People v. Middleton ( 2018 )

2018 IL App (1st) 152040 No. 1-15-2040
Opinion filed June 6, 2018
Third Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 12 CR 12617
)
KEITH MIDDLETON, )
)
Defendant-Appellant. ) The Honorable
) Charles P. Burns,
) Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Fitzgerald Smith and Howse concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Keith Middleton was found guilty of first degree murder
while personally discharging a firearm and sentenced to 53 years in prison. Defendant appeals,
arguing that he was not proved guilty beyond a reasonable doubt because he was identified by a
single occurrence witness, whose description of defendant was severely impeached. Namely,
there was conflicting evidence as to whether defendant wore a full or half-ski mask and whether
No. 1-15-2040
the single occurrence witness could see defendant’s face. Defendant also contends the State
improperly introduced a demonstrative exhibit during closing arguments depicting defendant
with a half-ski mask superimposed over his arrest photograph, but the State neglected to
introduce this exhibit at trial. In addition, defendant contends the State elicited improper hearsay
statements at trial, the court erred in overruling certain objections, the court erred in admitting
video evidence, his trial counsel was ineffective, the State offered improper closing argument,
and the court erred in sustaining objections to defense counsel’s arguments. While we hold the
evidence was sufficient to prove defendant guilty beyond a reasonable doubt, we conclude the
State’s first-time presentation of the altered arrest photograph during closing rebuttal argument
resulted in prejudicial error requiring a new trial.
¶2 BACKGROUND
¶3 Defendant was arrested and then charged with murder after allegedly shooting to death
his girlfriend’s brother Ricky Brown, then age 30, on March 21, 2012, on the sidewalk outside
Brown’s home. At trial, the victim’s neighbor Toryion Conner testified that he was standing on
his front porch around 8:30 a.m. on March 21 at 739 West 61st Street, between South Halsted
Street and South Union Avenue, when he saw defendant near the sidewalk across the street and
several houses east from where 13-year-old Conner stood. 1 Conner testified that there was
nothing blocking his view and he described defendant as an African-American male, with long
dreads half pinned back, who was wearing black jogging pants, and a gray hoodie bearing black
writing and the hood was hanging down. Defendant wore a ski mask that covered only the lower
half of his face, which Conner described as going up “right here to the nose.” Conner saw
defendant look in his direction as he drew a silver revolver from his hoodie. Conner said he saw
1
The State’s evidence technician stated on cross-examination that there were 5 houses plus a
vacant lot between 739 West 61st Street and the crime scene, which took place on the north side of the
street, and on the other side, 3 houses plus a vacant lot.
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defendant as he “rammed up on” Brown, who was standing on the sidewalk. Conner knew the
victim lived nearby at 720 West 61st Street. Conner heard the victim plead with defendant not to
shoot but defendant fired at his chest, causing the victim to fall to the ground. Defendant returned
to his car but “came back like he wasn’t *** finished with him,” and shot the victim again in his
upper body. Conner then saw defendant get into a white car and drive off toward Halsted Street.
Conner moved from his porch to the hallway and looked out the window, noting he could see the
whole block from that vantage point. He saw defendant, still wearing the half-ski mask as he
drove west past his house. Conner could see defendant’s whole upper body and from his nose
“all the way up.” The prosecutor clarified for the record that Conner “was moving his hand
upward towards his forehead and the top of his head.” The State, however, did not present the ski
mask at trial or ask Conner to identify any image of defendant wearing a ski mask.
¶4 Conner testified that he later went to school, where he told his teacher he had witnessed a
murder, but denied giving the teacher any additional details. The police were ushered in to
interview him, but he denied telling officers that the shooter wore a hoodie or a full ski mask
with Velcro. Less than three months later, on May 2, 2012, Conner identified defendant as the
shooter from a photo array. On June 7, 2012, Conner identified defendant from a lineup. The
State did not ask Conner to identify defendant’s mug shot taken on arrest.
¶5 Chicago Police Detective Gregory Buie interviewed Conner in his mother’s presence at
his school the day of the shooting. Detective Buie testified that Conner described the shooter as a
black male with long dreadlocks, wearing a gray hoodie with black pants, and a black, half-ski
mask. To demonstrate what the ski mask looked like, as Conner described it, Detective Buie held
both of his hands right at his nose. In a supplemental report prepared by a different police officer,
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however, Conner was said to have described the offender as simply wearing a gray hoodie with
black trim, a black ski mask, and black jogging pants.
