No. 1-13-1096 Opinion filed June 30, 2015 Fourth Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the ILLINOIS, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) No. 07 CR 3851 v. ) ) Honorable CLARENCE TROTTER, ) James B. Linn, Defendant-Appellant. ) Judge, presiding. ) ______________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Clarence Trotter was convicted of murder pursuant to

section 9-1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1) (West 2006)), and

sentenced to natural life in prison. On appeal, defendant contends that the trial court erred in

finding that he made a knowing and voluntary waiver of his right to counsel. Additionally, he

argues that the prosecutors in this case improperly inflamed the passions of the jury by eliciting

irrelevant testimony about the victim and her fiancé, previewing this testimony in opening

statement, and relying on it in closing argument. No. 1-13-1096

¶2 BACKGROUND

¶3 On September 20, 1981, Marilyn Dods was found dead in her studio apartment.

Developments in DNA testing linked defendant, who was already serving a life sentence based

on a previous murder conviction, to the murder. Defendant was formally charged with Dods'

murder on January 8, 2007. Assistant Public Defender Joseph Kennelly was appointed to

represent defendant. 1 During the first court date on March 1, 2007, after consulting with

defendant, defense counsel informed the court that defendant wanted to motion to demand trial

although counsel was not adequately prepared to represent defendant at trial. The court told

defendant that "your lawyer is telling me one thing and you're telling me something else, it puts

me in a bit of a conflict because I can only hear from one voice. Either your lawyer is

representing you or you are going to be representing yourself." The court further explained that

defendant was facing a serious case and that his attorneys did not have all of the information they

needed to proceed to trial. Defendant informed the court that in the past he had litigated motions

while a speedy trial demand was pending. He then agreed to be represented by counsel and asked

the court to be sent back to the Illinois Department of Corrections rather than the Cook County

jail because he was going pro se on other cases. He told the court "I do law," and "I know my

rights. I'm cool. Trust me."

¶4 On March 22, 2007, both parties tendered discovery. Defendant asked for a copy of all

discovery documents. The court informed defendant that because he was not representing

himself pro se his attorney would show him the documents. On April 25, 2007, the State

tendered its "Notice of Intent to Seek Death." On July 18, 2007, defense counsel filed two

motions on defendant's behalf; one to dismiss for failure to commence the prosecution and

1 Kennelly retired from the public defender's office and joined the capital trial assistance unit of the State Appellate Defender's office during his representation of defendant, but continued to represent defendant along with Stephen Richards from the same unit. -2- No. 1-13-1096

another challenging the constitutionality of Illinois's death penalty statute. Defense counsel told

the court that defendant wanted to demand trial but that he needed time to view a video of

defendant's recorded statement. The court then told defendant that his counsel "is trying very

hard to defend you properly and really thinks he ought to see what the evidence is before he

starts answering ready for trial." Defendant said he understood but wanted to file a motion for

discovery. The court informed defendant that he would only hear from "one voice" speaking on

behalf of his defense. The court instructed defense counsel to redact discovery documents and let

defendant view them.

¶5 Defendant continued to be represented by counsel, who filed and argued various motions

on behalf of defendant from October 24, 2007 through May 24, 2010. 2 During a May 24, 2010,

status hearing the State informed the court that it had received a motion for a speedy trial from

defendant, and the case was continued for defendant's presence in court. On May 27, 2010, the

court again informed defendant that he could not file his own motions while being represented

by counsel. Defendant withdrew his demand for trial, and the court told defendant,"[y]ou have

lawyers and if you start filing your own motions, I can't hear from both [of you] at the same time.

You're going to end up representing yourself. You can't keep doing that."

¶6 On November 29, 2010, the court set the trial for April 4, 2011. During a status hearing

on January 21, 2011, the court stated that the Illinois legislature had passed legislation abolishing

capital punishment, and that the legislation was awaiting the Governor's signature. On April 4,

the court announced that the death penalty was no longer a possible sentence and the State

Appellate Defender capital litigation unit withdrew. Assistant Appellate Defender Jack Rimland

continued to represent defendant, but subsequently withdrew for personal reasons. The court

2 On October 16, 2009, Kennelly withdrew based on the State Appellate Defender's policy in capital litigation cases. The court then appointed Jack Rimland from the State Appellate Defender to join Richards in representing defendant. -3- No. 1-13-1096

reappointed Assistant Public Defender Patrick White to represent defendant. Defendant then

renewed his motion for a speedy trial. The court asked defendant if he wanted to represent

himself, and defendant stated that "I have never said, Mr. Linn, that I move to represent myself. I

said I move to -- for a speedy trial. That is my right." The court told defendant that his new

counsel needed time to get acquainted with his case.

