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People v. Libberton3/29/2004
erence to this court's prior admonitions to this prosecutor can mean only the admonishment in People v. Slabaugh, 323 Ill. App. 3d 723 (2001). The two Supreme Court Rule 23 orders referred to in the dissent to the majority opinion did not contain admonishments and were both handed down after defendant's trial. Consequently, any lesson taught in those dispositions could not have been ignored by the prosecutor during defendant's trial.
The Johnson court did note that "a pattern of intentional prosecutorial misconduct may so seriously undermine the integrity of judicial proceedings as to support reversal under the plain error doctrine" (Johnson, 208 Ill. 2d at 64) and explained that its decision "signal intolerance of pervasive prosecutorial misconduct that deliberately undermines the process by which we determine a defendant's guilt or innocence" (Johnson, 208 Ill. 2d at 117). However, nowhere in Johnson did the court indicate that prior admonishments to the prosecutor regarding his improper comments in other cases are appropriately considered in deciding if a pattern of intentional misconduct exists in the trial being reviewed. In any event, we do not believe that the admonishment contained in Slabaugh that " e trust that errors will not be repeated on retrial" (Slabaugh, 323 Ill. App. 3d at 728) establishes that the two improper comments made in this case were intentional or calculated to deliberately undermine defendant's right to a fair trial. The two improper comments during the State's rebuttal closing argument hardly constitute a pattern of intentional misconduct like that present in the trials of Cowley, Parker, and Blue, where multiple trial errors during the evidentiary phase of those trials paralleled with multiple improper remarks during the State's closing arguments deprived those defendants of fair trials.
Additionally, we believe that the prosecutor's remarks concerning defendant's choice to exercise his constitutional right to a jury trial constituted a miscalculated response to a remark by defense counsel that the prosecutor misunderstood. In response to defense counsel's statement during closing argument that once defendant chose to assert his right to plead his innocence he had no choice but to go to trial, the prosecutor said:
"But Mr. Nack begins his argument by asking you: there's no other choice, there is no other choice for this Defendant, right? No other choice. He's got to take this case to trial and profess his innocence. Well, not quite. Okay? There is something that about 80 to 90 percent of Defendants do in this country and that is they be honest, forthright. They go into the courtroom and they plead guilty.
MR. NACK: Objection. That's grounds for a mistrial, Judge.
THE COURT: Overruled. Go ahead.
MR. WEBER: It happens everyday. You hear about it all the time. Right?
You know what? That story I gave was pretty stupid and I think it's time for me to accept responsibility for my stupidity in driving drunk and filing a false police report and I'll plead guilty.
MR. NACK: Objection, Judge. That is improper argument. He has the constitutional right to a jury trial. It's improper argument.
THE COURT: It's argument; it's overruled. Go ahead."
The prosecutor obviously misunderstood defense counsel's argument because he clearly contended that defense counsel claimed that defendant's only option was to go to trial. Defense counsel made no such comment and, absent invitation, a negative comment about a defendant's exercise of his constitutional rights is improper (People v. Mulero, 176 Ill. 2d 444, 462 (1997)). Consequently, the prosecutor's comments were improp
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