People v. Jackson , 2020 IL 124112 ( 2020 )

2020 IL 124112IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 124112)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v. AARON JACKSON, Appellant.
Opinion filed March 19, 2020.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Kilbride, Garman, Karmeier, and
Theis concurred in the judgment and opinion.
Justice Michael J. Burke took no part in the decision.
OPINION
¶1 Following a jury trial in the circuit court of St. Clair County, defendant, Aaron
Jackson, was convicted of first degree murder (720 ILCS 5/9-1(a) (West 2008)) and
was sentenced to a term of 35 years’ imprisonment. The appellate court affirmed.
2018 IL App (5th) 150274. This court allowed defendant’s petition for leave to
appeal (Ill. S. Ct. R. 315(a) (eff. July 1, 2018)). We now affirm the judgment of the
appellate court.
¶2 I. BACKGROUND
¶3 On April 1, 2010, just before 6 a.m., the victim, John Thornton, mayor of
Washington Park, Illinois, was fatally shot at close range while seated in his white
four-door Buick Regal. Witnesses told police that they heard gunshots, saw the
victim’s car crash into a tree, and then saw defendant exit the victim’s vehicle and
get into a waiting vehicle, which drove from the scene. The victim was found
slumped over in the driver’s seat of his car. He sustained three gunshot wounds to
the right side of his chest. Both front airbags were deployed. No firearm was
recovered, but police found three spent bullets inside the vehicle. On May 28, 2010,
a grand jury indicted defendant of first degree murder for the shooting death of the
victim.
¶4 A. First Trial
¶5 Defendant’s first jury trial, which commenced on October 17, 2011, ended in
mistrial on October 20. Testimony from the mistrial relevant to this appeal comes
from State witnesses Nortisha Ball and Laqueshia Jackson. Ball’s testimony is
relevant because defendant argues that inconsistencies in her testimony from the
mistrial and retrial rendered the evidence insufficient to convict him of first degree
murder. Jackson’s testimony is relevant because defendant argues that defense
counsel was ineffective for failing to call her as a witness at his retrial.
¶6 At the time of trial, Ball was being held on pending charges of residential
burglary and theft. Ball acknowledged that she was not promised anything in
exchange for her trial testimony. Ball testified that she met with Illinois State Police
Special Agent Joseph Bates and gave him a statement concerning what she
witnessed. Her statement was videotaped.
¶7 Ball’s trial testimony was inconsistent in some respects with her videotaped
statement. In her statement, Ball acknowledged telling Special Agent Bates that she
heard two gunshots and that, after the victim’s car crashed into the tree, she saw a
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man she knew as “Chill” exit the vehicle. Ball explained that defendant was known
as “Chill.” Ball told Bates that, after defendant exited the crashed vehicle, he got
into a red Impala and drove from the scene.
¶8 Ball testified at trial, however, that, just before the victim’s car hit the tree, she
saw someone get out of the driver’s side of the vehicle and thought that person
might have been defendant. Ball further testified that she could not remember any
details of her statement or conversation with Bates because she was under the
influence of drugs or alcohol during the interview.
¶9 A week after the shooting, Ball met with Special Agent Bates for a follow-up
interview. During the interview, Ball picked defendant’s picture out of a six-picture
photo array. Ball testified that she circled defendant’s picture because Bates asked
her if she knew any of the people pictured in the photo array and that defendant was
the only person she recognized.
¶ 10 Laqueshia Jackson testified that on April 1, 2010, she was staying overnight at
her mother’s house when she received an early morning call from ADT Security
Services notifying her that her home’s burglar alarm had been activated. Jackson
drove to her house and parked in the driveway but decided not to enter the house
because there were no police on the scene. Jackson was turning out of the driveway
to return to her mother’s house when she heard gunshots, and as she drove further
up the street, she heard a “loud boom” and then saw that a white car had crashed
into a tree.
¶ 11 Jackson slowed her vehicle and then saw a man she knew as “Chill” exit the
passenger side of the crashed car and “limp” to a white Suburban. Jackson testified
that the Suburban was owned and driven by her ex-boyfriend, David Taylor.
Jackson met with Special Agent Bates and, during the interview, picked defendant’s
picture out of a photo array. Jackson testified that she recognized defendant not
only from seeing him around the neighborhood but also from his limp, which she
believed was caused by a recent gunshot injury. Jackson made an in-court
identification of defendant as “Chill.”
¶ 12 Prior to commencing proceedings on the second day of trial, and outside the
presence of the jury, the trial court informed counsel for both sides that it had
become aware of anonymous threats made against Jackson and her children. The
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trial court questioned the assistant state’s attorneys as to why the court had to learn
of this development “second hand.” The trial court admonished the assistant state’s
attorneys of their duty to promptly inform the court of such information. The trial
court directed the assistant state’s attorneys to investigate the matter and report back
to the court.
¶ 13 On the next day of trial, during a break in the proceedings, one of the assistant
state’s attorneys informed the trial court and defense counsel that his office had
received an anonymous phone call stating that, if Jackson were recalled to testify,
she should be questioned as to whether a police officer offered her a bribe to testify
that he was never at the crime scene. The officer in question was Washington Park
detective Kim McAfee, who was one of the detectives assigned to investigate the
shooting of the victim. At the time of trial, Detective McAfee had been indicted on
federal charges of business fraud unrelated to defendant’s case.
¶ 14 After discussing the matter off record, the trial court agreed that Jackson should
be recalled and questioned outside the presence of the jury as to the validity of the
alleged bribe. The proceedings were continued while the state’s attorney’s office
attempted to locate Jackson.
¶ 15 Later that day, Jackson returned to court and underwent questioning, outside
the presence of the jury, regarding the alleged bribe. Jackson testified that she was
never offered a bribe or given any money from a police officer concerning her
testimony. Jackson testified that Detective McAfee was at the crime scene when
she spoke with another investigating officer but that she never spoke directly to
McAfee.
¶ 16 Jackson was also questioned about the anonymous threats she had received.
Jackson explained that she did not want to testify any further because she had
received anonymous phone calls threating her and her children. She stated that the
caller knew the times she left court, where she attended school, where she lived,
and the times her children got on and off their school bus. Jackson also testified that
someone claiming to be from the state’s attorney’s office had called her children’s
school asking to speak with them. Jackson claimed that her children were afraid to
leave the house or go to school.
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¶ 17 Defense counsel then expressed concern that defendant could be prejudiced if
Jackson was recalled for additional cross-examination and the jury observed her
terrified demeanor and saw her “sobbing.” Defense counsel consulted with
defendant and deferred to his agreement to have Jackson cross-examined in the
presence of the jury but outside the presence of courtroom spectators.
¶ 18 Jackson returned to the witness stand and in the presence of the jury
acknowledged that she was previously questioned as to whether she ever spoke with
Detective McAfee. When defense counsel asked Jackson what her response had
been to this question, she initially claimed she could not remember, but then fell
silent and failed to respond to any further questioning.
¶ 19 At this point, the jury was ushered out of the courtroom, and a short recess was
taken. Jackson subsequently suffered a seizure. When the jurors returned to the
courtroom, the trial court released them for the day but, before doing so,
admonished them not to discuss the case and to avoid all media coverage of the
trial.
¶ 20 After the jury was released, the trial court called deputy court clerk Mary
Ponder to the witness stand and questioned her about Jackson’s condition. Ponder
testified that Jackson was crying and claimed she had seen a dark-haired woman
with blonde highlights in the hallway of the courthouse and that this woman was
the same person who had shown up at her house the previous night. The trial court
then agreed that the record should reflect that Jackson went into a “stupor” on the
witness stand, the jury was subsequently removed from the courtroom, and
thereafter Jackson suffered a seizure and was taken to the hospital by ambulance.
