People v. Lewis ( 2019 )

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Appellate Court Date: 2019.04.16
12:50:52 -05'00'
People v. Lewis, 2019 IL App (4th) 150637-B
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption NOBLE LEWIS JR., Defendant-Appellant.
District & No. Fourth District
Docket No. 4-15-0637
Filed January 8, 2019
Decision Under Appeal from the Circuit Court of Vermilion County, No. 14-CF-88;
Review the Hon. Nancy S. Fahey, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Jacqueline L. Bullard, and Sonthonax B.
Appeal SaintGermain, of State Appellate Defender’s Office, of Springfield,
for appellant.
Jacqueline Lacy, State’s Attorney, of Danville (Patrick Delfino, David
J. Robinson, and Linda S. McClain, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Presiding Justice Holder White and Justice Harris concurred in the
judgment and opinion.
OPINION
¶1 In March 2015, the State charged defendant, Noble Lewis Jr., with home invasion (720
ILCS 5/19-6 (West 2014)) and domestic battery (subsequent offense) (720 ILCS
5/12-3.2(a)(2) (West 2014)). In April 2015, a jury found defendant guilty of domestic battery
but not guilty of home invasion. The trial court later sentenced him to five years in prison.
¶2 Defendant appealed, arguing that (1) the State failed to prove him guilty beyond a
reasonable doubt; (2) the trial court erred because, when the deliberating jury requested to hear
again the compact disc recording of the victim’s 911 call, the court had the jury brought into
the courtroom where the compact disc was replayed in the presence of the court, both counsel,
and the defendant; (3) his trial counsel rendered ineffective assistance of counsel; and (4) this
court should vacate the purported fines imposed by the circuit clerk but not imposed by the
judge.
¶3 In People v. Lewis, 2018 IL App (4th) 150637, this court rejected defendant’s first three
arguments but agreed with his fourth. Accordingly, we vacated the clerk-imposed fines, and
we otherwise affirmed the trial court’s judgment.
¶4 Defendant filed a petition for leave to appeal with the Supreme Court of Illinois. In
September 2018, the supreme court denied defendant’s petition but entered the following
supervisory order:
“In the exercise of this Court’s supervisory authority, the Appellate Court, Fourth
District, is directed to vacate its judgment in People v. Lewis, case No. 4-15-0637
(04/13/18). The appellate court is directed to consider the effect of this Court’s opinion
in People v. Vara, 2018 IL 121823, on the issue of whether it has jurisdiction to address
and vacate the clerk-imposed fines in this matter.” People v. Lewis, No. 123582 (Ill.
Sept. 26, 2018) (supervisory order).
¶5 In accordance with the supreme court’s direction, we vacate our earlier opinion in this case,
filed April 13, 2018. Further, after considering the effect of the supreme court’s opinion in
Vara on the issue of whether this court has jurisdiction to address and vacate the clerk-imposed
fines in this matter, we conclude that we do not. Accordingly, we adhere to and reinstate our
prior opinion in this case in all respects except regarding the matter of clerk-imposed fines. We
conclude, in light of the supreme court’s decision in Vara, 2018 IL 121823, ¶ 23, that we lack
jurisdiction to review the clerk-imposed fines in this case that were not included as a part of the
trial court’s final judgment. Thus, we decline to address this issue.
¶6 I. BACKGROUND
¶7 Defendant’s jury trial occurred in April 2015, and the following facts are undisputed.
¶8 From about 9:30 a.m. to 11 a.m. on February 28, 2014, defendant’s then-girlfriend, Kelly
Glore, had coffee in Danville, Illinois, with a friend, Glen Fink. At the time, defendant, a
mechanic by trade, was working on a car and drove it to AutoZone to buy some parts. While
there, he received a telephone call from Glore, who wanted him to pick her and Fink up from
Kmart because it was too cold for them to wait for the bus. Defendant did so, dropped Fink off
at his destination, and dropped Glore at her apartment on Fairweight Avenue. Defendant then
resumed work on the car.
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¶9 At 4:30 p.m. or 5 p.m., he finished with the car and arrived at Glore’s apartment around
5:30 p.m. He cooked supper, which he and Glore ate while drinking vodka. Around 7 p.m. or 8
p.m., a man whom defendant knew, Michael Roberson, arrived at the apartment, and defendant
introduced him to Glore.
¶ 10 At this point, the accounts from Glore and defendant as to what happened substantially
differ.
¶ 11 A. The State’s Case-in-Chief
¶ 12 1. The Testimony of Kelly Glore
¶ 13 Glore testified that when Roberson came over, he and defendant smoked crack cocaine. As
she was lying on a mattress in the living room, Roberson looked over at her and asked,
“ ‘Ma’am, which room do I get?’ ” Thinking he was just talking nonsense because he was high,
she at first ignored him. When he repeated the question, she responded, “ ‘What do you mean,
which room do you get?’ ” He explained he had paid defendant $50 to live in her apartment.
¶ 14 Upon receiving this news, Glore asked defendant to come with her to the bedroom so she
could talk with him. During their conversation in the bedroom, she told defendant “he needed
to leave and sober up for a couple of hours.” The prosecutor asked her:
“Q. What happened?
A. At that point, I saw a look in his eyes, and I got scared and ran outside. I ran to
the apartment steps, ran to the side of the apartment, and I called the police, and then I
ran back up the steps and ran toward my apartment, and [defendant] was going to throw
me over the balcony, so I braced myself between the balcony and the girl’s apartment
door[,] and that’s when he was punching me in the head and face.”
¶ 15 After defendant “let [her] up,” she went back into her apartment. Both he and Roberson had
“[taken] off.” Defendant “probably realized that [she had] called the cops.”
