                                                               Fourth Division
                                                               June 30, 2010




No. 1-07-2101


THE PEOPLE OF THE STATE OF ILLINOIS,                           )       Appeal from the
                                                               )       Circuit Court of
                        Plaintiff-Appellee,                    )       Cook County.
                                                               )
v.                                                             )       04 CR 26287
                                                               )
RODERICK SMITH,                                                )       Honorable
                                                               )       William G. Lacy,
                        Defendant-Appellant.                   )       Judge Presiding.


        JUSTICE NEVILLE delivered the opinion of the court:

        Roderick Smith, the defendant, was found guilty by a jury of the attempted murder of a peace

officer and of aggravated battery of a peace officer. On appeal, defendant challenges only the

attempted murder conviction. He argues: (1) prosecutorial comments in closing argument deprived

him of a fair trial; (2) the court should have instructed the jury on the lesser-included offense of

reckless conduct; and (3) the prosecution did not prove intent to murder. We reverse the attempted

murder conviction because the State violated the defendant's right to a fair trial when the prosecutor

shifted the burden of proof, during her closing argument, by making repeated comments about the

defendant's decision not to testify at his trial.

                                           BACKGROUND

        In the course of an ongoing investigation into defendant’s activities, police prepared to arrest

him. When police officers located defendant's car on the south side of Chicago on October 5, 2004,
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unmarked cars converged on the area around 79th and King Drive and the police officers secreted

their unmarked police cars near the defendant's car. Once defendant returned to his car, an officer

drove up next to defendant’s car and boxed the car into its parking spot. Marked police cars, with

sirens wailing and lights flashing, came to the scene. Officer Dwayne Johnson got out of his

unmarked car and approached defendant’s car. Officer Johnson stood on the sidewalk about 20 feet

in front of defendant’s car, held out his badge and identified himself as a police officer.

       Defendant drove his car onto the sidewalk, hitting Officer Johnson’s side as the officer dove

out of the way. Several civilians on the sidewalk scurried away from defendant's car. The car

knocked down a store’s awning before turning back to the street, where it crashed head on into an

unmarked police car. Police officers arrested the defendant as he got out of the car, and they found

a gun on the floor of the car. Officer Johnson was taken to a hospital, where he received treatment

for a contusion to his head, but he had no broken bones and lost no time from work. Finally, the

defendant was indicted and charged with aggravated battery and attempted murder of Officer

Johnson.

       At trial, the prosecution called Officer Johnson, who testified that he was dressed in civilian

clothes on the day of defendant’s arrest. Officer Johnson testified that defendant looked down at the

floor in his car, and then the defendant stared at Officer Johnson before the defendant gunned the

engine and drove straight at Officer Johnson. Other police officers estimated that, after the police

officers identified themselves, defendant sat in his car for about 15 seconds before driving his car

onto the sidewalk.

       Defense counsel called no witnesses to testify for the defendant. However, while the

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defendant was putting on his case, the parties entered into a stipulation that officers at the scene

ticketed defendant for driving on the sidewalk and for eluding the police.

       During the instruction conference, defendant sought an instruction on the lesser-included

offense of reckless conduct. The court refused to give a reckless conduct instruction.

       In closing, defense counsel argued that the State's evidence showed that the defendant had

an intent to escape, but did not show that defendant had an intent to kill Officer Johnson. Defense

counsel also argued that when defendant looked down at the floor in his car, he looked at his gun and

made a conscious decision not to use it.

       In rebuttal, the prosecutor made the following argument:

       “Have you heard any evidence that he didn’t know they were the police?”

The court overruled defense counsel’s objection. The rebuttal continued:

       “You didn’t hear anything from that witness stand. You didn’t hear any evidence

       that he didn’t know they were the police.

               [Defense counsel]: Objection.

               THE COURT: Okay. Move along.

               [Prosecutor]: Similarly you didn’t hear any evidence that he wasn’t trying to

       kill anyone.

