People v. Irwin , 2017 IL App (1st) 150054 ( 2017 )

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People v. Irwin, 2017 IL App (1st) 150054
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KRISTOPHER IRWIN, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-15-0054
Filed May 2, 2017
Rehearing denied May 25, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 12-C4-40256(02);
Review the Hon. Gregory Robert Ginex, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Christofer R. Bendik, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Eric Leafblad, Miles J. Keleher, and Jesse B. Guth, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE MASON delivered the judgment of the court, with opinion.
Justice Pierce concurred in the judgment and opinion.
Presiding Justice Hyman dissented in part, with opinion.
OPINION
¶1 On March 4, 2012, around 7:30 p.m., police officers in Maywood responded to a radio call
of “shots fired.” On their way to the location specified in the call, the officers saw a vehicle
traveling at high speed run through a red light and head past them in the opposite direction. The
officers pursued the car with lights and siren activated, but the car did not stop until blocked by
another responding police vehicle. After all four occupants exited the car, one of the officers
discovered a handgun on the floor in the front passenger seat where defendant Kristopher Irwin
had been sitting. Irwin was tried and convicted of aggravated unlawful use of a weapon
(AUUW) based on his failure to possess a valid Firearm Owner’s Identification (FOID) card.
720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2010). Irwin was sentenced to three years’
imprisonment.
¶2 Irwin raises several issues on appeal relating to the admission of evidence during his trial.
Finding no error warranting a new trial, we affirm.
¶3 BACKGROUND
¶4 Maywood police officer Joseph Escamilla was on patrol in a marked police car on the
evening of March 4, 2012. Around 7:30 p.m., he received a “shots fired” call over his police
radio. Escamilla’s partner, Officer Danielle Deering, accompanied him, and they drove
southbound on 17th Avenue toward the Eisenhower expressway. As they approached the
bridge across the expressway, they saw a four-door Dodge sedan, travelling at a high rate of
speed, make a left turn as it went through a red light and head northbound past them on 17th
Avenue. Escamilla activated his vehicle’s lights and siren, made a U-turn, and followed. The
driver did not stop or slow down, but as he tried to make a right turn onto Van Buren Street, the
driver was cut off by Officer Aaron Peppers’ police car. Peppers was responding to
Escamilla’s radio call regarding the fleeing vehicle. Peppers immediately exited his vehicle
and shouted commands to the occupants of the Dodge to put their hands up and keep them
visible.
¶5 Escamilla parked behind the Dodge. He approached on the driver’s side and instructed
Deering to approach the passenger side. Escamilla acted as the business officer, i.e., the officer
who questions the driver during a traffic stop, and Deering acted as the guard officer, whose
job it is to ensure the safety of the officers and occupants of the vehicle. Peppers observed from
in front of the Dodge.
¶6 Escamilla illuminated the inside of the Dodge with his car’s spotlight and his own
flashlight. He could see there were four occupants but could not determine their race or gender.
As he approached the driver’s door, Escamilla saw through the rear window that the person in
the front passenger seat (later identified as Irwin) made a “sudden movement.” Escamilla was
about five feet away and described Irwin’s movement as “his body just drop[ped] very
quickly” a few inches as he bent down at the waist and then came back up. The movement only
took a second or two. Neither Deering nor Peppers noticed Irwin’s movement, nor did they see
any of the other occupants move after the Dodge was stopped.
¶7 The car had two bucket seats divided by a console in the front and a bench seat in the rear.
Escamilla asked the driver for his license, but the driver did not have one, so Escamilla ordered
him out of the car and had him stand in front of Peppers’ vehicle. Escamilla then directed Irwin
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out of the car and had him stand with his hands on the hood of the Dodge. Escamilla directed
the individual sitting in the rear passenger side seat to get out next and also had him place his
hands on the hood of the car. About 10 seconds passed between the time Irwin got out of the
car and the person sitting in the rear passenger side seat exited. When the fourth occupant
sitting in the rear driver’s side seat (Irwin’s co-defendant Derrick Craddock) got out of the car,
he pushed Escamilla and tried to flee.
¶8 By this time, Officer George Adamidis had arrived on the scene. Escamilla grabbed
Craddock by the waist and felt a blunt object in his waistband. With Deering’s assistance,
Craddock was handcuffed, and Adamidis recovered a 9mm Beretta handgun from his
waistband.
¶9 Once all the occupants were out of the Dodge, Deering did an inventory search and
removed from the floor of the front passenger seat area a black 9mm BPI handgun. The gun
was over an inch thick. Neither Escamilla nor Deering had seen the gun in the car as they were
standing on opposite sides of the car before directing the occupants out, and neither had seen
Irwin with a gun. The gun was in plain view and would have been inches from Irwin’s feet
while he was in the car. About three minutes passed between the time Irwin exited the car and
Deering found the gun.