¶7 On five separate court dates, defendant continued to demand trial although he was

represented by counsel. On April 18, 2012, defendant again attempted to file pro se motions and

demanded his speedy trial motion be heard because over 180 days had passed since he demanded

trial. Defendant told the court, "I'm not asking that [counsel] represent me. I can represent

myself." The court stated that it was unsure that defendant was capable of representing himself.

Defendant stated, "[t]hat may be true. We about to find out."

¶8 On May 3, 2012, the court, after giving defendant a chance to consult with his attorneys,

asked defendant if he wanted to represent himself. Defendant responded, "I want you to hear my

motion.*** If I have to represent myself for you to hear my motion, yes." The court questioned

defendant about his ability to represent himself, and defendant stated that he had represented

himself before. When the court asked defendant what he wanted to do, defendant said, "I want

you to hear my motion." The court responded, "[t]hat means that you're representing yourself."

When the court told defendant that going pro se would mean no attorney would be helping him,

defendant said, "[y]ou can always appoint stand-by counsel." After numerous requests to have

defendant articulate whether he wanted to proceed pro se, the court stated:

"Now it is my turn. I will infer from everything that is being said and from everything

that [defendant] said before, he wants to be pro se. He wants to assert his rights under the Speedy

Trial Act. You will be allowed to represent yourself. I don't think it's a good idea, but that is your

idea." -4- No. 1-13-1096

¶9 The court again explained to defendant that he was wrong that he could assert his right to

a speedy trial when represented by counsel. Defense counsel then stated that he found a case that

would help explain the concept that "the defendant [is] bound by actions of his attorney unless

the defendant clearly asserts his right to discharge." Defendant continued to ask the court to hear

his motions, and the court allowed defendant to argue the merits of his motions. The court denied

defendant's pro se motion to suppress evidence and informed defendant that "if you want them to

represent you, I will not hear any other motions from you." Defendant then argued the merits of

his speedy trial motion, in which he stated:

"All these times I was asserting right to speedy trial, you repeatedly each and every court

date -- repeatedly told me that I had to waive my right to counsel to enforce my right to a speedy

trial. Okay. And I repeatedly told you I was not invoking -- or waiving my right to counsel, that I

want speedy trial."

¶ 10 The court denied the motion because defendant had been represented by counsel who was

preparing the case for trial; however, the court noted that defendant was now pro se and could

demand trial if he wanted. Defendant demanded trial and asked the court for stand-by counsel to

assist him in his investigation. The court denied the request, noting that defendant was "trying to

be manipulative," but that it would arrange for subpoenas for his witnesses.

¶ 11 On May 10, 2012, the court asked defendant if he "still [wanted] to be pro se on this

case." Defendant responded, "I never felt that I was representing myself. You know, you told me

that you got rid of the lawyer, but since I'm representing myself I'm okay." The court offered to

appoint counsel, but informed defendant that he would not be able to file motions or demand

trial. Defendant responded, "I'm good. I'm good, Judge." The following exchange occurred:

"THE COURT: What do you prefer?

DEFENDANT: I'm good. Just like we doing. -5- No. 1-13-1096

THE COURT: You want to represent yourself?

DEFENDANT: I'm good.

THE COURT: So you're waiving your right to a lawyer? You're good with that, that's

what you're telling me.

DEFENDANT: You already waived it for me.

THE COURT: No. I didn't waive it for you. I'm trying to -- come on. Talk straight to me.

I'm just trying to establish and make very clear what your right is. You have a right to a lawyer.

If you can't afford one, one will be appointed for you. I have Public Defender's [sic] here

available to help you and you are welcome to have their services. If you want to not take their

services, you don't have to accept the right to a lawyer even though you're entitled to a free

lawyer and you can represent yourself. That's your choice.

DEFENDANT: We good. We okay, Your Honor. I'm okay.

THE COURT: I'm going to take that to mean that this is how you want to do it, that you

want to represent yourself.

DEFENDANT: I'm good.

THE COURT: Okay. I'm going to accept that as -- In fact, he's here by himself and he

says he's good with it.

ASSISTANT STATE'S ATTORNEY: Your Honor, the People would respectfully ask

that the Court pursuant to Supreme Court Rule 401 further admonish the defendant as to the

nature of the charge and the possible penalties.

DEFENDANT: I already know the nature of the charges and I understand Supreme Court

Rule 401. It's not necessary.

THE COURT: What's the nature of the charge?

-6- No. 1-13-1096

DEFENDANT: The nature of the charge is murder, first degree murder and it carries a

natural life sentence. Okay, I understand my rights.

