## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Euell, 2012 IL App (2d) 101130

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. CENECA L . EUEL L , Def endant- Appellant.

District & N o. Second District Docke t No. 2-10-1130

Filed May 16, 2012

Held (Note : Thi s syl lab us

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

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

o r t h e

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

f t h e

rea der

. ) In upholding defe ndant’s conviction for unlawful delivery of a controlled substance, the appellate court reje cted defe n d ant’s contentions that the trial court failed to comply with Supreme Court Rule 431(b) during voir dire and that the State’s rebuttal closing arg ument was improper, s ince defe ndant waived both issues and failed to es t ab lish that any err or was

reve rsible under

the plain-e rror

doctrine.

Dec ision Under
Review Appea l from the Circuit Court of Stephenson County
, No. 10-CF- 47; the Hon. Michae l P. Bald, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l T h omas A. L ilien and Christopher McCoy
, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

J ohn H. Vogt, State’s At t orney , of Fr eepor t (L awr ence M. Ba

uer and Diane L

. Campbell, both of State’s At t o rney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
J ustices Hutchinson and Z enoff concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial, defe ndant, Cenec a L

. Euell, was found guilty of unlawful de livery of a controlled subst ance (720 I L CS 570/401(a)( 2)(A ) (W est 2008)) and was sentenced to nine year s’ imprisonment. On appea l, defe ndant contends that (1) the trial court failed to comply with I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007) during voir dire
, and (2) the State made imprope r re marks duringits re buttal c losing argument. For the rea sons that follow, we a ffirm.

¶ 2 BA CKGROUND ¶ 3 At trial, Offic er Aar on Dy kema of the Fr eepor

t police depart m en t g ave the following testimony . In the summer of 2009, he was a member of the Stateline Ar ea N arc otics Team (SLANT). During that t i m e, SL ANT employ ed David Grissom, a civilian, to help with

narc otics investiga

tions, and Grissom had been working with SL ANT since approximately M ay 2 009. On J uly 24, 2009, Dy kema, along with Inspector Roby n Stovall, met wi t h Grissom prior to a planned narc otics deal with defe ndant. Dy kema sear che d Grissom to make

sure that he did not possess any contra band or money

. Dy

kema did not find any contra band

or money on Grissom. Dy

kema g ave Grissom $800 to financ e the transac tion with defe ndant, and Grissom was fitted with a hidden video and audio rec order

. Grissom then proce eded to the area of Cherry Avenue and E l k S tree t. Dy kema and Stovall followed Grissom until he

rea ched the are a wher e Inspector Scott A. Ellefson took over the surveillance

. Once Ellefson
t o ok over, Dy

kema was no longe r able to see Grissom’s actions. After the trans ac t i o n , Grissom left the are a and Dy kema was able to pick up surveillance for a period of time until Ellefson was direc ted to pick up Grissom. Dy kema met up with Grissom at the city ceme tery

. Grissom handed Dy

k em a a plastic bag g ie containing a substance suspected to be coca ine. Dy kema sear ched him ag ain and did not find any other contra band or money on him. Dy kema identified def

endant a s the passeng er of the vehicle seen in the video taken by the

came ra that Grissom wore during the transac tion.

-2-¶ 4 Stovall’s testimony was consistent with the testimony g iven by Dy kema. In addition, she testified th at Grissom was paid a flat amount for eac h completed deal in which he participated. She did not rec all the spec ific amount that Grissom was pa id. ¶ 5 Ellefson testified as follows. He was a deputy with th e Gr e e n County sheriff ’s depa rtment in Wis consin. On J uly 24, 2009, as part of h is duties with SL ANT, he was assisti ng in the investigation of defendant. He was working as a surveillance office r and wa s s t ationed on Elk St re et, halfwa

