An Example Of Inartful Closing Argument And How To Fix It

People v. Garcia, 2019 IL App (2d) 161112 (March). Episode 615 (Duration 15:28)

Prosecutor used an inartful example to illustrate accountability, but this was not plain error.

Gist

Following a trial in the circuit court of Boone County, a jury found defendant, Ricardo A. Garcia, guilty of first-degree murder in connection with the shooting death of Giovanni Galicia (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3)).

Defendant was also found guilty of mob action (720 ILCS 5/25-1(a)(1)). He was found not guilty, however, of the attempted murders of Jesus Casas and Fermin Estrada.

Sentence

The court sentenced defendant to 35 years in prison for first-degree murder, to be served consecutively to a 2-year sentence for mob action.

Facts

Defendant was the driver of black Navigator.

Two men got out of it and pepperred a rival gang members’ car with bullets. The victim got hit in the head and died.

The men then got back in the care and defendant drove away. A police chase ensued and defendant was caught.

Inartful Closing Argument

Although the State’s examples were inartful, we hold that any error that occurred does not require reversal pursuant to either prong of the plain-error doctrine.

Comment 1

In attempting to explain accountability the proseuctor said:

“Now, we recognize this concept every day and we probably don’t even think about it during lawful activities. For example, if you go to JC Penney’s and you want to buy blue jeans and you go into the store and there’s a sales clerk walking by and you stop her and say, ‘Excuse me. Where are your blue jeans?’ And she says, ‘Oh, they’re on the back wall.’ So you go to the back wall, you pick out your Levis, and you go to the cash register and another woman rings you out. Now, the question is who sold you the jeans? Was it JC Penney, was it Levi Strauss, was it the salesperson who pointed you to the back wall, or the salesperson who took your money? Well, in truth they all are responsible for selling you the jeans because they all facilitated the sale. We also see this that we don’t need to see an expressed agreement to know that there was a plan."

Comment 2

The prosecutor continued:

"Again, if you’re walking along the sidewalk next to a park and you watch a car pull up, there’s a parent in the front seat and two children get out and run and start playing in the park, you know that there was a common plan to go to the park between those three people. You know that it existed before they arrived at the park. They decided sometime to go to the park. They got in the car and drove to the park. That plan existed before they got to that park, and you have no evidence of an expressed agreement to go to the park, but you have no problem with the concept that the parents are responsible for the children being at the park because they facilitated that transaction. You don’t need an expressed agreement. You can tell by the circumstances that there was an agreement to go to the park.”

What Was Wrong With The Statements?

These examples, in and of themselves, failed to provide complete and accurate representations of the law of accountability.

Neither scenario mentioned any sort of criminal activity.

Of course, one cannot be held criminally accountable for another’s actions in the absence of a crime. The examples also failed to illustrate that a defendant is not accountable for another’s conduct unless the defendant acts with the intention of promoting or facilitating the commission of an offense. 720 ILCS 5/5-2(c).

Kids Are Dumb

Moreover, the park example did a poor job of illustrating the supposed common plan among the occupants of the vehicle.

The prosecutor asserted that the children, who were of unspecified ages, must have planned in advance to go to the park simply because their parent ended up taking them there. That is not necessarily the case. What if the parent did not tell the children in advance that they were going to the park? What if the parent did not form any plan to take the children to the park until he or she happened to pass the park on the way to a different destination?

Additionally, as defendant correctly notes, driving a person to a destination does not in itself make the driver legally accountable for the passenger’s acts.

Harmless Error

With that said defendant’s concerns about the prosecutor’s use of the phrase “expressed agreement” in the park example are a bit overstated.

The prosecutor clearly used this phrase as part of his attempt to illustrate, albeit through a questionable example, that the State does not need to prove express words of agreement between codefendants and that the common design may instead be inferred from the surrounding circumstances.

Defense Counter Example

Furthermore, defense counsel in his closing argument specifically informed the jury of some of the problems with the prosecutor’s park example:

“Now, when we talk about—when he talks about his analogies, he talks about, well, when you go to a park and two kids get out of the car and they run to the park, you know there was an agreement to go to the park. Okay. When those kids start getting in a fight with somebody else there, the parents did not agree for that fight. The parents did not intend for that fight. The parents did not plan for that fight. They are not accountable for that fight. Merely getting the kids to the park or merely getting these people to this area is not accountability. It is not guilty and it is not beyond a reasonable doubt.”

Holding

Considering that

    Settings

(1) the two examples at issue constituted a small portion of the State’s closing argument, which otherwise reflected a proper legal theory,
(2) defense counsel took the opportunity to explain to the jury the flaws in one of those examples, and
(3) the judge properly instructed the jury, there is no threat that the jury was under any misapprehensions about the applicable law.

For these reasons, defendant has not demonstrated second-prong plain error. 

Conviction affirmed.