¶ 21 The following morning, the trial court recalled Ponder to question her, outside
the presence of the jury, about a phone call she received that morning from
Jackson’s sister, Angela Dodd. Ponder testified that Dodd told her that Jackson
suffered another seizure and was admitted to the hospital. Jackson’s blood pressure
was elevated, and paramedics were concerned she might suffer a stroke. According
to Dodd, Jackson told the paramedics “If I do have a stroke, let me die because if I
don’t die they’re going to kill me.” Dodd also told Ponder that she witnessed
Detective McAfee tell Jackson that if she kept her mouth shut, he would pay her
off.
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¶ 22 Following Ponder’s testimony, defense counsel moved for a mistrial on the
ground that defendant’s right to a fair trial was prejudiced by what jurors saw when
Jackson went into a stupor on the witness stand and by what they heard when she
suffered a seizure within hearing distance of the jury room.
¶ 23 The trial court denied the motion, stating in part that it did not believe that
Jackson’s illness in and of itself was grounds for a mistrial. The trial court stated
that “[a]ll the jury knows is that the witness became ill.” The trial court added there
was no reason to assume the jury believed that Jackson’s illness was related to
defendant. The trial court also expressed skepticism that the jury might have
overheard anything in connection with the treatment Jackson received after
suffering her seizure, pointing out that the jury was separated in “another room.”
¶ 24 The trial court then called bailiff Tyrone Jordan to the witness stand. Jordan
testified outside the presence of the jury that a woman identifying herself as Angela
had called the court and left a phone number. Jordan called the phone number and
spoke with a woman who identified herself as Angela Dodd, Jackson’s sister. Dodd
told Jordan that her nephew had received an anonymous phone call telling him that
Jackson should not testify in the case and that defendant “could beat” the case if
she refused to testify.
¶ 25 When the court proceedings resumed after lunch, the assistant state’s attorney
advised the court and defense counsel about an anonymous phone call his office
received during lunchtime. The caller stated that the state’s attorney’s office should
investigate Detective McAfee and claimed that the detective offered Laqueshia
Jackson money in exchange for her testifying that the detective was never at the
crime scene. The assistant state’s attorney then told the court and defense counsel
about a recent phone conversation he had with Jackson where she admitted that
Detective McAfee had offered her money in exchange for her testimony. The
assistant state’s attorney added however that Jackson continued to insist that her
prior testimony about the shooting was “accurate.”
¶ 26 Defense counsel renewed his motion for a mistrial. The trial court granted the
motion, explaining that the latest revelations of possible witness tampering and
alleged perjured testimony had created a situation that deprived defendant of a fair
trial.
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¶ 27 B. Second Trial
¶ 28 Defendant’s second jury trial began on April 24, 2012. Sergeant Wendell
Wilson of the Washington Park Police Department was the first officer on the
scene. Sergeant Wilson testified that as he was securing the crime scene he was
approached by Ball, who informed him that she had information regarding the
shooting. Sergeant Wilson was familiar with Ball because he had arrested her on
prior occasions. Sergeant Wilson secured Ball in his squad car until she was turned
over to Detective McAfee.
¶ 29 Ball testified again for the State. At the time of trial, she was serving a four-
year prison sentence for burglary. Ball testified that on April 1, 2010, at about 5:30
a.m., she was hanging outside with some people when she saw and heard a car crash
into a tree. Ball testified that, after the crash, she saw a male passenger exit the
vehicle. Ball stated that the man’s hair was braided, but she could not see his face.
The State attempted to impeach Ball with the videotaped statement she gave to
Special Agent Bates.
¶ 30 Ball testified that she remembered giving the statement but could not recall any
of its details. Ball reluctantly acknowledged that her memory would be refreshed if
she watched the videotaped statement. The trial court, along with defense counsel,
the assistant state’s attorneys, and Ball, watched the videotaped statement outside
the presence of the jury.
¶ 31 Ball was recalled to the witness stand and, in the presence of the jury, testified
that her memory was refreshed after viewing her videotaped statement. Ball
admitted telling police that, after the victim’s car crashed into the tree, she saw
“Chill” exit the car and limp to a red Chevy Impala, which drove from the scene.
Ball testified that she recognized “Chill” because he once dated her sister.
¶ 32 Ball claimed she was standing across the street from the car crash when she was
approached by a police officer she knew as Wendell Wilson. Ball testified that she
and Wilson talked but that they did not discuss the crash. Ball claimed that she
spoke with Detective McAfee and Special Agent Bates that morning and told them
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what she witnessed concerning the crash. After Ball claimed that she never told
police she heard gunshots, she was impeached with her prior statement, where she
claimed she heard gunshots. Ball responded that she had lied to the police. Ball also
testified that she picked defendant’s picture out of a six-picture photo array because
Detective McAfee told her to circle defendant’s picture.
¶ 33 At this point, over defense counsel’s objection, the trial court granted the State’s
request to treat Ball as a hostile witness in order to impeach her with her prior
statement to Special Agent Bates. Ball initially claimed that she lied to Bates but
then claimed she was under the influence. Ball acknowledged however that the
information in her statement was probably more accurate than her trial testimony
because the statement was made closer in time to the incident. Ball admitted telling
Special Agent Bates that she witnessed defendant exit the victim’s car after it
crashed into the tree but then testified that she did not know who the person was
who exited the vehicle and denied it was defendant.
¶ 34 On cross-examination by defense counsel, Ball testified that, after the car crash,
Detective McAfee transported her to the police station. Ball testified that, during
the ride to the police station, McAfee told her that, if she saw something, to tell
him; otherwise she would be arrested. Ball testified that McAfee told her that he
already knew from another witness that defendant was the person who got out of
the victim’s car after it crashed into the tree. Ball claimed that McAfee told her to
tell the police that defendant was the person who exited the crashed vehicle;
otherwise she would be arrested. Ball testified that, when she arrived at the police
station, she spoke with Special Agent Bates. When defense counsel asked Ball if
anyone had threatened her, she responded that she had not been threatened but then
claimed she “got scared” when her cousin informed her that her name was in the
newspaper.
¶ 35 On redirect examination, and over defense counsel’s objection, the trial court
permitted the State to impeach Ball with a letter she wrote to the trial court while
in jail. In the letter, Ball writes that she is “scared,” she requests to be put in
protective custody, and she states, “Please help me. I’m admitting to everything
that happened. It was Jackson that killed the mayor.”
¶ 36 Ball acknowledged writing the letter but claimed it was not true. Ball testified
that she wrote the letter because she was mad at something that happened long ago,
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which she refused to discuss, but which she claimed had nothing to do with
defendant’s case. The letter was admitted into evidence over defense counsel’s
objection.
¶ 37 Special Agent Bates testified that, after he interviewed Ball, he focused his
investigation on defendant. Bates interviewed and obtained a videotaped statement
from defendant on the morning of the murder. The videotaped interview was played
for the jury. In the interview, defendant claims that in the early morning hours of
April 1, 2010, he was walking down 47th Street when he heard gunshots and started
running. He fell and thought he had been shot. He went to his girlfriend’s apartment
but could not remember how he got there or anything else that happened during that
time. In his videotaped statement, defendant can be seen limping.
¶ 38 Gilda Lott testified for the State regarding the events at issue. She was not a
witness at defendant’s first trial. Police first interviewed Lott in March 2012, nearly
two years after the murder. Lott was in jail awaiting trial on a charge of reckless
driving.
¶ 39 At the time of trial, there were criminal charges pending against Lott. She
acknowledged that no threats or promises were made to her in exchange for her
trial testimony.
¶ 40 Lott testified that on April 1, 2010, at around 5 a.m., she was standing outside
her daughter’s house talking with friends, including Nortisha Ball, when she saw a
car come down 47th Street and hit a tree. Lott claimed she did not see who was
driving the car but at the same time testified that, after the car crashed into the tree,
she saw “Chill” get out of the driver’s side of the vehicle. Lott testified that, after
Chill exited the vehicle, he ran and “jump[ed] in a car with somebody else.” When
Lott was asked to clarify whether defendant ran or walked, she testified that he was
“limping.” Lott was also asked if she ever gave a statement to police claiming that
the driver of the waiting vehicle got out and helped defendant into the vehicle. Lott
admitted that, if she made the statement, it would be accurate. Lott made an in-court
identification of defendant as “Chill” and testified that she knew him from the
neighborhood.