¶ 16 The police arrived at her apartment, and she told them what had happened. The police
looked for defendant but could not find him. They told her to call them back if he returned.
¶ 17 About 2 a.m., defendant kicked in the door of her apartment. When he did so, she was lying
on the mattress in her living room and had not left the apartment since the police had been
there. She explained what happened next, as follows:
“At first, he came after me with a staple gun. Then he grabbed a kitchen chair and
put a hole in the wall, broke the kitchen chair, and then he put a mask on his face, and I
asked [him] why he was putting the mask on his face, and he said so that way when he
kills me, we [sic] couldn’t identify him. Then he put some gloves on, and I asked him
why he put the gloves on. He said because that way they won’t get any fingerprints
from him. He had two knives in his hand[,] and he came to the mattress and jumped on
top of me and told me he was going to kill me. First, he wanted to get the phone, but I
had the phone stuffed under the mattress in my hand, and—when he had the knives to
my neck, I told him—I took the [B]ible out to him, and then he got up, but it was God
that called 911, because I couldn’t see what I was calling. And then the police came in.”
¶ 18 On cross-examination, Glore denied she smoked crack cocaine with Roberson when he
came to her apartment with defendant, but she admitted smoking crack cocaine three months
before the trial. She remembered going to the police station and giving a statement to a
detective named Lewallen, but because “[it had] been a long time [ago],” she could not
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remember everything she had told him. She remembered telling him about the staple gun.
However, she could not remember whether she told the detective that defendant had been
living with her on Fairweight Avenue or that he had hit her eight times.
¶ 19 She agreed with defense counsel that this was “not the first time [she had] called the police
on [defendant],” but she could not remember the date when she previously had done so. She
and defendant had known each other for only a year prior to the trial. A previous battery
occurred sometime when they lived together on Main Street before she moved to Fairweight
Avenue. She had defendant arrested for domestic battery on that previous occasion, and “[h]e
spent some time in jail.” When he was released from jail, she allowed him to move back in with
her on Main Street because she loved him.
¶ 20 2. The Recording of Glore’s First 911 Call
¶ 21 The first 911 call that Glore made in the early morning of March 1, 2014, lasted 5 minutes
and 20 seconds. The State played a compact disc, on which the call was recorded. In the 911
call, Glore, wailing and sobbing, identified her attacker as “Noble Lewis, Jr.” She stated that he
had left after punching her, she currently was alone in the apartment, and this was not the first
time he beat her up.
¶ 22 3. The Testimony of Kyle Harrold
¶ 23 Kyle Harrold testified he was a Danville police officer. On March 1, 2014, around
midnight, he received a dispatch to Fairweight Avenue regarding a domestic-battery call.
When he arrived at the apartment, the door frame was intact, and there were no obvious marks
on the door. Inside, it was a “pretty standard apartment,” with “nothing really out of place.”
¶ 24 The prosecutor asked Harrold:
“Q. Could you please describe your own personal [observations] of what Kelly
Gore [sic] looked like at that time?
A. At that time, she had swelling, some bruising and redness in the right corner of
her right eye. She also had redness in her left ear.”
¶ 25 After talking with Glore, Harrold attempted to locate the suspect but was unsuccessful. He
told Glore to call back if the suspect returned to the apartment, and the police would come as
fast as they could.
¶ 26 At about 2:15 a.m. on March 1, 2014, the dispatchers received a hang-up 911 call. They
looked up the telephone number and discovered it was Glore’s.
¶ 27 In response to the hang-up 911 call, Harrold returned to apartment No. 6 on Fairweight
Avenue. As Harrold got out of his squad car, “a male black who was later identified as
[defendant]” was on a porch. (In the courtroom, Harrold identified defendant as the man.)
Upon seeing Harrold, defendant “ran back into the apartment.” Harrold ran after him and up
some stairs. When Harrold reached Glore’s apartment, he found (1) the door of the apartment
partly ajar, (2) a large mark, seemingly a shoe print, on the center left of the door, by the door
handle, and (3) the door frame broken, with splinters of wood on the floor. Glore yelled,
“ [‘C]ome in and get him[!’] ” On Harrold’s instructions, she ran out of the apartment, and
defendant came into the living room. Harrold then arrested him.
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¶ 28 4. The Testimony of Danielle Lewallen
¶ 29 Danielle Lewallen testified she was a Danville police officer currently assigned to the
second-shift patrol, but in March 2014 she was assigned to the detective division. (She
explained that patrol officers in the Danville police department normally were rotated into the
detective division, where they remained for a year and then were rotated out again.)
¶ 30 On March 1, 2014, at about 2 a.m., the dispatcher notified her of a hang-up 911 call. The
911 call history indicated an address on East Main Street, and at first Lewallen went to that
address, but nothing appeared to have happened there. Harrold then informed Lewallen that
only a few hours earlier he handled a domestic call on Fairweight Avenue, at apartment No. 6,
Glore’s apartment. So, Lewallen and Harrold went to that address.
¶ 31 Upon arriving, they found the door of the apartment busted in and a shoe print on the door.
Two people were in the apartment, defendant and Glore. The interior of the apartment was in
disarray, things were strewn around, and a chair and a lamp were broken. Lewallen
photographed a kitchen knife that Harrold told her allegedly had been used against Glore.
Lewallen did not recall seeing a staple gun.
¶ 32 She photographed injuries to Glore’s face, neck, and left ear. Glore was upset. She said it
was her apartment and that defendant stayed there every night.
¶ 33 The prosecutor asked Lewallen:
“Q. *** Defense counsel asked you about Ms. Glore making comments that she
had smoked crack that—on—about the time this happened. Did she indicate to you
what time of day that she had smoked crack?
***
A. She advised she went for coffee that morning, and after she went for coffee, she
had smoked some crack, and that [defendant] had smoked crack with her, and he had
continued to smoke crack throughout the day.