y betwee n Walnut and Cherry Avenue s. Ellefson observe d Grissom walking west on Elk Street from Cherry Avenue to a residenc e about halfwa y down the block. Whil e Grissom was at the residenc e, Ellefson was in a n SUV approximately 20 fee t

awa y from him. Ellefson watched Gr issom stand outside the residenc e for a period of time until a silver ca r p u lled up to Grissom. Grissom walked up to the passeng er side of the vehicle and appea

red to be talking with whoeve r was in the vehicle. Ellefson was unable to

see who was in the vehicle. After a few seconds, Grissom walked awa y from the vehicle and the vehicle drove awa

y

. Grissom proce eded down the road, and Ellefson watche d him until he was out of view. At that point, other office rs took over surveillance

. Ellefson was t hen direc ted to pick up Grissom, which he did. Ellefson brought Grissom back to Dy kema. Whil e Grissom was under El lefson’s surveillance, he never m et wit h anyon e o t h er than whoever

was in the silver vehicle. Ellefson videotaped his surveillance of Grissom once the silver car pulled up to the scene

. ¶ 6 Edwar d Rottm an of the I llinois State Police crime la boratory testified that he f

ound no fing erpr ints suitable for comparison on the pl as t ic bag g ie that Grissom turned over to Dy kema a fter his mee ting with def endant. ¶ 7 Ba

rbar a Schuman of the I llinois State Police cr i m e l ab o ratory testified that the white substance in the ba g g ie that Grissom turned ove r to Dy kema wa s 19.1 grams of c ocaine

. ¶ 8 Grisso m g ave the following testimony at t rial. He had two convictions of poss essinga controlled substance and a conviction of theft of over $300. At the time of trial, he was incar cer ated on a misdemeanor battery conviction. In 2009 he was working with SL ANT in drug investigations and was paid for his participation in drug buy s. Al t h o u gh the battery char g e was pending when he was working with SL ANT, he did not rec eive any p ro m i s es reg arding the charg e in exchang e for wo rking with SL ANT. On J uly 24, 2009, he assist ed Dy kema with the purcha se of drug s from defe ndant. Prior to meeti n g wi t h defe ndant, Grissom met Dy

kema and Stovall in a MetL ife parking lot. Whil e there
, he was eq u ipped with a wire and a came ra, sear ched, and g iven $800 to purcha se drug s. In addition, he called defe ndant to arr ang e the purcha se of an ounce of coca ine. Grissom then walked to wher e he

was to meet defe ndant, in fr o n t of his friend’ s house on Elk Street betwee n Cherry and Walnut Avenue s. When he arrived at the hous e, Grissom knocked on the door, but no one

answ er ed

. Grissom had to wait approximately 15 to 20 minutes befor e defe ndant arr ived. W h en defe ndant arr ived, he was the passeng er in the vehicle. Grissom approa ched t h e vehicle, and defendant tol d him that the drug s wer e in the door. Grissom threw the money into the car , took the drug s out of the door, and talked briefly with defe ndant b ef o re the vehicle drove awa

y

. Be cause he thought that defe ndant might circ le the block, Grissom then walked back along the side of h is friend’ s house, l ooked around the corner, walked up the
street a bit, tied his shoes, and then resumed walking up the street. On his way , he was picked

-3-up by another office r and driven back to Dy kema’ s location. Once with D y kema, he turned

over to Dy

kema the drug s he obtained from defe ndant. Dy kema then sear ched him and g ave him $100 for his participation. ¶ 9 The video and audio rec ording o b t ai n ed fr o m the device s that Grissom was e quipped wi t h during the transac tion was admitted into evidenc e. On the rec ording
, while Grissom walks to m ee t defe ndant, he can be hear d on the phone talking to sever al people. He does not, however , encounte r anyone on his way to the l ocation. Once at the house, he walks to the door on the side of