¶ 41 On cross-examination, defense counsel attempted to impeach Lott with
statements she made to him and his investigator Michael Boyne during a
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speakerphone conversation and subsequent face-to-face meeting. Defense counsel
inquired if Lott remembered telling him and his investigator that she did not
actually see anyone get out of the car after it crashed into the tree and that she
identified defendant because she thought that was what the police wanted to hear
and she believed it would help her case.
¶ 42 Lott denied seeking any favorable treatment in return for her statement to the
police. Lott acknowledged her conversations with defense counsel and his
investigator but claimed she could not remember what she said during those
conversations because she had recently been hit in the head with a baseball bat,
causing memory loss. When asked how she could remember events that occurred
on the morning of the murder, two years before trial, if she was unable to remember
a conversation that took place three days earlier, Lott responded “Because when I
got hit in my head, before I could remember very well.”
¶ 43 On redirect and recross-examinations, the State and defense counsel continued
questioning Lott as to whether she saw defendant get out of the car after it crashed
into the tree. Lott insisted that she saw defendant exit the crashed vehicle, from the
driver’s side.
¶ 44 Boyne testified for the defense about the conversations he and defense counsel
had with Lott. According to Boyne, when Lott was asked if she ever saw defendant
get out of the car after it crashed into the tree, she responded that she saw the car
crash but did not see who exited the vehicle after the crash. Boyne testified that,
when he asked Lott why she identified defendant to the police, she responded that
she thought it would help her get out of jail. Boyne testified that although Lott
agreed to give him a written statement to that effect, she never did so.
¶ 45 Cynthia Hooker, defendant’s girlfriend and the mother of two of his children,
testified that on the night of March 31, 2010, she left work and returned to her
apartment at about 11 p.m. Defendant was at the apartment, but he left shortly
thereafter in her red Chevy Impala. Hooker testified that she went to sleep and,
when she woke up the next morning just before 7 a.m., she saw that defendant had
returned to the apartment. Hooker and defendant argued about him being out all
night. Defendant claimed he was out gambling.
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¶ 46 Hooker testified that she and defendant were in her apartment watching
television when a news report came on about the fatal shooting of the victim. The
news report stated that the police were looking for a red Impala. A few hours later,
police arrived at Hooker’s apartment. The police towed her car and then came to
her front door. Hooker testified that defendant got dressed and told her that he did
not know why the police were there but that they were probably looking for him.
The parties stipulated that, on the day of the shooting, Detective McAfee
transported defendant to the police station.
¶ 47 Dr. Raj Nanduri, who conducted the autopsy on the victim, testified that the
victim suffered three gunshot wounds to the front right side of his chest, including
a contact wound underneath his right nipple. Dr. Nanduri concluded, within a
reasonable degree of scientific certainty, that the victim died as a result of the
gunshot wounds.
¶ 48 The State presented expert testimony concerning the forensic evidence
recovered in this case. Abby Keller, a crime scene investigator with the Illinois
State Police, photographed the victim’s vehicle, including blood on the airbags, the
dashboard between the airbags, the seats, the door panels, the ceiling of the vehicle,
and the exterior of the vehicle near the top of the windshield on the passenger side
and the rear passenger-side door. Swabs of the blood evidence were collected.
Three spent bullets were recovered from inside the vehicle along with a cell phone.
Keller dusted the vehicle for fingerprints and collected 57 lifts.
¶ 49 Melissa Gamboe, a fingerprint examiner with the Illinois State Police, testified
that she examined the latent fingerprints lifted from the victim’s car and identified
one of the fingerprints as belonging to defendant. The fingerprint was found near
the front passenger door handle underneath the window.
¶ 50 Robert Berk, a trace evidence analyst with the Illinois State Police, analyzed
the gunshot residue kits performed on defendant’s hands. He also analyzed
defendant’s clothing for the presence of gunshot residue and residue from the
deployed airbags. No airbag residue was found on defendant’s hands or clothing.
However, gunshot residue was found on his left hand, the left shoulder area of his
T-shirt, and the right thigh area of his jeans.
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¶ 51 Ellen Chapman, a forensic scientist with the Illinois State Police analyzed the
gunshot residue kits performed on defendant’s hands. She found gunshot residue
on his left hand, but none was found on his right hand.
¶ 52 Jay Winters, a forensic scientist with the Illinois State Police, performed DNA
testing on a small bloodstain recovered from defendant’s jeans. Due to the small
size of the bloodstain, Winters was only able to obtain a partial DNA profile, which
was from a male. Winters compared the partial DNA profile to known DNA
standards obtained from defendant and the victim.
¶ 53 Defendant was excluded as a possible contributor to the partial DNA profile
recovered from his jeans. Winters testified that, although the victim could not be
excluded as a contributor, the partial DNA profile was “consistent” with having
originated from the victim.
¶ 54 Winters added that, although the partial DNA profile recovered from
defendant’s jeans did not precisely “match” the victim’s DNA, he opined within a
reasonable degree of scientific certainty that it “likely” came from the victim.
Utilizing updated DNA recalculations, Winters explained that the partial DNA
profile occurred in only 1 out of every 46,000 unrelated African-American
individuals, 1 out of every 73,000 unrelated Caucasian individuals, and 1 out of
every 17, 000 unrelated Hispanic individuals.
¶ 55 The jury found defendant guilty of first degree murder, and he was sentenced
to 35 years in prison. On September 7, 2012, following a hearing, the trial court
denied defendant’s posttrial motion. Defendant filed his appeal the same day.
¶ 56 A week later, defendant, pro se, sent a letter to the trial court arguing that the
evidence was insufficient to prove him guilty of first degree murder. Defendant also
argued that he was not fairly represented by his trial counsel. The trial court did not
address the letter.
¶ 57 The appellate court dismissed defendant’s pending appeal as premature but
remanded the matter to the trial court to conduct a preliminary inquiry into
defendant’s pro se claims of ineffective assistance of counsel in accordance with
People v. Krankel, 102 Ill. 2d 181 (1984). Following a preliminary Krankel inquiry,
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the trial court concluded that defendant’s pro se claims were meritless and declined
to appoint new counsel to argue those claims.
¶ 58 Defendant appealed on a number of grounds, each of which the appellate court
rejected. 2018 IL App (5th) 150274. Pertinent here, the appellate court held that the
evidence was sufficient to allow a reasonable jury to find defendant guilty of first
degree murder beyond a reasonable doubt. Id. ¶¶ 50-58. The appellate court also
rejected defendant’s contention that he was denied a fair trial by the prosecutor’s
closing argument. Id. ¶¶ 69-78. The appellate court also held that the trial court’s
error in permitting the State to participate in the preliminary Krankel hearing in an
adversarial manner was harmless beyond a reasonable doubt. Id. ¶¶ 81-105. Finally,
the appellate court found that the trial court did not err in refusing to appoint new
counsel to investigate defendant’s claims of ineffective assistance of trial counsel.
Id. ¶¶ 106-22.
¶ 59 Defendant appeals to this court. Additional pertinent facts will be discussed in
the context of the issues raised on appeal.
¶ 60 II. ANALYSIS
¶ 61 Before this court, defendant contends that his conviction should be reversed
because the evidence was insufficient to prove him guilty beyond a reasonable
doubt. Defendant alternatively seeks a new trial because the prosecutor made two
mischaracterizations during closing argument that were prejudicial and constituted
reversible error. Also, defendant seeks, as alternative relief, appointment of counsel
to address the merits of his pro se claim of ineffective assistance of counsel,
pursuant to Krankel, 102 Ill. 2d 181.
¶ 62 A. Sufficiency of the Evidence
¶ 63 Defendant contends that the evidence was insufficient for the jury to find him
guilty of first degree murder beyond a reasonable doubt. Defendant argues that the
two eyewitnesses to the incident, Nortisha Ball and Gilda Lott, were not credible
because they gave inconsistent and contradictory accounts of the incident.