Q. Did she indicate if she stopped smoking crack at any point during that day?
A. She didn’t advise that she had smoked any crack after the initial time she
advised. I do not recall the initial time.”
¶ 34 B. Defendant’s Case
¶ 35 1. The Testimony of Defendant
¶ 36 Defendant took the stand in his own behalf. He testified that he and Glore began dating one
another in February 2013 and that, at some point, he moved in with her on East Main Street.
Her electricity and water had been turned off for nonpayment, and he assisted her financially
by putting the utilities in his own name. He “help[ed] her *** get her life together,” and
according to him, “[s]he liked that in [him].”
¶ 37 On August 30, 2013, while they were living together on East Main Street, Glore asked
defendant to give her some money, and he refused. In retaliation, she accused him of battering
her, even though he “never put a hand on her.” He returned to the house in the evening after
working on a car, and he tried to get in the back door, but she had blocked it with a refrigerator,
and she ran out the front door.
¶ 38 The police arrested him and took him to jail, where he remained until October 8, 2013. On
that date—even though he was innocent—he pleaded guilty to simple battery so he could get
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out of jail in time for Thanksgiving and Christmas. (Later, on cross-examination, he admitted
he was convicted in 2013 of domestic battery.) He had children, and it was important to him to
be with them during the holidays.
¶ 39 In 2013, while defendant was in jail, Glore visited him and promised “she would try to do
better.” He was “kind-hearted,” and he “cared for her” and did not want to see her homeless.
So, when he was released from jail, he reestablished his relationship with her and helped her
move from the East Main Street residence, from which she was being evicted, to the apartment
on Fairweight Avenue. He moved in with her again.
¶ 40 Defendant testified that on February 28, 2014, when defendant went to AutoZone to buy
parts, Glore telephoned him and asked him to come to Kmart to give her and Fink a ride.
Defendant then picked them up in the car he was working on. He dropped Fink “off at
Valleyview” and Glore at the apartment on Fairweight Avenue, and he resumed work on the
car.
¶ 41 Defense counsel asked defendant:
“Q. I’m going to back you up a little bit. You picked them up. Where did you pick
them up?
A. By K-Mart.
Q. Did something happen while Ms. Glore was getting in the car?
A. Yeah. She was in such a hurry to get in the car when the door opened, she got in,
but she bumped her head both times getting in. It was a small car. Trying to get in as
fast as she was getting in, she didn’t get in all the way. She crashed with the door. I
didn’t see if she was okay. She got in, [‘]I’m okay. I’m okay.[’]
Q. Is that your understanding that’s how she has the bump on the side of her head?
A. Yes.”
¶ 42 Around 4:30 p.m. or 5 p.m. on February 28, 2014, defendant finished working on the car,
and its owner dropped him off at the apartment on Fairweight Avenue. Only Glore was there.
He cooked dinner for the two of them. Defense counsel asked him:
“Q. Did [Glore] eat dinner that night?
A. She nitpicked at it, but I kind of knew why she nitpicked.
Q. Why is that?
A. She’s been getting high.
Q. Is that normal for her to do?
A. She does it every day. But like I said, it’s just every day.
Q. When she’s high, she doesn’t eat much?
A. No.”
¶ 43 Around 7 p.m. or 8 p.m., Roberson came to the apartment. Defendant introduced him to
Glore and had a drink with him, and Roberson and Glore talked. “Next thing you know, they
found out that they do the same thing,” that is, “[t]hey party alike.” Roberson bought $20 of
crack cocaine (from whom is unspecified), and he and Glore shared it while defendant washed
dishes. Then they all “sat and talked and talked, kicking it, you know.” Then Roberson bought
another $20 of crack cocaine, and “they got that.” By 12:30 a.m. or 1 a.m. on March 1, 2014,
“[Glore] wanted some more, and [Roberson] wanted some more, but all [Roberson] had was
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$10,” and no dealer would take the risk of bringing a mere “$10 worth of stuff.” Defendant
continued:
“Me and [Roberson] left together, because the party was over with. They couldn’t get
no more stuff. So, okay. I said well—then she had a thing about I’m always doing that.
That’s when I told her, ‘You supposed to be trying to quit this stuff. I’m doing what I’m
trying to do, but you getting mad because he only got $10 left.’ So, I don’t understand.
But anyway, I’m going to get some tobacco before the store closes.”
¶ 44 So, around 1 a.m. or 1:15 a.m., defendant left the apartment with Roberson and set out on
foot for Main Package on East Main Street to buy tobacco. The store’s closing time was 2 a.m.
or 2:30 a.m., and, “[o]n a good day,” it was a 25-minute walk to the store, one way. It was cold
and slippery out. Defense counsel asked defendant:
“Q. Okay. Did you take your billfold with you?
A. No. I left my billfold, my cell phone[,] and the house key in the dresser, because
I was just running down the street. Ain’t thinking about—I had the money in my
pocket. I didn’t have to grab none of that stuff. I never thought, you know, I would have
no trouble getting in. I never had trouble getting in before, unless she lost her key. Well,
she did lose her key.”
¶ 45 After buying a bag of tobacco at Main Package, defendant walked back to the apartment on
Fairweight Avenue. He estimated it was “probably about an hour, roundtrip,” and he arrived
back at the apartment “around probably 2:15 [a.m.], maybe.” He knocked on the door of the
apartment and yelled at Glore to unlock the door, but there was no response. “[K]nowing that
when she’s been on a binge like that, she can go to sleep and can’t wake up,” he “just had to
push the door open.” The door had “been jimmied before, so it wasn’t hard to do.” He found
Glore lying on the mattress in the living room. She appeared to have just awakened, and she
looked stunned and baffled, as if she did not know what he was doing.