¶6 Additionally, Chicago Police Detective Arthur Davis prepared a report the day of the
shooting wherein the offender was described as a black male with long dreadlocks and a partial
ponytail who was wearing a full, black ski mask with Velcro straps, along with a gray hoodie
with black trim and black lettering on the front. Detective Davis also noted that defendant was
listed in a police report as being 6 foot 3 inches tall and weighing 225 pounds, facts which
Conner never related to any officer.
¶7 The State’s theory, as explained in greater detail below, was that the shooting related to a
personal vendetta against Brown and that defendant drove off in the victim’s car after killing
him. Brown’s girlfriend, Marquea Ambrose, testified that she knew defendant, who went by
Thomas, to be dating the victim’s sister. On the day in question, she was with the victim at his
house when he left for his job at the post office after having parked his white Chevy in front,
although he typically parked his car two blocks away presumably due to “concerns.” After he
left, Ambrose heard two gunshots, then a brief pause before more gunshots were fired. She
looked out the window and observed her boyfriend’s white Chevy driving toward Halsted Street,
although she was unable to see the driver. She then saw Brown dead on the ground.
¶8 Pursuant to the State’s pretrial motion “regarding prior bad acts,” Damien Parker, the
victim’s childhood friend, testified that days before the shooting, defendant had threatened the
two of them with a handgun. Parker also knew defendant by the name of Thomas and knew him
to be the boyfriend of the victim’s sister, Rachel Brown. On March 9, 2012, Parker and the
victim were just leaving Parker’s home (78th Street and Ada Street) when they saw Rachel’s van
pull up behind, notably near where the victim had parked his white Chevy. According to Parker,
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the victim became “panicky [and] nervous,” and the two decided to follow the van to determine
whether defendant was inside. The van slowed down as it drove past Ambrose’s home, which
made the victim “really agitated,” but then drove off at a high speed. Parker eventually pulled up
next to the van and saw defendant was the driver. The victim tried to hide from view by leaning
back. Defendant made eye contact with Parker, nodded and then turned. Parker stopped
following defendant. On cross, Parker acknowledged they had followed defendant without any
prompting, and defendant at that point had made no threats.
¶9 Some 20 minutes after leaving home, Parker and the victim again encountered
defendant’s van behind Parker’s house. Defendant exited the van and told the two to “get the
fuck out of the car.” Parker eased his car toward defendant, who was about 15 feet away, but
then he saw defendant retrieve a chrome handgun from the van, which he placed in his pocket
while again ordering them to get out. Defendant eventually took the gun from his pocket, waving
it at the two men while exclaiming, “I got your ass. Get your ass out of the car.” While Parker
wanted to hit defendant with his car, the victim instead urged him to back up because defendant
“might start shooting.” Parker did as his friend suggested, prompting defendant to repeat “I got
your ass,” before returning to his own vehicle. Parker and the victim then flagged a police officer
and reported the incident with defendant’s name and the license plate, although they did not fill
out a formal police report. On the day in question, Parker saw the victim lying dead on the
sidewalk and shortly thereafter spoke with police. In June, Parker also identified defendant from
a lineup as the person he had seen on March 9.
¶ 10 No fired cartridge cases or bullets were recovered from the crime scene, and the parties
stipulated that a revolver does not automatically eject any cartridge cases. Police did find
Brown’s car a short distance away, where they found the keys in the ignition along with his
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wallet and several cell phones. The State theorized that on the day of the shooting, defendant
drove the victim’s car around the corner, where he then hopped into Rachel’s van. The victim’s
car was swabbed biological evidence. None of the DNA swabs taken from the victim’s car,
including the driver’s door latch and handle, steering wheel, and gear shift, matched defendant,
and in fact, defendant was excluded from some of the human DNA profiles identified. Similarly,
a latent fingerprint taken from the exterior driver’s side door did not match defendant.
Additionally, the State’s medical examiner testified that the victim was shot in the chest and
buttocks.