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Defendant also argues that the physical evidence linking him to the crime scene
“was weak” and did not place him inside the victim’s car.
¶ 64 When a defendant challenges the sufficiency of the evidence, a reviewing court
must determine whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. People v. Jackson, 232 Ill. 2d 246, 280
(2009); People v. Evans, 209 Ill. 2d 194, 209 (2004). This standard of review
applies in all criminal cases, whether the evidence is direct or circumstantial.
People v. Tenney, 205 Ill. 2d 411, 427 (2002). Further, circumstantial evidence that
meets this standard is sufficient to sustain a criminal conviction. Jackson, 232 Ill.
2d at 281. “Under this standard of review, it is the responsibility of the trier of fact
to ‘fairly *** resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.’ ” People v. Howery, 178
Ill. 2d 1, 38 (1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see
Jackson, 232 Ill. 2d at 281. It is not the function of the reviewing court to retry the
defendant. Evans, 209 Ill. 2d at 209; Tenney, 205 Ill. 2d at 428. Therefore, a
reviewing court will not substitute its judgment for that of the trier of fact on issues
involving the weight of the evidence or the credibility of witnesses. People v.
Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009). A criminal conviction will not be
set aside on a challenge to the sufficiency of the evidence unless the evidence is so
improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s
guilt. People v. Belknap, 2014 IL 117094, ¶ 67; Tenney, 205 Ill. 2d at 427.
¶ 65 Defendant argues that Ball and Lott were not credible because they gave
inconsistent and contradictory versions of the incident. Defendant points out that
Ball claimed that, after the mayor’s car crashed into the tree, she saw defendant exit
from the front passenger side of the car, while Lott testified that she saw him exit
from the driver’s side of the vehicle. We do not believe that this discrepancy
rendered the whole of Lott’s testimony unworthy of belief. See, e.g., People v.
Brooks, 187 Ill. 2d 91, 133-34 (1999) (discrepancies such as whether defendant was
in the front or rear passenger seat of a vehicle are to be expected anytime several
persons witness the same event under traumatic circumstances). Also, we observe
that it is highly unlikely he would have exited from the driver’s side of vehicle since
the victim’s body was found in the driver’s seat, slumped over the steering wheel.
Moreover, we note that these two eyewitnesses were generally consistent on key
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points in regard to how the incident unfolded, such as the car crashing into a tree,
defendant exiting the vehicle, and defendant limping from the vehicle. In this case,
jurors were not required to disregard Lott’s testimony in its entirety because she did
not remember which side of the vehicle defendant exited from after the car crash.
¶ 66 The discrepancies and inconsistencies defendant points to, such as where the
eyewitnesses were standing when they observed the crash, how defendant exited
the crashed vehicle, and who called the police, are issues to be resolved by the jury
as the trier of fact. It is the function of the jury as the trier of fact to assess the
credibility of the witnesses and to resolve discrepancies and inconsistencies in the
evidence. Evans, 209 Ill. 2d at 211; Tenney, 205 Ill. 2d at 428.
¶ 67 Defendant also argues that Ball and Lott were not credible because they
recanted their prior testimony and statements to police identifying defendant. It is
well settled that the recantation of testimony is generally regarded as unreliable,
especially where it might have resulted from duress or perceived threat. Brooks,
187 Ill. 2d at 132. Under such circumstances, it is for the trier of fact to determine
the credibility of the recantation testimony. Id. Here, in light of Ball’s letter to the
trial court requesting that she be placed in protective custody, a rational trier of fact
could have concluded that she recanted due to threats from defendant’s family and
that the recantation was not credible.
¶ 68 Lott was asked if she ever gave a statement to police identifying defendant as
the person who exited the victim’s vehicle after it crashed into the tree. Lott
admitted that, if she made the statement, it would be accurate. It was up to the jury
as the trier of fact to determine whether Lott’s statement was more credible than
her subsequent recantation. See id. at 133 (trier of fact could have reasonably
believed that statement implicating defendant was truthful and that subsequent
recantation was untruthful).
¶ 69 Continuing his challenge to the sufficiency of the evidence, defendant points to
Lott’s issues with her memory and her alleged motive to fabricate her testimony
because she was in jail when she identified defendant. Defendant’s challenge
addresses the province of the jury, not this court of review. The jury observed Lott
testify and was made aware of her criminal history and memory problems. The jury,
as the trier of fact, was in a much better position than we are to determine Lott’s
credibility and the weight to be accorded to her testimony. Tenney, 205 Ill. 2d at
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428-29; People v. Gray, 2017 IL 120958, ¶ 44 (witness memory lapse does not
mandate testimony be wholly disregarded).
¶ 70 Defendant also argues that the physical evidence linking him to the crime scene
“was weak” and did not place him inside the victim’s car. Defendant observes that
no hair or fiber evidence connected him with the car, there was no evidence that he
came into contact with an automobile airbag, and no gun was recovered. However,
it is not necessary that the trier of fact find each fact in the chain of circumstances
beyond a reasonable doubt. Rather, the trier of fact must find only that the evidence
taken together supports a finding of the defendant’s guilt beyond a reasonable
doubt. Evans, 209 Ill. 2d at 209. Further, the trier of fact is not required to disregard
inferences that flow normally from the evidence before it, nor need it search out all
possible explanations consistent with innocence and raise them to a level of
reasonable doubt. Jackson, 232 Ill. 2d at 281; see Siguenza-Brito, 235 Ill. 2d at 229.
¶ 71 “[T]he mandate to consider all the evidence on review does not necessitate a
point-by-point discussion of every piece of evidence as well as every possible
inference that could be drawn therefrom. To engage in such an activity would
effectively amount to a retrial on appeal.” People v. Wheeler, 226 Ill. 2d 92, 117
(2007). In this case, the evidence taken together supports the jury’s verdict
¶ 72 Defendant’s fingerprint was found near the passenger door handle of the
victim’s car, and gunshot residue was found on defendant’s hand and clothing.
Moreover, an expert witness opined, within a reasonable degree of scientific
certainty, that the partial DNA profile recovered from defendant’s jeans “likely”
came from the victim because the profile occurred in only 1 out of every 46,000
unrelated African-American individuals, 1 out of every 73,000 unrelated Caucasian
individuals, and 1 out of every 17, 000 unrelated Hispanic individuals.
¶ 73 Ball and Lott testified and gave statements claiming that, when defendant exited
the victim’s vehicle after it crashed into the tree, he was limping. This was
corroborated by defendant’s videotaped statement showing his limp.
¶ 74 Ball testified that after defendant exited the victim’s crashed vehicle, he got into
a red Impala, the same type of automobile defendant’s girlfriend owned, which she
testified he was driving at the time of the incident. In addition, defendant’s
videotaped statement, which was played for the jury, placed him at the crime scene
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at the time the shooting occurred, and he had no explanation as to how he arrived
back at his girlfriend’s apartment after the shooting.
¶ 75 We have reviewed all of the evidence presented in defendant’s trial in the light
most favorable to the prosecution. We cannot say that the evidence was so
improbable, unsatisfactory, or unreasonable as to justify a reasonable doubt of
defendant’s guilt.
¶ 76 B. Prosecutor’s Closing Argument
¶ 77 1. Mischaracterization of the Evidence
¶ 78 Defendant next contends that the prosecutor exaggerated two pieces of evidence
during the State’s closing argument. Defendant argues that these two
mischaracterizations were improper and prejudicial and denied him a fair trial.
Before this court, defendant seeks a new trial.
¶ 79 During the State’s closing argument, the prosecutor reminded the jury of DNA
analyst Winters’s testimony that the bloodstain on defendant’s jeans revealed a
partial profile that occurs in only 1 in 46,000 African Americans and Winters’s
opinion that the blood could not have been defendant’s and was “likely” the
victim’s. The prosecutor then employed an example with this statistic to show the
likelihood that the bloodstain came from the victim, during which he used the word
“matched.” The prosecutor then repeated that the DNA analyst could not say
definitively that the blood was that of the victim. However, the prosecutor argued
that, based on the statistical likelihood, the jury could find that the blood came from
the victim.
