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People v. Johnson12/15/2005
In closing argument the prosecutor repeated what he had said in his opening argument, i.e., that defendant had an opportunity to prove his innocence by taking a breath test, but refused. This comment, though improper, was brief, amounting to only a few lines of the 15-page transcribed argument. Moreover, the notion that defendant "failed to prove his innocence" was not stressed. The prosecutor began and ended his closing argument by explaining to the jury the State's burden of proof. The prosecutor admitted that the evidence showed that defendant was not "falling down drunk," but argued that it was not necessary to prove that defendant was "falling down drunk," only that defendant was under the influence of alcohol. The prosecutor painstakingly reviewed all of the evidence, pointing out the many signs of impairment that had been shown. It is noteworthy, too, that the fact that defendant did not take the breath test was never mentioned in rebuttal closing argument.
Having considered the prosecutor's improper remarks in the context of the closing argument as a whole, we find that defendant has failed to persuade us that the verdict would not have been the same had the improper remarks been omitted. We find that the prosecutor's improper remarks were not so prejudicial that real justice was denied. We are convinced that the jury verdict was unaffected by the improper comments. We conclude that defendant was not deprived of a fair trial, that no plain error occurred, and, thus, reversal is not warranted.
For similar reasons, we also find that reversal in not required due to ineffective assistance of counsel. Claims of ineffective assistance of counsel are judged according to the two-prong, performance-prejudice test established in Strickland v. Washington, 466 U.S. 668, 80 L.Ed. 2d 674, 104 S.Ct. 2052 (1984). People v. Lawton, 212 Ill. 2d 285, 302 (2004); People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). Under Strickland, a defendant must prove not only that defense counsel's performance fell below an objective standard of reasonableness, but also that this substandard performance caused prejudice by creating a reasonable probability that, but for counsel's errors, the trial result would have been different. People v. Evans, 209 Ill. 2d 194, 219-20 (2004).
In the case at bar we have already determined that the prosecutor's comment's were improper. It follows that defense counsel erred by failing to lodge an objection to the remarks. Nevertheless, even if counsel's failure to object amounts to deficient performance, we do not find that defendant was sufficiently prejudiced by this deficient performance. As we have already concluded, the prosecutor's improper closing remarks did not deny defendant a fair trial. Thus, there is no reasonable probability that, but for counsel's failure to object, the result of the trial would be different. We conclude, therefore, that defendant has not sustained his claim that he received ineffective assistance of counsel and, accordingly, reversal on this basis is not warranted.
CONCLUSION
For the reasons stated, we affirm the judgment of the appellate court.
Affirmed.
JUSTICE FREEMAN, dissenting
Although I agree with the court that the prosecutor's comments were improper, I cannot agree with the conclusion that a new trial is unwarranted in this case. Therefore, I respectfully dissent.
As the court correctly notes, the error which occurred in this case conflicts with the constitutional principle that a defendant is innocent until proven guilty. Slip op. at 12. Therefore, in accordance with California v. Chapman, the question we must answer in determining if a new tr
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