¶ 11 The same day of the shooting, the police were looking for defendant, with Detective
Davis making active efforts to locate him. The day after, on March 22, defendant appeared at the
police station, although there was no warrant for his arrest or investigative alert at that time.
Defendant signed a consent form for police to take his DNA by buccal swab, but he was not then
arrested and ultimately left the police station.
¶ 12 Months later, in June 2012, following Conner’s identification of defendant and other
investigation, police appeared at defendant’s workplace where they identified themselves.
Defendant fled, jumping onto a dumpster outside the loading docks and then over a 10-foot
fence, where he fell to the ground. He was then handcuffed and taken into custody. Detective
Davis identified defendant’s arrest photograph, which the State entered into evidence, noting that
was how defendant accurately appeared when brought into police custody.
¶ 13 The State rested, and defendant presented evidence on his own behalf. Defendant called
Tonya Woods, who testified that around 8:30 a.m. on March 21, 2012, she was driving west on
61st Street towards Halsted Street when she saw a young man emerge from a vacant lot on her
left wearing black gloves, a black hoodie with the hood on his head, and a full, black ski mask.
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No. 1-15-2040
Woods stated he also had dreads. She saw a gun in the man’s hand and thought he would carjack
her. He was so close to her car that “if he wanted to stick his hand in the window and snatch me
out, he could.” Woods passed the man, and as he proceeded behind her car, she saw a second
man to her right on the sidewalk. When the man with the gun went across the street, she heard a
“pop.” When she looked in the rearview mirror, she saw the second man with a white shirt fall to
the ground and the first man then walked over and “emptied” his gun in the second man. The
shooter then ran towards Union and entered a car. She proceeded to Halsted Street without that
car passing her and then called 911. Eventually, a private investigator for the defense contacted
her.
¶ 14 On cross, Woods acknowledged that she also spoke with the State’s Attorney’s
investigator in February 2014. She denied telling the State’s Attorney that the shooting took
place on March 23, although the parties later stipulated on rebuttal that is what the investigator
would have testified to. Woods admitted omitting from her 911 call that the shooter wore black
gloves, and the State’s Attorney investigator would testify that she also omitted that detail in
their interview. Woods also stated that when she saw the gun, she was not focusing on the
shooter’s face because she believed she would be carjacked and “so looking at his face is
something that I just blacked out.”
¶ 15 Conner’s teacher Betty Strong testified collectively on direct and cross-examination that
on the morning of the shooting, Conner entered class holding his chest, reporting his heart was
pounding, then told her he had just seen someone get shot. He stated the shooter was wearing a
mask and a black hoodie, but that he did not see the shooter’s face. Strong spoke with police
outside Conner’s presence, but she did not relay the information about the mask and Conner’s
inability to see the shooter’s face.
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¶ 16 The defense rested. During closing argument, defense counsel honed in on the key
question of whether Conner was actually capable of identifying defendant as the shooter. During
its rebuttal argument, the State asserted that Conner’s identification was sound notwithstanding
the half-ski mask. The State argued Conner “could see the defendant’s hair, the defendant’s eyes,
the defendant’s forehead, defendant’s legs, his chest, his shoulders.” To emphasize this point, the
State presented the jury with two, side-by-each photographs. One was defendant’s mug shot
taken the day of his arrest. The other photo showed the same mug shot, but in the nature of a
crude “photoshop” edit, it blacked out the bottom portion of his face, in an obvious effort to
show what defendant might look like if wearing a “half-ski mask.” Infra ¶ 43. At the conclusion
of the rebuttal argument, defense counsel objected and moved for a mistrial outside the jury’s
presence, arguing the photograph with the superimposed mask had not been produced by the
State, was not introduced into evidence during trial, and lacked any proper foundation. Defense
counsel argued that the State’s use of the previously undisclosed exhibit during rebuttal was
“extraordinarily prejudicial” in such a way that no instruction could cure. Defense counsel added
that therefore she was unable to effectively rebut the matter, which injected “a degree of
absolutely egregious unfairness” into the proceeding. The trial court responded that during
Conner’s testimony, the witness held his hand up to his nose, which would offer evidentiary
support for the exhibit, and the State also noted the unaltered arrest photo was in evidence.