¶ 10 Deering was not watching the rear passengers during the entire encounter, but it would
have been difficult for a person sitting in the rear passenger seat to reach between the front
seats to deposit a gun on the floor without being noticed. There was space under the front seats,
but Deering did not remember how that area appeared. Deering could not see the feet of the
rear passengers until the door opened.
¶ 11 Adamidis took the gun from Deering and cleared it of ammunition. It was fully loaded with
one bullet in the chamber. The gun was never tested for fingerprints, and a trace of its serial
number did not reveal Irwin as the owner. Irwin was arrested and later charged with AUUW.
¶ 12 Craddock ultimately pled guilty. Before trial, Irwin’s counsel filed several motions
in limine to exclude testimony. The trial court ruled that (i) the police witnesses could testify
they knew Irwin but not about any other arrests or encounters, (ii) the officers could testify that
they pulled over the Dodge while responding to a “shots fired” call over the police radio but
not elaborate further, and (iii) the State could not comment on Irwin’s silence after his arrest.
Irwin’s counsel made a standing objection to testimony concerning the “shots fired” radio call.
The State asked for a few minutes so that it could advise its witnesses of the court’s rulings and
the parameters of their testimony.
¶ 13 At trial, the officers recounted the events described above. The State referenced the “shots
fired” call in its opening statement, and Escamilla, Deering, and Peppers all testified that they
responded to a “shots fired” call but did not provide any further details. Irwin’s counsel
objected to the prosecutor’s and witnesses’ references to “shots fired.” The State made no
mention of a “shots fired” call in closing or rebuttal argument, instead referring to it once as an
“emergency call.”
¶ 14 State’s Exhibit 2 was a photograph of Irwin taken on the night he was arrested. The exhibit
consists of a black and white photocopy of two photographs of Irwin, laid out next to each
other. One photograph is a frontal shot of Irwin’s head and shoulders; the photograph next to it
is a profile shot of Irwin’s head and shoulders. In the photos, Irwin had longer curly hair and
was wearing a dark T-shirt. Based on the record, we can conclude that Irwin’s hair was shorter
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at trial and he was wearing a shirt and tie. No number or other identifying information is on the
photos.
¶ 15 The State first used Exhibit 2 with Escamilla. Irwin’s counsel objected. Out of the presence
of the jury, counsel argued that Irwin was not contesting that he was the man who had been
sitting in the front passenger seat of the Dodge and that since identification was not at issue,
admission of the “mug shot” would be irrelevant and prejudicial. The State argued that the
exhibit was relevant to the police’s recognition of Irwin, and since Irwin looked different at
trial, the “jury is entitled to see who the officers removed from the vehicle.” Irwin’s counsel
responded that the State’s reason for submitting this photo was “they think he looks more like
a thug in this picture than he does now.” The trial court ruled that Exhibit 2 was not a mug shot
and allowed the State to use it over Irwin’s objection.
¶ 16 At one point in Adamidis’s testimony, the prosecutor asked how he recognized Irwin, to
which Adamidis replied, “multiple street encounters.” As this response violated the court’s
order in limine, the court sustained Irwin’s objection, struck the testimony, and instructed the
jury to disregard it. Irwin’s counsel later moved for a mistrial based on this testimony. The trial
court denied the motion.
¶ 17 The prosecutor then asked Adamidis if he recognized Irwin from the traffic stop, and
Adamidis replied that he did. The prosecutor further queried “but the defendant didn’t look like
he does now, does he?” Irwin’s objection was overruled. Adamidis identified Exhibit 2 as a
photograph of Irwin as he looked at the time of the traffic stop.
¶ 18 Although the State did not originally seek to publish Exhibit 2 to the jury, it later did so
and, again over defense counsel’s objection, the exhibit was admitted into evidence and sent
back to the jury room.
¶ 19 During Deering’s cross-examination, she was asked about the police report of the incident
and testified that she did not prepare it but read it in preparation for her testimony. She also
prepared to testify by meeting with the prosecutors, while Escamilla and other police officers
were present. On redirect, the prosecutor asked Deering about the preparation of her testimony
and then asked “didn’t I tell you I only wanted you to tell the truth?” Irwin’s objection to this
question was overruled. Deering agreed that the prosecutor had given her those instructions.
¶ 20 Irwin’s counsel also asked that the State be prevented from arguing during closing that the
Dodge was “fleeing,” but the trial court denied the request, finding that it was a reasonable
inference from the evidence. The court also denied Irwin’s request for a jury instruction on the
“shots fired” call, which would have informed the jury of the limited purpose for which the
testimony was admitted and that it could not be considered for the truth of the assertion that
shots were, in fact, fired.
¶ 21 Before closing arguments, the trial court instructed the jury that the arguments were not
evidence. The State argued that the officers saw the Dodge “fleeing” the vicinity of “an
emergency call that they were responding to.” There was no other mention of the “shots fired”
call in the State’s opening or rebuttal closing argument.