               [Defense counsel]: Objection.

               THE COURT: Overruled.”

       The jury found defendant guilty of the attempted murder of a peace officer and aggravated

battery of a peace officer. The trial court sentenced defendant to 35 years in prison for attempted

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murder and to a 5-year term for aggravated battery, with the sentences to run concurrently. In his

notice of appeal, defendant lists only the attempted murder conviction as the conviction from which

he takes this appeal. Therefore, we have no jurisdiction to review the aggravated battery conviction.

See In re V.M., 352 Ill. App. 3d 391, 397 (2004); People v. Fitzgerald, 25 Ill. App. 3d 973, 975

(1975).

                                               ANALYSIS

                                                Fair Trial

          First, defendant contends that the prosecutor’s rebuttal argument deprived him of a fair trial.

Trial courts allow prosecutors a great deal of latitude in closing argument. People v. Cisewski, 118

Ill. 2d 163, 175 (1987). We view closing arguments in their entirety and examine the prosecutor’s

remarks in context. People v. Blue, 189 Ill. 2d 99, 128 (2000); People v. Stock, 56 Ill. 2d 461, 467

(1974); People v. Neumann, 148 Ill. App. 3d 362, 373-74 (1986). “Misconduct in closing argument

is substantial and warrants reversal and a new trial if the improper remarks constituted a material

factor in a defendant's conviction. [Citation.] If the jury could have reached a contrary verdict had

the improper remarks not been made, or the reviewing court cannot say that the prosecutor's

improper remarks did not contribute to the defendant's conviction, a new trial should be granted.”

People v. Wheeler, 226 Ill. 2d 92, 123 (2007), citing People v. Linscott, 142 Ill. 2d 22, 28 (1991).

Our supreme court has applied both abuse of discretion analysis and de novo review to alleged

prosecutorial misconduct in closing argument. Compare Blue, 189 Ill. 2d at 128 (the trial court's

determination of the propriety of the remark will not be disturbed absent an abuse of discretion), with

Wheeler, 226 Ill. 2d at 121 (whether statements made by a prosecutor at closing argument were so

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egregious that they warrant a new trial is a legal issue this court reviews de novo). We review the

remarks here for abuse of discretion because the trial court overruled the defendant's objections to

the prosecutor's remarks, but we note that we would reach the same result with de novo review. See

People v. Johnson, 385 Ill. App. 3d 585, 603 (2008).

       Here, defendant objects specifically to three closely related remarks. The prosecutor made

the following statements during her rebuttal argument:

               “Have you heard any evidence that he didn’t know they were the police?

                                                 ***

               *** You didn’t hear anything from that witness stand. You didn’t hear any

       evidence that he didn’t know they were the police.

                                                 ***

               Similarly you didn’t hear any evidence that he wasn’t trying to kill anyone.”

       Our review of the record revealed that the trial court did not sustain defendant’s objections

to the prosecutor's three remarks. Defendant contends that the prosecutor's remarks shifted the

burden of proof and impermissibly drew attention to his decision not to testify. “An accused has a

constitutional right not to testify as a witness in his own behalf. [Citations.] The prosecution may not

directly or indirectly comment on the defendant's failure to take the stand in his own defense.”

People v. Herrett, 137 Ill. 2d 195, 210-11 (1990), citing Griffin v. California , 380 U.S. 609, 14 L.

