Background
In December 2020, Corey Truman was living in a Chicago apartment with Arthur A. and Arthur’s 12-year-old son, D.A. On the night of December 19, D.A. was in the living room playing video games over FaceTime with two friends, R.D. and D.G. Truman arrived home with an adult woman and, after repeated attempts, coerced D.A. into his bedroom. Once there, Truman and the woman engaged in sexual activity and Truman directed D.A. to touch the woman’s breasts and genitals. Truman then picked up D.A.’s phone — with the FaceTime call still active — and pointed it at D.A. so that R.D. and D.G. could see what was happening. R.D. and D.G. screen-recorded the FaceTime session. The recordings eventually came to the attention of a Chicago Police Department officer, who filed a report that triggered the investigation.
Truman was charged with production of child pornography (720 ILCS 5/11-20.1(a)(3)) and distributing harmful material to a minor (720 ILCS 5/11-21(b)(1)(A)). Following a jury trial before Judge Michael R. Clancy in the Circuit Court of Cook County, Truman was convicted on both counts and sentenced to an aggregate seven-year prison term — six years for the production offense and a consecutive one-year term for distributing harmful material.
On appeal, Truman argued that the State made two categories of improper remarks during closing argument: (1) characterizing the video as depicting the woman “grinding” or “dry humping” D.A., which he contended was unsupported by the evidence and designed to inflame the jury; and (2) responding to defense counsel’s plea to “do the right thing” by saying counsel had the “audacity” to make that request. Because Truman neither objected at trial nor raised these issues in his post-trial motion, he acknowledged forfeiture and urged the court to review under the plain error doctrine or, alternatively, to find his trial counsel constitutionally ineffective for failing to preserve the claims.
The Court’s Holding
The appellate court affirmed the conviction on both counts, holding that Truman forfeited his closing-argument objections and that neither plain error nor ineffective assistance of counsel excused that forfeiture. On the “grinding/dry humping” language, the court found no clear or obvious error because the video — played for the jury during closing argument and previously viewed during witness testimony — reasonably supported the State’s description. The naked woman is visible bending over in front of D.A. and appearing to move her hips against him; although the camera angle made definitive contact uncertain, the court found the State’s characterization was at minimum a permissible inference. The court further noted that even if the remarks had been improper, the trial court’s instructions — given both before and after closing argument — that closing arguments are not evidence and any argument not based on evidence should be disregarded would have cured any prejudice.
On the “audacity” comment, the court likewise found no error. Reviewing the remark in context, the court concluded it was a direct rhetorical response to defense counsel’s own invitation to the jury to “do the right thing,” not an accusation that counsel had fabricated a defense, engaged in trickery, or acted unethically. The court drew on People v. Hudson, 157 Ill. 2d 401 (1993), which established that the State may respond to arguments defense counsel clearly invites and that comments not directed at counsel’s integrity or ethics do not constitute improper attacks on counsel’s character. The brief “audacity” remark fell within these bounds.
Because the court found no error in either category of remarks, it had no basis to apply plain error review under either prong of the People v. Piatkowski standard. By the same logic, it rejected the ineffective-assistance theory: counsel cannot be deficient for failing to object to remarks that were not improper, so Truman could not satisfy the first Strickland prong of objectively unreasonable performance.
Key Takeaways
- Failure to object to prosecutorial remarks during closing argument and to raise those objections in a post-trial motion results in forfeiture; plain error review requires the defendant to first establish that a clear and obvious error actually occurred.
- The State is afforded wide latitude in closing argument and may characterize video evidence using descriptive language that constitutes a reasonable inference from what the jury itself viewed — even if the inference is contested.
- A prosecutor’s rhetorical rejoinder to defense counsel’s “do the right thing” appeal does not constitute impermissible impugning of counsel’s character absent an accusation of fabrication, trickery, or ethical wrongdoing.
- Proper jury instructions that closing arguments are not evidence — given both before and after argument — can cure potentially improper remarks and negate a showing of substantial prejudice.
- An ineffective-assistance claim premised on failure to object to closing argument fails at the first Strickland prong where no underlying error is identified.
Why It Matters
This decision illustrates the significant procedural hurdle defendants face when attempting to challenge prosecutorial closing argument on appeal after failing to object at trial. The case reinforces Illinois doctrine that unobjected-to remarks are subject to forfeiture, and that plain error review is unavailable unless the defendant can first demonstrate that an actual error occurred — a threshold Truman could not meet because the court found the State’s descriptions were reasonable inferences from video evidence the jury had already seen.
The ruling also clarifies the line between permissible rhetorical response and improper attacks on defense counsel. Prosecutors responding to defense counsel’s closing appeals — such as invitations to “do the right thing” — have room to push back sharply without crossing into misconduct, so long as they stop short of accusing counsel of fabrication, deception, or ethical violations. Defense attorneys should be attentive to the rhetorical doors they open in closing, as adversarial responses within that scope are unlikely to provide appellate relief.