¶ 22 Irwin’s counsel argued that there was no evidence linking Irwin to the gun; it was not
registered to him and no fingerprints were recovered. Counsel noted that Irwin had not been
nervous or sweaty when he got out of the car as would be expected if he knew a gun was on the
floor by his seat. In rebuttal, the State argued that Irwin had no reason to be nervous because he
believed the police would not find the gun and went on: “what does he do when he gets out? He
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doesn’t, he’s not under arrest. He doesn’t alert the officer *** for her own safety that there’s a
gun on that floor board, not mine. He doesn’t say anything about that gun.” Irwin’s objection to
this argument was sustained.
¶ 23 Irwin was convicted of aggravated unlawful use of a weapon. In his posttrial motion, Irwin
argued that (i) the “shots fired” testimony was hearsay that violated his rights under the
Confrontation Clause, (ii) admission of the photographs taken of him the night he was arrested
was error, (iii) the State impermissibly vouched for the credibility of Deering and commented
on Irwin’s silence after arrest, and (iv) Adamidis violated the in limine order by referring to his
“street encounters” with Irwin. Irwin’s posttrial motion was denied and he timely appealed.
¶ 24 ANALYSIS
¶ 25 At oral argument, the State conceded that two errors were committed during Irwin’s trial:
first, the State conceded that the trial court should have given the jury a limiting instruction
regarding the “shots fired” testimony; second, the State admitted that the photographs of Irwin
should not have been sent to the jury room, although it contends the photographs were properly
admitted into evidence. The State maintains, however, that neither of these errors, nor any of
the other issues raised by Irwin, warrant a new trial.
¶ 26 As to those errors the State has conceded or that we find occurred, the State bears the
burden to show that they are harmless beyond a reasonable doubt. In re Brandon P., 2014 IL
116653, ¶ 50 (“Confrontation clause violations are subject to harmless error review.”); see also
People v. Jacobs, 2016 IL App (1st) 133881, ¶¶ 77-78 (improper admission of evidence
subject to harmless error review); People v. Campbell, 2012 IL App (1st) 101249, ¶¶ 32-33
(reviewing trial court’s failure to give limiting instruction for harmless error).
“When determining whether an error is harmless, a reviewing court may ‘(1) focus on
the error to determine whether it might have contributed to the conviction; (2) examine
the other properly admitted evidence to determine whether it overwhelmingly supports
the conviction; or (3) determine whether the improperly admitted evidence is merely
cumulative or duplicates properly admitted evidence.’ ” In re Brandon P., 2014 IL
116653, ¶ 50 (quoting In re Rolandis G., 232 Ill. 2d 13, 43 (2008)).
¶ 27 All but one of the errors raised by Irwin on appeal concern the trial court’s rulings on the
admission of evidence. A trial court’s evidentiary rulings are discretionary, and therefore, such
rulings will not be overturned absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89
(2001) (Illinois courts apply abuse of discretion standard when reviewing trial court’s decision
admitting hearsay). An evidentiary ruling constitutes an abuse of discretion when it is
arbitrary, fanciful, or unreasonable. People v. Hanson, 238 Ill. 2d 74, 101 (2010); Caffey, 205
Ill. 2d at 89. A court may exercise its discretion and exclude evidence, even if it is relevant, if
the danger of unfair prejudice substantially outweighs its probative value. Hanson, 238 Ill. 2d
at 102; Ill. R. Evid. 403 (eff. Jan. 1, 2011).
¶ 28 Irwin first argues that the “shots fired” radio call—used in the State’s opening statement
and in officer testimony—was inadmissible hearsay and violated his right to confront his
accusers. Both the federal and state constitutions guarantee the right of confrontation. U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Because the declarant is not available for
cross-examination, hearsay evidence—an out-of-court statement offered to prove the truth of
the matter asserted—can violate a defendant’s right to confront the witnesses against him.
People v. Peoples, 377 Ill. App. 3d 978, 983 (2007); People v. Jura, 352 Ill. App. 3d 1080,
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1085 (2004) (“The fundamental reason for excluding hearsay is the lack of an opportunity to
cross-examine the declarant.”).
¶ 29 Generally, hearsay evidence is inadmissible. Ill. R. Evid. 802 (eff. Jan. 1, 2011). An
exception exists when the evidence is “offered for the limited purpose of showing the course of
a police investigation where such testimony is necessary to fully explain the State’s case to the
trier of fact.” People v. Williams, 181 Ill. 2d 297, 313 (1998) (admitting contents of 911 tape to
show officer acting in the course of his official duties); Jura, 352 Ill. App. 3d at 1085.
Specifically, police officers can testify to the statements of others when such evidence is not
offered to prove the truth of the matter asserted but for the officer to explain investigative steps.
People v. Rush, 401 Ill. App. 3d 1, 15 (2010). Because such testimony referencing statements
of others can impinge on the right of confrontation and is subject to abuse, it should be
admitted sparingly and only when necessary. See People v. Cameron, 189 Ill. App. 3d 998,
1004 (1989) (“ ‘The need for the evidence is slight, the likelihood of misuse great.’ ” (quoting
McCormick on Evidence § 249, at 734 (Edward W. Cleary ed., 3d ed. 1984))). Further, such
evidence when admitted should be accompanied by an instruction to the jury describing the
limited purpose for its admission. Williams, 181 Ill. 2d at 313-14.