¶ 46 Defense counsel asked defendant:
“Q. Where did you go next?
A. I went to the kitchen to hang my coat up and took off everything. I was telling
her, I said the door was locked. I had to jimmy it. So, you know, I get ready to start
picking up the pieces. That’s when I looked out the door and seen the police was
coming up. I looked out the door and asked her why she called the police. She never
said nothing. All I know then, they was just wanting to get me down. I told them I
couldn’t get down. I was trying to explain to them, I got 13 pins and stuff in my leg, so
I can’t get down.”
¶ 47 Defendant denied ever hitting Glore or holding a knife or staple gun to her throat. He also
denied kicking the door of her apartment. He insisted he was incapable of kicking and that,
instead, he merely pushed the door open with his shoulder.
¶ 48 2. The Testimony of Norman Lewis
¶ 49 Norman Lewis testified he was defendant’s brother and that defendant and Glore had been
in a dating relationship for “[r]oughly two years.” He helped them move appliances to the
house on East Main Street and, later, to the apartment on Fairweight Avenue. He had been to
the apartment on Fairweight Avenue once or twice to pick them up and give them a ride. It was
his understanding that defendant lived in the apartment with Glore, just as he had lived with
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her on East Main Street. He opined that the exterior of the apartment needed repairs,
particularly the door. He testified: “The door, the steps all the way up to the apartment, was
kind of rugged. The door, you had to twist the knob, pick it up, try to bump it open, and you
have to do the same thing when you shut it.” The door “wasn’t that secure.”
¶ 50 3. The Testimony of Kyle Harrold
¶ 51 Defense counsel asked Harrold:
“Q. [On March 1, 2014, at the Fairweight Avenue apartment,] [w]hen you spoke
with Kelly Glore, did she tell you that there was a staple gun that was used?
A. No, she did not.
Q. Did she tell you that there was one knife or two knives?
A. One knife.”
¶ 52 C. The State’s Case in Rebuttal
¶ 53 1. The Testimony of Danielle Lewallen
¶ 54 The prosecutor asked Lewallen about her interview of defendant on March 3, 2014, at the
county jail. Specifically, the prosecutor asked her what he said “in regards to how he got inside
of the apartment at Fairweight [Avenue] on the night that he was arrested.” Lewallen
answered:
“A. He stated to me in the statement that Ms. Gore [sic] would not let him back into
the residence, so he kicked the door in.”
¶ 55 D. Notes From the Jury During Deliberations
¶ 56 1. The Note Asking What Is a “Place of Residence”
¶ 57 At 10:07 a.m. on April 22, 2015, the jury began its deliberations.
¶ 58 At 11:01 a.m., the jury sent out a note asking, “What constitutes your place of residence?”
The trial court wrote in response: “You have the jury instructions.” (The court had instructed
the jury that knowingly and without authority entering the dwelling place of another was an
element of home invasion and that a “dwelling place” was “a building or portion of a building
which [was] used or intended for the use as a human habitation, home, or residence.”)
¶ 59 2. The Note Requesting to Listen to the 911 Recording Again
¶ 60 At 11:34 a.m., the jury sent out a note asking, “Can we have the 911 CD for us to listen to,
tape player as well? Juror Lamar Reed.”
¶ 61 Defense counsel asked the prosecutor if not only the first 911 call but also the second one
were on the compact disc (People’s exhibit No. 2). The prosecutor believed they were. The
trial court asked: “What was the second one? Just a hang-up?” Defense counsel answered,
“It’s, like, a minute of background stuff.”
¶ 62 The prosecutor was of the view that because he had not played the second (hang-up) 911
call to the jury, “it would be inappropriate for them to hear that” now. He argued, therefore,
that if the court, in its discretion, allowed the jury to hear the first 911 call again, the jury
should do so in the courtroom “so we can control them not hearing the second call.” The court
asked: “So, you want to bring them out here so they can hear it?” Defense counsel responded:
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“I think that’s probably safest.” Defense counsel then asked the prosecutor if possibly someone
in his office “could just burn the first call.” The prosecutor responded: “I’d rather not tamper
with evidence.” The following discussion occurred:
“THE COURT: We’re not going to do that. We’re back on the record. Do you want
me to go back and tell them that we’re bringing them into the courtroom to listen to it,
or do you want to just bring them in, or—
MS. PERRY [(PROSECUTOR)]: Whatever the [c]ourt—
MS. BEZNER [(DEFENSE COUNSEL)]: I would say to just bring them in.
MS. PERRY: I would say bring them in, Judge, and maybe admonish them out here
that for legal reasons, we can’t allow you to take it back into the jury room, but you can
listen to it out here.”
¶ 63 At 11:40 a.m., the jury was brought back into the courtroom. The trial court told the jury
the following:
“THE COURT: For legal reasons, I can’t send the tape player and the disc back to
you in the jury room, but we’re going to let you listen to it again out here. Okay.
MR. PERRY: For the record, I’m playing the disc.
(PEOPLE’S EXHIBIT [NO.] 2 PLAYED FOR THE JURY)
THE COURT: Okay. You can take them back in the jury room.
(JURY RELEASED BACK TO THE JURY ROOM
TO DELIBERATE AT 11:46 A.M.)”
¶ 64 Thereafter, the jury found defendant guilty of domestic battery but not guilty of home
invasion.
¶ 65 II. ANALYSIS
¶ 66 Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a
reasonable doubt, (2) the trial court erred because, when the deliberating jury requested to hear
again the compact disc recording of the victim’s 911 call, the court had the jury brought into
the courtroom where the compact disc was replayed in the presence of the court, both counsel,
and the defendant, (3) his trial counsel rendered ineffective assistance of counsel, and (4) this
court should vacate the purported fines imposed by the circuit clerk but not imposed by the
judge. We will address these contentions in turn.
