Opinion
3-19-0721
02-01-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC TALLEY, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois. Circuit No. 19-CF-76 Honorable H. Chris Ryan Jr., Judge, Presiding.
JUSTICE SCHMIDT delivered the judgment of the court. Presiding Justice O'Brien concurred in the judgment.
ORDER
SCHMIDT JUSTICE
¶ 1 Held: (1) The State proved defendant guilty beyond a reasonable doubt; (2) the circuit court's failure to comply with Illinois Supreme Court Rule 431(b) is not reversible plain error; and (3) the State did not commit prosecutorial misconduct in its opening statement and closing argument.
¶ 2 Defendant, Eric Talley, appeals from his convictions for unlawful delivery of a controlled substance. He argues that (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt, (2) the La Salle County circuit court erred by failing to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), and (3) the State committed prosecutorial misconduct in its opening statement and closing argument. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Defendant was charged with two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(B), (c)(1) (West 2018)). The case proceeded to a jury trial.
¶ 5 During jury selection, the court admonished each panel of jurors of three of the Rule 431(b) principles. The court asked whether prospective jurors understood and accepted that the defendant is presumed to be innocent of the charges against him, the State has the burden of proving defendant guilty beyond a reasonable doubt, and defendant is not required to present any evidence on his own behalf.
¶ 6 In its opening statement, the State said:
"Guys, the defendant, *** he is the CEO of his business, and his business is drugs. And business is so good for the defendant that he has people working with him and for him. And this is not your dime-bag, on-the-corner operation. [Defendant] was going to make $11,000 for the cocaine and heroin that he was distributing on August 14th of last year.
Now, as is often the case in every-day businesses that we know and we frequent, often times, when things go wrong, management blames labor. [Defendant] is no different. He's figured out a way where when things go wrong, he can blame his labor. How is that? He doesn't handle his product. No fingerprints[.]"
¶ 7 Jason Clift of the Streator Police Department testified that he was assigned to the Tri-DENT drug task force. On August 13, 2018, Clift met with Jason Pruitt, a Tri-DENT task force informant. Pruitt told Clift that he could arrange for the purchase of cocaine and heroin from a black male named Red. Pruitt called Red in Clift's presence and asked for 7 ounces of cocaine and 10 grams of heroin. The male on the phone said yes and Pruitt said he would call back to confirm that the deal would occur the next day at 4 p.m. Clift told Pruitt to tell Red to meet him at a Circle K gas station on the west side of Streator and that Clift would be in a blue Pontiac.
¶ 8 On August 14, 2018, Clift arrived at the Circle K gas station in a blue Pontiac at approximately 12 p.m. A black male arrived at the gas station in a gold vehicle. Clift believed the man to be Red. Clift identified the man in the gold vehicle as defendant. Defendant drove next to Clift's vehicle and they both rolled down their windows and nodded at each other. Clift drove to Westgate Plaza and parked. Defendant followed Clift and a white vehicle appeared to be following defendant's vehicle. Defendant parked his vehicle close to Clift's vehicle. The white vehicle also parked nearby. Clift activated a covert camera to record the transaction.
¶ 9 The State entered the video recording captured by the covert camera into evidence and published the video to the jury. The video shows Clift enter the passenger seat of defendant's vehicle. Defendant is in the driver's seat of the gold vehicle. Clift hands defendant a backpack containing $11,250. Defendant asks Clift if he is "kin of what-cha-ma-call-it?" Clift mishears the question and says that the money is all there. Defendant repeats the question and Clift says they are cousins. Clift believed defendant was referring to Pruitt, who had called defendant to set up the transaction. Defendant lights a cigarette. Defendant hands the backpack back to Clift. Clift's interaction with defendant ends with the following exchange:
"DEFENDANT: Hey, get to that car right there. That white car.
CLIFT: Get in that white car?
DEFENDANT: Yeah.
CLIFT: They with you?
DEFENDANT: Yeah.
CLIFT: I thought it was just me and you man.
DEFENDANT: Nah you cool, they right there.
* * *
CLIFT: This one right here with the temp tag?
DEFENDANT: Yeah."
¶ 10 Clift enters the backseat of the white vehicle. Clift testified that the man in the driver's seat was Jim Hendricks. There was also a woman in the passenger seat of the vehicle. The video shows Hendricks hand Clift a wrapped package and encourages him to open it. Clift says that he thought he was dealing with one person and Hendricks says that he "brought it in from the city." Clift opens the package and asks what to do with the money and says he is uncomfortable handing the money to someone he does not know. In response, Hendricks says, "I'm giving it right back to him, I don't know why he didn't grab it from you." Clift hands the money to Hendricks. As Clift exits the car, Hendricks tells him, "Next time, fucking just talk to him." The video ends with Clift returning to the blue Pontiac.
¶ 11 Based on his training and experience, Clift believed Hendricks was a "runner" for defendant. Clift explained that "[a] runner is usually somebody that is a drug addict who will go and purchase narcotics or deliver narcotics for drug dealers in exchange for them getting some narcotics." Clift believed Hendricks was referring to defendant when he said "him" during the transaction. The money was later recovered from the white vehicle driven by Hendricks.