Defense counsel retorted that they should then be allowed to show a photograph with a full ski
mask, given that it, too, was in evidence.
¶ 17 The court stated the objection was noted for the record but essentially an admonishment
to the jury was sufficient to cure any alleged error. Before the jury, the court reiterated that
attorney arguments were not evidence and further instructed the jury that the altered photo in
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question was merely demonstrative and not an actual photograph taken. The court stated, “if you
don’t believe that demonstration is supported by the evidence, you are free to disregard that line
of argument in that demonstration,” and the court then proceeded to instruct the jury. Notably,
the court did not strike the exhibit or the related argument, and it denied the motion for mistrial.
¶ 18 As stated, the jury found defendant guilty of the first degree murder. The defense filed a
motion for a new trial or judgment of acquittal and presented supporting testimony. The trial
court denied the motion, and defendant filed this appeal.
¶ 19 ANALYSIS
¶ 20 Defendant first challenges the sufficiency of the evidence to sustain his conviction,
arguing Conner’s identification was so vague or doubtful that there exists a reasonable doubt of
defendant’s guilt. Where a defendant challenges on appeal the sufficiency of the evidence, we
ask whether, after viewing all the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found the elements of the offense beyond a reasonable doubt.
People v. Beauchamp, 241 Ill. 2d 1, 8 (2011). As such, in a case like the present, the prosecution
has the burden of proving beyond a reasonable doubt the identity of the person who committed
the crime. People v. Slim, 127 Ill. 2d 302, 307 (1989). A positive identification by a single
witness who had a sufficient opportunity to observe the defendant is enough to support a
conviction while a doubtful or vague identification is not. Id.; People v. Johnson, 114 Ill. 2d 170,
189 (1986). We may not substitute our judgment for that of the trier of fact on questions
involving the weight of the evidence, the credibility of the witnesses, or the resolution of
conflicting testimony. People v. Campbell, 146 Ill. 2d 363, 375 (1992). And, the judgment will
not be set aside unless the proof is so unsatisfactory, improbable, or implausible as to justify a
reasonable doubt as to the defendant’s guilt. Slim, 127 Ill. 2d at 307.
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¶ 21 Defendant argues the judgment must be set aside because the only proof that he
committed the crime was Conner’s testimony. He asserts that Conner could not have made a
positive identification where he could only see the upper part of defendant’s face, Conner only
briefly viewed defendant, and Conner’s degree of attention was insufficient as belied by the lack
of detail regarding defendant’s physical description. Defendant also claims Conner was severely
impeached by the defense witnesses who testified that Conner did not see the shooter’s face and
that the shooter wore a full, rather than half, ski mask.
¶ 22 As defendant notes, Illinois courts consider five factors, commonly known as the Biggers
factors, when determining whether a witness’s identification is reliable. People v. Piatkowski,
225 Ill. 2d 551, 567 (2007); Neil v. Biggers, 409 U.S. 188, 199-200 (1972). These include (1) the
witness’s opportunity to view the offender at the time of the offense, (2) the witness’s degree of
attention at the time of the offense, (3) the accuracy of the witness’s earlier description of the
offender, (4) the level of certainty shown by the witness when confronting the alleged offender,
and (5) the length of time between the offense and the identification confrontation. Biggers, 409
U.S. at 199-200; Slim, 127 Ill. 2d at 307-08. In addition to these specific factors, courts also
consider the totality of the circumstances when reviewing the reliability of an identification.
People v. Smith, 299 Ill. App. 3d 1056, 1062 (1998). Identifications are usually based on overall
impressions rather than on specific features. Slim, 127 Ill. 2d at 309.
¶ 23 While the evidence in this case was certainly not overwhelming, examining it in a light
most favorable to the prosecution, as we must, we conclude that a rational fact finder could have
found beyond a reasonable doubt that it was defendant who shot Brown dead. See People v.
Wheeler, 226 Ill. 2d 92, 116 (2007) (a reviewing court must give the State the benefit of all
reasonable inferences). As to identification, the evidence shows that Conner had ample
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opportunity to view defendant because Conner was standing only several houses down and
across the street from where defendant stood, as reflected in the State’s photo exhibits.
