendant quickly advised

Officer Jahncke that the "stolen" vehicle had been recovered, he never retreated from his claim that

a theft had occurred. The arresting officer's testimony makes it clear that defendant's car was

inventoried and processed as a stolen vehicle.  It was held indoors so that it could be protected from

tampering, and an Illinois State Police crime scene investigator photographed the vehicle.  The

prosecutor‛s comments to the court related that it was also dusted for fingerprints.  Defendant's actions also kept the Warren police involved in the investigation of the possible theft:  according to

defendant's testimony, he came to the police station the Monday following his arrest to provide the

police with a list of items he thought were missing from his vehicle.  Deterring misdirection of police resources advances anti-theft interests; for example, it improves the protection of automobile owners

against vehicle theft by increasing the resources that can be expended on solving or preventing actual

automobile thefts.  Further, the deterrence of such misdirection makes police resources available to

investigate, detect, and prevent all crimes that negatively affect the public in general, including crimes

involving stolen motor vehicles.  Accordingly, the application to defendant of the Class 2 penalty

provided for by section 4--103(b) for a violation of section 4--103(a)(6) did reasonably relate to

legitimate state interests and, therefore, did not violate his due process rights.

	Defendant points to the State‛s closing argument in which the prosecutor referred to defendant‛s story as "laughable" and "ridiculous."  Defendant suggests that this characterization is an acknowledgment by the State that defendant‛s report was so inane that there was no reason to expend police resources to investigate the theft.  We realize that it is possible that a report of a stolen motor

vehicle could be so outlandish (e.g., Martians stole my car!) that charging a person with the false report of a stolen vehicle would violate that person‛s right to substantive due process guaranteed by the Illinois Constitution.  However, this is not such a case.  The record indicates that the report was

at least plausible and that the police took it seriously enough to impound defendant‛s car for investigation and to apply valuable resources to the case, including the time of an Illinois State Police

crime scene investigator.  Moreover, defendant did nothing after the initial report to dissuade the

police from believing the veracity of his claim, even to the point of bringing them a list of items he

claimed were stolen from his car.  Defendant never did retract the report and stuck to his story at

trial.

	Defendant also argues that People v. Fuller, 187 Ill. 2d 1 (1999), holds that the false report provision, read in the light of Morris, requires that the false report have some victim in order for it to be punishable.  Defendant contends that his crime was victimless.

	The defendant in Fuller, after allowing her former husband to borrow her car, called the police and reported it stolen.  The former husband was stopped by police, arrested, and ultimately charged

with the theft.  Fuller, 187 Ill. 2d at 4.  After the defendant admitted that she had lied about the theft, she was charged with false report of a vehicle theft.  Fuller, 187 Ill. 2d at 5.  She moved to dismiss the charge on the grounds that, under the rationale of Morris, application of the false report provision in her case would violate her due process rights.  Fuller, 187 Ill. 2d at 5-6.  Our supreme court rejected the defendant‛s argument that punishing her particular actions did nothing to advance anti- theft interests and that, thus, to apply the false report provision to her actions would violate her due

process rights.  Fuller, 187 Ill. 2d at 5-6.  

	As to defendant‛s contention that Fuller requires that the defendant's conduct have a victim, we disagree.  We believe that our supreme court simply distinguished Morris and People v. Hamm, 149 Ill. 2d 201 (1992), on this basis, but did not require a specific victim in order to conclude that

a given penalty is reasonably related to the legislative purpose of the statute in question.  See Fuller, 187 Ill. 2d at 16.  The court found it sufficient that there was harm to a specific victim, i.e., the defendant‛s former husband, in deciding if the Class 2 penalty was reasonably related to the legislative purpose, but nothing the court said indicates that this is necessary.

	Even if Fuller could be read to include a victim factor in the due process equation, we believe that it was met in this case.  In his trial testimony, defendant related that when he emerged from

Wally's bar and discovered his vehicle was missing, he thought that his friends were playing a joke

on him, so he began to search for his car.  We would certainly expect that Officer Jahncke of the

Warren police department, as well as other law enforcement officers working in the vicinity, could

easily ascertain who these "friends" of defendant were and subject them to an investigation regarding

this incident.  Moreover, defendant potentially exposed persons who had innocently touched his vehicle in the past to a stolen-motor-vehicle investigation.  Although no fingerprints suitable for

comparison were located on defendant‛s vehicle, at the time defendant made the report he did not know that the innocent people who had touched his vehicle in the past would be so fortunate.  As the

supreme court in Fuller observed, "the defendant‛s actions exposed [innocent people] to the uncertainty and expense that will result from being falsely accused of a crime." (Emphasis added.)

Fuller, 187 Ill. 2d at 19.

	For the foregoing reasons, we reject defendant‛s contention that the Class 2 felony penalty that was applied to him in this case was a violation of his right to substantive due process of law

under the Illinois Constitution.

	B. The Prosecutor‛s Closing Argument

	Defendant‛s second contention on appeal is that the  prosecutor's closing arguments denied him a fair trial.  Defendant notes that this claim was not raised in his posttrial motions, but he claims

that the improprieties were serious enough to rise to the level of plain error.  Because the standard

for reversal of a conviction on appeal due to improper closing argument by the State is much the same

as the plain-error standard, the failure to raise this issue before the trial court has little effect.  "The

standard of review applied to arguments by counsel is similar to the standard used in deciding whether

a plain error was made:  comments constitute reversible error only when they engender substantial

prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted

from those comments."  People v. Nieves, 193 Ill. 2d 513, 533 (2000).  

	We agree with defendant that certain parts of the rebuttal argument were improper.  However,

we do not agree that every portion of the rebuttal singled out by defendant is improper, and, more

critically, we do not agree that the improper remarks rise to the level of reversible error.  

	Defendant argues that it was improper for the State to suggest that defense counsel was

attempting to confuse the jury.  These comments by the State were proper in light of defendant's

remarks which attempted to make much of a minor discrepancy in the calibration of the Breathalyzer

used to test him.  Comments on the defense's attempt to use minor discrepancies to discredit the

State's evidence are proper rebuttal.  People v. Hudson, 102 Ill. App. 3d 346, 349 (1981).  We read the State's comments not as an attempt to accuse defendant's counsel of dishonesty but, rather, to

draw attention to his trial tactic.

	Defendant further argues that it was improper for the State to suggest that defendant and

counsel had encouraged his wife to lie on his behalf.  It is not clear that the State made such a claim,

and if it did, it immediately retracted it.  The interchange, discussing the use of Quire's written police

statement, was as follows:

	"MR. WEBER [State's Attorney]: And because Defendants attempt to get around

[statements made to police] by later bringing in [the persons who made the statements] and

having them say 'I don't remember.  I don't remember', okay, that does not--

	MR. NACK [Defense Counsel]: I'll object to that.  There's no indication that we had

anything to do with that.  The implication is we told her to come in here and lie.