¶ 30 The trial court certainly could have, in the exercise of its discretion, determined that
reference to an “emergency call” would have adequately informed the jury why the police gave
chase to the Dodge. Without being told that the call message was “shots fired,” the jury could
readily have concluded that the emergency was of a serious nature, given Peppers’ conduct in
cutting off the Dodge and immediately ordering the vehicle’s occupants to put up their hands.
¶ 31 The existence of discretion—here, whether or not to admit evidence—necessarily means
that not only one correct answer exists. For if that were true, the ruling would not be
discretionary. See People v. Witherspoon, 379 Ill. App. 3d 298, 310 (2008) (upholding a trial
court’s finding under abuse of discretion standard of review does not necessarily mean an
opposite finding would be an abuse of discretion). And our role on review is not to substitute
our judgment for that of the trial court. People v. Cookson, 335 Ill. App. 3d 786, 793 (2002);
see also People v. Braddy, 2015 IL App (5th) 130354, ¶ 32. So even if we believe that advising
the jury of an “emergency call” would have sufficed, we must still decide whether the trial
court abused its discretion in determining that references to “shots fired” were admissible.
¶ 32 Here, a reasonable trial judge could have concluded that the fact that police were
responding to a call of “shots fired” was necessary to inform the jury of the reason why
Escamilla and Deering, instead of proceeding to the location to which they were directed by
the radio call, decided to pursue a vehicle they saw run a red light. Without the context of the
call, the jury would be left to wonder why officers decided to divert from responding to the
scene. Further, if the driver’s only offenses were speeding and running a red light, the reason
Escamilla called for backup would have been unexplained and Peppers’ use of his vehicle to
block the Dodge would have appeared extreme. Upon eventually curbing the vehicle, the
officers’ conduct in directing all of its occupants to raise their hands and get out of the car is
inexplicable unless a jury understands the nature of the radio assignment to which police were
responding. Finally, the call of “shots fired” did not relate to or tend to prove the offense with
which Irwin was charged. Therefore, we find no abuse of discretion in the court’s decision to
permit this testimony in the first instance.
¶ 33 That said, it was unnecessary for three officers to repeat the contents of the radio call. Once
the jury understood from Escamilla’s testimony the nature of the call, no more needed to be
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said to explain the officers’ actions. But repetition of the “shots fired” testimony does not
render this otherwise admissible evidence reversible error, particularly where the record
reveals that, other than to state the reason for their actions, the officers did not dwell on the
radio call. Further, as noted, the call of “shots fired” did not relate to the essence of the gun
possession charge against Irwin. Cf. Jura, 352 Ill. App. 3d at 1088 (testimony regarding
contents of radio call “directly impact[ed] the very essence of the dispute”). Finally, the State
did not refer to the “shots fired” call in closing or rebuttal, stating only that officers responded
to an “emergency call,” and the State did not suggest or imply that the vehicle in which Irwin
was riding was the source of the shots fired.
¶ 34 Irwin argues that this case is like Jura, where three officers testified to the substance of a
“ ‘person with a gun’ ” radio call. Id. at 1083-84. The radio call also described the offender as
a white male with a teardrop tattoo on his cheek, details that the officers were permitted to
relay in their testimony. Id. When the officers reached the specified location, they saw Jura and
several other men. Id. The officers testified that Jura “ ‘match[ed] the description’ ” of the
offender and that they observed Jura throw a gun into a garbage can. Id. Jura testified and
denied committing the offense. Id. at 1082. Reversing Jura’s conviction, we found that the
testimony about the radio call, which “directly impact[ed] the very essence of the dispute:
whether the defendant was the man who possessed the gun,” was not harmless because it was
testified to by several witnesses, contained substantive information used to prove Jura guilty,
and was exploited by the State in closing argument by emphasizing to the jury that Jura
“matched the description.” Id. at 1088, 1090.
¶ 35 In Jura, the central question was who owned the gun the officers found in the alley. The
officers testified they saw Jura holding the gun, but Jura denied this. The State was able to use
the 911 caller (who was never produced or cross-examined) to bolster the credibility of the
police witnesses. In this context, we determined the content of the radio call (particularly the
offender’s physical description) was vital to the outcome, and any error in admitting it was,
therefore, not harmless. Id. at 1091.
¶ 36 Here, the “shots fired” testimony could not bolster the credibility of Officers Escamilla and
Deering. There is no dispute that two guns were found that night: one in Craddock’s waistband
and one on the front passenger floor near where Irwin sat. And the jury was repeatedly
instructed that evidence regarding the weapon recovered from Craddock was not to be
considered against Irwin. Moreover, the jury heard that Irwin’s gun was fully loaded with a
bullet in the chamber, and there would thus be no basis for the jury to assume that Irwin was the
person who fired the shots leading to the call.