the house a

nd knocks. No one answe rs and he proc eeds to the f ront of the house, wher e he has a phone conver sation. He then sits on the front steps of the house for a while. On a couple of occa sions, he walk s t o t h e s i d e of the house but does not encounte r anyone. At one point, he yells acr oss the stree t to someone. He a lso speaks with the next-door neig hbor. At no point does he g et within arm’s leng th of either of these people. When defe ndant pul ls up in the vehicle, Grissom walks up t o the passenge r si de and has a b rie f d iscussion with defe ndant, but the discussion is indecipher able. Grissom’s ha n d r e a c h e s down into the car , but the exchang e of money and drug s cannot be seen. After Gr i s s om leave s the vehicle and it drives awa y , Griss o m walks back to the side door of the house, knocks twice , and wa its a couple of seconds befor e walking awa y

. Grissom loiters in front of the house for a minute or two, looking around, befor e he heads up the street. He does not encounte r anyone until he is picked up by Ellefson. ¶ 10 The surveillance video taken by Ellefson was also admitted into evidenc e. In it, Grissom

ca n b e s ee n approa ching the passeng er side of a silver sedan. Grissom leans throug h the
passeng er window for a few seconds befor e the vehicle drives awa y

. No one else approa ches the vehicle or Grissom. ¶ 11 The jury

found def

endant guilty . Followingan unsucc essful motion for a new trial, the trial court sentenc ed defe ndant to nine y ear s’ imprisonment, and defe ndant brought this timely appea l.

¶ 12 ANALYSI S ¶ 13 On appea l, defe ndant argues that (1) the trial court failed to comply with I llinois Supreme C o u rt Ru le 431(b) (ef

f. May 1, 2007) during voir dire
, and (2) the State made improp er

rema rks duringits rebuttal closingargument. ¶ 14 Def

endant fi rs t co n t en ds that the t rial court failed to comply with Rule 431(b) when it questioned the po t en tial jurors about their understanding and acc eptanc e of the four Rule 431(b) principles in a single broad question, rathe r than asking the potential jurors about their understanding and acc eptanc e of eac h of the principles separ ately

. Def endant d i d n ot, howeve r, obj ect during voir di r e , n o r d i d he raise t he is sue i n his written post trial motion. Acc ording ly
, defe ndant has forf eited review of this i ssue. See People v . Enoch , 122 I ll. 2d 176, 186 (1988) (“

Both a trial objection and a written post-trial motion raising the issue are require d for alleg ed err ors that could have been raised during trial.” (Emphase s in orig inal.)). ¶ 15 Acknowle dg ing that he failed to prese rve this issue for revie w, d ef en d an t urg es us to revie w the issue under the plain-er ror doctrine. Under the plain-e rror doctrine, we may revie w a forf

eited err or when either (1) “the evidenc e in a case is so closely balanc ed that the

-4-jury ’s guilty verdic t may have resulted from the err or and not the evidenc e” or (2) “the err or

is so serious that the defe ndant was denied a substantial r ight, a nd thus a fair

trial.” People

v. Herron
, 215 I ll. 2d 167, 178-79 (2005) . Def endant be ars the burden of persua sion unde r both prong s. Herron , 215 I ll. 2d at 187. ¶ 16 Even assum i n g, as defe ndant argues, that the trial court err ed in its questioning of the
p o t en t i al jurors reg arding their understanding and acc eptanc e of the four Rule 431(b ) principles, we conclude that defe ndant has failed t o car ry his burden under the plain-er ror doctrine. Def

endant argues only the first prong of plain err or, asser ting that the evidenc e is closely balanc ed becau s e t h e v i d eos do not show an exchang e of drug s for money , no mention of drug s or money can be hear d, and defe ndant’s fing erpr ints wer e not found on the bag g ie. Thus, acc ording to defe ndant, defe ndant’s guilt revolve s solel y ar o u n d Grissom’s

cre dibilit y , which was questionable g iven his criminal history and fi n an cial incentive to complete the buy