THE COURT: All right. I think we've been having this conversation for a few years,

Clarence Trotter and I and I think he does understand."

¶ 12 At an August 24, 2012, status hearing, the State told the court that when they met with

defendant earlier in the month to discuss the trial, he stated that he had been forced to go pro se

and had not actually waived his right to counsel. The court asked defendant if he wanted a

lawyer, and defendant stated that he wanted "several things," including the trial file. The court

told defendant that he had "all the discovery that you are entitled to by law." The court also told

defendant that his trial was scheduled for September 5, 2012, and that he could appoint counsel,

but the trial date may change as a result. Defendant stated:

"Now you saying that, okay, I could have a lawyer if *** I don't want to go pro se, if

I don't want to go to trial on the 5th. But if I want to go to trial on the 5th, I got to go pro

se, but I got to go pro se without proper preparation."

¶ 13 The trial court responded that defendant informed the court that he wanted to go pro se,

noting that "we've had a long conversation about that" and that it respected his request. The trial

court said it would keep the trial date and would only change if defendant wanted a lawyer.

Defendant stated that, "All I'm saying is if you make me go pro se --" The court interrupted

defendant and said, "No, no, no, I'm not making you go pro se ***. Don't say I'm forcing you to

be pro se. That is absolutely not happening." The court then stated that, "If you want a lawyer,

you can have a lawyer. Nobody is forcing you to go pro se. *** When you had a lawyer, then

you're demanding trial. That's being manipulative, and you know that. You're experienced in

this." When the court asked defendant if he wanted to "stay pro se," defendant responded, "Here

we go. I'm not even going to answer." On September 4, 2012, defendant informed the court that -7- No. 1-13-1096

he was not ready for trial. His case proceeded to a jury trial on October, 22, 2012. The following

evidence was adduced at trial.

¶ 14 During its opening statement, the State explained that in 1981 Marilyn Dods moved to

Chicago to live and work at a bank. Her apartment was located at 525 West Arlington. Dods'

fiancé, Richard Stevens, followed her to Chicago to "start their lives together." The State further

commented, "They met -- he was from the West Coast. She was from the East Coast. She moves

here, he comes, and they are going to be together."

¶ 15 Christopher Dods, Dod's brother, testified that Dods was a recent graduate of

Georgetown University and moved to Chicago to start a new job. He stated that he spoke with

his sister every week and that there was no indication that she was having problems in her life.

He also stated that she was "extraordinarily excited about her new life and really looked forward

to enjoying her career that she worked so hard to create."

¶ 16 Stevens testified that he met Dods in 1979 while studying abroad in Amsterdam.

Although they were "chronically underfunded college students," they saw each other as

frequently as they could. When Dods got a job in Chicago, he moved there from Portland,

Oregon, to be with her. They "spent almost all of [their] time together," but "felt it was

appropriate" to maintain separate apartments. The couple spent the evening of September 19,

1981, together. The following morning, Dods planned to attend church, but Stevens returned to

his apartment to organize things. Stevens noted that Dods' faith was "quite deeply held. More so

than mine." The two planned to meet after Dods attended church; however, she never arrived.

When she did not show, Stevens tried calling her but there was no answer. He then went to her

apartment, which had been ransacked. He called her name, but there was no answer. He went to

the bathroom and found Dods submerged in the bathtub with "her television on her face." He

-8- No. 1-13-1096

moved to see if she was alive, but realized she was dead. There was a knife on the bathroom

floor.

¶ 17 Chicago police detective Thomas Keane testified that in the late afternoon of September

20, 1981, he and his partner Thomas Sappanos arrived at Dods' apartment. The apartment

appeared to be ransacked, and a knife was found on the bathroom floor. Keane later learned that

the knife was originally left on the bed but that Stevens, afraid that the perpetrator was still in the

apartment, carried the knife to the bathroom with him. Dods was found lying face up in the

bathtub, which was filled with water. Her head was submerged, and a small portable television

was resting on her abdomen. A blue and white bandana and a sock with a string attached were

tied around her neck, which appeared to have been a gag. Dods was wearing a house robe that

was down around her back. She was also wearing a bra that was torn between the cups, exposing

her breasts. The white slip she was wearing was pulled up around her waist and her lower

extremities were exposed. When Dods was removed from the bathtub, Keane observed that her

wrists were bound and tied with clothesline.

