                           Illinois Official Reports

                                    Appellate Court



                      People v. Williams, 2015 IL App (1st) 122745



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


District & No.        First District, Second Division
                      Docket No. 1-12-2745


Filed                 March 31, 2015
Rehearing denied      April 28, 2015
Modified upon
denial of rehearing   May 5, 2015


Decision Under        Appeal from the Circuit Court of Cook County, No. 09-CR-9023(02);
Review                the Hon. Vincent M. Gaughan, Judge, presiding.



Judgment              Reversed and remanded.



Counsel on            Michael J. Pelletier, Alan D. Goldberg, and Emily E. Filpi, all of State
Appeal                Appellate Defender’s Office, of Chicago, for appellant.

                      Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                      Michelle Katz, and Carol L. Gaines, Assistant State’s Attorneys, of
                      counsel), for the People.



Panel                 PRESIDING JUSTICE SIMON delivered the judgment of the court,
                      with opinion.
                      Justices Pierce and Liu concurred in the judgment and opinion.
                                              OPINION

¶1       This appeal concerns the limits on a prosecutor’s closing argument in a criminal case.
     Specifically, the appeal focuses on the issue of vouching. At trial, the prosecution crossed the
     line of permissible argument and, therefore, we reverse.

¶2                                          BACKGROUND
¶3        On April 20, 2009, defendant Kerry Williams and his codefendants Michael Minnifield
     and Angelo Straight, all members of the Black P. Stones gang, were traveling in a vehicle that
     was used for a drive-by shooting. The shooting took place in an area commonly occupied by
     the Gangster Disciples, a rival gang. The gangs were purportedly involved in a gang war, and
     some of the three defendants’ fellow gang members had recently been killed. Two guns were
     used in the drive-by shooting. One victim was killed and another sustained two gunshot
     wounds. All three of the vehicle’s occupants, Straight, Minnifield, and defendant, were
     arrested for the shooting and each was charged with first degree murder and aggravated battery
     with a firearm. Ten months later, Straight went to the police with his attorney and agreed to
     plead guilty to conspiracy in exchange for testifying that defendant and Minnifield were the
     shooters.
¶4        At defendant’s trial, Straight, the government’s cooperating witness, testified that, at the
     time of the shooting, he was driving, that defendant was in the front passenger seat and
     Minnifield was in the backseat. Straight claimed that the three of them drove to an area looking
     for Gangster Disciples and when they saw a group of what appeared to be the rival gang
     members, Minnifield and defendant opened fire.
¶5        In contrast, defendant testified on his own behalf that Straight and Minnifield were the
     shooters. Defendant maintained that he had been drinking and smoking weed and that he was
     sleeping, or passed out, in the passenger seat until just before the shooting began. Defendant
     disclaimed any knowledge of going to look for rival gang members or of the presence of guns
     in the vehicle. Defendant claimed that Straight reached across him from the driver’s seat to fire
     the shots while Minnifield was also firing from the backseat.
¶6        One of the people that was shot died shortly after the shooting. Another, Theodis
     Cook-Mims, suffered two gunshot wounds. The surviving victim turned out to be a former
     Gangster Disciple who identified the three occupants of the vehicle in a lineup the following
     day. However, in a written statement taken shortly after the shooting, the victim did not
     identify which two of the three were the shooters. The victim also stated that he could not
     definitively identify the driver. In his grand jury testimony, the victim testified that he was not
     paying attention to the front passenger seat and did not know if the passenger had a gun. At
     trial, however, the victim identified defendant as one of the shooters. The victim also conceded
     that he was high at the time of the shooting.
¶7        The physical evidence showed that all three defendants had gunshot residue on their hands.
     There were shell casings found both inside and outside the car in various areas. All of the shell
     casings that were recovered matched two guns that were eventually recovered. Cell phone
     tower data put both Straight and defendant near the crime scene at the time of the shooting.