¶ 37 While the State concedes and we agree that the trial court should have given a limiting
instruction to the jury, the failure to do so does not warrant reversal. See People v.
Pistonbarger, 142 Ill. 2d 353, 377 (1990) (“Although it is not mandated in every case, *** it is
constitutionally permissible for a reviewing court to determine that given the facts of the
individual case, the result would have been the same had the defect in the [jury] instructions
not been present.”); People v. Austin, 133 Ill. 2d 118, 124 (1989) (“[A]ny error in giving or
refusing instructions will not justify a reversal when the evidence in support of the conviction
is so clear and convincing that the jury’s verdict would not have been different.”).
¶ 38 There was ample evidence to sustain Irwin’s conviction. It is undisputed that Irwin sat in
the passenger seat of the Dodge and that the fully loaded gun was recovered inches away from
where his feet would have been. No occupant of the vehicle, other than Irwin, was observed
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moving after the Dodge was stopped. On the other hand, Escamilla, who was unimpeached,
observed Irwin bending down in a movement that could reasonably have been interpreted as an
effort to remove the gun from his person, and the gun’s location in the vehicle was consistent
with that inference. No other occupant of the vehicle was observed reaching over or around the
front seat (in the case of the backseat passengers) or the console (in the case of the driver). That
leaves Irwin’s suggestion to the jury that the backseat passenger could have dropped the gun
and pushed it under the seat with his feet in the minute or so after the Dodge was stopped so
that it came to rest in the front passenger seat area. While we suppose that such a scenario,
although not supported by the evidence, is within the realm of possibility, it does not cause us
to question the strength of the State’s case.
¶ 39 Irwin emphasizes that the gun was not tested for fingerprints and that its serial number did
not reveal him as the owner. But while the presence of fingerprint or ownership evidence
would have rendered the State’s case irrefutable, its absence does not, in our view, render the
evidence of Irwin’s guilt less than overwhelming.
¶ 40 And even if the jury assumed the truth of the assertion that, in fact, shots had been fired,
this does not make more likely Irwin’s possession of the weapon found in the front passenger
seat area. Consequently, we conclude that the trial court’s failure to give a limiting instruction
did not contribute to Irwin’s AUUW conviction, and therefore, we find this instructional error
harmless beyond a reasonable doubt.
¶ 41 Irwin next argues that he was deprived of a fair trial when the State was allowed to admit
into evidence and send to the jury the two photographs of him taken on the night of his arrest.
Irwin argues that the photographs were “mug shots” and were irrelevant and prejudicial as
there was no issue regarding either the fact that he was present on March 4, 2012, or the
officers’ ability to identify him in court.
¶ 42 The State contends that Exhibit 2 was not a “mug shot” because it “does not indicate or
imply prior criminal activity” by Irwin. There was no legend on the photograph indicating a
prior arrest, and all of the officers who testified regarding the photograph indicated that it was
taken at the time of Irwin’s arrest for this crime.
¶ 43 While the State may be technically correct that Exhibit 2 was not a “mug shot” of Irwin
because it was generated contemporaneously with his arrest, we nevertheless believe the jury
would have treated the exhibit as such. Courts have noted that “a person of even subnormal
intelligence would know that the front and side profile snapshots were all ‘mug shots.’ ”
People v. Woodruff, 62 Ill. App. 3d 949, 954 (1978). We cannot think of another circumstance
where a person’s front and profile photographs are presented together. This arrangement is
“common knowledge to the public from their exposure to the same in the news media,
television, and *** on the walls of the vast majority of police stations and post offices
throughout the United States.” People v. Wheeler, 71 Ill. App. 3d 91, 97 (1979).
¶ 44 But introducing a defendant’s photograph, even one taken in the police station, is not
inherently prejudicial. The reason mug shots are generally excluded from evidence is because
they imply that the defendant has been previously arrested. See People v. Nelson, 193 Ill. 2d
216, 224 (2000); People v. Arman, 131 Ill. 2d 115, 123 (1989). For example, a jury’s
awareness that a witness or victim identified the defendant from a mug shot already in law
enforcement’s possession, while admissible, clearly indicates possible involvement by the
defendant in other criminal activity. On that rationale, we generally exclude use of such
evidence, except in limited circumstances, because we do not want jurors to convict a
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defendant based on prior conduct outside the scope of the trial. People v. Murdock, 39 Ill. 2d
553, 562 (1968) (“We agree that the front and profile views of the defendant in the photographs
might very well suggest to the jury that they were ‘mug’ shots taken for police files and, since
there was no probative purpose for their admission into evidence, find that the photographs
were erroneously admitted.”). Here, because all of the witnesses testified that the photos of
Irwin were taken on the night he was arrested, there would be no basis for the jury to presume
they were anything else. In other words, although Exhibit 2 became Irwin’s “mug shot”
because of his arrest, it was not the type of evidence that suggests other criminal activity.
