People v. Dunlap
Citation2011 IL App (4th) 100595
Date Filed2011-12-20
Docket4-10-0595 Official Records
Cited38 times
StatusPublished
Full Opinion (html_with_citations)
ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Dunlap, 2011 IL App (4th) 100595
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOSEPH TEEN DUNLAP, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-10-0595
Filed December 20, 2011
Held Defendantās pro se postconviction petition alleging that he was denied a
(Note: This syllabus fair trial because the prosecutor vouched for the credibility of witnesses
constitutes no part of and argued facts not in evidence and that his appellate counsel failed to
the opinion of the court argue on direct appeal that the prosecutorās improper remarks denied him
but has been prepared his right to a fair trial was properly dismissed at the first stage of the
by the Reporter of proceedings as frivolous and patently without merit.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of McLean County, No. 06-CF-132; the
Review Hon. Scott Drazewski, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, of State Appellate Defenderās Office, of Springfield,
Appeal and Johannah B. Weber and Robert S. Burke, both of State Appellate
Defenderās Office, of Mt. Vernon, for appellant.
William A. Yoder, Stateās Attorney, of Bloomington (Patrick Delfino,
Robert J. Biderman, and Anastacia R. Brooks, all of Stateās Attorneys
Appellate Prosecutorās Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Appleton and Knecht concurred in the judgment and opinion.
OPINION
Ā¶1 In July 2010, defendant, Joseph Teen Dunlap, pro se filed a petition under the Post-
Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 2010)), claiming that he
was denied (1) his right to a fair trial because the prosecutor had vouched for the credibility
of witnesses and argued facts not in evidence, and (2) the effective assistance of appellate
counsel because his appellate lawyer failed to argue on direct appeal that the prosecutor made
improper remarks during his opening statement and closing argument. Later that month, the
trial court dismissed defendantās postconviction petition as frivolous and patently without
merit.
Ā¶2 Defendant appeals, arguing that the trial court erred by dismissing his postconviction
petition at the first stage of postconviction proceedings. We disagree and affirm.
Ā¶3 I. BACKGROUND
Ā¶4 In February 2006, police arrested defendant as he drove away from a known drug house.
A subsequent search incident to that arrest revealed four plastic bags containing a total of
11.9 grams of cocaine, $1,922 in cash, and a cellular telephone. In the hour and a half
following defendantās arrest, defendantās cellular telephoneāwhich the arresting officer had
bagged for evidenceārang āno less than 50 times.ā The phoneās display indicated that 19 of
those callers left voice messages.
Ā¶5 The State charged defendant, in pertinent part, with unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West 2006)) and unlawful possession of a controlled
substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2006)).
Ā¶6 Defendantās May 2007 trial began with the prosecutor outlining for the jury what he
intended to show when he presented the Stateās case. As part of that opening statement, the
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prosecutor explained that as jurors, they were entitled to draw certain inferences from the fact
that defendant was found with several bags of cocaine and a large amount of cash on his
person. The prosecutor described the case as āsimple really,ā given that the evidence would
show that defendant was carrying the cocaine and cash because he āhadnāt sold out yet.ā The
prosecutor then added, āClearly, he is somebody we donāt want on the streets.ā The defense
offered an immediate objection, which the trial court sustained.
Ā¶7 During the Stateās case in chief, the State presented testimony from police that they
arrested defendant as he was leaving a known drug house and that a search incident to that
arrest revealed four plastic bags containing a total of 11.9 grams of cocaine, $1,922 in cash,
and a cellular telephone. As part of its case, the State showed an audio and video recording
of defendantās arrest. The State also presented evidence that (1) in the hour and a half
following defendantās arrest, his cellular telephone rang approximately 50 times and (2) the
phoneās display indicated that 19 callers left voice messages. Defendant did not present
evidence in his defense.