¶ 80 Also, during the State’s initial closing argument, the prosecutor remarked that
the defendant’s fingerprint was found on the victim’s car. During defendant’s
closing argument, defense counsel reminded the jury of the State’s fingerprint
expert’s testimony that it was impossible to determine the age of a fingerprint.
Defense counsel also argued that numerous fingerprints were lifted from the
victim’s vehicle. During the State’s rebuttal closing argument, the prosecutor
addressed defendant’s argument that numerous other fingerprints were found on
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the victim’s car that did not match those of defendant. The prosecutor told the jury
that the State’s fingerprint expert stated that “a fresh print” was recovered.
¶ 81 Defendant acknowledges that he failed to object to each of these two
mischaracterizations at trial and, therefore, has failed to preserve this issue for
appellate review. See People v. Enoch, 122 Ill. 2d 176, 188 (1988) (to preserve an
issue for appellate review, a defendant must object both at trial and in a posttrial
motion). Recognizing the procedural default, defendant seeks review by invoking
the plain-error doctrine of Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967).
The doctrine serves as a narrow and limited exception to the general rule of
procedural default. People v. Herron, 215 Ill. 2d 167, 177 (2005) (collecting cases).
A reviewing court will consider unpreserved error when a clear or obvious error
occurs and (1) the evidence is so closely balanced that the error alone threatened to
tip the scales of justice against the defendant, regardless of the seriousness of the
error or (2) the error is so serious that it affected the fairness of the defendant’s trial
and challenged the integrity of the judicial process, regardless of the closeness of
the evidence. People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007) (citing Herron,
215 Ill. 2d at 186-87). When a defendant fails to establish plain error, the result is
that his procedural default must be honored. People v. Bannister, 232 Ill. 2d 52, 65
(2008). In addressing an assertion of plain error, it is appropriate to determine
whether reversible error occurred at all. See People v. Hood, 2016 IL 118581, ¶ 18;
People v. Harris, 225 Ill. 2d 1, 24 (2007).
¶ 82 Generally, prosecutors have wide latitude in the content of their closing
arguments. People v. Runge, 234 Ill. 2d 68, 142 (2009). They may comment on the
evidence and on any fair and reasonable inference the evidence may yield, even if
the suggested inference reflects negatively on the defendant. A reviewing court will
consider the closing argument as a whole, rather than focusing on selected phrases
or remarks. People v. Perry, 224 Ill. 2d 312, 347 (2007).
¶ 83 The standard of review applied to a prosecutor’s closing argument is similar to
the standard used in deciding whether a prosecutor committed plain error. People
v. Nieves, 193 Ill. 2d 513, 533 (2000); People v. Henderson, 142 Ill. 2d 258, 323
(1990). A reviewing court will find reversible error only if the defendant
demonstrates that the remarks were improper and that they were so prejudicial that
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real justice was denied or the verdict resulted from the error. Runge, 234 Ill. 2d at
142 (and cases cited therein).
¶ 84 Defendant contends that the prosecutor’s two mischaracterizations were so
prejudicial as to deny him a fair trial. Defendant argues that he was prejudiced
because the evidence was so closely balanced that the mischaracterizations could
have tipped the scales of justice against him. Defendant further argues that the two
mischaracterizations were “not isolated, but worked together to exaggerate and
misrepresent the scant physical evidence.” According to defendant, “[t]he
pervasive misconduct here created a pattern of unfairness that denied [defendant] a
fair trial and requires reversal and remand for a new trial.” We disagree.
¶ 85 Considering the closing argument in its entirety, each of the two challenged
prosecutorial remarks was obviously a mischaracterization of an item of evidence.
Defendant is correct that the prosecutor’s remark that the blood from the bloodstain
on defendant’s jeans “matched” the blood of the victim was a mischaracterization.
However, this was clearly an isolated remark that the prosecutor made between
several correct references to the DNA evidence throughout the entirety of the
argument.
¶ 86 Defendant is also correct that the prosecutor’s remark that defendant’s
fingerprint on the victim’s vehicle was a “fresh print” was a mischaracterization.
However, this too was an isolated remark among several correct references to
defendant’s fingerprint.
¶ 87 We cannot accept defendant’s description of these two isolated remarks as
“pervasive misconduct” that “created a pattern of unfairness.” The brief and
isolated nature of these two mischaracterizations, in the context of the entire lengthy
closing argument, is “a factor we have found significant in assessing the impact of
such remarks on a jury verdict.” Runge, 234 Ill. 2d at 142. As to another appropriate
factor in our assessment, we note that the trial court instructed the jury to disregard
statements made in closing argument not based on the evidence. See, e.g., id. at
143; People v. Moore, 171 Ill. 2d 74, 100 (1996); Henderson, 142 Ill. 2d at 326.
¶ 88 Accordingly, forfeiture aside, the two challenged remarks were not so improper
and so prejudicial that real justice was denied or that the jury’s verdict may have
resulted therefrom. Without reversible error, there can be no plain error. Hood,
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2016 IL 118581, ¶ 29; Harris, 225 Ill. 2d at 24-25, 31-32; People v. Sims, 192 Ill.
2d 592, 623 (2000).
¶ 89 2. Ineffective Assistance of Counsel
¶ 90 Defendant alternatively contends that he was denied the effective assistance of
counsel when his trial counsel failed to preserve this issue for review. To
demonstrate ineffective assistance of counsel, a defendant must show that (1) the
attorney’s performance fell below an objective standard of reasonableness and
(2) the attorney’s deficient performance prejudiced the defendant in that, absent
counsel’s deficient performance, there is a reasonable probability that the result of
the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687 (1984). Because the defendant must satisfy both prongs of this test, the failure
to establish either is fatal to the claim. Id. at 697.
¶ 91 In this case, we can dispose of defendant’s assertion of ineffective assistance of
counsel on the prejudice prong alone. The showing of Strickland prejudice in this
context is similar to the prejudice that establishes reversible error for improper
prosecutorial remarks: whether the guilty verdict resulted from trial counsel’s
failure to object. Perry, 224 Ill. 2d at 347. We have concluded that the two
challenged remarks were not sufficiently prejudicial to constitute reversible error.
Therefore, trial counsel’s failure to object cannot have caused the type of prejudice
that Strickland requires. Id. at 350; People v. Ceja, 204 Ill. 2d 332, 358 (2003).
¶ 92 C. Krankel Preliminary Inquiry
¶ 93 Defendant submitted, pro se, a letter to the trial court and made posttrial claims
of ineffective assistance of counsel. The trial court eventually conducted a
preliminary examination of defendant’s ineffectiveness claims pursuant to Krankel,
102 Ill. 2d 181. The trial court denied defendant’s claims without appointment of
independent counsel and further hearing. The appellate court affirmed. 2018 IL App
(5th) 150274, ¶¶ 81-122. Before this court, defendant assigns error as to how the
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trial court conducted the Krankel preliminary inquiry. Defendant seeks, pursuant to
Krankel, the appointment of counsel for a hearing on the merits of his pro se
ineffective assistance of counsel claim or, at least, a new Krankel preliminary
inquiry.
¶ 94 In Krankel, the defendant filed a pro se posttrial motion for a new trial alleging
ineffective assistance of counsel because his trial counsel failed to investigate or
present an alibi defense. The trial court gave the defendant an opportunity to argue
his motion. After hearing from the defendant, the trial court denied the defendant’s
pro se ineffectiveness claim. Before this court, the State conceded that the
defendant should have had new counsel to represent him on the motion. We agreed
and remanded the matter for a new hearing on the defendant’s pro se motion with
different counsel to determine whether the defendant was denied effective
assistance of counsel. Krankel, 102 Ill. 2d at 187-89.