Defendant was facing Conner when he pulled out a revolver. Conner then saw Brown beg for his
life before defendant shot him in the chest. Defendant walked toward a car, only to return again
and shoot Brown in the upper body. Conner had yet another unobstructed view of defendant as
he drove past Conner’s house. Conner could see defendant’s upper body and the upper half of his
face, including his eyes, forehead, and hair. Conner’s description of the shooting was consistent
with the medical examiner’s evidence and also the forensic evidence showing no cartridge cases
were ejected, which was consistent with his observation that the weapon was a revolver.
Conner’s degree of attention was high, as he rather immediately saw that defendant was carrying
a revolver. 2
¶ 24 While Conner did not previously know defendant, he described defendant in detail as an
African-American male with long dreads, half pinned back, and who was wearing black jogging
pants, and a gray hoodie bearing black writing with the hood hanging down. Defendant was
wearing a half-ski mask. The physical description of defendant’s hair and outfit was even largely
consistent with the defense witness, Woods, and also defendant’s arrest photographs showing
him to have long dreads. Conner testified competently and consistently when identifying
defendant as the shooter from the photo array, lineup, and also in court. Defendant concedes the
2
Defendant argues that Conner’s degree of attention was suspect given that Conner was
apparently more focused on the weapon than the offender. Defendant cites “weapons focus” as a problem
that some experts believe diminishes the reliability of an identification. Defendant fails to cite any Illinois
cases on point to support this argument, and regardless, he failed to develop a record in the trial court to
support this specific theory. See People v. Wigman, 2012 IL App (2d) 100736, ¶ 36 (stating reviewing
courts will not take cognizance of arguments in parties’ briefs that are not properly supported by the
record before the trial court); People v. Reatherford, 345 Ill. App. 3d 327, 340 (2003) (this court is not
bound to follow decisions from foreign jurisdictions).
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length of time between the identification and crime was about three months, which arguably
sways in the prosecution’s favor.
¶ 25 The State also presented circumstantial evidence supportive of Conner’s identification.
Defendant’s girlfriend testified that he was shot around the same time on March 21, 2012, and
she likewise heard two gunshots, a pause for a minute, and then more gunshots. She also saw
Brown’s car driving towards Halsted Street after the shooting. Parker testified that some 10 days
before the shooting, defendant located Brown at Parker’s house, then drove past Brown’s
girlfriend’s house, and later threatened Brown with a gun.
¶ 26 Although Woods, the defense witness, testified that the shooter wore a hood and full ski
mask, she also testified that she believed she would be carjacked and “so looking at his face is
something that I just blacked out.” Likewise, although Conner’s teacher stated he did not see the
shooter’s face, Conner testified that he did. The jury apparently chose to believe Conner over the
defense witnesses and resolved any inherent contradictions when weighing the evidence, and we
are not at liberty to disturb its determination. See People v. Siguenza-Brito, 235 Ill. 2d 213, 228
(2009) (defendant’s conviction will not be reversed simply because the evidence is contradictory
or because defendant claims a witness was not credible); People v. Berberena, 265 Ill. App. 3d
1033, 1048 (1994) (where the evidence is conflicting, it’s the jury’s role to determine the
credibility of witnesses).
¶ 27 We thus reject defendant’s contention that Conner’s description was too vague or
uncertain simply because Conner failed to identify defendant’s height, age, or weight. This is
because the “credibility of an identification does not rest upon the type of facial description or
other physical features which the complaining witness is able to relate,” but rather, it depends on
“whether the witness had a full and adequate opportunity to observe the defendant.” (Internal
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quotation marks omitted.) People v. Robinson, 206 Ill. App. 3d 1046, 1051 (1990). As set forth
above, Conner had just that. See Slim, 127 Ill. 2d at 308 (a witness is not expected or required to
distinguish individual and separate features of a suspect in making an identification).
Defendant’s sufficiency of the evidence claim therefore must fail.
¶ 28 Defendant next contends the State improperly introduced the “demonstrative” exhibit
depicting defendant wearing a “half-ski mask” during its rebuttal argument without having
introduced this exhibit at trial. In fact, as discussed, the State’s exhibit showed a black half-circle
superimposed over the lower portion of defendant’s face in his arrest mug shot and cannot be
described as a graphic representation of a mask. Defendant contends the trial court’s denial of
defense counsel’s motion for a mistrial on the basis of introducing this exhibit during rebuttal
closing argument constitutes reversible error.