¶ 18 Dr. Lauren Moser Woertz, an assistant medical examiner for Cook County, testified that

she reviewed the original autopsy report on Dods. 3 The report revealed that Dods had been

clothed in the same manner as Detective Keane described, and that a brown plastic cord had been

wrapped around her wrists four times and tightly knotted. She sustained a recent laceration of the

labia minors and a contusion at the rectal/anal junction which were not consistent with

consensual sexual intercourse. Dods also sustained a scalp injury consistent with blunt force

trauma. Her lungs were filled with water and blood, and frothy foam was coming from her nose

and mouth. The autopsy report also noted hemorrhaging to her eyes and "blueing" of her skin

3 Dr. Richard Stein, who performed the original autopsy, was deceased at the time of trial. -9- No. 1-13-1096

that was consistent with strangulation. Dr. Woertz concluded that she agreed with the original

medical examiner that the primary cause of death was asphyxia due to drowning.

¶ 19 Marian Caporusso, an expert in forensic microscopy and serology, testified that on

September 21, 1981, she received evidence from the case, including vaginal, oral, and rectal

swabs of Dods and a pair of men's boxer shorts collected from the living room floor of Dods'

apartment. The swab tested positive for semen; however, testing at the time could not identify

who left the semen. Caporusso sealed this evidence and preserved it for future analysis.

¶ 20 Mary Margaret Greer-Ritzheimer testified that she performed DNA testing on the swab

and semen stains from the shorts in 2000. She identified two full profiles on the swab: Dods' and

one unknown male's. She obtained a full male profile from the shorts; the results were

"consistent" with the male profile from the swab and did not match Stevens' DNA. She also

obtained partial male profiles from other parts of the shorts, which were consistent with the

unknown male profile, but not with Stevens'.

¶ 21 Debora Depczynski, group supervisor of the Illinois State Police biology DNA section,

testified that in September 2005 she became aware of an association between evidence collected

in Dods' case and defendant through a computer database which contained DNA samples. She

then transferred the association notification form to Detective Stuart Talin at the Chicago police

department.

¶ 22 Chicago Police Detective Robert Clemens testified that he learned of defendant's

association with Dods' murder on October 25, 2005. He investigated the case, and on October 14,

2006, obtained a search warrant for a buccal swab from defendant. He performed the swab and

sent it to the Illinois State Police crime lab for analysis.

¶ 23 Ryan Paulsen tested defendant's buccal swab, obtained a profile from it, and tested this

against the complete profile from the vaginal swab and the shorts. Defendant's DNA profile - 10 - No. 1-13-1096

matched the male DNA profile identified on the vaginal swab. The full male DNA profile taken

from the semen found on the boxer shorts also matched defendant. As to the partial DNA profile

found on other parts of the shorts, defendant could not be excluded. Although there were

different frequencies for the evidence, the male DNA profiles from both the semen stains and the

vaginal swabs were consistent with the same donor.

¶ 24 Defendant called his sole witness John Onstwedder, a latent fingerprint expert.

Onstwedder testified that he recovered three latent prints in the victim's apartment. The prints did

not match defendant's fingerprints or any other individual. He also stated that it was possible for

someone to be somewhere without leaving fingerprints.

¶ 25 Both sides then presented closing arguments. The State highlighted that Dods had "just

got into the area of Chicago, she came with her fiancé[;] *** they're in a new apartment, they're

starting a new life together." In his closing statement, defendant stated that any evidence of

sexual intercourse in this case may have been consensual because "jungle fever was running

wild" in the early 80s.

¶ 26 In rebuttal, the State responded, "Jungle fever was running rampant? Clarence Trotter,

that's the kind of man he is that he's going to mock the brutal rape and murder that he committed

against a beautiful young woman who had come to this city to start a new life." He also stated

that when Stevens left Dods' apartment, he was "thinking that in a couple of hours his college

love, the woman that he was building a new life with her in Chicago, was going to be coming to

his apartment to spend the rest of the day together doing the sort of things that he's told you

they'd been doing. Fixing up their apartments, enjoying the city, doing the things that people in

their early 20s do [when] they're starting out together," but "instead of finding the woman that he

was building a new life with, you saw what he found. He found the lifeless body of a beautiful

young woman whose life was abruptly ended by this man." - 11 - No. 1-13-1096

¶ 27 After discussing DNA, the prosecutor said:

"When Richard Stevens helped Marilyn move into her new home and they started

building their life together, little did they realize that the things they were using to build

their life together, the ordinary everyday life things were going to be used to end

Marilyn's life. That the pieces of clothing that she brought with her to Chicago, that her

own bathtub in her home, that her television set were going to be used by him to end that

life."

¶ 28 The prosecutor concluded his closing statement with:

"Ladies and gentlemen, you have the power now. He had the power on September 20,

1981 when he caught Marilyn home alone in her apartment. You now have the power.