Ā¶8 The prosecutor then presented his closing argument, part of which included suggested
inferences the jury could draw from the evidence. Some of the prosecutorās closing
argument, defense counselās objections to the way the prosecutor characterized the evidence,
and the trial courtās rulings on those objections, are as follows:
ā[PROSECUTOR]: Intent can be proven with circumstantial evidence. You can look
to and consider the contents of the events and place to determine what that intent may
have been. You are going to be instructed as follows regarding intent: That a person acts
with intent to accomplish a result or engage in conduct when his conscious objective or
purpose is to accomplish that result or engage in that conduct. Itās no coincidence that
the [d]efendant is *** coming from a suspected location of drug activity. He is intending
to accomplish a result. Think about the money, the nineteen hundred dollars he had on
his person. What are these? We would argue to you and submit to you these are the fruits
of perhaps a healthy drug sale, perhaps numerous healthy drug sales. In any event,
[d]efendant had beenā
[DEFENSE COUNSEL]: Objection. Heās arguing facts not in evidence.
THE COURT: Overruled. The jury can make its own inference based upon the
evidence presented, and those exhibits were admitted into evidence by the [c]ourt.
[PROSECUTOR]: The [d]efendant had money on his person because he was selling
drugs. Think about the drugs. He had a baggie containing four smaller amounts of
cocaine. That testimony was presented to you in open court. Those [B]aggies were tested
by the *** [c]rime [l]ab. He had these because he hadnāt sold out yet as I stated in my
opening [statement].
And *** think about the cell phone. Heās answering the cell phone. Heās talking on
the cell phone while heās being pulled over. Who was he talking to? Why does he need
to be talking to anyone when heās being pulled over, or heās in a car getting pulled over
by the police, just as the police are pulling him over. Iāll tell you who heās talking to. The
people who want the drugs.
[DEFENSE COUNSEL]: Your Honor, Iād like to make a continuing objection.
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THE COURT: All right. Noted. However, it is your determination as opposed to
anyone else; that being the fact finders[ā], as to whether the evidence submitted supports
reasonable inferences which are being asked to be made by the Stateās Attorney at this
point in time during his closing argument.
[PROSECUTOR]: Thank you, Your Honor. Telephone calls that [police] testified to
that were made on this phone after the [d]efendant was taken into custody and before
[police] secured the phone into evidence. Approximately fifteen [sic] calls and nineteen
voice mail messages in a short period of time. What kind of traffic is that on a phone?
The truth is, the man, the [d]efendant, was selling drugs and was caught in the act of
having those drugs with intent to sell them. Thatās what the cell phone activity is all
about. And thatās the truth about what happened ***. We ask you to find the [d]efendant
guilty as charged.ā
Ā¶9 Defense counsel then presented his closing argument, in which he vigorously attacked
the Stateās case as circumstantial and explained that ācircumstantial evidence could go
toward guilty or could go toward innocent.ā Counsel also argued that the way police arrested
defendant was suspect because (1) the audio recordings were turned off and (2) multiple
officers surrounded defendant, moving their hands in and out of his pockets. In addition,
counsel argued that (1) the amount of money defendant had on his person was not evidence
of guilt because (a) it was Friday, which is traditionally a āpay dayā or (b) the money could
have been proceeds from a good night at the casino; (2) the testimony about the cellular
telephone was not evidence of defendantās guilt because he could have simply been talking
to someone when police initiated the traffic stop; and (3) the Stateās evidence was no more
than āinnuendo and speculation.ā
Ā¶ 10 During defense counselās closing, the prosecutor objected several times, complaining that
counselās arguments were not factual. The trial court responded to the prosecutorās
objections by explaining to the jury that (1) āwhat the attorneys say in final argument is not
evidenceā and (2) it is āup to the jury to examine and determine whether or not the inference
being asked to be drawn is appropriate or not.ā
Ā¶ 11 In rebuttal, the prosecutor responded to defense counselās argument regarding the
conduct of the arresting officers, as follows:
āI would submit to you that the problems with this audio are up to you to decide
whether or not thatās sufficient to derail this case ***. Itās up to you to decide what the
video does or doesnāt show. *** There were some very quick questions to [defendant]
posed by [police]. This wasnāt a Sunday afternoon get[-]together. This was a Friday
evening in[-]the[-]dark traffic stop. Sure[,] there were officers present. And on the video
it looks like there were more than three or four. But we called three of them to testify.