¶ 29 The propriety of declaring a mistrial is within the discretion of the trial court. 3 People v.
Nelson, 235 Ill. 2d 386, 435 (2009). Generally, a mistrial should be declared only when some
trial occurrence is of such a character and magnitude that it deprives the party seeking mistrial of
a fair trial. People v. Redd, 135 Ill. 2d 252, 323 (1990). Mistrial, for example, is warranted when
the jury is apparently so influenced and prejudiced that it could not have been fair and impartial,
3
On appeal, in defendant’s “issues presented” section of his brief, he asserts we should apply a de
novo standard of review to the matter involving admission of the altered photo during rebuttal argument.
In support, defendant cites Wheeler, 226 Ill. 2d at 121, where the supreme court noted that whether
statements made by a prosecutor at closing argument were so egregious that they warrant a new trial is a
legal issue that requires de novo review. Subsequent appellate court cases have noted the apparent
conflict, where Wheeler calls for a de novo standard and yet another supreme court case calls for an abuse
of discretion. See People v. Hayes, 409 Ill. App. 3d 612, 624 (2011). Regardless, we find Wheeler
inapplicable. Wheeler addressed inflammatory and prejudicial statements by a prosecutor during closing
argument rather than the case we have before us, which involved the State’s introduction during rebuttal
argument of a photographic exhibit that was not entered into evidence at trial and the defense’s
subsequent motion for a mistrial based on the improper exhibit. As defendant argues error based on both
an improper evidentiary presentation and also based on improper denial of mistrial, we apply the familiar
abuse of discretion standard of review. We nonetheless note that under either a de novo or abuse of
discretion standard, we would reach the same conclusion based on the prejudice that resulted in this
closely balanced case.
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and the damage could not be cured by admonitions and instructions. People v. Clark, 231 Ill.
App. 3d 571, 574-75 (1992). Thus, for a reversal following the denial of a motion for a mistrial,
the appellant must show prejudice from the introduction of the incompetent evidence at issue and
also that the resulting damage could not be remedied by the court’s admonitions and instructions.
People v. Alvarez, 186 Ill. App. 3d 541, 549 (1989); People v. Williams, 137 Ill. App. 3d 736,
744 (1985). However, mistrial in a criminal prosecution should only be granted with the greatest
caution, under urgent circumstances and for very plain and obvious causes. People v. Dotson,
143 Ill. App. 3d 135, 146 (1986). Because defendant properly preserved his claim of error,
warranting a harmless-error analysis, the State maintains the burden of persuasion with respect to
prejudice. People v. Thurow, 203 Ill. 2d 352, 363 (2003). For the reasons to follow, the State has
failed to maintain that burden in this case.
¶ 30 Defendant specifically argues the altered mug shot was inadmissible in the first place as a
demonstrative exhibit because it did not depict the “physical facts as they actually existed at the
time of the crime” and the display was at the heart of this identification case. Defendant argues
that even assuming the altered mug shot was admissible, the State failed to properly tender it to
the defense prior to trial or lay a foundation for its introduction during trial, instead springing the
surprise exhibit on the jury during rebuttal argument. He argues he was deprived of the
opportunity to object to the exhibit, move for its exclusion prior to trial, or prepare a
counterdemonstrative exhibit depicting defendant wearing full ski mask. Defendant thus asserts
the introduction of the exhibit was prejudicial error which could not be cured with any remedial
instruction.
¶ 31 The State responds that the State’s conduct was not improper because the altered mug
shot accurately reflected Conner’s testimony that defendant wore a half-ski mask during the
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shooting and, moreover, was used as invited comment, in response to defense counsel’s closing
argument. While the State concedes the altered mug shot was never introduced into evidence at
trial, it asserts that the unaltered mug shot was admitted without objection and also argues that
the court’s instructions were curative of any error.