You hold in your hands the sword of justice and it looks an awful lot like this. It's in the

shape of a pen, and that's the opinion you're going to use when you go back into that jury

room and sign guilty verdict forms holding this defendant responsible for what he did to

Marilyn Dods."

¶ 29 The jury convicted defendant of murder. The court asked defendant if he wanted a post-

trial attorney, and he said that he did. The court then reappointed Assistant Public Defender

White, who filed a motion for a new trial on defendant's behalf. Defendant also filed a pro se

motion for a new trial, in which he alleged ineffective assistance of counsel because "trial

counsel failed to protect the defendant's right to assistance of counsel," although he "never

indicated in any way that he did not want counsel's representation." White sought to withdraw

based on defendant's allegation of ineffective assistance of counsel. The court denied counsel's

request to withdraw but allowed consideration of defendant's pro se claims in the form of a

Krankel hearing. During the hearing, defendant said he had never waived his right to counsel.

The court denied defendant's motion and disagreed that he had never asked to represent himself. - 12 - No. 1-13-1096

Following a hearing in aggravation and mitigation, the court then sentenced defendant to life in

prison, noting that this was his second murder conviction.

¶ 30 ANALYSIS

¶ 31 Waiver of Right to Counsel

¶ 32 We first address defendant's contention that the trial court erred in finding that defendant

waived his right to counsel where any waiver was neither unequivocal nor voluntary in light of

defendant's conflicting statements and accusations that the court had forced him to proceed pro

se. The State responds that the record in this case reveals that defendant made a knowing and

voluntary waiver of his right to counsel.

¶ 33 The right to counsel is a fundamental right, guaranteed by both the United States and

Illinois Constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. A defendant also has

the right to proceed without counsel when he voluntarily and intelligently elects to do so. People

v. Baker,

(1982) (citing Faretta v. California,

(1975)). It is "well

settled" that waiver of counsel must be clear and unequivocal, not ambiguous. People v. Baez,

(2011) (citing People v. Burton,

(1998)). In determining

whether a defendant’s statement is clear and unequivocal, a court must determine whether the

defendant truly desires to represent himself and has definitively invoked his right of self-

representation.

We must indulge every reasonable presumption against waiver of the right to

counsel.

(citing Brewer v. Williams,

(1977)). "The purpose of requiring

that a defendant make an unequivocal request to waive counsel is to prevent him from (1)

appealing the denial of his right to self-representation or the denial of his right to counsel, and

specifically (2) manipulating or abusing the criminal justice system by vacillating between

requesting counsel and requesting to proceed pro se." People v. Gray,

. The determination of whether there has been an intelligent waiver of the right to counsel - 13 - No. 1-13-1096

depends upon the particular facts and circumstances of the case, including the conduct of the

defendant, his background, and his experience.

We review the trial court’s determination for

abuse of discretion.

¶ 34 In this case, we cannot conclude that the trial court abused its discretion. The conduct of

defendant during pretrial proceedings clearly indicates that defendant unequivocally and

voluntarily waived his right to counsel. Although defendant was represented by counsel for the

majority of his pretrial proceedings, the record reveals that defendant submitted a number of both

oral and written pro se motions demanding, inter alia, a speedy trial. In response, the court

patiently and repeatedly informed defendant that he was not allowed to file pro se motions when

represented by counsel; in fact, the court specifically told defendant that he could only hear from

"one voice," either him or his counsel, but not both. At that time, defendant continued to proceed

with counsel.

¶ 35 After attempting to submit pro se motions to the court once again on April 18, 2012,

defendant informed the court "I'm not asking that [counsel] represent me. I can represent

myself." The court gave defendant time to consult with his attorney, and on May 3, 2012, the

court asked defendant if he wanted to represent himself, to which defendant responded, "I want

you to hear my motion. *** If I have to represent myself for you to hear my motion, yes." The

court then attempted to determine whether defendant could represent himself by asking him

questions about his past experience, and defendant responded that he has represented himself in

prior litigation. The court again asked defendant if he wanted to proceed pro se, and defendant

replied, "I want you to hear my motion." The court responded, "That means you're representing

yourself." After repeatedly attempting to elicit a direct response from defendant regarding

whether he wanted to proceed pro se, the court stated:

"Now it is my turn. I will infer from everything that is being said and from everything - 14 - No. 1-13-1096

that [defendant] said before, he wants to be pro se. He wants to assert his rights under the

Speedy Trial Act. You will be allowed to represent yourself. I don't think it's a good idea,

but that is your idea."