There was no need for us to call four, five, or six officers to testify redundantly or in a
duplicative manner. In fact, thereās usually an objection when it is done.ā
Ā¶ 12 Shortly thereafter, the jury convicted defendant of (1) unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West 2006)) and (2) unlawful possession of a controlled
substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2006)). In July 2007, the trial
court sentenced defendant to 13 years in prison.
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Ā¶ 13 Defendant filed a notice of appeal, and the trial court appointed the office of the State
Appellate Defender (OSAD) to represent him. OSAD filed a direct appeal on defendantās
behalf, arguing that the trial court (1) erred by denying defendantās motion to suppress; (2)
abused its discretion by denying defendantās motion for a mistrial due to the following
alleged errors: (a) violation of the motion in limine regarding the introduction of evidence
that defendant had an outstanding warrant; (b) elicitation of evidence that defendant
requested an attorney after being advised of his Miranda rights; and (c) elicitation of
evidence that the police officer recognized defendant; and (3) committed plain error by
imposing a $1,000 street-value fine absent any evidence of the value of the controlled
substances. In March 2009, this court rejected those arguments and affirmed. People v.
Dunlap, No. 4-07-0959 (May 2, 2009) (unpublished order under Supreme Court Rule 23).
Ā¶ 14 In July 2010, defendant pro se filed a postconviction petition, claiming that he was
denied (1) his right to a fair trial because the prosecutor had vouched for the credibility of
witnesses and argued facts not in evidence, and (2) the effective assistance of appellate
counsel because OSAD failed to argue on direct appeal that the prosecutor made improper
remarks during his opening statement and closing argument. Later that month, the trial court
dismissed defendantās postconviction petition as frivolous and patently without merit.
Ā¶ 15 This appeal followed.
Ā¶ 16 II. ANALYSIS
Ā¶ 17 Defendant argues that the trial court erred by dismissing his postconviction petition at the
first stage of postconviction proceedings. Defendant contends that he stated the gist of a
constitutional claim that he was denied (1) his right to a fair trial because the prosecutor had
vouched for the credibility of witnesses and argued facts not in evidence, and (2) the
effective assistance of appellate counsel because OSAD failed to argue on direct appeal that
the prosecutorās improper remarks denied him his right to a fair trial. We are not persuaded.
Ā¶ 18 A. Postconviction Proceedings and the Standard of Review
Ā¶ 19 This court recently outlined the first stage of postconviction proceedings under the Act,
as follows:
āA defendant may proceed under the Act by alleging that āin the proceedings which
resulted in his or her conviction[,] there was a substantial denial of his or her rights under
the Constitution of the United States or of the State of Illinois or both.ā 725 ILCS 5/122-
1(a)(1) (West 2006). In noncapital cases, the Act establishes a three-stage process for
adjudicating a postconviction petition. 725 ILCS 5/122-1 through 122-8 (West 2006);
People v. Jones, 213 Ill. 2d 498, 503,821 N.E.2d 1093, 1096
(2004). At the first stage,
āthe trial court, without input from the State, examines the petition only to determine if
[it alleges] a constitutional deprivation unrebutted by the record, rendering the petition
neither frivolous nor patently without merit.ā (Emphasis in original.) People v. Phyfiher,
361 Ill. App. 3d 881, 883,838 N.E.2d 181, 184
(2005). āSection 122-2.1 [of the Act]
directs that if the defendant is sentenced to imprisonment (rather than death) and the
circuit court determines that the petition is frivolous or patently without merit, it shall be
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dismissed in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2004).ā People v. Torres,
228 Ill. 2d 382, 394,888 N.E.2d 91, 99-100
(2008).ā People v. Andrews,403 Ill. App. 3d 654, 658
,936 N.E.2d 648, 652-53
(2010). Ā¶ 20 Our review of a first-stage dismissal is de novo. People v. Brown,236 Ill. 2d 175, 184
,
923 N.E.2d 748, 754 (2010).
Ā¶ 21 B. The Prosecutorās Statements
Ā¶ 22 1. Defendantās Claim That the Prosecutor Made
Improper Remarks During Opening Statement
Ā¶ 23 Defendant first contends that his constitutional right to a fair trial was violated when the
prosecutor made improper remarks during his opening statement. Defendant asserts that the
prosecutor tainted the jury when he told the jurors that defendant was carrying the cocaine
and cash because he āhadnāt sold out yet.ā Defendant posits that these statements violated
his constitutional rights because ā[i]t is impermissible for a prosecutor to comment during
opening statements upon what testimony will be introduced at trial and then fail to produce
that testimony since such an argument is in effect an assertion of the prosecutorās own
unsworn testimony in lieu of competent evidence.ā Defendant further claims that the
prosecutorās statement that defendant is āsomebody we donāt want on the streetsā likewise
violates his constitutional right to a fair trial because using the pronoun āweā fosters an āus-
versus-themā mentality that is inconsistent with the nonpartisan role of the jury. We disagree.