¶ 45 This does not end our analysis. While in the context of this case, the photographs do not
carry the inherent prejudice of mug shots because they do not imply other criminal activity,
Irwin is correct that the photos were irrelevant to any issue the jury was called upon to decide.
Generally, evidence is admissible if it is relevant. Ill. R. Evid. 402 (eff. Jan. 1, 2011). Relevant
evidence is “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence may be excluded
“if its probative value is substantially outweighed by the danger of unfair prejudice.” Ill. R.
Evid. 403 (eff. Jan. 1, 2011).
¶ 46 The trial court abused its discretion in admitting the photographs because they did not meet
the threshold requirement of relevance. The photographs did not make “the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” (Emphasis added.) Ill. R. Evid. 401 (eff. Jan. 1, 2011).
The fact that Irwin had longer hair and was not as neatly dressed at the time he was arrested
does not make it any more or less likely that he possessed the weapon found where he was
sitting. And we agree with Irwin that the only apparent purpose for admitting the photographs
was to show the jury that the neatly attired young man in court did not appear that way on the
night he was arrested (which, incidentally, is another thing that jurors generally know).
¶ 47 And even if Irwin’s appearance when he was arrested was relevant, the State needed only
one front-facing photograph to illustrate the point. We can discern no reason, and the State has
articulated none, why it was necessary for Irwin’s jury to see both photos. Beyond that, there
was certainly no reason for the exhibit to be sent to the jury room. Michael H. Graham,
Graham’s Handbook of Illinois Evidence § 401.8, at 184 (10th ed. 2010) (“It is preferable not
to permit the mug shots to go to the jury room.”); People v. Burrell, 228 Ill. App. 3d 133, 144
(1992) (potentially prejudicial evidence must be closely scrutinized, since “evidence present in
the jury room during deliberations gives the party producing it a distinct advantage”).
¶ 48 Given our finding that the trial court should not have permitted the State to use this exhibit
because it was irrelevant and arguably prejudicial, and in light of the State’s concession that it
was error to allow the exhibit to go to the jury room, we must determine whether these errors
are harmless beyond a reasonable doubt. In the context of this case, we find that they are. See
Nelson, 193 Ill. 2d at 224 (“When admitted in error, ‘mug shot’ evidence will not warrant a
reversal when competent evidence establishes the defendant’s guilt beyond a reasonable doubt,
and it can be concluded that retrial without the challenged evidence would produce no different
result.”).
¶ 49 As discussed above, the State sustained its burden to prove Irwin guilty beyond a
reasonable doubt through admissible evidence that, in our view, was overwhelming.
Moreover, similar to issues relating to the radio call, Irwin’s appearance on the night he was
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arrested did not go to the essence of the charge against him. In other words, there is nothing in
Irwin’s appearance in the photographs that would lead a juror, otherwise unpersuaded by the
State’s evidence, to convict Irwin of possession of the weapon. Therefore, we find the error in
admitting the photographs and sending them to the jury harmless beyond a reasonable doubt.
¶ 50 Next, Irwin argues that the prosecutor improperly vouched for Deering’s credibility by
asking Deering on redirect, “didn’t I tell you I only wanted you to tell the truth?” This question
was in response to cross-examination regarding Deering’s witness preparation meeting with
the State.
¶ 51 Irwin mischaracterizes the situation; this was not vouching for witness credibility. In fact,
not a single one of the cases Irwin cites in his briefs is factually analogous to what happened
here. Asking this question of Deering is not akin to a prosecutor suggesting in closing
argument that the prosecutors had “ ‘checked *** out’ ” and “ ‘corroborate[d]’ ” the witness’s
statement with forensic evidence before accepting it (People v. Williams, 2015 IL App (1st)
122745, ¶ 10) or saying that the prosecutor himself could “ ‘cut through the BS and have a way
to find out who is telling the truth’ ” (People v. Schaefer, 217 Ill. App. 3d 666, 668 (1991)).
¶ 52 The statements in Williams and Schaefer were improper for two reasons: (i) the statements
might give the jury the impression that there is “secret” evidence, known only to the State, that
supports the charge against the defendant or (ii) they might induce the jury to trust the State’s
judgment over their own evaluation of the evidence. Williams, 2015 IL App (1st) 122745, ¶ 13.
But here, there was no reference to unknown evidence or any suggestion that the jury should
trust the prosecutor’s judgment rather than their own evaluation of Deering’s credibility. Even
if the jury accepted the implied proposition that the prosecutor had instructed Deering to tell
the truth, it would still have to decide on its own whether Deering followed that instruction.
Irwin was not deprived of a fair trial by this action.
¶ 53 Irwin argues that he was denied a fair trial when the prosecutor elicited testimony from
Officer Adamidis that Adamidis recognized Irwin from “multiple street encounters.” The trial
court sustained Irwin’s objection to this testimony, struck Adamidis’s response, and instructed
the jury to disregard it.