                                                  -2-
¶8         The guns turned out to have been bought by Straight’s mother in Iowa, and Straight
       admitted that he was a gunrunner for the Black P Stones gang. Straight did not tell the
       prosecutors about the origin of the guns because he wanted to protect his mother. On the day
       after the shooting, Straight told the officers that he was not present at the shooting, but that
       defendant and Minnifield had done it. Straight also told the officers that the gunshot residue on
       his hands was from a gun that he had touched on the previous day. Straight took the officers to
       a house and told them that he was at that residence at the time of the shooting. Straight
       abandoned all of those positions before trial and admitted that he was present at the shooting,
       but still maintained he was not a shooter. The evidence at trial showed that Straight had
       previously been shot by the Gangster Disciples, the target of the drive-by. Straight also
       admitted that he was facing a sentence of 90 years, but that he would serve just 7½ years in
       exchange for his testimony. Evidence was introduced that Straight had prior felony convictions
       for unlawful use of a weapon and a felony drug offense.
¶9         Defendant was convicted by a jury of first degree murder and aggravated battery with a
       firearm and sentenced to 48 years in prison. The jury also made a finding that defendant
       personally discharged a weapon in commission of the crime.
¶ 10       On appeal, defendant’s main contention is that the prosecutor improperly vouched for
       Straight’s credibility, thereby depriving him of a fair trial. When referring to Straight’s
       credibility in his closing argument, the prosecutor stated:
                    “When a gang member comes before us and is charged with an offense, we don’t
               just take everything he says for truth immediately, we check it out. And that’s why in
               January 2010 when [Straight] came over to my office and spoke to me with his attorney
               and I was with the gang specialist, we [took] everything he said and we checked it out.
                                                   ***
                    We go over it and we get records from the phone companies and that’s why we go
               over and we go to the FBI and say help us with this, tell us what happened here.
                                                   ***
                    We corroborate. We don’t just put–and take the word of anyone.”
       The defense objected. The trial judge ruled, “sustained as to ‘we.’ State, the evidence
       corroborates itself. You don’t corroborate.” The prosecutor continued: “[W]ell, I’m being
       more or less poignant as taking the word of Mr. Straight for no reason at all, we check it out.”

¶ 11                                             ANALYSIS
¶ 12       Prosecutors have wide latitude in making their closing arguments. People v. Jones, 2014 IL
       App (3d) 121016, ¶ 37. They are allowed to comment on the evidence and reasonable
       inferences from the evidence, including a defendant’s credibility or the credibility of the
       defense’s theory of the case. Id. However, prosecutors are not permitted to vouch for the
       credibility of a government witness nor are they permitted to use the credibility of the state’s
       attorney’s office to bolster a witness’s testimony. People v. Jackson, 399 Ill. App. 3d 314, 318
       (2010).
¶ 13       In this case, the jurors were presented with a binary choice: believe defendant or believe
       Straight. The physical evidence, including the shell casing evidence, was insufficient to prove
       the identity of the second shooter. Thus, it would be problematic if the government “vouched”
       for Straight by putting the state’s stamp of approval on his testimony, or by putting the