¶ 12 On cross-examination, Clift said that during the August 13, 2018, phone call, the individual never identified themselves. Pruitt told Clift that he had previously met Red and described him as a black male. Clift had never met defendant. Defendant never identified himself as Red nor did he tell Clift why he had to enter the white vehicle.
¶ 13 The parties stipulated to the admission of the testimony of two forensic scientists. Cynthia Koulis would testify that the package she received contained 111.6 grams of cocaine. David VanWingeren would testify that the package that he received contained 9.9 grams of heroin.
¶ 14 In closing argument, the State argued:
"[Defendant] is Red. We also believe he is-was in charge of the operation on that day. You saw him calmly light a cigarette as somebody jumped in his car with a backpack of over $11,000 and not question it. What was going on in that car was [defendant] was sizing up Agent Clift. Is this guy a cop? Is this guy legit? That's why he asked the questions he asked. Are you some kin to what-ya-ma-call-it? And when Agent Clift at first thought it was about the money-he mentioned 11, 250-he cleaned it up. Brothers? What you all is? Brothers? No, no, cousins-referring to the confidential source. Why would he need to refer to anybody else if he didn't know what was going on?
* * *
You heard Agent Clift testify what a runner is, how people use them, what they are for. That's what's going on here.
So we have no doubt in our mind that [defendant] was-is Red. He is the CEO. He is management. He was in control of that drug operation."
The State summarized the accountability jury instruction and commented:
"That's what happened. He's part of it. Doesn't say he has to be the CEO. We believe he is. We believe the evidence shows he is. And Agent Clift['s] cross-examination, told you he's Red. Doesn't matter though. He's part of this drug transaction. He's there.
Now, is he slick? I'm hands off. Not my car. It's them. Sure, sure. But he's guilty. He participated in this.
* * *
The defendant is guilty. We're going to ask that you find him guilty."
¶ 15 In rebuttal, the State said:
"The exact amount of-amount of money that the officer brings is the amount of money that was expected, the exact location that was planned, the exact time that they were supposed to meet. That all lines up.
* * *
You have heard all of the evidence in this case, and it's the State's position that we have proven our case beyond a reasonable doubt. The defendant did assist in the delivery of controlled substances, and he is guilty of delivering controlled substances; and I would ask that you find him guilty of such."
¶ 16 The court instructed the jury that "[n]either opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which are not based on the evidence should be disregarded."
¶ 17 The jury found defendant guilty of both counts of unlawful delivery of a controlled substance. The court sentenced defendant to concurrent terms of 10 and 12 years' imprisonment. Defendant appeals.
¶ 18 II. ANALYSIS
¶ 19 A. Sufficiency of the Evidence
¶ 20 Defendant argues that the evidence introduced by the State was insufficient to sustain convictions for unlawful delivery of a controlled substance. We disagree.
¶ 21 In a challenge to the sufficiency of the evidence, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill.2d 237, 261 (1985). We review the evidence in the light most favorable to the State. Id.
¶ 22 To sustain a conviction of unlawful delivery of a controlled substance based on an accountability theory, the State must establish that: "(1) the defendant solicited, ordered, abetted, agreed or attempted to aid another in the planning or commission of the delivery; (2) the defendant's participation took place before or during the commission of the delivery, and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the offense." People v. Deatherage, 122 Ill.App.3d 620, 624 (1984). Defendant's presence at the crime scene is insufficient to sustain a conviction under an accountability theory. People v. Saunders, 206 Ill.App.3d 1008, 1014 (1990). However, "the fact finder may infer defendant's accountability from his approving presence at the scene of the crime, and from evidence of conduct showing a design on defendant's part to aid in the offense." Id.
¶ 23 The State presented sufficient evidence to allow the trier of fact to find that defendant's presence at Westgate Plaza and his interaction with Clift constituted a design to aid in the offense. Clift directed Pruitt to call an individual named Red to arrange to buy narcotics. After setting up the controlled buy, Clift went to the prearranged location where he met with defendant. Clift believed defendant was Red. Clift showed defendant the money, and defendant directed Clift to Hendricks's vehicle. There, Hendricks gave Clift the cocaine and heroin in exchange for the $11,250. Hendricks said that the money was going back to "him," impliedly indicating that defendant would receive the proceeds of the transaction. Although Hendricks never said defendant's name, it is apparent that he was referring to defendant. From this evidence, a rational trier of fact could have found defendant guilty of unlawful delivery of a controlled substance based on an accountability theory.
¶ 24 B. Rule 431(b)
¶ 25 Defendant next argues that the circuit court failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) because it failed to ask potential jurors if they understood and accepted the fourth Rule 431(b) principle. Defendant acknowledges that he forfeited this issue but contends that the issue is reversible plain error because the evidence is closely balanced. The State concedes that the court erred but argues that the evidence is not closely balanced.