. Def

endant als o a

rgues that Grissom’s cre dibility was questionable beca use he twice knocked on the door of his friend’ s house, his arm blocked a portion of his came ra’ s view while he was standing at the passeng er side of the vehicle, and his hands could not be

seen during sever al portions of the video. Thus, Grissom could have, acc ording to defe ndant,
g otten the drug s in a manner other than f

rom defe ndant. ¶ 17 W e d i s agr ee that the evidenc e is closely balanc ed, beca use, despite the fac t th at t h e exchang e does not appea r on video, Dy

kema s ea rc h ed Grissom befor e he went to meet defe ndant and Grissom did not have any contra band on him. When Grissom returne d, he had 19.1 g rams of coca ine. The vide o taken f rom the ca

mera that Grissom wore confirms that, althoug h he knocked on his friend’ s door, and his hands could not be seen at all times, he did
not come in close contac t with anyone besides defe ndant. Nor does the video depict Grissom picking up any objects from any other locatio n

. In addition, the video taken by Ellefson shows that, while Grissom was at the side of the vehicle, no one approa ched Grissom or the vehicle. Thus, despite Grissom’s ap p a r e nt c r e dibilit y problems g iven his criminal history and financ ial incentive, the videos confirm his testimony and demons trate that the only opportunity Grissom had to obta in the drug s he turned ove r to Dy kema wa s when he came in c ontact with de fenda

nt. A ccor dingly
, the evidenc e is not closely balanc ed, and any err or by the trial court in que stioning the prospec tive jurors reg arding the Rule 431(b) principles is not rever sible under the pla in-err or doctrine

. ¶ 18 Def

endant also argues that the State made improper arguments during its rebuttal closing
argument. Initially
, the State contends that defe ndant has forf eited this contention, beca use, althoug h defe ndant raised it in his motion for a new trial, he did not enter a contempora neous objection to the complained- of rema rks. Def endant responds that he did object at trial in the form of a m o t i o n for mistrial afte r the State had completed its argument and the jury had been instructed and allowed to proceed to deliberations. We agree that defe ndant has forf eited this contention for failure to make a contempora neous objection at trial. See People

v. McNeal
, 175 I ll. 2d 335, 364 (1997); People v. Rivera
, 277 I ll. App. 3d 811, 820-21 (1996) (reviewing the prosec utor’s closing argument under the plain-er ror doctrine beca

use the defe ndant failed to reg ister a cont em p o ra neous objection, althoug h he made a motion for mistrial). ¶ 19 Def

endant al s o contends that, even if he has forf eited this contention, it neverthe less

-5-satisfies the plain-er ror doctrine. Acc ording to defe ndant, the State’s arguments wer e improper in that they shifted the burden of proof to defe ndan t and direc ted the jury to disreg ard defe ndant’s theory of the case by telling it to avoid speculation. Although we agree that some of t h e S t at e’ s rema rks improperly shifted the burden of proof to defe ndant, we conclude that defe ndant has failed to demonstrate that this err or is reve rsible under the plainerr or doctrine. In addition, we conclude that defe ndant has failed to establish that the State’s comments reg ardingspeculation were err or at a ll. ¶ 20 Du ri n g closing arguments, defe nse counsel contende d that the State fa i l ed t o p ro v e defe ndant guilty beyond a rea sonable doubt beca use the actua l exchang e of drug s for money did not appea

r on the videos, the evidenc e presented left open the possibili ty that Grissom obtained the drug s from a place or person that did not appea r on the videos, and Grissom had motivation to lie in order to collect his pay ment from SL ANT. I n re b u ttal, the State
repe atedl y ar gued that there was no evidenc e presented that supported defenda nt’s theory