¶ 95 A common-law procedure has developed from our decision in Krankel that
governs a pro se posttrial claim alleging ineffective assistance of counsel. People
v. Roddis, 2020 IL 124352, ¶ 34; People v. Patrick, 2011 IL 111666, ¶ 29; People
v. Williams, 147 Ill. 2d 173, 250-51 (1991) (collecting cases). This procedure
“serves the narrow purpose of allowing the trial court to decide whether to appoint
independent counsel to argue a defendant’s pro se posttrial ineffective assistance
claims” (Patrick, 2011 IL 111666, ¶ 39) and “is intended to promote consideration
of pro se ineffective assistance claims in the trial court and to limit issues on
appeal” (id. ¶ 41). See Roddis, 2020 IL 124352, ¶ 34; People v. Jolly, 2014 IL
117142, ¶¶ 29, 38.
¶ 96 The Krankel procedure “is triggered when a defendant raises a pro se posttrial
claim of ineffective assistance of trial counsel.” Jolly, 2014 IL 117142, ¶ 29. A
pro se defendant need only bring his or her claim to the trial court’s attention. The
defendant is not required to file a written motion in the trial court but may raise the
issue orally or through a letter or note to the court. People v. Ayres, 2017 IL 120071,
¶ 11 (and cases cited therein).
¶ 97 An abundance of decisions from this court and our appellate court “have
contributed to the refinement of the Krankel procedure.” Roddis, 2020 IL 124352,
¶ 37. New counsel is not automatically appointed in every case when a defendant
raises a pro se posttrial claim of ineffective assistance of counsel. Rather, when a
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defendant makes such a claim, the trial court should first examine its factual basis.
If the trial court determines that the claim lacks merit or pertains only to matters of
trial strategy, then the court need not appoint new counsel and may deny the pro se
motion. However, if the allegations show possible neglect of the case, new counsel
should be appointed. Jolly, 2014 IL 117142, ¶ 29; People v. Moore, 207 Ill. 2d 68,
77-78 (2003) (collecting cases). The new counsel would then represent the
defendant at the hearing on the pro se claim of ineffective assistance of counsel.
The appointed counsel can independently evaluate the pro se claim and avoid the
conflict of interest that defendant’s trial counsel would experience in trying to
justify his or her actions contrary to the defendant’s position. Roddis, 2020 IL
124352, ¶ 36; Moore, 207 Ill. 2d at 78.
¶ 98 The applicable standard of review depends on whether the trial court did or did
not determine the merits of the defendant’s pro se posttrial claims of ineffective
assistance of counsel. 2018 IL App (5th) 150274, ¶ 86. “The operative concern for
the reviewing court is whether the trial court conducted an adequate inquiry into
the defendant’s pro se allegations of ineffective assistance of counsel.” Moore, 207
Ill. 2d at 78. Whether the trial court properly conducted a Krankel preliminary
inquiry presents a legal question that we review de novo. Roddis, 2020 IL 124352,
¶ 33; Moore, 207 Ill. 2d at 75. However, if the trial court has properly conducted a
Krankel inquiry and has reached a determination on the merits of the defendant’s
Krankel motion, we will reverse only if the trial court’s action was manifestly
erroneous. People v. Lobdell, 2019 IL App (3d) 180385, ¶ 10; People v. Cook, 2018
IL App (1st) 142134, ¶ 106; People v. Smith, 2016 IL App (1st) 140039, ¶ 14;
People v. Jackson, 131 Ill. App. 3d 128, 139-40 (1985). Manifest error is error that
is clearly evident, plain, and indisputable. People ex rel. Madigan v. J.T. Einoder,
Inc., 2015 IL 117193, ¶ 40; People v. Morgan, 212 Ill. 2d 148, 155 (2004).
¶ 99 Before this court, defendant contends that his Krankel proceeding was improper
for three reasons. First, defendant contends that the trial court applied the wrong
criteria in denying his pro se ineffectiveness claims at the conclusion of the Krankel
preliminary inquiry. Second, defendant contends that the Krankel preliminary
inquiry was conducted in an adversarial manner, which can never be deemed
harmless error. Third, defendant alternatively contends that harmless error review
is inappropriate in this particular case.
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¶ 100 1. Allegedly Incorrect Criteria
¶ 101 Defendant contends that the trial court applied the wrong guideline in denying
his pro se ineffectiveness claims at the conclusion of the Krankel preliminary
inquiry. The test to be applied at a Krankel preliminary inquiry is familiar. “ ‘ “If
the trial court determines that the claim lacks merit or pertains only to matters of
trial strategy, then the court need not appoint new counsel and may deny the pro se
motion. However, if the allegations show possible neglect of the case, new counsel
should be appointed.” ’ ” Ayres, 2017 IL 120071, ¶ 11 (quoting Jolly, 2014 IL
117142, ¶ 29, quoting Moore, 207 Ill. 2d at 78); accord Roddis, 2020 IL 124352,
¶ 35.
¶ 102 At defendant’s Krankel preliminary examination, the trial court asked
defendant to elaborate on his ineffectiveness claims. After defendant elaborated on
each claim, the trial court asked defense counsel to respond.
¶ 103 Defendant claimed that defense counsel was ineffective for failing to call
Laqueshia Jackson as a witness at his second trial. Defendant maintained that
Jackson recanted her inculpatory testimony from the first trial. In response, defense
counsel explained that Jackson gave him a statement recanting her prior inculpatory
testimony but that he did not call her based on trial strategy due to uncertainty as to
what she might say on the witness stand. Defendant next claimed that defense
counsel was ineffective for failing to call Jackson’s sister, Angela Dodd, as a
witness. In response, defense counsel explained that his only memory of Dodd was
speaking with her to locate Jackson. Defendant claimed that defense counsel was
ineffective for failing to call two alibi witnesses. Defense counsel responded that
he was unable to locate one witness and decided not to call the other based on trial
strategy. Defendant claimed that defense counsel was ineffective for failing to
object to the two earlier-discussed prosecution mischaracterizations during closing
argument. Defense counsel responded that he did not believe the
mischaracterizations were improper. Defendant also claimed that defense counsel
was ineffective for failing to present evidence concerning the unreliability of the
State’s DNA evidence. Defense counsel responded that he made the strategic
decision to argue that the evidence failed to prove that defendant was ever inside
the victim’s car because he could have picked up the bloodstain from blood that
was found on the exterior of the car.
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¶ 104 In this case, defendant argues that he triggered the appointment of new counsel
for a hearing on his pro se ineffectiveness claims by showing a possible neglect of
his case by defense counsel. However, according to defendant, the trial court
“erroneously applied a higher standard and required Jackson to show his counsel’s
ineffectiveness at this hearing.”
¶ 105 This argument is foreclosed by our recent decision in Roddis, 2020 IL 124352.
In Roddis we observed as follows:
“The trial court, most familiar with the proceedings at issue, remains best
situated to serve the interests of judicial economy by extinguishing conclusory
claims. We decline to unduly limit the most effective arbiter between patently
frivolous claims and those showing possible neglect. The court can ‘base its
evaluation of the defendant’s pro se allegations of ineffective assistance on its
knowledge of defense counsel’s performance at trial and the insufficiency of
the defendant’s allegations on their face.’ ” Id. ¶ 56 (quoting Moore, 207 Ill. 2d
at 79).
We held that “even in preliminary Krankel inquiries, a trial court must be able to
consider the merits in their entirety when determining whether to appoint new
counsel on a pro se posttrial claim of ineffective assistance of counsel. This serves
both the ends of justice and judicial economy.” (Emphasis in original.) Id. ¶ 61.
¶ 106 In the case at bar, the trial court found that “[t]he sufficiency of the allegations
made by the defendant fail on their face to substantiate a claim of ineffective
assistance of counsel.” We agree. Defendant claimed that defense counsel was
ineffective by not calling Jackson and Dodd to testify, by failing to challenge the
State’s DNA evidence, and by not objecting to the two mischaracterizations in the
State’s closing argument. “Whether to call certain witnesses and whether to present
an alibi defense are matters of trial strategy, generally reserved to the discretion of
trial counsel.” People v. Kidd, 175 Ill. 2d 1, 45 (1996). Also, generally, “trial
strategy encompasses decisions such as what matters to object to and when to
object.” People v. Pecoraro, 144 Ill. 2d 1, 13 (1991); see People v. Leger, 149 Ill.