¶ 26 The first step under the plain error doctrine is to determine whether a plain error occurred. People v. Piatkowski, 225 Ill.2d 551, 565 (2007). If the circuit court committed plain error, then we must determine whether the error is reversible. Id. A plain error is reversible when (1) "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error," or (2) the error is "so serious that if affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Id.
¶ 27 Rule 431(b) requires that the circuit court ask prospective jurors whether they understand and accept the following principles:
"(1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's decision not to testify when the defendant objects." Ill. S.Ct. R. 431(b) (eff. July 1, 2012).
¶ 28 In the instant case, the court committed a plain error by failing to ask prospective jurors whether they understood and accepted "that if a defendant does not testify it cannot be held against him or her." Id. Our next step under the first prong of the plain error doctrine is to determine whether the evidence is closely balanced. When determining whether the evidence is closely balanced, "a reviewing court must undertake a commonsense analysis of all the evidence in context." People v. Belknap, 2014 IL 117094, ¶ 50.
¶ 29 The closely balanced inquiry differs from a sufficiency of evidence analysis in that it "does not involve the sufficiency of close evidence but rather the closeness of sufficient evidence." People v. Sebby, 2017 IL 119445, ¶ 60. Although these inquiries are different, we find it unnecessary to recite the evidence a second time as we have done so above. Supra ¶ 23. We find that this sufficient evidence was not close. There were no opposing versions of events presented at trial and the combination of Clift's testimony and the video recording of the transaction very clearly established defendant's guilt. Therefore, the court's Rule 431(b) error is not reversible plain error.
¶ 30 C. Prosecutorial Misconduct
¶ 31 Defendant argues that the State committed prosecutorial misconduct in its opening statement and closing argument by (1) arguing facts not in evidence, (2) misrepresenting evidence, and (3) providing opinions of defendant's guilt. Defendant contends that the following comments are errors. During opening statement, the State used an analogy to explain to the jury that defendant was in charge of the drug transaction. The State said that defendant was the CEO of a drug business, and that defendant has people working for him. Similarly, during closing argument, the State argued defendant was in control of the drug operation saying, "We believe he is [the CEO]" and "We believe the evidence shows he is." The State said, "Now, is he slick? I'm hands off. Not my car. It's them. Sure, sure. But he's guilty. He participated in this." The State also said, "The defendant is guilty. We're going to ask that you find him guilty." During rebuttal closing argument, the State said, "The exact amount of-amount of money that the officer brings is the amount of money that was expected, the exact location that was planned, the exact time that they were supposed to meet. That all lines up." The State ended by stating that defendant "is guilty of delivering controlled substances; and I would ask that you find him guilty of such."
¶ 32 Defendant acknowledges that he forfeited this issue but contends that the issue is a reversible plain error under both prongs of the plain error doctrine. Assuming for the sake of argument that the State's comments are errors, we find that they are not reversible plain errors.
¶ 33 First, as we have already decided that the evidence is not closely balanced, these potential errors are not subject to reversal under the first prong. Supra ¶ 29.
¶ 34 Second, the State's comments are not subject to reversal under the second prong of the plain error doctrine. "Where the defendant claims second-prong plain error, a reviewing court must decide whether the defendant has shown that the error was so serious it affected the fairness of the trial and challenged the integrity of the judicial process." Sebby, 2017 IL 119445, ¶ 50. Second-prong plain error has been equated with structural error, requiring automatic reversal only" 'where an error is deemed "structural," i.e., a systemic error which serves to "erode the integrity of the judicial process and undermine the fairness of the defendant's trial." '" People v. Thompson, 238 Ill.2d 598, 613-14 (2010) (quoting People v. Glasper, 234 Ill.2d 173, 197-98 (2009), quoting People v. Herron, 215 Ill.2d 167, 186 (2005)). If a defendant shows the error was so serious that it affected the fairness of the trial and challenged the integrity of the judicial process,"' [p]rejudice *** is presumed because of the importance of the right involved.'" Sebby, 2017 IL 119445, ¶ 50 (quoting Herron, 215 Ill.2d at 187).
¶ 35 The State's comments are not of the same magnitude as the structural-type errors described by the supreme court in Thompson. Moreover, any possible prejudice was reduced by the circuit court's limiting instruction to the jury that "[n]either opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which are not based on the evidence should be disregarded." See People v. Campbell, 332 Ill.App.3d 721, 728 (2002). We presume the jury followed the instruction absent evidence to the contrary, and defendant fails to rebut this presumption. See People v. Taylor, 166 Ill.2d 414, 438 (1995).
¶ 36 III. CONCLUSION
¶ 37 For the foregoing reasons, we affirm the judgment of the circuit court of La Salle County.
¶ 38 Affirmed.
¶ 39 JUSTICE McDADE, specially concurring:
¶ 40 I concur in the judgment of the majority. I write separately on the issue raised pursuant to Supreme Court Rule 431(b) to reiterate the reasoning and conclusion set forth in my special concurrences in People v. Lawrence Webb, 2021 IL App (3d) 180699-U, and People v. Robert Gold-Smith, 2021 IL App (3d) 170780-U.