Finding a valid waiver, the court then allowed defendant to argue the merits of his motions,

which the court promptly denied.

¶ 36 On May 10, 2012, the court asked defendant if he still wanted to proceed pro se, and

defendant stated that, "I never felt that I was representing myself. *** I'm okay." The court again

offered to appoint an attorney to defendant, to which he replied, "I'm good," before accusing the

court of waiving his right to counsel for him. When the assistant State's Attorney asked the court

to admonish defendant pursuant to Illinois Supreme Court Rule 401 (eff. July 1, 1984),

defendant confirmed that he knew the nature of the charges, which he recited before the court,

and that he understood his rights.

¶ 37 We find that the above conversations clearly illustrate that defendant "definitively

invoked his right of self-representation." Baez,

. Although defendant alleges

that his statements regarding self-representation were "contradictory and ambiguous," it is clear

from the record that the court repeatedly informed defendant that it would not hear his pro se

motions while he was represented by counsel. In response, defendant stated that he waived his

right to counsel if it meant the court would hear his motions. Because a defendant has either the

right to counsel or the right to represent himself, and is thus not entitled to "hybrid

representation, whereby he would receive the services of counsel and still be permitted to file pro

se motions" (People v. Handy,

(1996)), the trial court did not abuse its

discretion in finding that defendant waived his right to counsel. Further, it is abundantly clear

that defendant, who admitted that he had represented himself on previous cases and informed the

court that he "do[es] law," was well acquainted with his right to counsel pursuant to Illinois - 15 - No. 1-13-1096

Supreme Court Rule 401, as he accurately and articulately recited the nature of the charges

against him and his potential penalty. See People v. Johnson,

(1987) (finding

a valid waiver of counsel where the defendant was "no stranger to criminal proceedings"). Thus,

we find that the trial court did not abuse its discretion in finding that defendant executed a valid

waiver of counsel.

¶ 38 Nonetheless, defendant cites People v. Burton,

(1998), and People v. Brooks,

(1979), to advance the proposition that defendant's statements were not clear

and unequivocal statements necessary to effectuate a waiver of counsel. We find both cases

unavailing. In Burton, our supreme court held that the defendant's request to proceed pro se at

the sentencing stage was not unequivocal where his statement that he would be willing to

proceed pro se to gain certain access to counsel's record indicated only a "conditional

willingness" to represent himself. Burton,

. Similarly, in Brooks, this court found

that the defendant's single statement during his preliminary hearing that he did not need counsel "

'at this present time' " was not an unequivocal demand to represent himself, but a tool to avoid a

continuance. Brooks,

. In the instant case, defendant contends that his

statements to the court show any finding of a valid waiver "would be against his wishes and only

because it was necessary to preserve his rights." However, the trial court repeatedly asked

defendant if he wanted to continue to represent himself even after hearing his pro se motions.

Defendant responded that he never felt that he was representing himself, yet when the court

offered to appoint him counsel, defendant stated, "I'm good." Thus, we cannot say that

defendant's waiver of counsel amounted to an incomplete or ambiguous waiver of counsel as in

Brooks and Burton.

¶ 39 Prosecutorial Misconduct

- 16 - No. 1-13-1096

¶ 40 Next, defendant contends that the prosecutors in this case improperly inflamed the

passions of the jury by eliciting extensive and irrelevant testimony about Dods and her fiancé,

previewing this testimony in opening statement, and relying on it in closing argument. The State

responds that defendant forfeited review of this issue when he failed to object to the prosecutors'

comments at trial and raise the matter in a posttrial motion; nonetheless, it argues that the

testimony about the victim and the prosecutors' comments during opening statement and closing

argument did not constitute plain error.

¶ 41 Defendant acknowledges that he forfeited review of this claim, but requests this court to

consider the issue under the closely balanced prong of the plain error analysis. However, before

we can determine whether the plain error doctrine applies in this case, we must first determine

whether an error actually occurred. People v. Jackson,

.

¶ 42 First, defendant contends that the State engaged in "prejudicial misconduct" during its

opening statement when the prosecutor previewed irrelevant testimony that Dods and Stevens

moved to Chicago to "start their lives together," and when it explained that "[t]hey met -- he was

from the West Coast. She was from the East Coast. She moves here, he comes, and they are

going to be together." We disagree.