	THE COURT: Overruled. Go ahead.

	MR. WEBER; Well, I certainly don't want to leave that impression whatsoever if

that's the impression I gave, I would certainly withdraw it and strike it and I don't think I was

saying that but if I did, I apologize.  What I mean is, he's married to her, okay, and now she

comes in here and says I don't remember."

Generally, a trial court can correct any error by sustaining an objection and instructing the jury to

disregard the remark.  People v. Cisewski, 118 Ill 2d. 163, 178 (1987).  Here, although the court overruled the objection, the State itself was at pains to correct the impression.  With any implication

that defendant or his counsel was suborning perjury definitively retracted, all that remained of the

statement was a comment about the likelihood of the witness's bias, which was proper.

	The State made comments which suggest, essentially, that a decent person in defendant's

position would have pleaded guilty.  Negative comments about a defendant's exercise of his or her

constitutional rights are improper because they penalize the defendant for the exercise of those rights. 

People v. Mulero, 176 Ill. 2d 444, 462 (1997).  This argument by the State is nothing if not an attempt to anger the jury at defendant for his choice to have a trial.  The State argues that this line

of argument was invited, but this was not the case.  In closing, defendant's counsel argued that, once defendant chose to assert his right to plead his innocence, he had no choice but to go to trial.  He further stated that defendant had the choice between a bench trial and a jury trial, and that defendant

had chosen to have a jury trial.  Nothing in these remarks could be understood to state that defendant

was forced to go to trial.  If anything, the remarks appear to have been intended to remind the

members of the jury that they were assisting in upholding defendant's right to a trial by jury.  

	The State also commented that defendant's purpose in lying was to be able to laugh at the

police when he was back on the street.  It is error for the trial court to permit comments that serve

only to arouse the passions of the jury, and particularly comments that attempt to turn the jury's

verdict into a test of its support for law enforcement.  People v. Slabaugh, 323 Ill. App. 3d 723, 731 (2001).  The State could point out that defendant was motivated to lie, but the comment about him

laughing at police went well beyond this.  The comment had no basis in the evidence and seems to

have been designed to be purely inflammatory.	

	Generally, improper closing arguments by the State will constitute reversible error only if

there is doubt as to whether the jury would have rendered a guilty verdict in the absence of the comments.  Nieves, 193 Ill. 2d at 533.   Nothing in the case suggests that the closing argument had such an effect on the outcome of the trial.  With regard to the false-reporting charge, the only dispute

was the legal one of whether the provision under which he was charged applied to defendant's

admitted conduct.  With regard to the DUI charge, the only real dispute was whether defendant had

driven his car after he became intoxicated.  On this point, the jury heard testimony of defendant's own

admission that he had driven the car (by trying to get it unstuck) after he left the last bar.  This,

coupled with the implausibility of defendant's explanation as to how the car got to the place it was

found, made a sufficiently strong case for defendant's guilt that we can presume that the State's

closing argument did not affect the verdict, and under the general standard there is no reversible error.

	Defendant also argues that under People v. Blue, 189 Ill. 2d 99, 139 (2000), and People v. Ray, 126 Ill. App. 3d 656, 663 (1984), closing argument that exceeds all bounds of propriety can constitute reversible error, even when the evidence against the defendant is overwhelming.  Both

cases stand for the proposition that the cumulative effect of errors during the course of a trial can so

taint the proceedings as to deprive the defendant of a fair and impartial trial and thus require reversal

even in the face of evidence that strongly establishes the defendant's guilt.  Ray holds that such taint can be caused by improper closing argument alone.   However, the errors in Ray were much more pervasive than those in this case.  In Ray, the court noted that it was examining only the most egregious of the prosecutor's closing comments, and yet it listed 16 instances of claiming that defense

counsel was lying, a single instance of suggesting that the defendant no longer enjoyed the

presumption of innocence, a single instance of drawing attention to the fact that the defendant had

not testified, several instances of suggesting that excluded evidence would have favored the State,

several suggestions that the defendant had intimidated witnesses, and several insinuations that the

defendant had a long criminal history.  Ray, 126 Ill. App. 3d at 660-63.  

	Without diminishing the failings of the State in this matter, we recognize that improper

comments in this case were neither as pervasive nor as potentially damaging as those in Ray.  The quantity of improper comments in this case does not match the sheer quantity of the inflammatory

remarks in Ray.  Furthermore, the improper comments in this case lacked the potential of those in Ray to confuse the jury.  There, the comments brought to the jury's attention the existence of excluded evidence and otherwise attempted to mislead the jury as to the evidence that it should have

considered, whereas here the improper remarks were simply inappropriate appeals to emotion.

	III.  CONCLUSION

	For the reasons stated, the judgment of the circuit court of Jo Daviess County is affirmed.

	Affirmed.  

     	BYRNE, J., concurs.

           PRESIDING JUSTICE HUTCHINSON, dissenting:

	I respectfully dissent.  I believe that State's Attorney Glen Weber's rebuttal argument was so

fraught with improper comments that it not only rose to the level of reversible error, it shattered the

ceiling of courtroom decorum and professional conduct.  I recognize the general principle of affording

prosecutors wide latitude in closing argument.  See People v. Blue, 189 Ill. 2d 99, 127 (2000).  However, this wide latitude is not without limits.  See People v. Slabaugh, 323 Ill. App. 3d 723, 727- 32 (2001).  A fundamental tenet of our criminal justice system is that prosecutors owe defendants a

duty of fairness.  People v. Amaya, 255 Ill. App. 3d 967, 973 (1994).  This duty extends throughout the trial and includes closing arguments.  Amaya, 255 Ill. App. 3d at 973.  What this means is that State's Attorney Weber has an ethical obligation to refrain from presenting improper and prejudicial

argument.  See People v. Hudson, 157 Ill. 2d 401, 441 (1993).  We expect our state's prosecutors to prosecute with earnestness and vigor.  But as the United States Supreme Court has recognized, "[W]hile [the prosecutor] may strike hard blows, he [or she] is not at liberty to strike foul ones." 

Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629, 633 (1935).

	In the present case, the first foul blow emanating from State's Attorney Weber came at the

outset of his rebuttal, when he explained to the jury that defendant could have chosen to do what "80

to 90 percent of [d]efendants do in this country" and that is "they be honest [and] forthright," and

"[t]hey go into the courtroom and they plead guilty."  Upon defense counsel's objection that the

remark just attacked defendant's constitutional right to a jury trial (see U.S. Const., amend. VI), the

trial court actually overruled the objection and allowed Weber to continue.  Thereafter, Weber

repeatedly accused defendant of lying, accused defense witnesses of lying, explained why defendant

and defense witnesses would lie, and why defendant and defense witnesses would continue to

maintain their lie.  Weber explained to the jury that defendant "want[ed] to escape responsibility for

his crime," "get back out on the street, back out after the verdict and yuck it up with the officers." 