. Whil e such statements could be construed as proper argument reg arding th e cr ed i b i lity of defe ndant’s theory in light of t h e evidenc e prese nted rathe r than improperly implying that defe ndant had a duty to prese nt exculpatory evidenc e (see People v. Glasper
, 234 I ll. 2d 173, 212 (2009))
, other statements by the State did shift the burden of p ro o f to defe ndant. Specifica lly
, in response to defe nse counsel’s argument that Grissom could have been attempting to fra

me defe ndant, the prosec utor stated that there was “no evidenc e of that from the defe nse standpoint.” This statement, unlike the others, cannot be rea d as a statement that the defe nse’s theory was not a rea sonable infere nce based on the evidenc e prese nted; rathe r, it is a clea

r argument that the jury should not g ive cre dence to defe ndant’s theory beca use defe ndant did not prese nt any evidenc e in support of that theory

. In addition, while discussing Grissom’s possible motivation for fra ming defe ndant, the prosec utor stated, “He [defense couns el ] h ad t h e opportunity to g et into the part about why would he [Grissom] would want to fra

me this guy [defendant]? Why would he want to frame this guy ? None of that.” By commenting on the questions that defe nse counsel should have asked but did not, t h e S t at e eff

ectively shifted the burden to defe ndant to elicit exculpatory evidenc e. S ee People v. Edgec ombe
, 317 I ll. App. 3d 615, 622 (2000) (State’s comment on the defe nse’s failure to ask a witness the c orre ct questions shifted the burde n of proof to the defe ndant). ¶ 21 Although we h av e co n cluded that the State improperly shifted the burden of proof to defe ndant during closing arguments, we must also deter mine whether this err or is reve rsible under the plain-er

ror doctrine. Def

endant contends t h at it is, both beca use the evidenc e is closely balanc ed and beca use t he error de nied him a fa ir trial. As we conclude d above, the evidenc e is not closely balanc ed. In support of his contention that the State’s burden- shifting

rema rks denied him a fair trial, defendant relies on People v. Y onker
, 256 I ll. App. 3d 795 (1993). There
, in finding reve rsible plain err or, the court did say t h at t o “ ‘misstate the burden of proof or standard of revie w, to any extent, compromises the fairne ss of the judicial
proce ss and shall not be tolerate d.’ ” Y onker
, 256 I ll. App. 3d at 799 (quo t i n g P eople v. W ilson
, 199 I ll. App. 3d 792, 797 (1990))

. Howeve r, this statement in W ilson
, and there fore Y onker
, understate s the defe ndant’s burden to establish plain err or. Indeed, as the Y onker
court itself pointed out, “[i] mproper comment is plain error [onl y ] when it is either so inflammatory t h at t h e defe ndant could not have rec eived a fair trial or so flagrant as to

-6-threaten a deter ioration of the judicial proce ss.” Y onker
, 256 I l l

. Ap p

. 3 d at 798 (citing People v. Phillips
, 127 I ll. 2d 499, 524 (1989))

. That standard is plainly inconsistent with the view that anymisstatement of the burde n of proof , to anyextent, is plain err or. ¶ 22 Our view is bolstered by the fac t that, when a defe ndant preserv es this issue for revie w,

we may aff

irm if we deem the comments harmless beyond a rea sonable doubt, reve rsing only “whe re the improper remarks resulted i n substantial prejudice to the defe ndant’s right t o a fair trial.” Edgec ombe
, 317 I ll. App. 3d at 623. In making this assessment, we l o ok at the languag e used, its relation to the evidenc e, and the eff ect of the argument on the defe ndant’s rig ht to a fair t rial. People v. Adams
, 281 I ll. App. 3d 339, 345-46 (1996); s ee als o People

v. Smith
, 402 I ll. App. 3d 538, 544 (2010) (“A lthough the prosec utor *** shifted the burden of proof, the prosec utor’s improper closing rema rks do not war

rant reve rsal unless they could have aff ecte d the jury ’s verdic t.”). I f we do not automatically reve rse in light of a preserv ed misstatement of the burden of proof, cer tainly we may not automatically reve rse in light of

