                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Burton, 2012 IL App (2d) 110769




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JERRY BURTON, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0769


Filed                      November 20, 2012
Rehearing denied           December 18, 2012


Held                       Defendant failed to object when the prosecutor referred to inadmissible
(Note: This syllabus       evidence during closing argument by stating that the State’s chief witness
constitutes no part of     was credible because he made a consistent statement prior to trial and the
the opinion of the court   plain-error doctrine did not apply, since the record did not affirmatively
but has been prepared      rebut the presumption that in defendant’s bench trial, the court did not
by the Reporter of         consider that evidence.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 09-CF-3044; the
Review                     Hon. Allen M. Anderson, Judge, presiding.



Judgment                   Affirmed as modified.
Counsel on                 Thomas A. Lilien and Paul Alexander Rogers, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Sally A. Swiss, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE BURKE delivered the judgment of the court, with opinion.
                           Presiding Justice Jorgensen and Justice Schostok concurred in the
                           judgment and opinion.




                                             OPINION

¶1          Following a bench trial, defendant, Jerry Burton, was convicted of being an armed
        habitual criminal (720 ILCS 5/24-1.7(a) (West 2008)), unlawful possession of a weapon by
        a felon (720 ILCS 5/24-1.1(a) (West 2008)), and unlawful use of a weapon (720 ILCS 5/24-
        1(a)(7)(ii) (West 2008)). The trial court denied defendant’s posttrial motion for
        reconsideration of the finding of guilty and for a new trial. Thereafter, the trial court
        sentenced defendant to six years in prison followed by a three-year term of mandatory
        supervised release. Defendant was assessed a $400 fine and $310 in costs. Defendant timely
        appealed. The issues are: (1) whether the State’s comment during closing arguments that the
        testimony of its key witness was credible, because the witness had given a prior consistent
        statement to the police immediately after the incident, warrants a new trial under the plain-
        error doctrine; and (2) whether defendant is entitled to monetary credit against his $400 fine,
        where he spent 86 days in presentencing custody. For the reasons that follow, we affirm the
        judgment as modified to reflect full credit awarded against defendant’s fine.

¶2                                        I. BACKGROUND
¶3          The following evidence was presented at trial. Montgomery police officer Ismael Diaz
        testified that, during the early morning hours of October 25, 2009, he pulled over a minivan
        for driving through a red light. Defendant was the driver. Joseph Budnick was sitting in the
        front passenger seat, and Peter Straus was sitting in the middle row of seats. After learning
        that defendant’s driver’s license had been revoked, Diaz arrested him. Budnick and Straus
        were placed into temporary investigative custody. Diaz conducted an inventory search of the
        minivan, because it was going to be towed to an impound lot. Diaz described the interior of
        the minivan as having two “captain seat[s]” in the front and two rows of “bench[ ]” seats.
        During the search, Diaz discovered a sawed-off shotgun on the floor between the rows of
        bench seats. Diaz later interviewed Straus at the police station. Straus provided a written

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     statement. Diaz identified People’s Exhibit No. 4 as Straus’s statement. The statement was
     not admitted into evidence. Diaz could not recall who owned the minivan, but he stated that
     defendant was not the owner.
¶4       Montgomery police officer Adam Kuncl identified People’s Exhibit No. 1 as a shotgun
     having a barrel measuring just under 15 inches. The gun was admitted into evidence along
     with People’s Exhibit No. 2, ammunition.
¶5       Budnick testified that he was with defendant and Straus in the hours leading up to the
     traffic stop. Budnick and Straus picked up defendant and went to a house party. The three
     men were drinking, “smoking weed,” and doing “a little coke.” At some point during the
     party, he and defendant left and went to defendant’s house “to get some weed and a bowl.”
     Defendant drove and Budnick sat in the passenger seat. When they arrived at defendant’s
     house, defendant went inside the house for about 10 minutes while Budnick waited in the
     minivan. When defendant returned to the minivan, he opened the sliding door behind
     Budnick. Budnick did not see what defendant was doing. Defendant closed the door and then
     entered the minivan. Budnick asked defendant “if he got the smoke and [defendant] said,
     yeah.” They returned to the party and stayed for about two hours. When the three men left
     the party, defendant drove the minivan, Budnick sat in the front passenger seat, and Straus
     sat in the row behind them. Defendant blew a stoplight, and an officer pulled them over.
     Budnick was drunk, “[l]ike falling asleep.” Budnick did not see the gun until after the officer
     removed it from the minivan.
¶6       Straus testified that, during the evening of October 24, 2009, into the early morning hours
     of October 25, 2009, he was with defendant and Budnick. They were in his minivan and
     doing some “bar hopping.” They were drinking; they did not do any drugs. When they were
     done bar hopping, they went to a party. Defendant drove because Straus had been drinking.
     At some point during the party, defendant and Budnick drove off in Straus’s van to get
     something to eat. Straus remained at the party, because he “was talking to a young lady.”
     When defendant and Budnick returned, they remained at the party for a while. Eventually,
     the three men left in Straus’s van, with defendant driving. Straus was sitting in the middle
     row of seats. According to Straus, when an officer pulled the van over, defendant said
     something like, “[I]t’s not mine,” and defendant “pushed [the gun] back towards [Straus].”
     Straus stated that he “just kind of freaked out and tossed it behind [him].” Straus had no idea
     there was a gun in the van until that point. Although Straus did not see the gun before
     defendant pushed it back toward him, he testified that the gun was lying between the two
     front seats. Straus admitted that he had previously been convicted of aggravated discharge
     of a firearm and had been sentenced to five years in prison. At the time of the incident, he
     was still serving mandatory supervised release. He was not allowed to possess guns or
     bullets. Straus was taken to the police station and provided a written statement. He was
     truthful when he provided his statement to the police.
¶7       The parties entered into the following stipulations. First, all chain-of-custody issues for
     People’s Exhibit No. 1, the firearm, and for People’s Exhibit No. 2, the ammunition, had
     been satisfied. And, second, People’s Exhibit No. 1 was tested for, and did reveal, latent
     fingerprints, and there was no match between the prints on the firearm and those of
     defendant. In addition, the parties agreed that, if called to testify, Francis Senese, a forensic