Weber then concluded by asking the jury to "send [defendant] a message" and say "enough of these

lies."  In my view, Weber's rebuttal argument exceeded all bounds of reasonable and proper comment. 

The argument was especially harmful due to Weber's strategic decision to wait until rebuttal to

present it, so that defendant would have absolutely no method to substantively counteract the venom

of Weber's comments before the jury retired to deliberate.  See People v. Sutton, 316 Ill. App. 3d 874, 896 (2000).

	Time and again Glen Weber has crossed the line of permissible conduct.  See People v. Slabaugh, 323 Ill. App. 3d 723, 727-32 (2001); People v. Couch, No. 2--01--0585 (2003) (unpublished order under Supreme Court Rule 23); People v. Doll, No. 2--02--0564 (2003) (unpublished order under Supreme Court Rule 23).  In Slabaugh, Weber repeatedly argued that defense witnesses were " 'lying,'  '[sat] down together and [got their] stories straight,' 'concocted' their defense, and 'creat[ed] a defense.' "  Slabaugh, 323 Ill. App. 3d at 729.  We noted that, despite a trial court's sustaining an objection and instructing the jury, when a prosecutor repeatedly attempts to

make unfounded arguments, a defendant may still be prejudiced.  Slabaugh, 323 Ill. App. 3d at 731- 32.  In reversing the defendant's conviction, we held that, in addition to his improper impeachment,

Weber's "numerous improper arguments" deprived the defendant of a fair trial. Slabaugh, 323 Ill. App. 3d at 732.

	In Doll, we noted in a special concurrence that Weber's comment that the defendant was a "rat in a maze" "served no other purpose than to arouse the passions of the jury."  Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring).  In the present case, Weber, while

attempting to explain what a "prior inconsistent statement" was, argued:  "you see, because we have

[d]efendants here that are always trying to, you know, they're like a rat in a maze, you know, okay, let's see what it looks like in here--zoom, zoom, and try to get out of it."  (Emphasis added.) Just as

in Doll, this type of rhetoric served no purpose other than to arouse the passions of the jury and to denigrate defendant and the defense witnesses and is, therefore, highly improper.  See Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring).

	Apparently, our past admonitions to Glen Weber have gone callously and cavalierly

disregarded as this case more than amply demonstrates.  I am further troubled that the majority's

treatment of this issue does nothing to diminish the likelihood that such conduct will recur.  Though

I am unable to convince my colleagues, I feel compelled to make a public record of Glen Weber's lack

of professionalism and decorum.

	In cases such as this, where prosecutorial misconduct has not been deterred through

admonition or condemnation, the United States Supreme Court has stated that it "may well so seriously undermine the integrity of judicial proceedings as to support reversal under the plain-error doctrine."  United States v. Young, 470 U.S. 1, 33 n.16, 84 L. Ed. 2d 1, 24 n.16, 105 S. Ct. 1038, 1055 n.16 (1985) (Brennan, J., concurring in part and dissenting in part, joined by Marshall and

Blackmun, JJ.).  Given the cumulative effect of Weber's comments and the nature of the evidence in

this case, I believe that defendant was denied a fair and impartial trial.  See Slabaugh, 323 Ill. App. 3d at 732.  The evidence of guilt can hardly be characterized as overwhelming; consequently, this is

not a matter of harmless error.  A reversal and remand for a new trial free from the taint of Glen

Weber is not only justified in this instance, it should be mandated.  I urge judges to vigorously guard

against such improper argument and unprofessional conduct.

	For these reasons, I respectfully dissent.

Filed:  March 29, 2004

				SUPPLEMENTAL OPINION ON REHEARING 	JUSTICE KAPALA delivered the opinion of the court:

	We allowed defendant's petition for rehearing that requested that we reconsider our holding as to defendant's second contention on appeal in light of our supreme court's recent decision in People v. Johnson, 208 Ill. 2d 53 (2003).   Defendant argues that Johnson mandates reversing his conviction and remanding the cause for a new trial because the acceptance of such "blatant misconduct" as

occurred in this case is exactly what the supreme court warned against in Johnson.  The State argues that the Johnson decision should not alter our holding that the improper comments by the prosecutor in this case were harmless.  After carefully considering the holding in Johnson, as well as the parties' arguments regarding that decision, our resolution of this case has not changed.

	Johnson involved three consolidated appeals where the State sought review of the appellate court decisions reversing DeAngelo Johnson's, Clyde Cowley's, and Jimmie Parker's convictions and

remanding the causes for new trials.  Cowley and Parker were codefendants of Murray Blue, the

defendant in People v. Blue, 189 Ill. 2d 99 (2000).  These three defendants were charged with, among other crimes, the first degree murder of Chicago police officer Daniel Doffyn.  Cowley's trial was

severed from Blue's and these two cases were tried simultaneously, but with separate juries.  Johnson,  208 Ill. 2d at 60-61.  Parker's trial took place several months later.  Johnson's trial involved charges resulting from a separate incident.  Johnson, 208 Ill. 2d at 61.  At the beginning of the Johnson decision the court wrote:

		"These consolidated cases come before us in the wake of our decision in People v. Blue, 189 Ill. 2d 99, 138-39 (2000), wherein a unanimous court held that the cumulative effect of prosecutorial misconduct and trial error had deprived the defendant of a

fundamentally fair trial and thus warranted reversal notwithstanding overwhelming evidence

of defendant's guilt. In Blue, this court recognized that a pervasive pattern of error, engendered in the main by prosecutorial misconduct, had divested defendant of his right to

a fair, orderly, and impartial trial, a substantial right that inures to a criminal defendant 

' "whether guilty or innocent." ' Blue, 189 Ill. 2d at 138, quoting People v. Bull, 185 Ill. 2d 179, 214 (1998).  In Blue, where the trial was permeated by the presentation of emotionally charged evidence, and the prosecutors 'encouraged the jury to return a verdict grounded in

emotion, and not a rational deliberation of the facts' (Blue, 189 Ill. 2d at 139), the members of this court, acting 'as guardians of constitutional rights and the integrity of the criminal justice system' (Blue, 189 Ill. 2d at 139), reversed and remanded for a new trial.  Disposition of the instant cases requires that we further delineate the dimensions of Blue, applying the principles and standards of review utilized in that case."  Johnson, 208 Ill. 2d at 60.