¶ 43 Our supreme court has noted that an opening statement may include a discussion of the

evidence and matters that may reasonably be inferred from the evidence. People v. Smith,

(1990). An improper remark during opening statement will be grounds for reversal

only if the remark "resulted in substantial prejudice to the defendant" in that it was a material

factor in the conviction or the jury might have reached a different verdict had the prosecutor not

made the remark. People v. Flax,

(1993). Moreover, absent deliberate

misconduct, incidental and uncalculated remarks in opening statement cannot form the basis of

reversal. People v. Cloutier,

(1993). The determination as to the propriety of - 17 - No. 1-13-1096

a prosecutor's remarks during opening statement is within the trial judge's discretion, and every

reasonable presumption must be applied that the trial judge properly exercised such discretion.

Flax,

.

¶ 44 We do not find that the prosecutor's comments during opening statement were improper.

A review of the State's opening statement reveals that the prosecutor was merely previewing the

facts surrounding Dods' life at the time of her death; which were relayed as Stevens testified

regarding the circumstances leading to the discovery of Dods' murder. "Common sense dictates

that a victim does not live in a vacuum [citations], and evidence of a victim's *** relations is

admissible to the extent necessary to properly present the prosecution's case [citation]." Cloutier,

. Accordingly, we believe that the prosecutor's incidental comments during

opening statement regarding Dods' relationship with Stevens were reasonable, as they served to

introduce his testimony and did not amount to deliberate misconduct to inject irrelevant and

prejudicial matters into the trial.

¶ 45 Next, defendant contends that the State offered irrelevant background information when

it elicited testimony from Stevens and Christopher Dods, which "created a vivid picture" of

Dods' life.

¶ 46 Evidence is relevant "where the fact or circumstance offered tends to prove or disprove a

disputed fact or to render the matter at issue more or less probable." People v. Hall,

(1989). Any circumstances which tend to make the proposition at issue more or

less probable may be put into evidence.

. Relevance can also be established by means

of inference. People v. Jones,

(1982). The determination of whether

evidence is relevant rests in the discretion of the trial court. Hall,

.

¶ 47 Although defendant argues that the only purpose that this "irrelevant" testimony could

serve was to "prejudice the defendant in the eyes of the jury and arouse in them anger, hate and - 18 - No. 1-13-1096

passion," we find that the testimony elicited by the prosecutor from Stevens and Christopher

Dods was relevant in the instant case. The testimony of both men provided background for the

events preceding Dods' murder. Christopher testified that his sister had just graduated from

college and moved to Chicago to start a new job, noting that he communicated with her

frequently. This testimony established that there was nothing to foreshadow Dods' murder, as he

believed she was excited about her new life in Chicago. Stevens testified that although Dods

lived alone, they spent almost all of their time together and that the two planned to meet after she

attended church, noting that Dods' faith was "quite deeply held." This testimony provided a chain

of events and explained why he left her apartment the morning she was murdered, but called her

repeatedly when she had not answered her phone before returning to her apartment to look for

her. Additionally, a review of Stevens' comment regarding Dods' faith in context reveals an

attempt to explain why he elected to return to his apartment the morning of Dods' murder in lieu

of attending church services with her. Thus, the testimony defendant complains of here does not

approach the clearly inflammatory testimony elicited in the cases he relies upon to support his

argument. See People v. Hope,

(1986) (finding repeated references to

victim's wife and small children improper); People v. Blue,

(2000) (testimony

concerning age of victim's child, fact that family had lived in same building together, and length

of time victim's father had been married served no other purpose than to inflame jury). Instead,

we believe that the details provided in both testimonies were relevant to the presentation of the

State's case.

¶ 48 Finally, defendant contends that the prosecutorial misconduct continued in the State's

closing argument and rebuttal. Specifically, he contends that the prosecutor improperly

emphasized the "new life" Dods and Stevens were starting together.

- 19 - No. 1-13-1096

¶ 49 Initially, we note that the parties disagree about the proper standard of review in regard to

remarks made during closing argument. A review of the case law reveals a conflict among

Illinois Supreme Court cases. In both People v. Wheeler,

(2007), and People

v. Sims,

(2000), our supreme court suggests that we review this issue de

novo, because the prosecutor's statements are reflected in the transcripts and are therefore

undisputed, leaving only a legal question. Conversely, in People v. Hudson,

(1993), our supreme court suggests that the trial court is in a better position to rule on objections

during closing argument, and the standard is therefore abuse of discretion. We need not take a

position in this case, as defendant's claim fails under either standard. See People v. Johnson,

(2008) ("[W]e do not need to resolve the issue of the appropriate standard

of review at this time, because our holding in this case would be the same under either

standard.").

¶ 50 It is well established that prosecutors are afforded wide latitude in closing argument, and

improper remarks will not merit reversal unless they result in substantial prejudice to the

defendant. People v. Kitchen,

(1994) (citing People v. Pittman,

(1982)). During closing argument, the prosecutor may properly comment on the evidence

presented or reasonable inferences drawn from that evidence, respond to comments made by

defense counsel which clearly invite response, and comment on the credibility of witnesses.