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       scientist, would testify that a person can touch a firearm and not leave prints suitable for
       comparison.
¶8         The State rested, and defendant rested. During closing arguments, defense counsel argued
       that the “crux” of the case involved the “issue of knowledge.” According to defense counsel,
       the only evidence that defendant knew that the shotgun was in the van came from Straus,
       whose credibility was dubious given that the weapon was found in his van and that he was
       on parole for a weapons violation at the time. In response, the prosecutor argued as follows:
                “[Defense] [c]ounsel points out that Peter Straus has a reason to lie, motive, bias,
           reasons to lie. But, Judge, he didn’t lie that night.
                That night when he talked to the police officers without ever being promised
           anything, after being read Miranda and told what you say can and will be used against
           you in a Court, what does he do? He incriminates himself.
                He tells that officer, I was in this car. This gun got pushed back to me. I then pushed
           it further back, saying that he then knew that there was a gun in that car and that he
           actually helped to push it away so that officers maybe wouldn’t see it.
                He incriminated himself. Why would he do that?
                Judge, he did that because he just was telling the truth.
                When he told those officers what happened that night, if he had a reason to lie, if he
           had a motive and bias to lie, he would not have told officers that he knew anything about
           that gun.”
¶9         The court found defendant guilty. In doing so, the court stated that it considered
       Budnick’s testimony that defendant opened and closed the rear door of the van. In addition
       the court stated:
                “But the crux of this would seem to be Mr. Straus’ testimony as to the physical
           passing back or pushing back of the weapon under his testimony.
                The Court, considering his bias and his possible interest, nevertheless, had the
           opportunity to observe the manner in which he testified, observed what he had to say and
           the response to the questions that were asked of him both on direct and cross
           examination.
                In my opinion, Mr. Straus is credible in indicating that this weapon was in a place
           where it was visible and that the defendant acted in a manner and fashion to control the
           weapon by the movement of the weapon.
                The testimony of passing it back, whatever the phraseology was, put the weapon
           where the defendant was and moving it away in response to the officer coming to the
           scene.
                The Court does not have a reasonable doubt that given all the factors, including the
           size of the weapon, that the defendant did not [sic] have knowledge.”
¶ 10       The trial court denied defendant’s posttrial motion for reconsideration of the finding of
       guilty and for a new trial. Following sentencing, defendant timely appealed.