¶ 54 The testimony violated the trial court’s in limine order, but it did not deprive Irwin of a fair
trial. A timely, sustained objection and instructing the jury to disregard the testimony can
correct this type of error. See People v. Hall, 194 Ill. 2d 305, 342 (2000) (State’s question
regarding defendant’s prior criminal activity improper, but error cured by sustaining objection
and admonishing jury to disregard). The testimony was not so prejudicial as to be incurable
and deny Irwin a fair trial.
¶ 55 Irwin also objects to the statement in the prosecutor’s rebuttal quoted above, which was
made in response to defense counsel’s argument that there was no evidence that Irwin
appeared nervous or sweaty when he exited the car. Irwin’s objection to this argument was
immediately sustained. While the standard of review of alleged errors in closing argument is
uncertain (compare People v. Wheeler, 226 Ill. 2d 92, 121 (2007) (whether statements made by
prosecutor during closing argument were so egregious as to warrant a new trial is a legal issue
to which de novo standard of review applies), with People v. Blue, 189 Ill. 2d 99, 128 (2000)
(trial court’s determination of the propriety of closing argument will not be disturbed absent an
abuse of discretion)), we have no trouble concluding under either standard that this isolated
remark played no role in Irwin’s conviction.
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¶ 56 Prosecutors are afforded “wide latitude” in closing argument, and improper argument in
closing warrants reversal only if the improper remark constituted a “material factor” in the
conviction. Wheeler, 226 Ill. 2d at 123. We are not convinced that the prosecutor’s remark was
a material factor: the remark was isolated, it was responsive to defense arguments regarding
Irwin’s demeanor prior to his arrest, the trial court immediately sustained Irwin’s objection,
and it properly instructed the jury that closing arguments are not evidence. See People v.
Moore, 171 Ill. 2d 74, 105-06 (1996) (“[t]he act of sustaining an objection and properly
admonishing the jury is usually viewed as sufficient to cure any prejudice”); People v.
Wiggins, 2015 IL App (1st) 133033, ¶ 59. Moreover, because Irwin was not under arrest at the
time he was directed out of the car, the prosecutor’s argument was not, as Irwin contends, a
comment on his postarrest silence. Consequently, we conclude that this single remark did not
deprive Irwin of a fair trial.
¶ 57 Finally, Irwin argues that the cumulative errors committed during his trial denied him a fair
trial. Ordinarily, a new trial is not warranted where a defendant raises several contentions of
error, none of which rise to the level of reversible error, because “ ‘[t]he whole can be no
greater than the sum of its parts.’ ” People v. Sullivan, 366 Ill. App. 3d 770, 786-87 (2006)
(quoting People v. Albanese, 102 Ill. 2d 54, 82-83 (1984), abrogated on other grounds in
People v. Gacho, 122 Ill. 2d 221 (1988)). Nevertheless, there may be circumstances where the
cumulative impact of otherwise harmless errors deprives a defendant of a fair trial and
mandates reversal. See, e.g., Albanese, 102 Ill. 2d at 83 (citing People v. Killian, 42 Ill. App. 3d
596, 601 (1976)). However, given the straightforward nature of the evidence, which was
essentially uncontradicted and which established the presence of a weapon where Irwin was
sitting, discovered shortly after he exited the vehicle, the errors we have identified in this case,
even when considered cumulatively, do not rise to this level.
¶ 58 Affirmed.
¶ 59 PRESIDING JUSTICE HYMAN, dissenting in part.
¶ 60 While the majority rightly concludes that the “shots fired” call merited a limiting
instruction, and that the “mug shot” was irrelevant and should not have been allowed in the
jury room, I respectfully must part ways at the impact of those errors. The majority believes
that they were harmless beyond a reasonable doubt. I disagree—the errors, combined with
others that the trial court tried to cure, collectively rise to the level of cumulative error,
depriving Irwin of his right to a fair trial. Accordingly, I would overturn Irwin’s conviction and
remand for a new trial.
¶ 61 Kristopher Irwin’s trial was replete with mistakes:
(i) Evidence that should have been admitted only for limited purposes (the “shots
fired” 911 call) was instead admitted without limiting instructions;
(ii) Irrelevant and unduly prejudicial evidence (the “mug shot”) was admitted and
sent to the jury room for no reason whatsoever;
(iii) Even when the trial court did properly limit prejudicial evidence, the State’s
witness violated a motion in limine by testifying that he recognized Irwin from
“multiple street encounters”; and
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(iv) The prosecutor went on to improperly comment during closing argument on
Irwin’s silence.
¶ 62 In concluding that these errors were harmless, the majority relies on the gun’s location on
the floor of the Dodge (near where Irwin’s feet would have been) and Officer Escamilla’s
observation that Irwin made a “movement” during the traffic stop that could be construed as
Irwin dropping the gun. This evidence may have been legally sufficient, in the sense that a
reasonable trier of fact, viewing this evidence in the light most favorable to the State, could
conclude Irwin was guilty. People v. Campbell, 146 Ill. 2d 363, 374 (1992). But that is not the
same thing as saying that this evidence was “overwhelming,” so that the error was harmless
beyond a reasonable doubt. People v. Patterson, 217 Ill. 2d 407, 434 (2005); see also People v.