	Because the court in Johnson relied on its decision in Blue, a detailed discussion of the holding in Blue is warranted.  In Blue our supreme court held that cumulative errors deprived the defendant of his due process right to a fair trial (Blue, 189 Ill. 2d at 104) and reversed his convictions of, among other crimes, the first degree murder of Officer Doffyn.  The court identified four errors that occurred during the evidentiary portion of the trial.  The first error was the admission of Officer Doffyn's

bloodied and brain-splattered uniform.  Blue, 189 Ill. 2d at 126.  The court concluded that the potential prejudice of the evidence outweighed its probative value and that its admission was aimed

directly at the sympathies, or outrage, of the jury.  Blue, 189 Ill. 2d at 126.  The second error was the admission of the testimony of Officer Doffyn's father, which was not probative of the defendant's guilt

or innocence but, rather, highlighted the poignancy of the Doffyn family's loss and suggested that the

family's pain could be alleviated by a guilty verdict.  Blue, 189 Ill. 2d at 131.  The third error was the admission of the irrelevant and emotionally charged testimony of Commander Joseph Delopez regarding the "star ceremony" where Officer Doffyn took his oath of office and the commander's

explanation that Officer Doffyn's star is now displayed in the "honored star case" at Chicago police

department headquarters.  Blue, 189 Ill. 2d at 133.  The fourth error was the prosecutors' hostile treatment of a witness, repeatedly interjecting their own testimony "through thinly veiled 'objections,' " and their violation of the advocate-witness rule.  Blue, 189 Ill. 2d at 135-36.

	The Blue court also identified as errors two improper themes in the prosecutor's closing arguments.  The first was the argument that the jury's verdict should be a vehicle to vindicate the Doffyn family.  The court said that the argument that Officer Doffyn's father, mother, and child

needed to "hear" from the jury was patently immaterial to the defendant's guilt or innocence and the

State's reference to their loss was an erroneous appeal to the jury's emotions.  Blue, 189 Ill. 2d at 130.  The second improper argument identified by the court was the prosecutor's argument that the jury

should send a message in support of the police.  Blue, 189 Ill. 2d at 132.  The court concluded:

		"[T]he trial court allowed the State to argue two emotion-laden themes to the jury, neither of which was probative of defendant's guilt for the several crimes charged against him. 

The nakedly prejudicial nature of the arguments was intensified by parallel evidence which,

perhaps by design, reinforced the tragedy of the loss suffered in this case by the police force

and by the family of Daniel Doffyn.  Consequently, we hold that the trial court abused its

discretion by permitting the jury to hear these arguments."  Blue, 189 Ill. 2d at 134.

	Next, the court turned to the State's argument that, irrespective of any error, the evidence

against the defendant was so overwhelming that absent the errors the outcome of the case would not

have been different.  Blue, 189 Ill. 2d at 137-38.  In response to this argument the court explained:

		"[P]rejudice to a defendant's case is not the sole concern that drives our analysis of

defendant's appeal: 'A criminal defendant, whether guilty or innocent, is entitled to a fair,

orderly, and impartial trial' conducted according to law.  People v. Bull, 185 Ill. 2d 179, 214 (1998).  This due process right is guaranteed by the federal and state constitutions.

[Citations.]

		Additionally, when a defendant's right to a fair trial has been denied, this court must

take corrective action so that we may preserve the integrity of the judicial process. [Citation.] 

To determine whether defendant's right to a fair trial has been compromised, we employ the same test that this court uses whenever it applies the second prong of the plain error test.  134

Ill. 2d R. 615(a).  We ask whether a substantial right has been affected to such a degree that

we cannot confidently state that defendant's trial was fundamentally fair. [Citations.]

		*** [W]hen an error arises at trial that is of such gravity that it threatens the very

integrity of the judicial process, the court must act to correct the error, so that the fairness

and the reputation of the process may be preserved and protected.  Critically, the court will

act on plain error regardless of the strength of the evidence of defendant's guilt."  (Emphasis in original.)  Blue, 189 Ill. 2d at 138.

	In employing this test the court in Blue concluded:

		"In this appeal, we hold that a new trial is necessary in order to preserve the

trustworthiness and reputation of the judicial process.  We do not disagree that the evidence proving defendant's guilt is overwhelming.  Nonetheless, regardless of the weight of the

evidence, as guardians of constitutional rights and the integrity of the criminal justice system,

we must order a new trial when, as here, we conclude that defendant did not receive a fair

trial.

		Each of the errors detailed above, in and of itself, casts doubt upon the reliability of

the judicial process.  Cumulatively, we find that the errors created a pervasive pattern of

unfair prejudice to defendant's case. [Citations.] The argument by State's counsel concerning

the Doffyn family and the police encouraged the jury to return a verdict grounded in emotion,

and not a rational deliberation of the facts.  Therefore, by allowing the State to suggest

improper considerations to the jury, the trial court errantly allowed the jury to consider

'evidence' not relevant to defendant's alleged crimes.

		Combined with the introduction of the dead officer's bloodied uniform, moreover, the

errors assumed a synergistic effect.  In particular, if we view together the manner and duration

of the uniform's display, the appeal to the jurors to demonstrate their gratitude to the police

force, the introduction of Doffyn's oath of office and testimony that his star occupies an

honored place at police headquarters, we discern an intent by the State to place the jury's

responsibility as citizens on trial, as much as the State placed defendant on trial. [Citation.]

		The State's overbearing conduct in pursuit of defendant's convictions was further

demonstrated by the assistant State's Attorneys' behavior at trial.  The tendency of the

prosecutors to interject editorializing objections unfairly negated evidence that may have been

favorable to defendant.  The fact the objections were made--and sometimes sustained--by

government representatives suggested that, because knowledgeable authorities found the

testimony in question incredible, then the jury should reach the same conclusion.

		Under these circumstances, defendant did not receive a fair trial. [Citations.]  In sum,

the trial court allowed the guilty verdict to rest on considerations other than the evidence

alone.  Accordingly, we reverse defendant's convictions and sentence and remand for a new

trial."  Blue, 189 Ill. 2d at 139-40. 

	Returning to our discussion of Johnson, in reversing Cowley's and Parker's convictions, the court identified three instances of trial error that occurred in both trials: (1) the admission and display of Officer Doffyn's bloodied and brain-splattered uniform, (2) the emotionally charged testimony of

Officer Doffyn's father, and (3) the testimony of Commander Delopez that served only to highlight the ceremonies and oath associated with Officer Doffyn's service and duties as a police officer. 

Johnson, 208 Ill. 2d at 72.  The court in Johnson noted that Cowley was tried simultaneously with Blue and, consequently, with the exception of the prosecutors' violation of the advocate-witness rule,

the identical evidentiary errors identified in Blue also occurred in Cowley's trial.  Johnson, 208 Ill. 2d at 85.