Ā¶ 24 We understand defendantās contention that the prosecutorās remarks in his opening
statements in this case were improper, but we need not resolve this issue because we
conclude that those statements did not prejudice defendant. Generally, improper remarks by
the prosecutor do not constitute reversible error unless they result in substantial prejudice to
the defendant. People v. Perkins, 247 Ill. App. 3d 778, 786,617 N.E.2d 903, 908
(1993).
āAny error resulting from the prosecutorās comments is usually cured when the trial court
sustains objection or admonishes the jury.ā Id.
Ā¶ 25 Here, as part of the prosecutorās opening statement, he explained that the jurors were
entitled to draw certain inferences from the fact that defendant was found with several bags
of cocaine and a large amount of cash on his person. As previously explained, the prosecutor
described the case as āsimple, really,ā given that the evidence would show that defendant
was carrying the cocaine and cash because he āhadnāt sold out yet,ā and concluded by stating,
āClearly, he is somebody we donāt want on the streets.ā Defense counsel immediately offered
an objection, which the trial court sustained. Our review of the record reveals that the courtās
(1) prompt action in sustaining defense counselās objection and (2) continuing explanations
to the jury about how those statements were just argument cured any potential prejudice that
the prosecutorās arguments may have had on defendantās trial.
Ā¶ 26 2. Defendantās Claim That the Prosecutor Made
Improper Remarks During Closing Arguments
Ā¶ 27 Defendant next contends that his constitutional right to a fair trial was violated when the
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prosecutor made improper remarks during his closing argument. First, defendant asserts, as
follows:
āIn closing remarks to the jury, the prosecutor stated: āWe would argue to you and
submit to you these [packets of money] are the fruits of perhaps a healthy drug sale,
perhaps numerous healthy drug sales.ā *** There was no evidence presented at trial that
a single dollar in [defendantās] possession came from a drug sale. In addition to
prejudicing the jury with unsupported claims of drug-dealing, the prosecutor was arguing
facts not in evidence. Arguing facts not in evidence to bolster the strength of the Stateās
case constitutes highly improper commentary; it invites the jury to speculate about facts
or legal inferences that are unsupported by the record, and plays upon the fears and
prejudices of the jury.ā
Defendant further posits that the prosecutor improperly implied that defendant was using the
cellular telephone to sell drugs, as follows:
āThe prosecutor in this case continued to pose and answered a question concerning
a telephone conversation [defendant] was having when the police stopped the vehicle in
which he was riding: āWho is he talking to?...Iāll tell you who heās talking to. The people
who want the drugs.ā *** The police has [sic] that cellular telephone. The police has [sic]
the telephone number of the person [with] whom [defendant] was conversing at the time
of the traffic stop. The State presented no evidence that the telephone conversation was
with āpeopleā who wanted to buy drugs. By telling the jury that he knew who [defendant]
was speaking with, and knew it was āpeopleā who wanted the 11.9 grams of cocaine in
[defendantās] possession, the prosecutor was giving unsworn and prejudicial evidence
to the jury. By arguing the [defendant] was actually engaged in arranging the sale of
drugs at the time of his arrestādespite the absence of evidence as to anything about the
telephone conversationāthe prosecutor was inviting the jury to speculate as to that
uncharged crime.ā
Finally, defendant claims that the prosecutor improperly implied that defendant prevented
evidence from being presented to the jury, as follows:
āIn the rebuttal portion of his [closing] argument, the prosecutor told the jury: āThere
was no need for us to call four, five or six officers to testify redundantly or in a
duplicative manner. In fact, thereās usually an objection when it is done.ā *** To use the
rules of evidence as a sword to attack the defense for the Stateās failure to present
evidence is āutterly improperā and has ārepeatedly [been] held to be reversible error.ā ***
To argue to the jury that the defense prevented evidence from being presented to the jury
is highly improper ***.ā
We emphatically disagree.