                                                   -3-
       credibility of the State’s Attorney’s office behind his testimony. As we have previously
       observed:
               “ ‘The prosecutor’s vouching for the credibility of witnesses *** pose[s] two dangers:
               [(1)] such comments can convey the impression that evidence not presented to the jury,
               but known to the prosecutor, supports the charges against the defendant and can thus
               jeopardize the defendant’s right to be tried solely on the basis of the evidence presented
               to the jury; and [(2)] the prosecutor’s opinion carries with it the imprimatur of the
               Government and may induce the jury to trust the Government’s judgment rather than
               its own view of the evidence.’ ” People v. Townsend, 136 Ill. App. 3d 385, 402 (1985)
               (quoting United States v. Young, 470 U.S. 1, 18-19 (1985)).
       Both dangers were realized in this case.
¶ 14       The State relies primarily on People v. Pope, 284 Ill. App. 3d 695 (1996), to support its
       position that the argument was proper. In Pope, the prosecutor stated:
                    “ ‘Now, [the cooperating witness] testified. And, isn’t it interesting. Of course, his
               credibility is challenged. He has got felony convictions. We gave him a deal. There is
               no question about that. I’d trade a bad check writer for a baby molester any day. Isn’t it
               interesting that his testimony as to what [d]efendant told him just happens to exactly fit
               with the evidence, with the physical evidence ***.’ ” Id. at 706.
       There, we held that argument was not improper because it did not consist of the prosecutor
       expressing his personal beliefs regarding a witness’s credibility nor did it invoke the integrity
       of the State’s Attorney’s office. Id. We explained that a prosecutor does not improperly cross
       the bounds regarding comments on witnesses’ credibility or a defendant’s theory of a case if
       the jury has to infer that the prosecutor is expressing personal views from his comments. Id. at
       707.
¶ 15       Defendant relies primarily on People v. Schaefer, 217 Ill. App. 3d 666 (1991). In that case
       the prosecutor stated:
               “ ‘[A]s State’s Attorney, it is not at all uncommon that I do get people who come in and
               tell me lies. And I hear a lot of different versions of stories. And I think–I guess, I hope,
               after 5 years or so, I can kind of cut through the BS and have a way to find out who is
               telling the truth.
                                                      ***
                    [The cooperating witness] is not the most stellar person in the universe but I think
               he told the truth.’ ” Id. at 668.
       While we determined that some of the statements made by the prosecutor in that case were
       “arguably inferences drawn from the evidence,” we found the above-quoted statements to be
       “clearly improper” and ultimately ordered a new trial. Id. at 669.
¶ 16       Schaefer, the case relied upon by defendant, is more instructive here than Pope, the case
       relied upon by the State, because the prosecutor in this case injected into his argument his view
       that Straight was telling the truth. “We don’t just take everything he says for truth immediately,
       we check it out,” “we corroborate” and “don’t just *** take the word of anyone” have the
       purpose of conveying to the jury that the prosecutor has reason to believe the witness’s
       testimony is true, akin to “I think he told the truth,” which was found improper in Schaefer.
       The comment made in Pope is clearly distinguishable because in that case the prosecutor’s
       statement was simply that the witness testified consistently with the evidence–which is clearly