	As to Parker's trial, the court identified five instances of improper argument by the

prosecution: (1) remarks aimed at the sympathies of the jury implicitly asking the jury to send a

message of support of law enforcement (Johnson, 208 Ill. 2d at 75-76); (2) twice utilizing a metaphor in an argument on accountability likening the defendant to an animal, that is, " 'If you run with the

pack, you share the kill.' "  (Johnson, 208 Ill. 2d at 80); (3) mischaracterizing the evidence and the applicable law, and suggesting that defense counsel was deceptive in his dealings with the jury (Johnson, 208 Ill. 2d at 81); (4) two improper references to a school's proximity to the location where the defendants parked their car (Johnson, 208 Ill. 2d at 83); and (5) references to Officer Doffyn's family that could be construed only as "strained attempts to invoke the jury's sympathy and thus

influence its decision" (Johnson, 208 Ill. 2d at 83).  As to Parker's trial, the Johnson court concluded:

		"As in Blue, we see in this case cumulative error and a pervasive pattern of unfair prejudice that denied defendant a fair trial and cast doubt upon the reliability of the judicial

process.  See Blue, 189 Ill. 2d at 139.  We note that the prejudice in this case, as in Blue, was engendered in the main by prosecutorial misconduct.  As in Blue, the coalescence of improper, emotion-laden evidence, and inflammatory argument obviously designed to exploit

that evidence, created a synergism of parallel errors.  See Blue, 189 Ill. 2d at 134, 139.  As in Blue, a new trial is necessary in this case to preserve and protect the integrity of the judicial process, as 'the trial court allowed the guilty verdict to rest on considerations other than the

evidence alone.'  See Blue, 189 Ill. 2d at 138-40."  Johnson, 208 Ill. 2d at 84.

	When the court turned its attention to Cowley's trial, it identified the following instances of

improper argument during the prosecutor's closing arguments: (1) unnecessary and irrelevant

references to Officer Doffyn's surviving family members; (2) the same animal metaphor found

objectionable in Parker's trial; (3) the same irrelevant reference to the proximity of a grammar school

found objectionable in Parker's trial; (4) the same improper implied send-a-message-to-the-community

theme that was utilized in Parker's trial; and (5) improperly casting the jury's decision as one between

good and evil.   Johnson, 208 Ill. 2d at 86-87.  The court affirmed the reversal of Cowley's convictions for reasons similar to its affirmance of the reversal of Parker's convictions.  Johnson, 208 Ill. 2d at 87. 

	In overturning the appellate court's reversal of Johnson's conviction, the court found all of the

allegations of trial error (including the admission of gang affiliation evidence; the admission of

testimony that allegedly apprised the jury that the defendant had taken and failed a polygraph; and

the admission of the defendant's prior arrests and adjudications of delinquency) to lack merit

(Johnson, 208 Ill. 2d at 102-09) before finding that the prosecutor's comments in closing argument improperly suggested that Johnson was required to present evidence at trial.  Johnson, 208 Ill. 2d at 115.  The court went on to conclude, however, that the improper comments did not result in substantial prejudice to the defendant in that they were not a material factor in his conviction.   Johnson, 208 Ill. 2d at 115, citing People v. Williams, 192 Ill. 2d 548, 573 (2000).  The Johnson court held further:

		"[T]he prosecutor's comments, quite simply, did not result in substantial prejudice to Johnson under these circumstances, and thus, they do not warrant reversal of Johnson's

convictions.  As there was neither cumulative error, nor a pervasive pattern of prosecutorial misconduct and related trial error, the appellate court's reliance upon Blue was misplaced."  Johnson, 208 Ill. 2d at 117.

	We now turn to an analysis of the impact the decisions in Blue and Johnson have on the matter at bar.  Ordinarily a prosecutor's improper comment will not result in the jury's verdict being disturbed on appeal unless the remark caused substantial prejudice to the defendant, taking into

account the content and context of the comment, its relationship to the evidence, and its effect on the

defendant's right to a fair and impartial trial.  Johnson, 208 Ill. 2d at 115, citing Williams, 192 Ill. 2d at 573.  Errors in closing argument must result in substantial prejudice such that the result would have been different absent the complained-of remark before reversal is required.  Williams, 192 Ill. 2d at 573.  In this case, because the evidence of defendant's guilt was overwhelming he was not prejudiced in the sense that the outcome of the trial would have been different but for the prosecutor's two

improper remarks during the State's rebuttal closing argument.  However, as our supreme court noted

in Blue, there can be a special circumstance where a criminal defendant is deprived of a fair trial even when the evidence of his guilt is overwhelming, i.e., where his substantial constitutional right to a fair, orderly, and impartial trial conducted according to law has been affected to such a degree that his trial

was not fundamentally fair.  In this special circumstance, the error is of such gravity that it threatens

the very integrity of the judicial process and the court must act to correct the error so that the fairness

and reputation of the process may be preserved and protected.  See  Blue, 189 Ill. 2d at 138.

	In Johnson and Blue the court found that the defendants Blue, Cowley, and Parker were deprived of their right to a fundamentally fair trial due to the cumulative effect of prosecutorial

misconduct and trial error, warranting reversal notwithstanding overwhelming evidence of their guilt. 

 Johnson, 208 Ill. 2d at 84-85;  Blue, 189 Ill. 2d at 138-39.  In reversing Cowley's and Parker's murder convictions, the court followed its analysis in Blue where it held that the cumulative effect of prosecutorial misconduct and trial error deprived the defendant of a fair trial.  Johnson, 208 Ill. 2d at 60, citing Blue, 189 Ill. 2d at 138.  The court found "cumulative error and a pervasive pattern of unfair prejudice that denied defendant a fair trial and cast doubt upon the reliability of the judicial

process."  Johnson, 208 Ill. 2d at 84.  

	Defendant's right to a fair trial, however, was not affected to the same extent that Blue's, Cowley's, and Parker's rights were in Blue and Johnson.  Defendant's trial, like Blue's, Cowley's, and Parker's, involved improper argument by the prosecution in a case where the evidence proving

defendant's guilt was overwhelming.  However, defendant's trial was not like Blue's, Cowley's, or Parker's, where there was cumulative error demonstrating a pervasive pattern of unfair prejudice by

the prosecution.  Blue's trial involved four trial errors and the prosecution's argument of two improper emotion-laden themes.  Cowley's and Parker's trials contained three instances of trial error and at least

five instances of improper argument by the prosecution.  In contrast, this defendant's trial contained only two improper arguments by the prosecutor during the State's rebuttal closing argument and not

a single allegation of trial error.  

