People v. Mudd

2022 IL 126830

193 N.E.3d 1229

456 Ill.Dec. 821

The PEOPLE of the State of Illinois, Appellee,

v.Jeremy MUDD, Appellant.

Docket No. 126830

Supreme Court of Illinois.

Filed January 21, 2022.

James E. Chadd, State Appellate Defender, Douglas R. Hoff, Deputy Defender, and Christofer R. Bendik, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Michael L. Cebula, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 After being convicted of unlawful use of a weapon by a felon (UUWF), defendant argued on appeal that comments made in the prosecution's rebuttal closing argument constituted reversible error because they misrepresented the evidence and shifted the burden of proof to him. Alternatively, he contended that his trial attorney provided ineffective assistance of counsel by failing to object to the State's rebuttal comments.

¶ 2 The appellate court upheld defendant's conviction, concluding that the comments did not shift the burden of proof and that they represented " ‘general knowledge, common experience, or common sense’ " that did not require an evidentiary foundation. 2020 IL App (1st) 190252-U, ¶ 23, 2020 WL 7260994 (quoting People v. Jackson , 391 Ill. App. 3d 11, 43, 330 Ill.Dec. 220, 908 N.E.2d 72 (2009) ). While we base our decision on different grounds, we affirm the judgment of the appellate court.

¶ 3 I. BACKGROUND

¶ 4 In August 2017, defendant Jeremy Mudd was arrested and charged in Cook County with UUWF, among other offenses, after police responded to a large gathering of people reportedly drinking and playing loud music in a park after closing time. At trial, defense counsel's opening statement established the groundwork for challenging the strength of the State's case due to a lack of testing and evidence, informing the jury that

"[t]here are numerous things that are documentation, things like forensic analysis and testing, DNA, gunshot residue, fingerprints, photographs, audiovisual recordings. You won't hear any of that. You won't hear that the officers submitted a gun for fingerprints or that Mr. Mudd's fingerprint was on that firearm. You won't hear that they submitted for gunshot residue testing, or that any gunshot residue was on Mr. Mudd. You won't hear that any DNA was swabbed on that firearm or any DNA was recovered."

The State's evidence was indeed extremely limited. In its case-in-chief, the State presented only the testimony of the two police officers involved in defendant's arrest, Gerardo Garcia and Jeremy Rice.

¶ 5 Officer Gerardo Garcia testified that at about 10:20 p.m. on August 12, 2017, he and his partner, along with officers in another squad car, drove to Harding Park in Chicago to investigate a report of a large number of people drinking and playing loud music. Officer Garcia stated that 40 to 50 people were in the park when he arrived. He and an officer from the other squad car, Jeremy Rice, entered the park. Officer Garcia quickly noticed that defendant was holding his hand over a bulge on the right side of the waistband of his shorts. As the officers approached, defendant started to walk quickly away toward a door in the fence opening into an alley. Officer Garcia described the lighting from the nearby streetlights and elevated line tracks in the area as good.

¶ 6 Officer Garcia testified that, when defendant was instructed to stop, he merely looked backward and asked, "Who, me?" Still holding the right side of his waistband, defendant proceeded down the alley, followed closely by the two officers. Officer Garcia was five to eight feet away as defendant approached the driver's side of an unoccupied van parked in the alley. No other vehicles or people were in the alley at the time.

¶ 7 Although Garcia testified that he saw defendant briefly kneel beside the driver's side rear tire, that detail was not included in the incident report. Officer Garcia testified that Officer Rice then stopped defendant while Garcia checked the driver's side rear tire and found a gun on top of it. He used his bare hand to pick up the weapon, contrary to protocols requiring the use of gloves, because people had begun to enter the alley and were yelling. After securing defendant in a squad car, Officer Garcia inspected the gun and found a single bullet in the chamber. The physical evidence was later submitted to the state crime lab.

¶ 8 During cross-examination, defense counsel attempted to ask Officer Garcia about any fingerprint, DNA, or gunshot residue tests that were run on the gun, but the State objected. The trial court sustained those objections.

