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People v. Johnson12/3/2004
ant's refusal to submit to a breath test were prosecutorial misconduct. Attorneys are allowed latitude in their closing statements. People v. Castaneda, 299 Ill.App.3d 779, 784, 701 N.E.2d 1190, 1192 (1998). "A prosecutor may comment on the evidence and draw all legitimate inferences deducible therefrom, even if they are unfavorable to the defendant." People v. Taylor, 345 Ill.App.3d 1064, 1081, 804 N.E.2d 116, 129 (2004). "In reviewing a challenge to remarks made by the prosecutor during closing argument, the comments must be considered in the context of the parties' closing arguments as a whole." Taylor, 345 Ill.App.3d at 1081, 804 N.E.2d at 129. Reversible error results when comments by a prosecutor cause such substantial prejudice against a defendant that it is impossible to say whether or not a verdict of guilt resulted from those comments. Castaneda, 299 Ill.App.3d at 784, 701 N.E.2d at 1192. There is a similar requirement in opening statements, that reversible error only results when the prosecutor's statements result in substantial prejudice against defendant. People v. Leger, 149 Ill.2d 355, 392, 597 N.E.2d 586, 602 (1992).
Here, the prosecutor told the jury in his opening statement that it would "hear that [defendant] was given an opportunity to prove to the officer that he was not overly impaired by being offered to take what is call[ed] a breath alcohol test to determine how much alcohol was on his breath at the time, yet the defendant failed to do so." During closing arguments, the prosecutor said that Parsons gave defendant "an opportunity to prove once and for all that he wasn't impaired." The prosecutor summarized Parsons's testimony by stating:
"He said, you know what? I am going to give you one more chance to prove that you're not guilty of this offense. Take a breath test. You're aware of the penalties that might result of taking it and passing it or not taking it at all."
Finally, the prosecutor summarized defendant's decision not to take the breath test by telling the jury:
"He knew what he was doing. He refused. He didn't want to take the risk. He took the stiffest penalty right off the bat. He wouldn't take the chance to prove it once and for all."
*4 Defendant argues that these statements are prosecutorial misconduct because they improperly shift the burden of proof, requiring defendant to prove his innocence rather than the prosecution having to prove his guilt. We disagree. Evidence of a defendant's refusal to take a breath test is relevant and admissible. 625 ILCS 5/11-501.2(c)(1) (West 2002); see also People v. Garriott, 253 Ill.App.3d 1048, 1052, 625 N.E.2d 780, 784 (1993) (refusal to submit to Breathalyzer test is relevant as circumstantial evidence of the defendant's consciousness of guilt). The trier of fact can infer that a defendant refused to submit to the test because it would confirm that he was DUI. Garriott, 253 Ill.App.3d at 1052, 625 N.E.2d at 784. The prosecutor's statements drew a legitimate inference from the evidence that was properly admitted during the trial. No prejudice resulted to defendant from the prosecutor's statements. It was not error for the trial court to allow the prosecutor's opening and closing statements.
Defendant also argues that defense counsel's failure to object to the prosecutor's remarks during trial was both plain error and ineffectual assistance of counsel. Because we have already stated that the prosecutor's statements were not error and, further, did not prejudice defendant, no error was made by defense counsel in not objecting to the statements.
For the foregoing reasons, we affirm the trial court's judgment.
Affirmed.
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