	The improper arguments in this case were the negative comment regarding defendant's choice

to exercise his constitutional right to have a jury trial, and the comment that defendant's purpose in

lying was to avoid responsibility for his crime and to laugh at the police after he was back on the

street.  Unlike Blue's, Cowley's, and Parker's trials, these arguments did not coincide with or parallel

any emotion-laden evidence improperly admitted at trial.  Consequently, there was no synergistic or cumulative effect to the improper argument depriving defendant of a fair trial.  Rather, like Johnson's trial, defendant's trial did not involve a pervasive pattern of prosecutorial misconduct and related trial

error.  Accordingly, we conclude that defendant's substantial right to a fair, orderly, and impartial trial conducted according to law was not affected to such a degree that we cannot confidently state that

defendant's trial was fundamentally fair.  See Blue, 189 Ill. 2d at 138.  We do not believe that the errors were so grave as to threaten the integrity of the judicial process such that we must act to

correct the error so that the fairness and the reputation of the process may be preserved and

protected.  See Blue, 189 Ill. 2d at 138. 

	Johnson and Blue hold that, even in a case where the evidence of the defendant's guilt is overwhelming, a defendant is deprived of his right to a fair trial where the prosecution makes improper arguments that are related to improperly admitted, emotion-laden evidence, resulting in a

jury verdict grounded in emotion rather than rational deliberation of the facts.  Johnson, 208 Ill. 2d at 84-85; Blue, 189 Ill. 2d at 138-39.  Defendant would have us reverse his conviction in a case where there was no trial error that related to the prosecution's improper arguments and where the evidence

of his guilt was overwhelming.  We decline to so extend the holdings in Blue and Johnson.  

	The cumulative impact of multiple improper remarks by the prosecutor in closing argument

may result in prejudice to a criminal defendant.  People v. Whitlow, 89 Ill. 2d 322, 341 (1982).  Such cases typically involve prejudice to a defendant in the ordinary sense such that absent the improper

comments the outcome of the trial would have been different.  Defendant directs us only to People v. Ray, 126 Ill. App. 3d 656 (1984), as authority for reversal of a conviction based on cumulative error consisting solely of improper argument by the prosecution in a case where the evidence of the

defendant's guilt was overwhelming.  See Ray, 126 Ill. App. 3d at 663.  The case at bar, however, is readily distinguished from Ray.  As we concluded in our original majority opinion, the errors in Ray were much more pervasive than those in this case.  In Ray the improper remarks by the prosecutor included, but were not limited to: (1) an attack on the professional integrity of defense counsel,

accusing him 16 times of lying, as well as trying to confuse and intimidate the jury (Ray, 126 Ill. App. 3d at 660); (2) a misstatement of the applicable law on the presumption of innocence (Ray, 126 Ill. App. 3d at 661); (3) an impermissible comment on the defendant's failure to testify, which violated

his rights under the fifth and fourteenth amendments to the Constitution (Ray, 126 Ill. App. 3d at 661); (4) the impermissible intimation that there existed inculpatory evidence that was rendered inadmissible as a result of defense counsel's objections (Ray, 126 Ill. App. 3d at 661); (5) improper comments suggesting that witnesses were afraid to testify because the defendant had threatened or

intimidated them (Ray, 126 Ill. App. 3d at 662); (6) an improper intimation that the defendant had a prior criminal history (Ray, 126 Ill. App. 3d at 662); and (7) numerous improper comments suggesting that the defendant had manipulated his constitutional rights to escape conviction (Ray, 126 Ill. App. 3d at 662-63).  Unlike the prosecutor's closing argument in Ray, the prosecutor's two improper comments during closing argument in defendant's trial did not "read like a veritable

hornbook of 'do nots,' " nor did they create "an atmosphere inimical to the even-handed dispensation

of justice and thus result[ ] in prejudice to defendant."  Ray, 126 Ill. App. 3d at 663, 659-60.

	Additionally, defendant argues that Johnson mandates a finding that several comments made by the prosecutor that we deemed proper in our original majority opinion were in fact impermissible. 

 We disagree.

	First, defendant points out that Johnson clarified that it is improper for the State to accuse defense counsel of trying to confuse the jury "[u]nless predicated on evidence that defense counsel

behaved unethically."  Johnson, 208 Ill. 2d at 82.  Defendant maintains that, because there was no indication that defense counsel behaved unethically, the majority erred when it concluded that such

argument was proper in light of defense counsel's attempt to use minor discrepancies to discredit the

State's evidence.

	In this case defendant was charged with driving under the influence of alcohol (DUI) (625

ILCS 5/11--501(a)(1), (a)(2) (West 2000)) and filing a false police report of the theft of a motor

vehicle (625 ILCS 5/4--103(a)(6) (West 2000)).  There was little dispute that the elements of DUI

were established after defendant admitted during his trial testimony that his blood-alcohol content was

over 0.08 and there was testimony that defendant admitted to driving the car in an attempt to get it

out of the snow.  As to the charge of filing a false police report of the theft of a vehicle, the State was

required to prove that the report was false (see 625 ILCS 5/4--103 (a)(6) (West 2000)).  As the

defense took the position that the report to the police was not false because someone really did steal

defendant's car, the prosecution was certainly entitled to argue to the jury that defendant's trial

testimony so indicating is a lie.  After so arguing, the prosecutor made the following remarks:

	"[T]he defense wants to say, 'Well, this is a problem and this is a problem and this is a

problem' because they don't want you to put all the facts and your common sense together,

and amazingly they've sat here and argued for a period of time about two issues that I can't

believe they're even talking about and that is intoxication.

		See, and that's, of course, that's the defense; that's the tactic, right.  Well, Officer Craft

did this and the machine did that and blah-blah, blah-blah, blah.  Folks, that is not even an

issue in this case.  I asked him flat out, 'Were you over the legal limit?' 'Yeah, oh yeah.' 

'Beyond .08?'  'Yeah.'  What do we need a machine for?  But see, that's the way.  That's the

tactic, of course, you know let's get back in the jury room and let's, convince [sic] about the machine and let's convince [sic] about this and dah-dah dah-dah dah, and pretty soon there's 12 of you and there's reasonable doubt all over the place because your thinking about all sorts

of things that have nothing to do with the facts and circumstances and hard evidence in this

case.

		Folks, this is not an issue in this case.  When the Defendant confesses on the witness

stand to being under the influence and above .08, that is not an issue.  Okay?"

Rather than an accusation that defense counsel was trying to confuse the jury, by these remarks the

prosecutor was merely making the point to the jury that portions of defense counsel's closing

argument focused them on an issue that, as a result of defendant's trial testimony, was not in dispute. 