Hogan, 388 Ill. App. 3d 885 (2009) (finding evidence was sufficient to support conviction but
not overwhelming for harmless error analysis).
¶ 63 That the majority characterizes the evidence as being overwhelming does not hold. No
witness saw Irwin holding or using the gun. No forensic evidence (such as his fingerprints on
the gun) was presented. The gun was found on the floor of a car that Irwin did not own and was
not controlling at the time of the offense. And another of the car’s occupants was found with a
gun in his waistband, and a third passenger was sitting directly behind Irwin’s seat, with space
between the car’s floor and the bottom of Irwin’s seat.
¶ 64 Again, the State’s case turns solely on the location of the gun and Officer Escamilla’s
observation—though the scene was so dark that Escamilla could not make out the race or
gender of the car’s occupants and the other officers conducting the stop did not see Irwin’s
“movement.” At best this evidence is thin and inconclusive, not overwhelming.
¶ 65 Compare this case with one like Patterson, where the defendant was the last person seen
with the victim before the victim’s disappearance, the victim’s body was found with a blanket
similar to a blanket belonging to the defendant, and (most tellingly) the victim’s DNA was
found in a blood stain on the defendant’s living room carpet. 217 Ill. 2d at 433-35. The
evidence in Patterson was circumstantial but nonetheless “overwhelming.” There is no
compelling forensic evidence inculpating Irwin or evidence pointing to him alone as the culprit
(as opposed to the three other men in the car). Or a case like People v. Mullins, where three
police officers, whose testimony was unimpeached, watched Mullins make multiple heroin
sales during a half-hour period. 242 Ill. 2d 1, 25 (2011). The case against Mullins consisted of
direct observations of illegal actions; no inferences needed to be drawn (as must be drawn here
between an ambiguous movement and the gun’s position on the floor, the only basis on which
the jury could have concluded that Irwin possessed the gun).
¶ 66 Reviewing the trial proceedings as a whole, I am not convinced that Irwin would have been
convicted regardless of these errors. Id. at 23.
¶ 67 Irwin also raised a number of other claims. While I agree with the majority that the State
did not improperly vouch for Officer Deering’s credibility, the remaining claims (the “multiple
street encounters” testimony and the commentary on Irwin’s silence) should not be taken in
isolation but examined together in the context of their cumulative effect. See People v. Blue,
189 Ill. 2d 99, 139 (2000) (finding that cumulative errors “created a pervasive pattern of unfair
prejudice to defendant’s case”).
¶ 68 Before trial, the trial court ruled that police witnesses could not testify that they knew Irwin
from prior arrests or encounters; yet, when asked how he recognized Irwin, Officer Adamidis
replied, “multiple street encounters.” The trial court tried to cure this unmistakable violation by
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sustaining an objection, striking the testimony, and instructing the jury to disregard it. Whether
this testimony stemmed from a deliberate attempt to violate the in limine ruling or simply poor
witness preparation, it was impermissible and had the highly prejudicial effect of painting
Irwin as a criminal, an effect further emphasized by the use of the mug shot.
¶ 69 During closing argument, the State told the jury that Irwin had not mentioned to Officer
Deering that there was a gun in the car. The trial court sustained Irwin’s objection. I disagree
that this statement was responsive to defense argument that Irwin wasn’t nervous during the
traffic stop: the prosecutor could have responded that Irwin did not believe the gun would be
discovered without going on to chastise him for not alerting Officer Deering to the gun’s
presence “for her own safety.” The prosecutor did not need to comment on his lack of speech,
or imply that he failed to inform Officer Deering about the gun because he nefariously wished
her harm. This error ties in to the use of the “shots fired” call, again embroidering possession of
a gun into intent to cause bodily harm with that gun.
¶ 70 All four of the errors listed above fall into this pattern of painting Irwin as a hardened,
dangerous criminal committing serious crimes. When the 911 call and the mug shot are added
to the “multiple street encounters” and the commentary on silence, it shows a pattern of unfair
prejudice that, cumulatively, denied Irwin his fundamental right to a fair trial. Again, the
State’s evidence was purely circumstantial, and at every turn, the State attempted to strengthen
that evidence by making Irwin appear as dangerous as possible.
¶ 71 When considering the weight of all these errors, what matters most is whether Irwin
received a fair trial, regardless of the strength of the State’s evidence. See Blue, 189 Ill. 2d at
139 (though evidence against defendant was “overwhelming,” new trial ordered to “preserve
the trustworthiness and reputation of the judicial process”).
¶ 72 The net effect of the multiple errors rendered Irwin’s trial fundamentally unfair and
unreliable; he is entitled to a new trial.
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