People v. Bunning

Citation: Not availableDocket: 5-97-0227

Court: Appellate Court of Illinois; September 4, 1998; Illinois; State Appellate Court

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Forrest E. Bunning, Jr. was convicted of armed robbery in Macon County and sentenced to 25 years in prison, to run consecutively with another sentence. He appealed, raising several issues regarding the fairness of his trial. Key points of contention included: (1) the prosecutor's claim of a confession without supporting evidence or witness testimony; (2) testimony regarding Bunning's request for counsel during police interrogation; (3) prosecutorial misconduct involving inadmissible statements and leading questions; (4) misstatements of law and evidence by the prosecutor during closing arguments; and (5) ineffective assistance of counsel for failing to object to several prosecutorial actions and not raising these issues in a posttrial motion.

The appellate court found that Bunning had not properly preserved these issues for review, as no contemporaneous objections were made. However, he argued that the errors constituted plain error, which can be invoked under specific circumstances to prevent injustices or preserve the judicial process's integrity. The court referenced the plain error rule and the two-part Strickland test for ineffective assistance of counsel, which requires proving that counsel's performance was below a reasonable standard and prejudiced the outcome of the trial. Ultimately, the court reversed the conviction and remanded for a new trial, indicating that the cumulative errors raised significant concerns about the fairness of the proceedings.

Resolution of claims based on prejudice requires evaluating findings unaffected by error, considering the impact of any errors on the remaining findings, and determining if the outcome would likely have differed. A claim of ineffective assistance of counsel cannot arise from a defense strategy issue. Failure of defense counsel to object to improper evidence or prejudicial remarks by the prosecutor can lead to a finding of ineffective assistance. The specific case facts influence the impact of alleged errors. During the trial on February 26, 1997, the prosecutor outlined evidence, including two confessions made by the defendant regarding the robbery. The defendant initially expressed disbelief over his arrest and denied involvement but later made conflicting statements. Notably, the prosecutor's reference to witness testimony that was not presented is impermissible and could lead to reversal if it causes substantial prejudice to the defendant. The jury was instructed that opening statements and closing arguments are not evidence and should be disregarded if not based on the evidence presented.

The instruction given to the jury regarding the distinction between a confession and an admission is not always sufficient to mitigate prejudice against the defendant. The defendant argues two specific errors in the prosecutor's opening remarks: (1) referring to the defendant's statements to the police as confessions rather than admissions, and (2) indicating that witnesses Stolte and Houghland would testify. The State acknowledges that the defendant’s statements were technically admissions, not confessions. A lay jury might confuse the terms, but since the prosecutor clarified the nature of these statements, no prejudice ensued, and there was no ineffective assistance of counsel for failing to object. 

Regarding Stolte and Houghland, their potential testimony was mentioned, suggesting they could corroborate another witness, Crawley. Both witnesses were subpoenaed, but their presence at trial is unclear. The State suggested they were not called to avoid complications related to their Fifth Amendment rights. It is considered reversible error if a prosecutor forces a witness to assert this privilege in a way that prejudices the case. However, the record does not support this interpretation, as Crawley’s testimony implicated the defendant without reliance on the potential testimony of Stolte and Houghland. 

Moreover, it was inappropriate for the prosecutor to assert facts in the opening statement that lacked evidentiary support. Lastly, the defendant's right to a fair trial was questioned when testimony revealed he requested an attorney during police questioning, which could affect how the jury perceived his willingness to cooperate with law enforcement.

Defendant argues that the State's use of his postarrest silence during cross-examination constituted plain error, violating his constitutional rights to due process and protection against self-incrimination. The prosecutor did not explicitly suggest this silence inferred guilt, but the defense contends that the introduction of such evidence was improper and irrelevant to the trial issues. Citing *People v. Green*, it is established that using a defendant's silence in court is impermissible, and evidence eliciting such silence should be excluded. The defense counsel’s failure to object or to pursue a motion for mistrial is deemed ineffective assistance. Though each error alone may not warrant a reversal, their cumulative effect justifies a new trial, as stated in *People v. Weller*.

Additionally, the court examined the propriety of leading questions posed to Culp, a rebuttal witness, regarding statements made by Crystal Bunning concerning the timing of her interaction with the defendant. Leading questions are generally improper unless necessary and relevant; however, the court recognized that such questioning occurred without apparent necessity, which raises concerns about the integrity of the testimony provided.

Questions formulated to impeach a witness's testimony must be carefully crafted to avoid introducing incompetent matters into the trial. Leading questions may be necessary in this context to prevent improper references in responses. Impeachment can occur during a party's case in chief or as a rebuttal. In this case, the impeachment was conducted through a rebuttal witness to challenge a prior statement made by another witness. The questioning of Culp regarding whether Crystal Bunning made a specific statement was appropriate, as it directly addressed a contradiction in her testimony. The leading nature of the question posed to Culp was not considered an error, and there was no evidence of ineffective assistance of counsel for failing to object. Although the defendant did not dispute the sufficiency of evidence for a guilty verdict, the court reviewed the evidence and found it sufficient to uphold the conviction. Consequently, the judgment of the circuit court of Macon County was reversed, and the case was remanded for a new trial. Judges Knecht and Steigmann concurred.