The prosecutor was calling the jury's attention to defense counsel's tactic of focusing them on the

calibration of the Breathalyzer machine when, irrespective of the accuracy of that machine, defendant

had admitted that his blood-alcohol content was over the legal limit.  This was not improper

argument.

	Next, defendant claims for the first time in his petition for rehearing that the prosecutor improperly referred to him as a "rat" in his rebuttal closing argument.  Parties may not argue new

points in a petition for rehearing (177 Ill. 2d R. 341(e)(7);  People v. Wright, 194 Ill. 2d 1, 23 (2000)) and, therefore, this claim is waived.  Defendant maintains that his opening brief  "recognized" this

remark as one of the numerous improper comments made by the prosecutor.  Although defendant's

opening brief stated that "[a]ccording to Weber, criminal defendants are 'like rats in a maze' because

they 'try to get out of it,' " "recognizing" the remark is not the same as arguing a point for purposes

of Supreme Court Rule 341(e)(7).  177 Ill. 2d R. 341(e)(7).  Defendant did not explain why the remark was improper or cite to any authority indicating that the comment was improper as was

required by  Rule 341(e)(7).  See 177 Ill. 2d R. 341(e)(7).  Therefore, defendant is not permitted to raise this contention in his petition for rehearing.

	Next, defendant argues that Johnson mandates reversal based on the prosecutor's comment that indicated that defendant and defense counsel encouraged defendant's wife to lie on his behalf by

claiming that she did not remember what she told the police about the incident on the night in question.  As we noted in our original majority opinion, it is not clear that the prosecutor made such

a claim.  In fact the statement "bringing in [the persons who made the statements] and having them

say 'I don't remember' " was made in a general way in explaining the need for the prior inconsistent

statement exception to the hearsay rule.  There was no specific reference to defendant or to his

counsel.

	Defendant cites a portion of the Johnson decision where the court pointed out an improper remark by the prosecutor suggesting that the jury should be suspicious of defense counsel because

he asked more questions of the prospective jurors during voir dire than did the State.  The Johnson court concluded that  "[a]lthough the prosecutor did, immediately thereafter, acknowledge that it was not improper to ask additional questions, the ambiguity of the trial court's ruling on the objection may

well have reinforced the impression of defense deception left by the State's earlier comment." 

Johnson, 208 Ill. 2d at 82-83.  Presumably, defendant is arguing that a prosecutor cannot correct an improper comment where the trial court does not sustain the defendant's objection to that comment. 

Unlike the prosecutor in Johnson, however, the prosecutor in this case was not trying to correct an obvious impropriety like an insinuation that defense counsel's deceptiveness was demonstrated by his 

asking too many questions during voir dire.  Rather, the prosecutor in this case was clarifying an ambiguous remark that drew an objection.  The complained-of remark could have been heard as a

general explanation for the substantive use of a witness's prior inconsistent statement or, as defendant

characterizes the remark, an accusation that defendant and his counsel encouraged defendant's wife

to lie.  Under such circumstances, the prosecutor's comments following the trial court's overruling

of the objection were not a correction of an obvious improper remark but, rather, a clarification of

what was meant by the remark, that is, that he did not mean to suggest that defense counsel and

defendant put defendant's wife up to lying.

	We need to address one other point raised by defendant in his petition for rehearing. 

Defendant takes the position that because the prosecutor in this case repeated the same type of

misconduct during defendant's trial as this court had previously admonished him to be improper, the

improper remarks made during defendant's trial were intentional and deliberate.  We disagree.

	Defendant's reference to this court's prior admonitions to this prosecutor can mean only the

admonishment in People v. Slabaugh, 323 Ill. App. 3d 723 (2001).  The two Supreme Court Rule 23 orders referred to in the dissent to the majority opinion did not contain admonishments and were both

handed down after defendant's trial.  Consequently, any lesson taught in those dispositions  could not

have been ignored by the prosecutor during defendant's trial.  

	The Johnson court did note that "a pattern of intentional prosecutorial misconduct may so seriously undermine the integrity of judicial proceedings as to support reversal under the plain error

doctrine" (Johnson, 208 Ill. 2d at 64) and explained that its decision "signal[ed] [its] intolerance of pervasive prosecutorial misconduct that deliberately undermines the process by which we determine

a defendant's guilt or innocence" (Johnson, 208 Ill. 2d at 117).  However, nowhere in Johnson did the court indicate that prior admonishments to the prosecutor regarding his improper comments in

other cases are appropriately considered in deciding if a pattern of intentional misconduct exists in

the trial being reviewed.  In any event, we do not believe that the admonishment contained in

Slabaugh that "[w]e trust that errors will not be repeated on retrial" (Slabaugh, 323 Ill. App. 3d at 728) establishes that the two improper comments made in this case were intentional or calculated to

deliberately undermine defendant's right to a fair trial.  The two improper comments during the State's rebuttal closing argument hardly constitute a pattern of intentional misconduct like that present in the

trials of Cowley, Parker, and Blue, where multiple trial errors during the evidentiary phase of those trials paralleled with multiple improper remarks during the State's closing arguments deprived those

defendants of fair trials.  

	Additionally, we believe that the prosecutor's remarks concerning defendant's choice to

exercise his constitutional right to a jury trial constituted a miscalculated response to a remark by defense counsel that the prosecutor misunderstood.  In response to defense counsel's statement during closing argument that once defendant chose to assert his right to plead his innocence he had no choice

but to go to trial, the prosecutor said:

		"But Mr. Nack begins his argument by asking you: there's no other choice, there is no

other choice for this Defendant, right?  No other choice.  He's got to take this case to trial and

profess his innocence.  Well, not quite.  Okay?  There is something that about 80 to 90

percent of Defendants do in this country and that is they be [sic] honest, forthright.  They go into the courtroom and they plead guilty.

		MR. NACK:  Objection. That's grounds for a mistrial, Judge.

		THE COURT: Overruled.  Go ahead.

		MR. WEBER: It happens everyday.  You hear about it all the time. Right?

		You know what? That story I gave was pretty stupid and I think it's time for me to

accept responsibility for my stupidity in driving drunk and filing a false police report and I'll

plead guilty.

		MR. NACK:  Objection, Judge.  That is improper argument.  He has the constitutional

right to a jury trial.  It's improper argument.

		THE COURT: It's argument; it's overruled.  Go ahead."

 The prosecutor obviously misunderstood defense counsel's argument because he clearly contended

that defense counsel claimed that defendant's only option was to go to trial.  Defense counsel made no such comment and, absent invitation, a negative comment about a defendant's exercise of his

constitutional rights is improper (People v. Mulero, 176 Ill. 2d 444, 462 (1997)).  Consequently, the prosecutor's comments were improper and the trial court should have sustained defense counsel's

objections to them.  However, the fact that the improper remarks were made in response to a point

made by defense counsel that was misconstrued by the prosecutor indicates that there was no

preconceived plan constituting an intentional pattern of misconduct or any deliberate attempt to

deprive defendant of a fair trial as was evident in Johnson and Blue.