                                                     -4-
       proper argument. The argument made here was not merely a comment on the evidence that had
       been presented.
¶ 17       The argument here is even more problematic than the prosecutor simply injecting his
       opinion into the case because of the way in which the prosecutor framed his argument. The
       prosecutor started by stating that “[w]hen a gang member comes before us and is charged with
       an offense, we don’t just take everything he says for truth immediately, we check it out.” The
       message that the prosecutor sent to the jury here suggested that the State’s Attorney would not
       put an untruthful witness on the stand. That goes even further than the prosecutor’s opinion.
       The prosecutor explicitly told the jury that Straight’s credibility had already been assessed
       before he took the stand. The prosecutor urged the jury to believe Straight over defendant
       because of the government’s verification of Straight’s version of events. With those
       comments, the testimony essentially became that of the prosecutor rather than that of the
       witness. See United States v. Johnson, 529 F.3d 493, 499 (2d Cir. 2008) (by telling the jury that
       information obtained in the investigation corroborated the statements of witnesses who had
       accused the defendant, the government improperly obscured the important distinction between
       argument and evidence).
¶ 18       The prosecutor’s argument was also improper on account of him explicitly referencing
       information not presented to the jury in order to bolster Straight’s credibility. The comments
       were not, as the State suggests, merely statements that Straight’s testimony was corroborated
       by the evidence, such as the cell phone tower data. The prosecutor told the jury that it could, in
       fact, believe Straight because of some independent investigation into the veracity of Straight’s
       story that was not based on record evidence. See People v. Lowry, 354 Ill. App. 3d 760, 771-72
       (2004) (a prosecutor’s references to “studies” to resolve discrepancies in testimony were
       improper when the “studies” were not in evidence). There is some implied guarantee of
       truthfulness derived from the prosecutor’s statements that arises from something other than
       record evidence. The prosecutor made an impermissible implication that he knew something
       that the jury did not, but his implication had no evidentiary basis. See United States v.
       Martinez, 253 F.3d 251, 253-54 (6th Cir. 2001) (explaining that improper vouching can stem
       from an implied guarantee of truthfulness based on facts outside the record, or from comments
       that imply that the prosecutor has special knowledge of facts not in front of the jury).
¶ 19       Moreover, the repeated use of the term “we” in the context of “checking it out” is
       problematic because the term can really only be reasonably construed in this context as
       referring to the prosecutor personally and/or the State’s Attorney’s office. In fact the
       prosecutor intimated that the “we” he was referring to was himself and the investigating agent.
       The trial judge also understood the State’s intended implication as evidenced by his statement
       in response to one of defendant’s objections which was: “sustained as to ‘we.’ ” The trial judge
       continued, “State, the evidence corroborates itself. You don’t corroborate.” Undeterred, the
       prosecutor finished his argument with one final suggestion that the State itself had vetted
       Straight’s testimony for its truthfulness, stating that “as [for] taking the word of Mr. Straight
       for no reason at all, we check it out.” The context of the term “we” does not refer to an
       indefinite collection of the members in the courtroom (i.e., we can tell the witness testified
       truthfully because we saw his demeanor). It was used here as a specific reference to the actions
       of the State’s Attorney before trial (the witness came to meet with us in January 2010 and we
       checked out his story). See, e.g., People v. Emerson, 122 Ill. 2d 411, 435 (1987) (finding that a
       prosecutor did not vouch for a witness’s credibility where the use of the word “we” included


                                                   -5-
       jurors who saw the witness’s demeanor during his testimony at trial). The statements made
       here backed Straight’s testimony with the credibility of the government. That is universally
       improper. See People v. Boling, 2014 IL App (4th) 120634, ¶¶ 125-27.
¶ 20       The State, relying on Pope, contends that there are certain specific words that must be used
       in order for an argument to become improper vouching. The State contends that an argument is
       not vouching unless the prosecutor uses a phrase that begins with “I think” or “I believe,” and
       that the prosecutor must make his approval of the witness’s testimony explicit. The State
       quotes from Pope: “[W]e hold that for a prosecutor’s closing argument to be improper, he must
       explicitly state that he is asserting his personal views, stating for example, ‘this is my personal
       view.’ ” (Emphasis in original.) Pope, 284 Ill. App. 3d at 707. To the extent Pope stands for the
       proposition that vouching only crosses the line when the prosecutor uses a specific phrase to
       qualify his comments, we disagree. Instead, courts should use a commonsense approach to
       determine whether the statements convey to a reasonable juror that the prosecutor believes that
       a witness is credible based on the prosecutor’s personal knowledge, other information not
       contained in record, or that the testimony is credible because it has the approval of the
       government.
¶ 21       Although the defense conceded at oral argument that it had not identified any case law in
       which the prosecutor had asserted that a cooperating witness’s testimony had been vetted by
       the government before it was offered, case law confirms that such arguments have previously
       been found to be impermissible. In Gradsky v. United States, 373 F.2d 706, 710 (5th Cir.
       1967), the prosecutor stated:
               “ ‘[prosecutors] don’t put a witness on the stand unless there appears to be some
               credibility, until he appears to be a truthful witness.
                    Certainly, the government ha[d] every opportunity to check out and to judge the
               credibility and truthfulness of [the cooperating witnesses] in this case, and in that
               context, we offered you their testimony.’ ”
       The Fifth Circuit Court of Appeals explained that “it is impossible to construe the language
       used by the prosecuting attorney in any way other than saying that the government had run a
       check on these two witnesses and had concluded on the basis of such check, obviously out of
       the ken of the jury, that they were speaking the truth.” Id. The court found that the foregoing
       statements constituted improper vouching and reversed the convictions. Id. at 711; see also
       State v. Marshall, 586 A.2d 85, 167 (N.J. 1991) (although the prosecutor was free to argue that
       testimony of state’s witness was credible, it was improper for the prosecutor to suggest that
       “the truthfulness of his testimony had been checked *** out” (internal quotation marks
       omitted)).
¶ 22       United States v. Johnson, 529 F.3d 493 (2d Cir. 2008), is also instructive. In Johnson, the
       government’s investigating agent testified that he had “skeptically and scrupulously checked
       out all the information furnished by the witnesses before accepting it.” Id. at 498. The court
       found the testimony to be improper and explained that the government’s proffered testimony
       obscured the distinction between argument and evidence. Id. In this case, the prosecutor also
       referenced the role that the government’s investigative agent played in skeptically checking
       out the witness’s testimony. As in Johnson, framing some purported corroboration that has no
       basis in the record as support for a finding that Straight’s testimony was credible was improper.