¶ 9 Officer Rice then took the witness stand for the State, offering a similar account of the events. On entering the park, Officer Rice noticed that defendant had "a bulge poking from the right side of his body, also holding his waistband *** an object appeared to be sticking out of his shirt." His testimony of how he followed defendant out of the park and into the lighted alley was consistent with Officer Garcia's account. Officer Rice testified that when he "told [defendant] to stop, let me talk to you," defendant turned and said "Who, me?" and continued down the alley. That detail was also included in his report. Officer Rice testified that he was 5 to 10 feet away when he saw defendant approach a parked minivan, drop to one knee, and place an object he removed from his waistband onto the driver's side rear tire. His testimony about how a gun was recovered from the tire echoed Officer Garcia's account. Rice's testimony about where defendant placed the object he removed from his waistband, however, differed somewhat from his grand jury testimony. During the grand jury proceedings, Officer Rice answered affirmatively when asked, "At the time he placed that weapon onto the ground, was [defendant] the only person by the van?" After Officer Rice completed his testimony, the parties stipulated to defendant's prior felony conviction. Defendant did not present any witnesses or other evidence.

¶ 10 During closing arguments, defense counsel pointed out the absence of certain evidence from the State's case.

"Now, let's talk about what you don't have. What you don't have are fingerprints. As far as we know, that gun was never even submitted for testing for fingerprints.

You don't have DNA. Why? Because as far as we know, that gun was never even submitted for DNA.

You don't have gunshot residue. Why? Because they never swabbed Mr. Mudd for gunshot residue.

* * *

Well, you know, Ladies and Gentleman, usually we don't say, take my word for it. We say, don't take my word for it. Look at this and judge for yourself.

The problem with the case before you [is] there is no this. You have nothing else. And is that really how we want to conduct the criminal justice system in this city? Because if it is, we don't need trials. We don't need prosecutors, or judges, or defense lawyers, or juries. The police can just say, we saw him do it. End of story. That's not how we conduct justice in this city."

¶ 11 After emphasizing the lack of any evidence to corroborate the officers’ testimony, defense counsel summarized by arguing, "The curtain has been pulled back, and all you have are men. *** Men who have nothing, nothing to back up what they're telling you."

¶ 12 In its rebuttal closing argument, the State responded by asking the jurors to use their "common sense." It noted that, because no one else was near the van when defendant knelt beside the tire, he was the only person who reasonably could have left the gun, making any forensic testing of the weapon unnecessary.

¶ 13 The following exchange then occurred. The State explained that,

"And it is our burden of proof, Ladies and Gentleman. It is the State's burden of proof to prove the elements beyond a reasonable doubt. It's a burden we take on every single day.

DEFENSE COUNSEL: Objection.

THE COURT: To that line, overruled.

PROSECUTOR: And we welcome that burden, Ladies and Gentleman. We welcome that burden. But both sides have access to the evidence. Both sides if they wanted testing to be done can request testing to be done. Both sides."

Defense counsel did not object to the latter comments addressing the parties’ ability to test the evidence.

¶ 14 The trial court then provided the jury with its final instructions, including a reminder that defendant was "presumed innocent" and that only proof "beyond a reasonable doubt that he is guilty" presented by the State could overcome that presumption. The court also explained that "[t]he State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence." After instructing the jury on the elements of UUWF, the trial court noted again that "the State must prove" each one of those elements. After deliberating, the jury found defendant guilty of UUWF, and the trial court sentenced him to 5½ years in prison.

¶ 15 In his initial posttrial motion, defendant requested a new trial, but that motion did not mention the comments in the State's rebuttal closing argument. Defendant subsequently filed a pro se motion pursuant to People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), asserting that his trial attorney committed errors that constituted ineffective assistance of counsel.

¶ 16 At the preliminary Krankel hearing, defendant alleged that counsel erred by not requesting that the gun found by the van be tested for DNA and fingerprints. Trial counsel explained that the omission "was trial strategy to argue to the jury that there was no DNA or fingerprints recovered from that item. I believe that based on my conversations with my client in confidence, that those particular items would have hindered the defense rather...