Ā¶ 28 In People v. Montgomery, 373 Ill. App. 3d 1104, 1118,872 N.E.2d 403, 415
(2007), this
court observed that trying felony cases before a jury āaināt beanbag.ā As we explained in
Montgomery, felony criminal trials are serious matters with high stakes, and we expect
advocates in our adversarial system of justiceāboth prosecutors and defense attorneysāto āuse
all of their forensic skills to persuade the jury of the wisdom or justice of their respective
positions.ā Id. We continue to be disinclined to become the āspeech policeā by imposing
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unnecessary restrictions upon closing arguments in criminal cases, and we encourage counsel
to vigorously advocate for their position. Indeed, ātrial courts and reviewing courts should
step in only when it can truly be said that comments during closing arguments āwere so
prejudicial that real justice was denied or that the verdict resulted from the error.ā ā Id. at
1119,872 N.E.2d at 416
(quoting People v. Perry,224 Ill. 2d 312, 347
,864 N.E.2d 196, 218
(2007)).
Ā¶ 29 In this case, the prosecutorās remarksāwhich the trial court tempered by explaining to the
jury that (1) āwhat the attorneys say in final argument is not evidenceā and (2) it is āup to the
jury to examine and determine whether or not the inference being asked to be drawn is
appropriate or notāāwere nothing more than vigorous arguments related to what the State
believed the evidence presented at trial showed. Just as the jury is entitled to draw inferences
from the evidence that are reasonable (People v. Sorrels, 389 Ill. App. 3d 547, 551,906 N.E.2d 788, 792
(2009)), the attorneysāincluding the prosecutorāmay argue those inferences.
To the extent that the jury could reasonably infer certain facts, the prosecutor is justified in
arguing them.
Ā¶ 30 Here, the jury was free to infer that the cocaine, large amount of cash, and cellular
telephoneāwhich were all admitted into evidenceāwere indicative of defendantās intent to
deliver the cocaine. Thus, the prosecutor was free to argue that inference in closing, just as
the defense was free toāand didāargue for alternative inferences to be drawn, such as that (1)
the police may have planted the cocaine on him; (2) he had a large amount of cash because
he had just gotten paid or won a large sum of money at a casino; and (3) he was merely
talking to a friend on the cellular telephone just before he was arrested.
Ā¶ 31 As for defendantās claim that the prosecutor used the rules of evidence as a sword to
attack the defense for the Stateās failure to present evidence from other witnesses, the context
of that portion of closing arguments rebuts any notion that the prosecutorās comments were
improper. In response to defendantās argument at closing that the arrest video showed more
officers than the State called to testify, the prosecutor stated, as follows: āAnd on the video
it looks like there were more than three or four. But we called three of them to testify. There
was no need for us to call four, five, or six officers to testify redundantly or in a duplicative
manner. In fact, thereās usually an objection when it is done.ā Defendantās complaint about
this last sentence is unpersuasive because, in context, it is clear that the prosecutor was
simply pointing out that calling those other officers would have been duplicative or
redundant. The prosecutorās comment was not an attack on defendantās failure to object or
present evidence, but was additional support for the prosecutorās explanation for why he did
not call every single police officer that was at the scene of defendantās arrest.
Ā¶ 32 Accordingly, we reject defendantās arguments related to the prosecutorās remarks during
opening statements and closing arguments. Because we conclude that defendantās arguments
in that regard are meritless, we also reject any notion that he was denied the effective
assistance of counsel when OSAD failed to present those arguments on direct appeal. Given
that these same arguments were the basis for defendantās postconviction petition, we
conclude that the trial court did not err by dismissing defendantās petition as frivolous and
patently without merit.
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Ā¶ 33 III. CONCLUSION
Ā¶ 34 For the reasons stated, we affirm the trial courtās judgment. As part of our judgment, we
award the State its $50 statutory assessment against defendant as costs of this appeal.
Ā¶ 35 Affirmed.
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