¶ 67 A. The Sufficiency of the Evidence
¶ 68 In the domestic battery count (720 ILCS 5/12-3.2(a)(2) (West 2014)), the State charged
that, on or about March 1, 2014, defendant knowingly and without legal justification made
physical contact of an insulting or provoking nature with Glore, a household or family
member, and that he committed this domestic battery after having previously been convicted
of domestic battery. Defendant argues that the State failed to prove him guilty beyond a
reasonable doubt because (1) Glore was impeached by inconsistencies between her 911 call
and her trial testimony and (2) Glore’s testimony had no support in the physical evidence. We
will first address the alleged inconsistencies.
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¶ 69 1. Inconsistencies Between Glore’s 911 Call
and Her Trial Testimony
¶ 70 Defendant argues that in her 911 call, Glore “clearly stated that she was currently alone in
the apartment,” whereas she testified at trial that she made the 911 call while defendant and
Roberson were still in the apartment. (According to her testimony, defendant and Roberson
had “[taken] off” because defendant “probably realized that [she had] called the cops.”)
However, this supposed inconsistency is explainable because Glore might have dialed 911
while defendant and Roberson were still in the apartment, and they might have left as she was
making the call, thus leading her to tell the 911 operator she now was alone in the apartment.
We note that the 911 call literally begins with Glore’s yelling, “Fuck you!”—as if at
defendant’s departing back—and when the 911 operator first asks Glore where defendant is,
she seems to answer, “At the door.” (Glore is sobbing and wailing and breathing heavily
throughout the recording, and understanding her is at times difficult.)
¶ 71 Later in the call, Glore seems ambivalent as to where defendant is. For instance, she says
she has not opened the door (presumably, the door to the apartment) and thus she does not
know if he is still there. Only later in the call can she confidently answer that she is alone in the
apartment, and she suggests that defendant probably is running down an alley. Therefore,
when we look at the evidence in the light most favorable to the prosecution, as we are required
(see People v. Hall, 194 Ill. 2d 305, 330 (2000)), the supposed inconsistency does not
necessarily exist.
¶ 72 Defendant contends a further inconsistency exists in that, in the 911 call, Glore reported
that defendant already had punched her. However, in her trial testimony, she stated she made
the 911 call out of fear that he would punch her and that he punched her after she made the 911
call.
¶ 73 Despite this inconsistency, when looking at all the evidence in the light most favorable to
the prosecution, we are not convinced that all reasonable triers of fact consequently would find
Glore to be unbelievable as a result. We acknowledge, of course, that testimony can be so
pervasively inconsistent and so wildly implausible that no sensible trier of fact could possibly
believe it. People v. Smith, 185 Ill. 2d 532, 541-45 (1999); People v. Williams, 65 Ill. 2d 258,
266 (1976); People v. Williams, 383 Ill. App. 3d 596, 643 (2008). However, putting Glore’s
testimony in that category would be a gross exaggeration. A witness need not be ideal to be
believed. “Inconsistencies in and contradictions of testimony do not destroy credibility as
a matter of law. [Citation.] Rather, the credibility of witnesses and the weight to be given their
testimony are for the jury to decide.” People v. Vazquez, 194 Ill. App. 3d 516, 518 (1990).
¶ 74 2. The Lack of Physical Evidence to Substantiate
Certain Parts of Glore’s Testimony
¶ 75 Defendant points out that although Glore testified he “came after [her] with a staple gun,”
the police found no staple gun on the scene. Defendant also argues that although Glore testified
he held two knives to her neck and although a kitchen knife was located in the apartment, no
evidence was offered, beyond her testimony, that he really attacked her with a knife. The
photographs showed no knife injury to her neck.
¶ 76 Again, these apparent discrepancies in the evidence are not, as a matter of law, dispositive.
See People v. Bowen, 289 Ill. App. 3d 378, 384 (1997). Defendant might have put away the
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staple gun when he realized the police were on the way, and he could have held a knife to
Glore’s neck without cutting her with it.
¶ 77 Alternatively, the jury might have regarded these discrepancies as genuine but insufficient
to make Glore unbelievable when it came to the beating she said she received from defendant.
After all, she sounds quite hysterical and distraught in the 911 call, and the State presented
photographs of her battered face.
¶ 78 Further, defendant’s explanation for how she received the facial injuries, i.e., accidentally
running headlong into the door frame of the car—twice, no less—when he picked her up at
Kmart, is arguably so implausible as to lead to the inferences that (1) defendant deliberately
lied in this respect and (2) his reason for lying was that he was in fact the one who inflicted the
facial injuries on Glore. The jury might also have found defendant’s story implausible when he
claimed he walked an hour on a cold, icy night at 1 a.m. to buy tobacco or that he
nonaggressively pushed the door of Glore’s apartment open with his shoulder instead of
kicking it in, as he originally told the police at the county jail. The jury may well—and
justifiably—have regarded his implausible stories as circumstantial evidence of guilt. See
People v. Mister, 2016 IL App (4th) 130180-B, ¶ 113 (“Moreover, defendant’s lies are
evidence of his consciousness of guilt.”).
¶ 79 In sum, when we look at all the evidence in the light most favorable to the prosecution, we
conclude a rational trier of fact could find defendant guilty beyond a reasonable doubt. Hall,
194 Ill. 2d at 330. In so concluding, we note that a reviewing court generally will not substitute
its judgment for that of the trier of fact when the trier of fact determines the credibility of the
witnesses, the weight to be given to their testimony, and the inferences drawn from the
evidence. People v. Bradford, 2016 IL 118674, ¶ 12. A reviewing court will reverse a
conviction only where the evidence is so improbable and unsatisfactory it creates a reasonable
doubt as to defendant’s guilt. Id.