a forfeited one. Thus, here
, in acc ordanc e with the plain-er ror rule, we will reve rse only if the State’s comments wer e so inflammatory or so flagrant that defe ndant was denied a fair trial. See Phillips , 127 I ll. 2d at 524. We conclude that they wer e not. ¶ 23 T h e S t at e’s comments wer e ti ed to the l ack of evidenc e supporting defendant’s the ory t h at someone else delivere d the drug s (a theory that was flatly ref uted by the evi d en ce p rese nted). A prosec utor, of course , may comment that his case is uncontra dicted. See Pe o p le v. Johnson
, 208 I ll. 2 d 53, 112 (2003). To be sure, the S tate erred in noting that defe ndant had failed to support his theory

. Howeve r, the State did not direc tly state that defe ndant had a burden to do so; thus, the clear upshot of t he S tate’s comments was that all the evidence pointed one way , and in that reg ard the y wer e unassa ilably

acc urate . Acc ording ly , we hold that the comments we re not so inflammatory or flagrant a s to deny

defe ndant a f

air trial. ¶ 24 Finally
, defe ndant’s contention that he was denied a fair trial when the State told the jury
to avoid eng ag ing in speculation is without merit. During closing arguments, the State twice told the jury that it would rec eive an instruction that it should not eng ag e in speculation and should make its decision based on only the evidenc e prese nted. On three other occa sions duringclosingarguments, the State told the jury that it did not have to speculate or should avoid eng ag ing in speculation. Acc ording to defe ndant, these comments wer e tantamount to direc ting the jury to disreg ard his theory of the case

. In support, defe ndant cites Glasper
, 234 I ll. 2d at 213, in which the supreme court h el d t h at the State err ed in stating that the fore person’ s job was “ ‘to keep ever yone on trac k and confine what you tal k ab o u t t o the evidenc e and rea sonable infere nces to be drawn from the evidenc e, not wild theories.’ ” The
court conclude d that t h is comment was tantamount to direc ting the jury to disreg ard the defe ndant’s t h eo ry o f the case

. Glasper
, 234 I ll. 2d at 213. The court further conclude d, h o weve r, that the err or did not deprive the defe ndant of a fair trial, beca use the tr i al co u rt proper ly instructed the jury on the proper role of the fore person, the evidenc e that should be considere d, and the pr oper nature of c losing a rguments. Glasper , 234 I ll. 2d at 213-14. ¶ 25 We con c lud e that the State’s comments reg arding the jury ’s eng ag ing in speculation were
not err or. In Glasper
, th e S t at e essentially instructed the fore person to forbid any consideration of the defe ndant’s theory . Her e, howe ver, despite defe ndant’s contentions to the contra ry , the State’s comments that the jury should a void e ng ag ing in spe culation wer e

-7-not dir ectives to a void c onsidering defe ndant’s theory of the case ; rathe r, they wer e simply
arguments that defe ndant’s theory lacke d support in the evidenc e and, for that rea son, should
not b e g iven weight. See Adams
, 281 I ll. App. 3d at 346 (“A prosec utor has the rig ht to comment on the evidenc e, draw all leg itimate infere nces deducible from the evidenc e even if they are unfavor able to defe ndant, and comment on the cre dibilit y of the witnesses.”)

. Fu rt h er , the State’s comments that the jury would rec eive an instruction that it should not eng ag e in speculation and should make its d ec i s i on based on only the evidenc e prese nted

wer e not err or, beca

use the jury was, in fac t, proper ly instructed that it should deter mine the fac ts from only the evidenc e prese nted. Acc ording ly
, we conclude that the State’s comments reg arding speculation wer e not err or, much less reve rsible err or under the pl ai n -e rr o r doctrine.

¶ 26 CONCLUSI ON ¶ 27 For the rea sons stated, the j u d gm en t o f t h e ci rc u i t court of Stephenson County is aff irmed.

¶ 28 Affir

med.

-8-