2d 355, 396-97 (1992). Because each of these allegations relates to trial strategy, it
cannot serve as the basis of a Krankel claim. See, e.g., People v. Chapman, 194 Ill.
2d 186, 230-31 (2000); Kidd, 175 Ill. 2d at 44-45; People v. Strickland, 154 Ill. 2d
489, 526-30 (1992). We hold that the trial court did not manifestly err when it
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denied defendant’s pro se posttrial motion alleging ineffective assistance of counsel
without appointing new counsel and conducting a hearing pursuant to Krankel.
¶ 107 2. Availability of Harmless Error Review
¶ 108 Defendant also contends that the trial court allowed the State to participate in
an adversarial manner at the Krankel preliminary inquiry. Defendant argues that
this error is not subject to harmless error review.
¶ 109 As earlier stated, defendant elaborated on each claim, to which defense counsel
offered a response. After defendant and defense counsel finished this dialogue, the
trial court asked the prosecutor: “[D]o you want to comment on any of that?” The
prosecutor argued that defendant’s pro se ineffectiveness claims related to trial
strategy and evidentiary issues and that defense counsel presented “an excellent
defense” for defendant. The prosecutor asked the trial court “to make a finding that
based upon this initial review, that there has been nothing presented that is—that
additional counsel needs to be presented.” As earlier discussed, the trial court
denied defendant’s claims of ineffective assistance of counsel without appointing
independent counsel and further hearing pursuant to Krankel.
¶ 110 It is established that during the Krankel preliminary inquiry, some interchange
between the trial court and defendant’s trial counsel regarding the facts and
circumstances surrounding the allegedly ineffective representation is permissible
and usually necessary in assessing what further action, if any, is warranted on the
defendant’s claim. The trial court may inquire of trial counsel about the defendant’s
pro se allegations, and the court may briefly discuss the allegations with the
defendant. Also, the trial court may base its determination on its knowledge of
defense counsel’s performance at trial and the facial insufficiency of the
defendant’s allegations. Ayres, 2017 IL 120071, ¶ 12; Jolly, 2014 IL 117142, ¶ 30;
Moore, 207 Ill. 2d at 78-79.
¶ 111 Relying on this court’s decision in Jolly, 2014 IL 117142, defendant contends
that the State’s adversarial participation in the Krankel preliminary inquiry
rendered it erroneous. During the Krankel inquiry in Jolly, the trial court allowed
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the defendant to explain each of his claims of ineffective assistance but repeatedly
stopped the defendant from presenting argument on his claims. Id. ¶ 18. The court
then offered the State the opportunity to “rebut” the defendant’s claims. The State
accepted the court’s offer and called the defendant’s trial counsel as a witness. Id.
¶ 19. The State subjected defense counsel to lengthy questioning on the defendant’s
claims that he was ineffective. Through the examination, defense counsel generally
rebutted and otherwise denied the defendant’s ineffectiveness claims. After the
State questioned defense counsel, the trial court did so. Id. ¶ 20. The court allowed
both the pro se defendant and the State to present brief arguments. Id. ¶ 21. Finding
that defendant’s allegations lacked merit or pertained to trial strategy, the trial court
ruled that it would not appoint new counsel or proceed to a full evidentiary hearing.
Id. ¶ 22. On appeal, the State conceded before this court that the trial court erred in
permitting the State’s adversarial participation. However, the State argued that the
improper procedure constituted harmless error. Id. ¶ 27.
¶ 112 The Jolly court disapproved of the management of that Krankel hearing. We
maintained that the common-law Krankel procedure is intended to address fully a
defendant’s pro se posttrial ineffectiveness claims against trial counsel and thus
potentially limit issues on appeal. Also, by initially evaluating a defendant’s claims
in a Krankel preliminary inquiry, the trial court will create the necessary record for
any claims raised on appeal. Id. ¶ 38. We held:
“For these reasons, we believe that a preliminary Krankel inquiry should
operate as a neutral and nonadversarial proceeding. Because a defendant is not
appointed new counsel at the preliminary Krankel inquiry, it is critical that the
State’s participation at that proceeding, if any, be de minimis. Certainly, the
State should never be permitted to take an adversarial role against a pro se
defendant at the preliminary Krankel inquiry.” Id.
We reasoned:
“[T]he purpose of Krankel is best served by having a neutral trier of fact initially
evaluate the claims at the preliminary Krankel inquiry without the State’s
adversarial participation, creating an objective record for review. This goal,
however, is circumvented when the circuit court essentially allows the State to
bias the record against a pro se defendant during the preliminary Krankel
inquiry. A record produced at a preliminary Krankel inquiry with one-sided
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adversarial testing cannot reveal, in an objective and neutral fashion, whether
the circuit court properly decided that a defendant is not entitled to new
counsel.” Id. ¶ 39.
We held that the State’s adversarial participation in that Krankel preliminary
inquiry was “contrary to the intent of a preliminary Krankel inquiry.” Id. ¶ 40.
¶ 113 Generally, the erroneous failure to appoint new counsel to argue a defendant’s
pro se posttrial ineffectiveness claim following a proper Krankel preliminary
inquiry can be harmless beyond a reasonable doubt. Id. ¶¶ 42-43 (citing People v.
Nitz, 143 Ill. 2d 82, 134-35 (1991)); Moore, 207 Ill. 2d at 80-81 (collecting cases).
In Jolly, this court explained that in Nitz there was no concern with the adequacy
of the record from the Krankel preliminary inquiry. Jolly, 2014 IL 117142, ¶ 44.
However, in Jolly, we could not conclude that the State’s adversarial participation
in that Krankel preliminary inquiry constituted harmless error based on the lack of
an objective and neutral record. Id. ¶¶ 39-40. In Jolly, this court explicitly
recognized the State’s concern that our decision would “constitute a new type of
reversible structural error.” Id. ¶ 45. We expressly stated: “The State’s concern is
unfounded.” Id. We specifically refused to “find that the State’s improper
adversarial participation in a preliminary Krankel hearing was structural error.” Id.
¶ 114 In the case at bar, we agree with defendant that the trial court erred by permitting
the State’s adversarial participation in his Krankel preliminary hearing. The State’s
participation consisted of more than a few passing remarks and was not de minimis.
Rather, the prosecutor presented argument in opposition to defendant’s claim of
ineffective assistance of trial counsel and actually asked the trial court to deny
defendant’s Krankel motion. By complimenting defense counsel’s trial
performance, the prosecutor advanced the appearance of the State and defense
counsel aligned against defendant, who was acting pro se at this proceeding. Also,
the fact that the State’s argument responded to all of defendant’s ineffectiveness
claims at the end of the Krankel preliminary inquiry, rather than responding
sequentially to each claim, does not reduce the State’s adversarial participation to
a de minimis degree. We observe that the appellate court agreed with our conclusion
that the trial court erred by permitting the State’s adversarial participation in
defendant’s Krankel preliminary inquiry. 2018 IL App (5th) 150274, ¶¶ 88-92.
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¶ 115 However, the appellate court further held that the improper Krankel preliminary
inquiry constituted harmless error under the facts and circumstances of this case.
Id. ¶¶ 102-04. Before this court, defendant argues that the State’s adversarial
participation in a Krankel preliminary inquiry is not subject to harmless error
review and can never be deemed harmless error.
¶ 116 The State initially responds that defendant forfeited this specific argument
because he did not raise it in the appellate court. Defendant’s appellate court briefs
indicate that defendant is presenting a new argument before this court. In his
appellant’s brief, defendant contended that the Krankel preliminary inquiry was
erroneous because of the State’s adversarial participation. In its appellee’s brief, the
State simply denied that the prosecutor’s participation in the Krankel preliminary
inquiry was adversarial. In his reply brief, defendant first raised the issue of
harmless error in the appellate court and plainly limited his harmless error argument
to the facts of this case. He actually argued: “Here, the nature of Jackson’s claims,
that his attorney failed to call witnesses and challenge trial evidence, cannot be
reviewed as harmless error on this record, which was obtained with the adversarial
participation of the State.” Indeed, citing paragraph 45 of Jolly, defendant expressly
acknowledged that this court in Jolly “found that the State’s adversarial input was
subject to harmless-error review.”