¶ 32 We note that demonstrative evidence has no probative value in itself but rather serves as
a visual aid to the jury in comprehending the verbal testimony of a witness. Cisarik v. Palos
Community Hospital, 144 Ill. 2d 339, 341-42 (1991). The overriding considerations in admitting
demonstrative evidence are relevancy and fairness. People v. Burrows, 148 Ill. 2d 196, 252
(1992). Thus, before a demonstrative exhibit like the present one can be introduced, a foundation
must be laid, by a knowledgeable witness, that it accurately depicts and portrays what it purports
to show. See Cisarik, 144 Ill. 2d at 342; see also People v. Bryant, 202 Ill. App. 3d 1057, 1064
(1990) (an accurate photograph is one which is identified by a witness as a portrayal of certain
facts relevant to an issue and is verified by the witness on personal knowledge to be a correct
representation of these facts). In addition, the exhibit is only admissible if its probative value is
not substantially outweighed by the danger of unfair prejudice. See Cisarik, 144 Ill. 2d at 342. As
with a motion for a mistrial, the question of admissibility of such exhibits is a matter within the
trial court’s discretion. Burrows, 148 Ill. 2d at 252.
¶ 33 We agree with defendant that it was error for the State to introduce a demonstrative
exhibit during its rebuttal argument without having produced the exhibit to the defense and
without laying any sort of foundation for its use during the trial. While the State and the court
found the exhibit to be consistent with Conner’s testimony as to the half-ski mask, we question
the wisdom of that conclusion, as it strains credulity that any ski mask could possibly look like a
blacked-out half-circle over an individual’s face. As set forth above, there is no indication that
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Conner reviewed any photographic or graphic images of defendant wearing a ski mask in 2012,
when he identified defendant as the shooter to police. At trial, the State did not introduce any
mask into evidence or ask Conner to testify about the altered mug shot, let alone defendant’s
unaltered mug shot.
¶ 34 Moreover, we cannot say that Conner would have testified that the altered mug shot,
apparently created some two years after the 2012 shooting, reflected how the half-ski mask
looked or how defendant looked while wearing the half-ski mask when the crime occurred.
Conner testified that defendant had his hair half pulled back and a hoodie on at the time of the
shooting. In the arrest photo, by contrast, defendant’s dreadlocks are down, and he’s wearing a
white v-neck T-shirt. See People v. Crowe, 390 Ill. 294, 303-04 (1945) (error to admit photo that
merely supports the plaintiff’s theory but does not show the physical facts as they actually
existed at the time of the crime); cf. People v. Sanchez, 115 Ill. 2d 238, 268 (1986)
(distinguishing Crowe and finding no prejudice in admitting magnified photos of actual items of
physical evidence obtained from the crime scene). It was unfair to present this doctored exhibit
because it arguably preconditioned the jury to accept the State’s theory, without any foundational
support. See French v. City of Springfield, 65 Ill. 2d 74, 82 (1976). The State thus deprived the
defense of questioning the accuracy of the image, moving to exclude it or forcing the State to
create the image to the defense’s satisfaction, cross-examining Conner regarding the image, and
likewise presenting a counterimage of a full ski mask. Cf. Bryant, 202 Ill. App. 3d at 1065-66
(noting photos that were taken at the behest of law enforcement several days after the burglary
and which portrayed the victim’s house at time of the crime were properly presented to the jury,
where the victim testified on direct that they were accurate representations of the crime scene
and the defense cross-examined her on the conditions under which the photos were taken).
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¶ 35 We find People v. Wolf, 178 Ill. App. 3d 1064, 1067 (1989), instructive. There, a key
State’s witness testified that defendant admitted committing residential burglary by throwing a
brick through the victim’s window, although defense witnesses testified they had not found any
such brick. During rebuttal closing arguments, the prosecutor placed a brick on his counsel table.
The trial court denied defense counsel’s motion for a mistrial and admonished the jury that the
brick was not evidence and should be disregarded. This court noted that the brick was not
admitted into evidence and found the displaying of the brick was highly prejudicial given that it
was at the heart of the case and presented just before the jury’s deliberation. This court
determined the trial court’s instructions could not cure the prejudice and the error was not
harmless beyond a reasonable doubt.
