 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Johnson12/15/2005
ial is required is whether, absent the constitutional error, "it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict." People v. Smith, 152 Ill. 2d 229, 269 (1992). After reviewing the evidence in this case and the complained-of argument, it is not clear to me, beyond a reasonable doubt, that the jury verdict was unaffected by the improper comments.
The impropriety of the comments at issue stems from the fact that they "reasonably could confuse the jury regarding the presumption of innocence and burden of proof." 353 Ill. App. 3d at 960 (Turner, J., dissenting). The effects of juror confusion in cases like this, where this court acknowledges the closeness of the evidence, are not readily discernible. For this reason, I find that it is impossible to say with certainty that the error did not help to sway the jury to a finding of guilty as opposed to a finding of not guilty. The record reveals that defendant called four witnesses who were with him before his arrest, each of whom disputed that defendant displayed the signs of intoxication allegedly observed by Officer Parsons. Defendant testified that he did not cross the center of the road because of intoxication, but rather because he was trying to assess whether he could safely pass the car in front of him. Officer Parsons admitted that a car was in front of defendant at the time he pulled him over, but that it was illegal to pass in that area. Defendant presented the jury with videotapes of the road where the arrest occurred, which established that passing in that area was, in fact, legal. Given the nature of this and the other conflicting testimony adduced at trial, I cannot discount the possibility that the jury could have used the improper remark to tip the balance in favor of the State. In any case, I cannot say with certainty that the jury did not use the improper remark in that way.
Finally, the court's conclusion that the error was harmless does much to dilute its recognition of the impropriety of the remark in the first place. If making such a remark is deemed harmless in a case like this, where the defense has successfully damaged the credibility of the arresting officer-the sole witness for the prosecution-with videotaped evidence, I cannot fathom under what circumstances this error will ever be deemed harmful enough to warrant a new trial. In my opinion, this kind of result leaves little incentive for the State to avoid making the improper remark in future cases.
Thus, for the all of the foregoing reasons, I dissent.
JUSTICE KILBRIDE joins in this dissent.
Page 1 2 3 4 5 6 7 8 9 10 Illinois DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|