	Nevertheless, our holding in this case should not be interpreted as approval of the prosecutor's

improper remarks, which our supreme court has aptly observed have become far too common in

criminal trials.  We simply hold that in this case the two improper comments by the prosecutor did

not deprive defendant of a fair trial.  We join Justice Hutchinson in urging that trial judges vigorously

guard against improper argument and unprofessional conduct.

	Affirmed.

	JUSTICE BYRNE, specially concurring:

	While I agree with the majority’s conclusion that despite the misconduct of the State's

Attorney, defendant in this case was not denied his right to a fair trial, I reject the conclusion that if

there is overwhelming evidence of guilt the prosecutor may play fast and loose with a defendant's

rights.

	If, as in the majority opinion, we accept the fact of prosecutorial misconduct and then look

to the underlying evidence of guilt to determine whether such conduct should be sanctioned, we, in

fact, put the cart before the horse.  The State has a greater burden than merely seeking convictions.  If prosecution of felonies and misdemeanors becomes a game of "what can I get away with" rather

than presenting evidence and making comment within the framework of seeking justice and fairness

for all, the justice system has lost sight of its legitimate goals.

	I believe that, while the majority reaches the correct result based on the cases cited, the dissent

is correct in arguing that prosecutorial misconduct cannot be allowed in any case and that when we

affirm convictions such as the one in the instant case, we send a message that such conduct will be

allowed in certain circumstances.

	So, while I concur with the majority's result herein, I think that we must continue to examine

the issue of when prosecutorial misconduct should be sanctioned and what the threshold for reversal

of convictions procured in such an environment should be.  To hold that prosecutorial misconduct

is permissible when there is overwhelming evidence of guilt is not consistent with the goals and ideals

of our justice system.

	JUSTICE HUTCHINSON, dissenting:

	I continue to dissent.  As I stated in my previous dissent, I believe that defendant was denied

a fair and impartial trial due to the prosecutorial misconduct that occurred during State's Attorney

Glen Weber's rebuttal closing argument.  The Johnson decision does nothing short of further cementing my belief that defendant is entitled to a new trial.  In Johnson, our supreme court applied the principles and standards of review utilized in Blue to determine whether the cumulative effect of alleged prosecutorial misconduct and trial error had deprived the defendants of a fundamentally fair

trial warranting reversal despite "overwhelming evidence" of their guilt.  Johnson, 208 Ill. 2d at 60.

	In the present case, the trial was all but over.  The jury was to hear no more evidence.  The

jurors had already heard a closing argument from Weber and a responsive closing argument from defense counsel.  Their attention turned back to and focused on Weber.  Weber approached and

began his rebuttal closing argument.  The stage belonged to Weber.  Free from interruption, free from

any surresponse by defense counsel.  Whereupon Weber proceeded to attack defendant's

constitutional right to a jury trial (see U.S. Const., amend VI) and arguably his presumption of

innocence (see Illinois Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. 2000)) when he told the

jury that defendant could have chosen to do what "80 to 90 percent of [d]efendants do in this county"

and that is "they be honest [and] forthright," and "[t]hey go into the courtroom and they plead guilty." 

Next, Weber attacked the veracity of defendant and defense witnesses (see Slabaugh, 323 Ill. App. 3d at 729).  He then used a metaphor to liken defendant to an animal, a "rat in a maze."  This was

clearly improper.  See Johnson, 208 Ill. 2d at 80, citing People v. Johnson, 119 Ill. 2d 119, 139 (1987).  Weber concluded by asking the jury to "send [defendant] a message," yet another exhortation

questioned in Johnson.  See Johnson, 208 Ill. 2d at 86-87.

	One cannot unring a bell.  See People v. Rivera, 277 Ill. App. 3d 811, 819 (1986); see also People v. Brown, 27 Ill. App. 3d 891, 897-98 (1975), citing Maness v. Meyers, 419 U.S. 449, 460, 42 L. Ed. 2d 574, 584, 95 S. Ct. 584, 592 (1975).  In this case, though, the jury was subjected not

to a bell but to a constant cacophony of prosecutorial misconduct of constitutional proportions.  In

my view, Weber's rebuttal closing argument created a " 'negative synergistic effect, rendering the

degree of overall unfairness to defendant more than that flowing from the sum of the individual

errors.' "  Johnson, 208 Ill. 2d at 65, quoting People v. Hill, 17 Cal. 4th 800, 847, 952 P.2d 673, 699, 72 Cal. Rptr. 2d 656, 682 (1998).  Because all of these errors occurred during rebuttal, Weber's

vitriolic words were the last the jury heard from either party before retiring to deliberate.  Therein lies

the real prejudice.  See generally Thirty-Second Annual Review of Criminal Procedure:  Prosecutorial Misconduct, 91 Geo. L.J. 556 (May 2003) (providing an overview of improper comments by prosecutors).

	This case clearly illustrates the problem of "prosecutorial recidivism," that is, "the tendency

of the same prosecutor or office to engage in misconduct repeatedly, even in the face of

admonishments from the court."  P. Speigelman, Prosecutorial Misconduct in Closing Argument:  The Role of Intent in Appellate Review, 1 J. App. Prac. & Process 115, 120 (1999).  Our past admonitions to Weber and his characterization of another defendant in another case as a "rat in a

maze" (see Doll, slip op. at 15 (Gilleran Johnson and McLaren, JJ., specially concurring)) lead me to conclude that Weber's conduct in the present case consisted of nothing less than "a calculated

course of action to play upon and incite the emotions *** of the jury."  People v. Williams, 161 Ill. 2d 1, 81 (1994).

	Rather than discussing the quantum of evidence presented supporting defendant's guilt and

applying waiver principles, I submit that the majority should have invoked the plain-error rule to

review all of defendant's allegations of prosecutorial misconduct that were not properly preserved. 

See Johnson, 208 Ill. 2d at 64.  Waiver is a limitation on the parties, not the court.  Blue, 189 Ill. 2d at 127, citing People v. Kliner, 185 Ill. 2d 81, 127 (1998).  I believe that defendant's interest in receiving a fair trial and our overall interest in preserving the integrity of the judicial process

warranted excusing the procedural default.

	I further believe that Weber's misconduct during his rebuttal argument viewed in its entirety

was sufficient in and of itself to require reversal.  I believe that defendant was deprived of what he

was entitled to receive and what the State was constitutionally required to provide:  a fair trial.  For

the reasons set forth in my original dissent and for these reasons now, I continue to respectfully

dissent.