¶ 80 B. Replaying the 911 Recording to the Jury
in the Courtroom During Deliberations
¶ 81 1. Invited Error
¶ 82 Next, defendant argues that the trial court committed reversible error by replaying the 911
recording (People’s exhibit No. 2) to the jury in the courtroom in the presence of the parties
during deliberations. Assuming, for the sake of argument, that this was indeed an error (an
assumption with which we disagree, as we soon will explain), defendant, through his defense
counsel, invited the supposed error by affirmatively agreeing with the prosecutor’s suggestion
that the jury be brought back into the courtroom to hear the replaying of the 911 recording. See
People v. Spencer, 2014 IL App (1st) 130020, ¶ 26 (“For the doctrine [of invited error] to
apply, the defendant must affirmatively request or agree to proceed in a certain way.”).
Defendant “invited or agreed to the procedure and is now estopped from asserting it as error.”
People v. Bowman, 221 Ill. App. 3d 663, 666 (1991).
¶ 83 Defendant disputes the fairness of the invited-error doctrine in this situation because the
prosecutor and the trial court declined defense counsel’s suggestion of recording the 911 call
on another compact disc from which the second (unadmitted) 911 call would be excluded.
Even so, however, defense counsel did not need to agree to a replay of the 911 recording
(People’s exhibit No. 2) in the courtroom. Alternatively, defense counsel could have argued
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for sending the exhibit and a CD player to the jury room with instructions to listen to only the
first 911 call. A jury is presumed to follow instructions. People v. Pulliam, 206 Ill. 2d 218, 256
(2002). Or defense counsel could have argued against allowing the jury to hear the 911
recording again, either in the jury room or the courtroom. See People v. McDonald, 329 Ill.
App. 3d 938, 947 (2002) (“The decision whether to allow jurors to take exhibits into the jury
room is left to the sound discretion of the trial court.”); People v. Panzer, 73 Ill. App. 3d 1, 8-9
(1979) (to avoid undue emphasis on a single item of evidence, the trial court was justified in
refusing to allow the defendant’s written statement to go to the jury room). In other words, by
rejecting, as impractical or too risky, defense counsel’s suggestion of copying the first 911
recording onto another CD while somehow avoiding copying the second 911 recording, the
prosecutor and the court did not really reduce defense counsel to only one potential position.
¶ 84 We point out that defendant’s posttrial motion did not raise the alleged error of replaying
the 911 recording to the jury in the courtroom during its deliberations. A defendant must both
(1) object at trial to an alleged error and (2) raise the alleged error in his posttrial motion. A
defendant’s failure to do either means that the alleged error is forfeited for purposes of an
appeal. See People v. Reese, 2017 IL 120011, ¶ 60; People v. Williams, 2017 IL App (1st)
142733, ¶ 46. An exception to this rule applies if a defendant asserts that the error involved is
so egregious that plain-error analysis should apply, thereby overcoming the defendant’s
forfeiture. However, under the circumstances of this case—specifically, defense counsel’s
acquiescence in the very trial court ruling he now wishes to challenge—defendant is barred
from asserting that the plain-error doctrine applies. We reiterate what this court wrote in
People v. Dunlap, 2013 IL App (4th) 110892, ¶ 12, as follows:
“We also note that plain-error analysis does not apply to this case. Plain-error
analysis, of course, ‘applies to cases involving procedural default ***, not affirmative
acquiescence.’ [People v. Bowens, 407 Ill. App. 3d 1094, 1101, 943 N.E.2d 1249, 1258
(2011)]. When, as here, defense counsel affirmatively acquiesces to actions taken by
the trial court, a defendant’s only challenge may be presented as a claim for ineffective
assistance of counsel on collateral attack. Id.”
In fact, defendant does allege that his trial counsel was ineffective regarding the replaying of
the 911 recording, an allegation we address later in this opinion.
¶ 85 2. Defendant’s Claim of Structural Error
¶ 86 Defendant argues it was a structural error to influence the jury’s deliberations by bringing
the jury back into the courtroom for the replaying of the 911 recording. Because structural
errors require “automatic reversal,” whether a structural error was invited is irrelevant because
reversal nevertheless would be “automatic” in order to preserve the integrity of the judicial
process. People v. Belknap, 2014 IL 117094, ¶ 85. In support of this contention, defendant
cites Justice Holdridge’s dissent in People v. McKinley, 2017 IL App (3d) 140752, ¶ 44
(Holdridge, J., dissenting).
¶ 87 For reasons we will explain, we conclude the trial court committed no error by replaying
the 911 recording in the courtroom. In the absence of any error, no claim of structural error
could be justified. (Even though we conclude that structural error is not present in this case, we
note that the United States Supreme Court recently explained the “concept of structural error”
in Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1907-08 (2017), and we have
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doubts whether defendant’s structural error claims could ever meet the standards the Court
explained in its discussion of structural error.)
¶ 88 To put Justice Holdridge’s dissent in context, we will discuss the facts in McKinley. The
defendant in that case was charged with aggravated driving under the influence (aggravated
DUI) (McKinley, 2017 IL App (3d) 140752, ¶ 3), and in its case-in-chief, the State played for
the jury a video of the traffic stop (id. ¶¶ 8-9). During its deliberations, the jury sent out a
request to watch the video again. Id. ¶ 11. The judge had the bailiff bring the jury back into the
courtroom, and the judge told the jury that because “ ‘two courts calls [were] in process,’ ” a
substitute judge would be present in the courtroom while the video was being replayed. Id.