                                                    -6-
¶ 23       After determining that the argument was improper, however, we must address whether the
       comments resulted in substantial prejudice to the defendant and constituted a material factor in
       his conviction. People v. Temple, 2014 IL App (1st) 111653, ¶ 68.
¶ 24       On the question of whether defendant or Straight was the second shooter in this case, the
       evidence was closely balanced. All three of the defendants in the case had gunshot residue on
       their hands. Straight originally told police that he was not present for the shooting, and he
       justified the presence of gun residue on his hands as resulting from touching a weapon the
       previous day–both positions he later abandoned. Straight made numerous other inconsistent
       statements to the investigators as well. Although the State tried to impute a revenge motive to
       defendant, Straight had at least an equally strong motive for revenge as he had previously been
       shot by a Gangster Disciple, the target of the drive-by. The State never introduced any
       evidence that directly attributed a motive to defendant. Straight was an admitted gunrunner for
       the gang, and the guns that were used in the shooting actually came from him. The guns were
       bought across state lines by his mother. Straight hid the origin of the guns and his mother’s
       involvement from the prosecutor with whom he was cooperating and testified that his reason
       for doing so was to protect his mother. Additionally, 10 months elapsed between the
       defendants being arrested and Straight’s confession, and Straight received a much more lenient
       sentence than he was facing had he gone to trial. Straight admitted that he was facing a
       sentence of 90 years but that he would serve just 7½ years in exchange for his testimony. Both
       defendant and Straight are admitted gang members, have criminal backgrounds, and were
       under the influence of drugs and alcohol the night of the incident.
¶ 25       As for the victim that was injured and testified, he identified defendant as one of the
       shooters, but he did so for the first time at trial. In fact, in his grand jury testimony, the victim
       testified that he was not paying attention to the passenger seat and did not know if the
       passenger had a gun. The victim also conceded that he was high at the time of the shooting, that
       he was a rival gang member, and that he had a criminal background.
¶ 26       Credibility was the key to the case. Between defendant and Straight, the credibility
       question and thus the ultimate question of who was the second shooter was closely balanced. In
       cases where the evidence is closely balanced, the probability that a defendant’s conviction was
       caused by even a minor trial error is greatly enhanced. Mullen, 141 Ill. 2d at 402. Because the
       prosecutor improperly vouched for Straight, it is possible that the jury unfairly credited
       Straight’s testimony over defendant’s testimony, or that the prosecutor’s statements otherwise
       tipped the scales against defendant so as to deny him a fair trial. It is indeed impossible to
       determine whether the jury’s verdict was based on the improper comments, but given the
       content and context of the statements and the close balance of the evidence, the improper
       vouching necessitates a new trial.
¶ 27       Accordingly, the trial court’s judgment is reversed, defendant’s convictions are vacated,
       and the cause is remanded for a new trial.

¶ 28       Reversed and remanded.




                                                     -7-