Ed. 2d 106, 85 S. Ct. 1229 (1965); People v. Arman, 131 Ill. 2d 115, 127 (1989); People v. Lyles,

106 Ill. 2d 373, 390 (1985); People v. Burton, 44 Ill. 2d 53, 56-57 (1969); and People v. Wollenberg,

37 Ill. 2d 480, 488 (1967).

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       Our supreme court explained the test this court must use to determine whether a prosecutor's

argument violated a defendant's right to remain silent as follows:

               “The appropriate test for determining whether a defendant's right to remain

       silent has been violated is whether ‘the reference [was] intended or calculated to

       direct the attention of the jury to the defendant's neglect to avail himself of his legal

       right to testify.’ [Citations.] The prosecutor may comment on the uncontradicted

       nature of the State's case [citations], and, where motivated by a purpose of

       demonstrating the absence of any evidentiary basis for defense counsel's argument

       rather than a purpose of calling attention to the fact that defendant had not testified,

       such argument is permissible [citation]. Moreover, a defendant cannot ordinarily

       claim error where the prosecutor's remarks are in reply to and may be said to have

       been invited by defense counsel's argument.” People v. Dixon, 91 Ill. 2d 346, 350-51

       (1982), quoting People v. Hopkins, 52 Ill. 2d 1, 6 (1972), and citing People v.

       Mentola, 47 Ill. 2d 579, 582 (1971); People v. Mills, 40 Ill. 2d 4, 8 (1968);

       Wollenberg, 37 Ill. 2d at 488; People v. Skorusa, 55 Ill. 2d 577, 584 (1973); People

       v. Norman, 28 Ill. 2d 77, 81 (1963); People v. Jones, 47 Ill. 2d 66, 67-70 (1970);

       People v. Vriner, 74 Ill. 2d 329, 344 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d

       296, 99 S. Ct. 2858 (1979); People v. Zuniga, 53 Ill. 2d 550, 558 (1973); and People

       v. Bey, 51 Ill. 2d 262, 266 (1972).

       The State claims that defense counsel invited the prosecutor’s remarks, but the State does not

cite any page of the record or quote an argument or comment made by defense counsel that invited

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or would justify the prosecutor’s remarks concerning defendant’s failure to present evidence that he

did not know Johnson was a police officer. Defense counsel in his closing argument never suggested

that defendant did not know Johnson was a police officer. More importantly, “a defendant in a

criminal case can never ‘open the door’ to shift the burden of proof.” People v. Beasley, 384 Ill. App.

3d 1039, 1048 (2008). Therefore, we find that defense counsel did not invite the prosecutor’s

remarks.

        In this case, because defense counsel's closing argument did not invite the prosecutor’s

rebuttal remarks, we see no purpose for the prosecutor's remarks other than to draw the jury’s

attention to defendant’s decision to exercise his federal1 and state2 constitutional right not to testify

and be a witness against himself. By overruling defense counsel's objections, the trial court in effect

permitted the jury to infer defendant's guilt from his failure to present evidence in his own behalf.

The trial court's rulings on defendant's objections “[were] in effect sanctioning an erroneous burden

of proof before the eyes of the jury.” Beasley, 384 Ill. App. 3d at 1048. Here, the prosecutor's

remarks violated defendant’s right to remain silent. See People v. Edgecombe, 317 Ill. App. 3d 615,

621 (2000); People v. Blissitt, 12 Ill. App. 3d 551, 555 (1973). The prosecutor's remarks also shifted

the burden of proof to the defendant. See People v. Giangrande, 101 Ill. App. 3d 397, 402 (1981);



        1
            "No person *** shall be compelled in any criminal case to be a witness against himself."

U.S. Const., amend V.
        2
            "No person shall be compelled in a criminal case to give evidence against himself***."

Ill. Const. 1970, art. I, §10.

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People v. Fluker, 318 Ill. App. 3d 193, 203 (2000). Accordingly, we hold that the trial court abused

its discretion when it overruled defendant’s objections to the prosecutor’s remarks.