Before the video was replayed, the judge instructed the jury: “ ‘No one will make any
additional comments about the video, and there won’t be any questioning of any of the
attorneys or anything along those lines.’ ” Id. Defense counsel made no objection to these
remarks. Id. The jury then watched the video in the presence of the substitute judge, the
prosecutor, defense counsel, the defendant, and the bailiff. Id. Afterward, the jury found the
defendant to be guilty of aggravated DUI. Id. ¶ 12.
¶ 89 On direct appeal, the defendant in McKinley argued the trial court had erred by allowing
the jury, during its deliberations, to view the video in the courtroom instead of in the jury room.
Id. ¶ 1. Justice Carter was the lead author in McKinley, and he along with Justice O’Brien
concluded that no reversible error occurred. In reliance on United States v. Olano, 507 U.S.
725, 737-38 (1993), People v. Johnson, 2015 IL App (3d) 130610, and People v. Rouse, 2014
IL App (1st) 121462, Justice Carter found neither of the alternative elements of plain error to
have been met (McKinley, 2017 IL App (3d) 140752, ¶¶ 25-27). One of the alternative
elements was that “a clear or obvious error [had] occurred and the evidence [was] so closely
balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error.” (Internal quotation marks omitted.) Id. ¶ 25.
¶ 90 Justice Carter saw no abuse of discretion and, hence, no error (let alone plain error) in
allowing the jury, during its deliberations, to view the video in the courtroom. Id. ¶ 23. No one
spoke to the jury while the video was being replayed, and the record showed no prejudice to the
defendant. Id. Justice Carter was unconvinced that the mere presence of the substitute judge,
the prosecutor, defense counsel, the defendant, and the bailiff “affected the jury’s ability to
analyze the video.” Id. Although he found that no prejudice and, thus, no error had been
shown, Justice Carter cautioned “that the procedure utilized by the court in the instant case
could have the potential of becoming problematic and possibly lead to [prejudice] in some
cases.” Id. However, in Justice Carter’s view, even if this procedure were erroneous, the
evidence was not closely balanced, and, therefore, the error would be harmless. Id. ¶ 26.
¶ 91 The second, alternative element of plain error (sometimes referred to as structural error) is
that “a clear or obvious error occurred and that error [was] 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.” (Internal quotation marks omitted.) Id. ¶ 25. Justice Carter
was unconvinced that “the circuit court’s decision with regard to the video” was a “structural
error” in that sense. Id. ¶ 27.
¶ 92 Justice O’Brien disagreed with Justice Carter about the absence of error (id. ¶ 32 (O’Brien,
J., specially concurring)), although she ultimately specially concurred because she concluded
that the evidence was not closely balanced; accordingly, plain error did not apply (id. ¶ 36).
She believed “it was error to allow anyone to be present with the jury when [it] viewed the
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video during [its] deliberations,” even if the jurors said nothing to one another while viewing
the video and even if no one said anything to the jurors. Id. ¶ 32. Silent deliberation, she
reasoned, was nonetheless deliberation. She explained further, as follows:
“While some may argue that jury deliberations constitute only the actual discussion
of evidence and not its mere viewing, I believe this distinction is one without
significance. The discussion of evidence is no different than the viewing of evidence,
as both occur after the jury is ordered to deliberate, i.e., jury deliberations. Thus, upon a
jury being ordered to deliberate, the circuit court must ensure that said deliberations are
entirely private. Requiring the jury, in the instant case, to view the video in the
courtroom and in the presence of the parties was improper.” Id. ¶ 35.
¶ 93 Justice Holdridge, in his dissent, disagreed with Justice O’Brien that allowing a
deliberating jury to see a video again in the courtroom was erroneous per se. Id. ¶ 39
(Holdridge, J., dissenting). He believed it was a structural error, however, to have the
deliberating jury view the video in the courtroom in conjunction with the instruction the trial
court gave, that “ ‘[n]o one [was to] make any additional comments about the video.’ ” Id.
¶¶ 43-44 (Holdridge, J., dissenting). Justice Holdridge wrote the following:
“After hearing the instruction, it is reasonable to assume that the jurors would not have
known if they were allowed to discuss the video among themselves once they returned
to the jury room. I believe this fact, when viewed in conjunction with the fact that the
jury was removed from the deliberation room and required to view the videotape in the
courtroom and in the presence of the judge, parties, and bailiff, supports the conclusion
that the circuit court abused its discretion in the manner in which it allowed the jury to
review the videotape. Stated another way, while a circuit court has the inherent
authority to control its courtroom, such authority does not excuse conduct that results
in the chilling of jury deliberations.” Id. ¶ 41.
¶ 94 Thus, although Justice Holdridge agreed with Justices Carter and O’Brien that the evidence
was not closely balanced, he argued that prejudice should be presumed from the conjunction of
what he viewed as the erroneous instruction and the presence of the outsiders in the courtroom.
He wrote that “[t]hough we cannot be certain that [the instruction] prevented the jury from
discussing the video once [the jury] returned to the jury room, we can presume *** that the
instruction inhibited the jury’s ability to deliberate.” Id. ¶ 43.
¶ 95 With all due respect to our distinguished Third District colleagues, we disagree with all of
the views they expressed in McKinley. We recently rejected the argument that allowing a jury
to view a video in the courtroom during deliberations amounted to a structural error, and we
adhere to that view. People v. Matthews, 2017 IL App (4th) 150911, ¶ 43. We wrote that “even
if we agreed with [the] defendant that the trial court erred in allowing the jury to view the video
in the courtroom during deliberations, we find the alleged error does not rise to the level of
structural error under the plain-error doctrine.” Id.