¶ 36 We similarly conclude that that the display and argumentative use of the altered mug shot
was prejudicial. The image was central to this prosecution, which revolved almost entirely
around the accuracy of Conner’s identification of defendant as the shooter. Here, the evidence
was closely balanced, as there was no physical evidence linking defendant to the crime, and 13­
year-old Conner was the only eyewitness to the shooting. Conner’s testimony, while competent,
was impeached by the State’s own police reports indicating the shooter wore a full ski mask with
velcro and the defense’s two witnesses. See Piatkowski, 225 Ill. 2d at 570-71 (identifying closely
balanced cases); People v. Starks, 2014 IL App (1st) 121169, ¶ 66 (same). The closely-balanced
nature of the evidence made the error especially harmful. In addition, the side-by-side
presentation to the jury of the altered mug shot, introduced absent any evidentiary foundation,
with the exact same properly admitted mug shot immeasurably enhanced the prejudice. The jury
was then forced to compare how defendant appeared wearing the supposed ski mask to how he
looked without it, not on the day of the crime but the day of his arrest, thus boosting the
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credibility of the State’s main witness. Furthermore, the judge did not instruct the jury to
disregard the altered photo but rather emphasized it was demonstrative, making this case
arguably more prejudicial than Wolf, cited above. Putting the trial court’s instruction aside, it is
difficult to conceive of any instruction that would be curative of this rebuttal sucker punch.
Based on the totality of the circumstances, the State failed to maintain its burden of proving the
error was harmless beyond a reasonable doubt, and the court abused its discretion in both
allowing the State to utilize the undisclosed demonstrative exhibit in rebuttal and also in denying
defense counsel’s motion for a mistrial. See Thurow, 203 Ill. 2d at 363 (noting in a harmless
error analysis, the State must prove beyond a reasonable doubt that the jury verdict would have
been the same absent the error).
¶ 37 In reaching this conclusion, we find the State’s argument that the use of the exhibit was
“invited” comment on rebuttal is palpably offensive, as this specific argument was surely
expected given the defense theory of the case, announced in opening statement, as being all
“about identification” and that “no one could have actually seen the face of the person who shot
Ricky Brown.” Almost all of the evidence related to the identification issue. If such an argument
was unanticipated, the State would have had no opportunity to spring this doctored exhibit on the
court because they would not have been on notice. Instead, it is clear that the prosecution knew
the defense would focus on the eyewitness identification, so they prepared this exhibit ahead of
time and displayed it without disclosing it and without ever laying a foundation for it. This
patently improper tactic would surely be highly prejudicial to defendant’s right to a fair trial. The
gravity of the error resulted in a denial of fundamental fairness. See Nelson, 235 Ill. 2d at 435.
¶ 38 While we reverse and remand for a new trial on the basis of the improper admission of
the altered arrest photo, because we find the evidence was sufficient to convict defendant beyond
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a reasonable doubt, there are no double jeopardy concerns in remanding the case for a new trial.
See Piatkowski, 225 Ill. 2d at 566-67.
¶ 39 Defendant raises a number of other contentions on appeal, most of which will not likely
recur on retrial. We would note, however, in regards to his claim that the State improperly
attempted to repeatedly question witnesses in an effort to elicit hearsay statements, the trial court
properly sustained objections to these questions, and the State should be mindful not to repeat the
pattern upon retrial. See People v. Larry, 218 Ill. App. 3d 658, 663 (1991) (noting it’s improper
for a prosecutor to persist in repeating the same questions after objections have been sustained).
We note likewise that defendant did not challenge on appeal the admission of Parker’s testimony
that defendant threatened the victim some 10 days before the shooting. To the extent that Parker
testified the victim appeared nervous or agitated upon seeing defendant, those were not out-of­
court statements or hearsay, contrary to defendant’s suggestion, but proper and relevant
testimony as to Parker’s observations. See People v. Jackson, 250 Ill. App. 3d 192, 198 (1993) (a
witness may testify that another person was scared if the fact is relevant); People v. Peter, 220
Ill. App. 3d 626, 630 (1991) (a nonexpert witness may summarize sensory perceptions or express
an opinion based upon observation).
¶ 40 CONCLUSION
¶ 41 For the reasons stated, we reverse the judgment of the trial court and remand the cause
for a new trial.
¶ 42 Reversed and remanded.
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¶ 43 APPENDIX
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