       Although the prosecutor violated the defendant's federal and state constitutional rights and

shifted the burden of proof, the prosecutor's improper closing remarks do not warrant reversal unless

they could have affected the jury’s verdict. As we discuss below, the prosecution produced sufficient

evidence to support the convictions. However, the evidence that defendant received tickets for

driving on the sidewalk and eluding police3 could also support an inference that defendant intended

only to flee or elude police and, while fleeing, that he acted with a reckless indifference for Officer

Johnson’s life. A person acts with a reckless mental state when he consciously disregards a

substantial and unjustifiable risk that a result will follow, and such disregard constitutes a gross

deviation from the standard of care a reasonable person would exercise in the situation. 720 ILCS

5/4-6 (West 2004). Here, the police cars blocked defendant's car and prevented him from leaving

the scene or fleeing by any means other than driving on the sidewalk. We also note that the

defendant had a gun in his car, and if he had intended to kill the officer, he could have, but he did

not shoot Officer Johnson. The trier of fact could infer from defendant's driving on the sidewalk that



       3
           Section 11-204 of the Illinois Vehicle Code provides that "[a]ny driver or operator of a

motor vehicle who, having been given a visual or audible signal by a peace officer directing such

driver or operator to bring his vehicle to a stop, wilfully fails or refuses to obey such direction,

increases his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer"

commits the offense of fleeing or eluding the police. 625 ILCS 5/11-204 (West 2004).

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defendant had either a specific intent to kill or a reckless state of mind while attempting to flee or

elude police. Because the defendant had a gun but did not use the gun, a trier of fact could also infer

that the defendant did not have a specific intent to kill the officer. Therefore, we cannot say that the

prosecutor's improper remarks did not contribute to the finding of guilt on the charge of attempted

murder. Accordingly, by directing the jury's attention to defendant's election not to testify and thus

shifting the burden of proof, the prosecutor's remarks denied the defendant a fair trial on the

attempted murder charge.

                                           Jury Instructions

       Next, defendant argues that the trial court should have instructed the jury on the lesser-

included offence of reckless conduct. 720 ILCS 5/12-5 (West 2004). Defendant admits that he

forfeited the argument by failing to raise it in his posttrial motion. We address the issue solely to

provide guidance for the trial court on remand, because the lesser-included-offense instruction will

likely be an issue. See People v. Hanson, 83 Ill. App. 3d 1108, 1113 (1980). “A defendant is

entitled to a lesser-included offense instruction only if an examination of the evidence reveals that

it would permit a jury to rationally find the defendant guilty of the lesser offense yet acquit the

defendant of the greater offense.” People v. Hamilton, 179 Ill. 2d 319, 324 (1997), citing People v.

Jones, 175 Ill. 2d 126, 135 (1997); People v. Landwer, 166 Ill. 2d 475, 486 (1995). Even slight

evidence may warrant an instruction on a lesser-included offense. In re Matthew M., 335 Ill. App.

3d 276, 284 (2002), citing Jones, 175 Ill. 2d at 131-32. The evidentiary requirement “ ‘may be

satisfied if the conclusion as to the lesser offense may fairly be inferred from the evidence

presented.’ ” People v. Garcia, 188 Ill. 2d 265, 284 (1999), quoting People v. Novak, 163 Ill. 2d 93,

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108 (1994). “Where some evidence supports the instruction, the circuit court's failure to give the

instruction constitutes an abuse of discretion.” People v. Castillo, 188 Ill. 2d 536, 540 (1999), citing

People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998).

        The mental state required for reckless conduct distinguishes that offense from attempted

murder. See People v. Upton, 230 Ill. App. 3d 365, 375 (1992). In Upton, the defendant fired two

shots in the direction of a truck towing away his car. One shot injured the truck’s driver. At the trial

on a charge of attempted murder, the defendant testified that he aimed at the truck’s tires because

he believed the truck driver was stealing the defendant’s car. The trial court denied the defendant’s

request for an instruction on reckless conduct. The Upton court held:

               “From the evidence in its entirety, the jury could have concluded that in

       shooting a gun while running after a moving vehicle occupied by two persons,

       defendant consciously disregarded the substantial risk that one or both of the persons

       would be struck by the bullets; and that his disregard of this risk constituted a gross

       deviation from the care which a reasonable person, even one who believed that his

       car was being stolen, would exercise in the same situation.