¶ 117 Therefore, defendant’s argument before this court, that the State’s adversarial
participation in a Krankel preliminary inquiry is not subject to harmless error
review and can never be deemed harmless error, was not raised by defendant in the
appellate court. Issues raised for the first time in this court are forfeited. People v.
Cherry, 2016 IL 118728, ¶ 30; People v. Washington, 2012 IL 110283, ¶ 62; People
ex rel. Waller v. 1989 Ford 350 Truck, 162 Ill. 2d 78, 90-91 (1994).
¶ 118 However, this rule is an admonition to the parties and not a limitation on a court
of review. Reviewing courts may look beyond considerations of forfeiture to
maintain a sound and uniform body of precedent or where the interests of justice so
require. Halpin v. Schultz, 234 Ill. 2d 381, 390 (2009); Barnett v. Zion Park District,
171 Ill. 2d 378, 389 (1996). A conflict exists within the appellate court as to whether
the State’s adversarial participation in a Krankel preliminary inquiry is subject to
harmless error review and can ever be deemed harmless error. Accordingly, we
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choose to address the issue at this time. See People v. Wendt, 163 Ill. 2d 346, 351
(1994).
¶ 119 Relying on Jolly, defendant argues that the State’s adversarial participation in
a Krankel preliminary inquiry precludes harmless error review because this type of
error results in “an unreliable record which cannot be examined to determine if it is
harmless” and “will never produce the type of neutral record required for harmless
error review.” We disagree.
¶ 120 We earlier observed that this court in Jolly specifically declined to find that the
State’s improper adversarial participation in a Krankel preliminary inquiry was
structural error. Jolly, 2014 IL 117142, ¶ 45. “An error is typically designated as
‘structural’ and requiring automatic reversal only if it necessarily renders a criminal
trial fundamentally unfair or unreliable in determining guilt or innocence.” People
v. Averett, 237 Ill. 2d 1, 12-13 (2010). “Structural errors are not subject to harmless-
error review.” Id. at 14. Conversely, where an error does not rise to the level of
structural error, then it does not require automatic reversal and is amenable to
harmless error review. See People v. Glasper, 234 Ill. 2d 173, 199-200 (2009);
Neder v. United States, 527 U.S. 1, 7 (1999) (holding that errors that are not
structural are amenable to harmless error analysis). In Jolly, when this court
specifically refused to hold that the State’s adversarial participation in a Krankel
preliminary hearing was structural error, we necessarily concluded that the error
does not require automatic reversal and is amenable to harmless error review.
¶ 121 In People v. Skillom, 2017 IL App (2d) 150681, ¶ 27, a panel of our appellate
court recognized that the trial court erroneously conducted the Krankel preliminary
inquiry in that case in an adversarial manner. However, the Skillom court observed
that “the supreme court specifically declined to hold that the error in that case
[Jolly] constituted structural error. Jolly, 2014 IL 117142, ¶ 45.” Id. ¶ 28.
Therefore, the Skillom court applied harmless error review to that Krankel
preliminary inquiry. Id. The Skillom court concluded that the error committed
during that inquiry was harmless. Id. ¶¶ 29-30.
¶ 122 However, in People v. Gore, 2018 IL App (3d) 150627, a different panel of our
appellate court reached the opposite conclusion. In that case, the State argued that
its adversarial participation in that Krankel preliminary inquiry was harmless error.
The Gore court reasoned: “That argument, however, is foreclosed by the decision
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in Jolly, in which our supreme court rejected the notion that a Krankel inquiry
conducted in adversarial fashion could be considered harmless error.” Id. ¶ 39.
Although the Gore court cited Jolly, it failed to refer to paragraph 45 of Jolly, in
which we refused to find this type of error to be structural error, thereby rendering
it amenable to harmless error review. Id. To the extent that People v. Gore, 2018
IL App (3d) 150627, holds that the State’s erroneous adversarial participation in a
Krankel preliminary inquiry can never be considered harmless error, that decision
is hereby overruled.
¶ 123 3. Appropriateness of Harmless Error Review in This Case
¶ 124 Defendant alternatively contends that harmless error review is inappropriate in
this particular case. Defendant argues that an objective and neutral record of the
Krankel preliminary inquiry is unavailable in this case because the proceeding was
tainted by the State’s adversarial participation and because defendant’s trial counsel
actively argued against defendant’s claims. We disagree. Although the Krankel
preliminary inquiry here was erroneously conducted by the trial court, it
nevertheless produced a neutral and objective record with which a reviewing court
can assess defendant’s pro se ineffectiveness claims.
¶ 125 Defendant argues that his trial counsel “did not merely make statements about
the facts and circumstances, [rather] he actively argued against [defendant].” The
record refutes this argument. The trial court, assisted by defense counsel, created
an objective record of the facts and circumstances relating to defendant’s pro se
ineffectiveness claims. Defendant points to one comment. Defendant claimed
ineffectiveness because trial counsel failed to challenge the weakness of the State’s
DNA evidence. Defendant contends that his trial counsel argued against him by
responding that defendant’s fingerprint was on the outside of the car. However, this
was an objectively true statement to explain for the record why defense counsel
made this strategic decision.
¶ 126 Further, defendant argues that his Krankel preliminary inquiry “was tainted by
the State’s adversarial participation.” We disagree. We have already concluded that
the prosecutor’s remarks constituted erroneous adversarial participation. However,
the trial court’s error occurred after the trial court allowed defendant to present all
of his ineffectiveness claims and confirmed that defendant had nothing else he
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wanted to say. Further, in contrast to Jolly, the prosecution here did not introduce
evidence, cross-examine defendant or his trial counsel, or otherwise create, much
less distort, the record in any way. Rather, the prosecutor erroneously commented
at the end of the hearing on the already existing objective record. Although the
prosecutor’s comments were erroneous, they cannot be said to have distorted the
instant record or to have made it impossible for a reviewing court to consider
whether defendant was entitled to new counsel and a hearing on his ineffectiveness
claims. In sum, neither the challenged remarks of defendant’s trial counsel nor the
trial court error of permitting the State’s adversarial participation in defendant’s
Krankel preliminary inquiry prevented the trial court from creating an objective
record for us to review.
¶ 127 To establish that any error was harmless, the State must prove beyond a
reasonable doubt that the result would have been the same absent the error. People
v. Thurow, 203 Ill. 2d 352, 363 (2003); People v. Warmack, 83 Ill. 2d 112, 128-29
(1980). We earlier held that defendant’s ineffectiveness claims, as presented on the
neutral and objective record, pertain to trial strategy and, therefore, cannot serve as
the basis of a Krankel request. After reviewing the record of defendant’s Krankel
preliminary inquiry, we conclude that the trial court would have reached the same
result absent the error. Therefore, we hold that the erroneous manner in which the
proceeding was conducted was harmless beyond a reasonable doubt.
¶ 128 III. CONCLUSION
¶ 129 In sum, we hold as follows. The evidence was sufficient to prove defendant
guilty of first degree murder beyond a reasonable doubt. The two challenged
prosecutorial mischaracterizations during closing argument did not constitute
reversible error. The trial court did not manifestly err in denying defendant’s
request for the appointment of new counsel and further hearing on his pro se
ineffective assistance of counsel claims pursuant to Krankel. Lastly, although the
trial court erred when it permitted the State’s participation in the Krankel
preliminary inquiry, it constituted harmless error because the trial court’s denial of
defendant’s pro se ineffectiveness claim would have been the same absent the error.
Therefore, the judgment of the appellate court, which affirmed the judgment of the
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circuit court, is affirmed.
¶ 130 Affirmed.
¶ 131 JUSTICE MICHAEL J. BURKE took no part in the consideration or decision
of this case.
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