People v. Rader,

(1988). In reviewing whether comments made during

closing argument are proper, the closing argument must be viewed in its entirety, and remarks

must be viewed in context. Kitchen,

.

¶ 51 In this case, we do not find that the prosecutor engaged in misconduct during closing

argument when he noted that Dods had just moved to Chicago to start a life with her fiancé.

Based on our review of the record, we find that the prosecutor merely commented on evidence - 20 - No. 1-13-1096

properly presented at trial regarding Dods' background and the relevant details of her life prior to

her murder. It is abundantly clear from the record that Dods' intention in moving to Chicago was

to start a new job and build a life with her fiancé, who had recently moved from Portland to be

with her. We do not find that it was improper for the State to reference this fact in its closing

argument. See Rader,

.

¶ 52 Furthermore, we find that the prosecutor's comments in rebuttal were not improper. After

defendant concluded his closing argument with the statement that any sexual acts in this case

may have been consensual as "jungle fever was running wild" in the early 1980s, the State

responded that defendant was mocking the rape and murder of "a beautiful young woman who

had come to this city to start a new life." We find that defendant's ludicrous statement invited a

response where the medical examiner testified that Dods' autopsy indicated clear signs of

forcible intercourse. See People v. Starnes,

(2007).

¶ 53 Additionally, we do not find the State's comments that Stevens left Dods' apartment

"thinking that *** [he would] spend the rest of the day [with her] doing the sort of things that

he's told you they'd been doing" but "instead of finding the woman he was building a new life

with *** found the lifeless body of a beautiful young woman whose life was abruptly ended by

[defendant]" were improper. These comments were a reasonable inference of the evidence

presented in this case, which showed that Stevens, who spent almost all his time with Dods,

intended to meet with her after she attended church, but instead found his fiancée dead in her

apartment. Rader,

. Further, the State's comment that "little did they

realize that the things they were using to build a life together *** were going to be used to end

Marilyn's life" was also a reasonable interference based on the condition in which Stevens

testified that he found Dods; she was murdered in her own apartment, submerged in her own

bathtub with her television on her body.

- 21 - No. 1-13-1096

¶ 54 Also, we do not find that it was improper for the State to conclude its closing argument

with comments to jury that "you now have the power" and that the jurors "hold in [their] hands

the sword of justice," urging them to sign a guilty verdict form "holding this defendant

responsible for what he did to Marilyn Dods." We acknowledge our supreme court's holdings

that prosecutors have wide latitude in closing argument (Kitchen,

(1994)) and

may properly comment unfavorably on the defendant, the violence of the crime, and the benefits

of the fearless administration of the law. Hope,

-78 (citing People v. Jackson,

(1981)).

¶ 55 Nonetheless, defendant relies on People v. Littlejohn,

(1986), and

Hope,

, to argue that the prosecutor's improper statements in this case necessitate a

new trial. We find this reliance misplaced. In Littlejohn, this court found that that prosecutor's

comments during closing argument regarding events that the infant victim would never

experience, such as her first day of school, were made solely to distract the jury from the real

issues of the case. Littlejohn,

. In Hope, the court found that the

prosecutor's comments regarding the victim's family and the elicited testimony from the victim's

spouse regarding their children and her identification of family photos were not "brought to the

jury's attention incidentally, rather it was presented in a series of statements and questions in

such a method as to permit the jury to believe it material." (Emphasis in original.) Hope,

. Unlike the comments in Littlejohn and Hope, the State's remarks here served a

useful purpose in presenting its case, and were not simply used to appeal to the juror's sympathy

and emotions.

¶ 56 As a final note, even if we found that the State's comments were improper, we

acknowledge that immediately preceding closing arguments, the trial court cautioned the jury

that, "Closing arguments are not evidence. It is a chance for the lawyers and the parties to have - 22 - No. 1-13-1096

to explain to you why you ought to return the particular verdict that they'll ask you to return in

this case." Additionally, at the close of arguments, the court issued jury instructions which stated

that "neither opening statements nor closing arguments are evidence, and any statement or

argument made by the attorneys which is not based on the evidence should be disregarded."

Thus, we cannot say that these remarks affected the outcome of the defendant's trial, as the court

provided sufficient instructions to preempt consideration of potentially improper comments as

evidence. See People v. Taylor,

(1995) ("The jury is presumed to follow the

instructions that the court gives it.").

¶ 57 CONCLUSION

¶ 58 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 59 Affirmed.

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