                                                 ***

               *** The crux of the issues raised by the defendant on appeal is that the jury

       was improperly precluded from hearing evidence supporting, and from considering

       the law applicable to, his theory of defense.

               From its verdict, it is clear that the jury believed that defendant was guilty of

       something; but it was not provided with that ‘important third option’ of finding

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        defendant guilty of a lesser offense than those charged. [Citation.] In a jury trial, it

        is the province of the jury to determine whether defendant is guilty of the greater

        offense charged or of a lesser-included offense; and an instruction on the lesser

        offense must be given if there is any evidence which tends to prove the lesser crime.”

        Upton, 230 Ill. App. 3d at 376-77, quoting People v. Bryant, 113 Ill. 2d 497, 502

        (1986), and citing People v. Perry, 19 Ill. App. 3d 254, 258 (1974).

        Here, as in Upton, defense counsel argued that the defendant’s conduct showed recklessness,

not an intent to kill. The evidence - - the defendant's driving and his decision not to use the gun in

his car, coupled with the fact that he received a ticket for driving on the sidewalk and for fleeing or

eluding the police - - could support an inference that defendant consciously disregarded a substantial

and unjustifiable risk to Officer Johnson, and his disregard of that risk constituted a gross deviation

from the standard of care that a reasonable person would exercise while driving a car. See 720 ILCS

5/4-6 (West 2004). The police officer's tickets for driving a car on a sidewalk and for fleeing provide

some evidence for giving another instruction. The trial court should not have usurped the jury’s

function of weighing the evidence to decide if the prosecution proved that defendant acted recklessly,

or if he acted with the specific intent to kill Officer Johnson. The trial court's refusal to give the

lesser-included-offense instruction denied the jury the important option of finding defendant guilty

of a lesser charge. Therefore, because we find the evidence could be rationally used by the jury to

find the defendant guilty of the lesser-included offense, we direct the trial court on remand to instruct

the jury on the lesser-included offense of reckless conduct.



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                                     Sufficiency of the Evidence

       Finally, defendant argues that the evidence did not prove beyond a reasonable doubt that he

had the mental state, a specific intent, to murder Officer Johnson. We will not reverse a conviction

for insufficient evidence unless the evidence is “so unreasonable, improbable or unsatisfactory as

to create a reasonable doubt of the defendant's guilt.” People v. Rowell, 229 Ill. 2d 82, 98 (2008),

citing People v. McDonald, 168 Ill. 2d 420, 444 (1995). We must decide “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Rowell, 229 Ill. 2d at 98, citing

McDonald, 168 Ill. 2d at 443-44.

       To prove defendant guilty of attempted murder, the prosecution must prove that defendant

intended to kill and he took a substantial step toward killing his intended victim. See People v.

Parker, 311 Ill. App. 3d 80, 89 (1999). Defendant here challenges only the State's evidence of intent.

“Because intent is a state of mind, it can rarely be proved by direct evidence. As a result, this court

has recognized that where intent is not admitted by the defendant, it can be shown by surrounding

circumstances [citation], including the character of the assault and the nature and seriousness of the

injury [citation].” People v. Williams, 165 Ill. 2d 51, 64 (1995), citing People v. Koshiol, 45 Ill. 2d

573, 578 (1970), and People v. Mays, 230 Ill. App. 3d 748, 756 (1992). Our supreme court has held:

       " 'Since every sane man is presumed to intend all the natural and probable

       consequences flowing from his own deliberate act, it follows that if one wilfully does

       an act, the direct and natural tendency of which is to destroy another's life, the natural

       and irresistible conclusion, in the absence of qualifying facts, is that the destruction

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        of such other person's life was intended.' " Koshiol, 45 Ill. 2d at 578, quoting People

        v. Coolidge, 26 Ill. 2d 533, 537 (1963).