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¶ 11                                       II. ANALYSIS
¶ 12       Defendant argues that he was denied a fair trial when the State argued in closing that the
       testimony of Straus, its key witness, was credible because he had given a prior consistent
       statement to the police immediately after the incident, even though the statement had not
       been admitted into evidence and, in fact, could not have been admitted. Defendant did not,
       however, object to these comments when made, nor did he raise the issue in his written
       posttrial motion. Accordingly, defendant has forfeited review of this issue. See People v.
       Enoch, 122 Ill. 2d 176, 186 (1988) (“Both a trial objection and a written post-trial motion
       raising the issue are required for alleged errors that could have been raised during trial.”
       (Emphases in original.)).
¶ 13       Defendant concedes that he forfeited this issue but argues that it is reviewable under the
       plain-error doctrine. The plain-error doctrine permits a court of review to consider error that
       has been forfeited when either
           “(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is
           serious, regardless of the closeness of the evidence. In the first instance, the defendant
           must prove ‘prejudicial error.’ That is, the defendant must show both that there was plain
           error and that the evidence was so closely balanced that the error alone severely
           threatened to tip the scales of justice against him. The State, of course, can respond by
           arguing that the evidence was not closely balanced, but rather strongly weighted against
           the defendant. In the second instance, the defendant must prove there was plain error and
           that the error was so serious that it affected the fairness of the defendant’s trial and
           challenged the integrity of the judicial process. [Citation.] Prejudice to the defendant is
           presumed because of the importance of the right involved, ‘regardless of the strength of
           the evidence.’ (Emphasis in original.) [Citation.] In both instances, the burden of
           persuasion remains with the defendant.” People v. Herron, 215 Ill. 2d 167, 187 (2005).
       “The ultimate question of whether a forfeited claim is reviewable as plain error is a question
       of law that is reviewed de novo.” People v. Johnson, 238 Ill. 2d 478, 485 (2010).
¶ 14       Defendant argues that the issue is reviewable as plain error under the first prong. He
       maintains that “this was a closely balanced case in which the prosecutor made blatantly
       improper comments during rebuttal argument regarding a statement that was not admitted
       into evidence.” The State concedes that it was improper for the prosecutor to refer to the
       substance of Straus’s statement, which was not admitted into evidence. See People v. Adams,
       2012 IL 111168, ¶¶ 16, 20 (prosecutor’s comment during closing arguments, that officers’
       testimony should be believed because they would not risk their credibility, jobs, or freedom
       by lying on the witness stand, was improper, as no evidence was introduced at trial from
       which it could be inferred that the officers would risk their careers if they testified falsely).
       We note, also, that the statement could not have been admitted into evidence. See People v.
       McWhite, 399 Ill. App. 3d 637, 641 (2010) (“Generally, statements made prior to trial are
       inadmissible for the purpose of corroborating trial testimony ***.”). However, the State
       asserts that the error was not reversible, “because the record does not rebut the presumption
       that the trial court acted properly and considered only competent evidence.” We agree.
¶ 15       “Absent reversible error, there can be no plain error.” People v. Naylor, 229 Ill. 2d 584,


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       602 (2008). Thus, before we would reach the issue of whether the evidence was closely
       balanced, “we must determine whether the error is such that would require reversal of
       defendant’s convictions.” Id. at 603; see also id. at 605 (“Having concluded that the trial
       court committed reversible error, we must next determine whether the evidence presented
       at defendant’s trial was closely balanced.”). On review after a bench trial, “a reviewing court
       presumes that the trial court considered only admissible evidence and disregarded
       inadmissible evidence in reaching its conclusion.” Id. at 603; see also People v. Pelegri, 39
       Ill. 2d 568, 575 (1968) (trial court is also presumed to have relied only on proper closing
       argument). Unless the record affirmatively rebuts that presumption, any error related to
       inadmissible evidence is not reversible. Cf. Naylor, 229 Ill. 2d at 603-05 (finding reversible
       error when record affirmatively rebutted the presumption).
¶ 16        Here, although the State referred to inadmissible evidence–which, again, had not been
       admitted in any event–the record does not affirmatively rebut the presumption that the trial
       court did not consider it. In finding Straus credible, the court did not reference his prior
       statement. Instead, it purported to have relied on “the manner in which he testified, *** what
       he had to say and the response to the questions that were asked of him both on direct and
       cross examination.” That is, as far as the record shows, the court properly credited Straus in
       light of only his conduct at trial.
¶ 17        Defendant relies on People v. Wheeler, 226 Ill. 2d 92, 123 (2007). There, the supreme
       court noted that a defendant is entitled to a new trial if “the reviewing court cannot say that
       the prosecutor’s improper remarks did not contribute to the defendant’s conviction.” Id.
       Thus, defendant asserts that we must reverse his convictions because the record does not
       affirmatively show that the trial court did not rely on the State’s improper argument.
       However, that assertion flips the law on its head; as noted, we presume that the court did not
       rely on such argument, unless the record affirmatively shows that it did. This is precisely why
       the Wheeler standard was specifically tied to jury trials, where no such presumption applies.
       See id. (“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 defendant’s conviction, a new trial should be granted.” (Emphasis added.)).
¶ 18        In sum, although the State committed error, such error is not reversible. Thus, regardless
       whether the evidence was closely balanced, the plain-error doctrine does not apply. See
       Naylor, 229 Ill. 2d at 602-05.
¶ 19        Next, defendant argues that he is entitled to monetary credit toward his $400 fine. Section
       110-14(a) of the Code of Criminal Procedure of 1963 provides:
            “Any person incarcerated on a bailable offense who does not supply bail and against
            whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for
            each day so incarcerated upon application of the defendant. However, in no case shall the
            amount so allowed or credited exceed the amount of the fine.” 725 ILCS 5/110-14(a)
            (West 2008).
       A defendant may apply for the credit for the first time on appeal. People v. Caballero, 228
       Ill. 2d 79, 88 (2008). It is undisputed that defendant spent 86 days in custody prior to
       sentencing and has therefore accumulated a credit of $430. The State concedes that defendant


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       is entitled to the credit he claims. Accordingly, we modify the mittimus to reflect full credit
       against his fine.

¶ 20                                     III. CONCLUSION
¶ 21       For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed
       as modified to reflect a credit satisfying defendant’s $400 fine.

¶ 22      Affirmed as modified.




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