¶ 96 3. Suggested Procedures When Replaying a
Recording to a Deliberating Jury
¶ 97 To be clear, we now reject outright the argument that this procedure is even erroneous, let
alone structurally erroneous. If a deliberating jury requests to hear an audio recording or to see
a video recording again, the trial court does not have to send the recording and equipment to
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the jury room but may instead exercise its discretion to bring the jury into the courtroom for a
replaying of the recording. See State v. Davidson, 509 S.W.3d 156, 203 (Tenn. 2016)
(surveying numerous cases from other jurisdictions, all of which “found no abuse of discretion
by the trial court in allowing the jury to review or rehear recorded evidence in open court”);
State v. Hughes, 691 S.E.2d 813, 826-27 (W. Va. 2010) (it is “universally accepted” that a trial
court may allow the jury, during deliberations, to return to open court to review a tape
recording admitted in evidence). Allowing a deliberating jury to listen to a recording again in
the courtroom instead of in the jury room avoids problems with equipment and the skills
necessary to operate the equipment (State v. Jones, 102 A.3d 694, 702 (Conn. 2014)) and also
“minimizes the risk of breakage or erasure of the recording” (State v. Anderson, 2006 WI 77,
¶ 30, 291 Wis. 2d 673, 717 N.W.2d 74).
¶ 98 When a deliberating jury returns to the courtroom and, in the presence of the judge, the
parties, the lawyers, and court personnel listens again, in silence, to an audio recording, the
jury does nothing different from what it did before, when the recording originally was played.
Assuming the trial court has properly instructed the jury regarding this procedure, we adhere to
the majority view and reject the notion that replaying an audio or visual recording is improper.
¶ 99 Accordingly, we conclude that if a jury, during its deliberations, requests to see or hear a
recording again, the trial court need not send the recording and equipment into the jury room
but instead may, in its discretion, have the jury brought back into the courtroom for a replaying
of the recording. Justice Carter is correct that “the mode and manner in which a circuit court
allows a jury to review a piece of evidence” (in this case, the 911 recording) “falls directly
within the scope of the court’s inherent authority to manage its courtroom.” McKinley, 2017 IL
App (3d) 140752, ¶ 22 (majority opinion). Thus, if the court chooses to have the recording
replayed in the courtroom, the court, parties, and counsel must be present to view or hear the
evidence, and the court should instruct the jury not to discuss the evidence while in the
courtroom. The court should also in the jury’s presence admonish everyone else in the
courtroom not to comment on the evidence, communicate with the jury, or try in any manner to
influence the jury. See Davidson, 509 S.W.3d at 204. Further, to avoid the concerns expressed
by Justice Holdridge in his dissent, the court should instruct the jury that after the replay, the
jury will return to the jury room and should then continue its deliberations, which may include,
if it wishes, the replay.
¶ 100 In the present case, the trial court did not give these instructions and admonitions, but “[in]
the record before us, we find no indicia of prejudice or anything improper having occurred
during the replay of the [recording].” Rouse, 2014 IL App (1st) 121462, ¶ 79.
¶ 101 C. Defendant’s Claim of Ineffective Assistance of Counsel
¶ 102 Last, defendant argues his trial counsel rendered ineffective assistance by “not supporting
her suggestion to burn the 911 call on another CD with constitutional and statutory law.”
¶ 103 A claim of ineffective assistance has two elements: (1) counsel’s performance fell below
an objective standard of reasonableness and (2) the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). In evaluating a claim of
ineffective assistance, we will not second-guess reasonable strategic decisions that counsel
made at trial. People v. Sharp, 2015 IL App (1st) 130438, ¶ 125.
¶ 104 We deem counsel’s agreement to replay the 911 recording in the courtroom in lieu of
sending it to the jury room during deliberations to be a reasonable strategic decision. If the
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recording had gone back to the jury room (with a CD player), the jury could have played the
recording over and over again in an attempt to ascertain everything Glore said to the 911
operator. (As we mentioned earlier, Glore was sobbing uncontrollably throughout most of the
recording.) In our opinion, no wise trial counsel would want the jury to listen to the 911
recording over and over again because doing so could be emotionally upsetting.
¶ 105 For instance, Glore in the recording says such things as (if we hear her correctly) “He’s
already on probation for battery for hitting me,” and “He won’t leave me alone. He keeps
coming back,” and “He’s trying to kill me and make me have seizures.” Absolutely nothing in
this recording could have possibly benefited the defense, but rather, from start to finish, this
recording was damaging to the defense. (We are quick to add that despite this assessment, the
admission of the recording was entirely appropriate. See People v. Pelo, 404 Ill. App. 3d 839,
867 (2010), where this court explained that evidence has an improper prejudicial effect only
when the evidence in question “will somehow cast a negative light upon a defendant for
reasons that have nothing to do with the case on trial.” In other words, the jury would be
deciding the case on an improper basis, such as sympathy, hatred, contempt, or horror. Clearly,
the evidence at issue here had everything to do with the case on trial.)
¶ 106 For the reasons stated, we can readily understand why a reasonable defense counsel would
gratefully embrace the suggestion that the jury hear the 911 recording replayed only once in the
courtroom as opposed to who knows how many times in the jury room.
¶ 107 Accordingly, we find no deficient performance by trial counsel, and we reject defendant’s
claim of ineffective assistance.
¶ 108 D. Clerk-Imposed Fines
¶ 109 In the sentencing hearing and in its sentencing order, the trial court imposed no fines upon
defendant. Even so, the circuit clerk listed several assessments, all of which this court has
previously held to be fines. Defendant argues that because the imposition of these fines is
exclusively a judicial act and because the circuit clerk is not a judge, the purported fines are
void and should be vacated. However, as we earlier explained (see supra ¶ 5), we lack
jurisdiction to review defendant’s claim.
¶ 110 III. CONCLUSION
¶ 111 For the foregoing reasons, we affirm the trial court’s judgment and assess $75 in costs
against defendant (see 55 ILCS 5/4-2002 (West 2014)).
¶ 112 Affirmed.
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