        Defendant looked at Officer Johnson for 15 seconds, then pressed the gas pedal and drove

his car, a deadly weapon (see People v. Belk, 203 Ill. 2d 187, 196 (2003)), in Officer Johnson's

direction. The car headed straight at Officer Johnson. Defendant did not slow down or swerve. The

natural consequence of the defendant's act would be to cause Officer Johnson harm or to destroy

Officer Johnson’s life had he not dived out of the way. While jurors might have inferred from the

evidence, if given the reckless conduct instruction, that defendant was only trying to flee or elude

police and acted with reckless indifference for Officer Johnson’s life, the jurors, instead, inferred

from the evidence that defendant possessed the requisite intent to kill Officer Johnson. Accordingly,

viewing the evidence in the light most favorable to the prosecution, the evidence sufficiently

supports the jury’s finding that defendant attempted to murder Officer Johnson. See Rowell, 229

Ill. 2d at 98, citing McDonald, 168 Ill. 2d at 443-44.

                                            CONCLUSION

        In conclusion, we find the evidence sufficient to support the defendant's conviction for

attempted murder. However, we agree with defendant that the prosecutor's improper comments to

the jury violated his federal and state constitutional right not to testify and shifted the burden of proof

from the State to the defendant. Because the evidence regarding defendant's driving could establish

a specific intent to kill or a reckless state of mind, we cannot say that the prosecutor’s improper

comments did not influence the jury's verdict on the charge of attempted murder. The trial court

invaded the province of the jury by only giving the instruction for the greater offense of attempted

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murder and by failing to give the instruction for the lesser offense of reckless conduct. While we

find the evidence was sufficient to convict the defendant, a new trial is required on the charge of

attempted murder because the defendant did not receive a fair trial. People v. Davis, 377 Ill. App.

3d 735, 747 (2007), citing People v. Taylor, 76 Ill. 2d 289, 309 (1979).

        Therefore, we reverse the attempted murder conviction and remand for a new trial on that

charge and direct the trial court to instruct the jury on the lesser-included offense of reckless conduct.

Because defendant does not challenge the conviction and sentence for aggravated battery, that part

of the judgment will stand. Finally, in the event the trial court finds defendant guilty of attempted

murder on remand, it must vacate the judgment on the lesser-included offense of aggravated battery

(see People v. Bowens, 307 Ill. App. 3d 484, 494 (1999) (aggravated battery a lesser-included

offense of attempted murder); People v. Lopez, 245 Ill. App. 3d 41, 47 (1993) (same); People v.

Johnson, 219 Ill. App. 3d 460, 464-65 (1991) (same)) because the conviction for aggravated battery,

the lesser-included offense, will merge into the conviction for attempted murder, the greater offense.

People v. Cunningham, 365 Ill. App. 3d 991, 994 (2006).

                                        Petition for Rehearing

        In a petition for rehearing, the State contends that the decisions in People v. Glasper, 234 Ill.

2d 173 (2009), and People v. Echols, 382 Ill. App. 3d 309 (2008), demand affirmance here. We

disagree. In both of those cases, the prosecutors’ comments responded to the absence of evidence

supporting the arguments defense counsels actually made in their closings. See Glasper, 234 Ill. 2d

at 212; Echols, 382 Ill. App. 3d at 318-19. Here, we face a factually different case. The prosecutor

commented that defendant failed to present evidence that he did not know that Johnson was a police

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officer, when defense counsel’s closing argument–-that the State’s evidence failed to show that the

defendant had an intent to kill Johnson-- never suggested that the defendant did not know that

Johnson was a police officer. Only the defendant could provide evidence concerning his knowledge

of Johnson’s status. Thus, the prosecutor’s comment directed attention to the defendant’s failure to

testify, without responding to defense counsel’s closing argument. Glasper and Echols did not

involve similar prosecutorial misconduct. Accordingly, given the facts of this case, those cases do

not demand affirmance here.

       Affirmed in part and reversed in part; cause remanded with directions.

       O'MARA FROSSARD, P.J., and GALLAGHER, J., concur.




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