People v. James , 2017 IL App (1st) 143391 ( 2018 )

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People v. James, 2017 IL App (1st) 143391Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption NED JAMES, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-14-3391
Filed December 21, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-2581(01);
Review the Hon. Nicholas Ford, Judge, presiding.
Judgment Affirmed in part; reversed in part; remanded.
Counsel on Michael J. Pelletier, Patricia Mysza, and Christofer R. Bendik, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Peter Maltese, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Gordon concurred in the judgment
and opinion.
OPINION
¶1 Defendant Ned James, along with Cortez Moore, Rashawn Coleman, and Henry Sistrunk,
broke into a south-side apartment around 4 o’clock in the morning on January 17, 2011. The
men attacked two male occupants and bound them with duct tape; forced a female occupant,
A.W., to undress at gunpoint; and herded everyone into the kitchen. While defendant, Sistrunk,
and Moore ransacked the apartment in search of money or drugs—neither of which they
found—Coleman stood guard over the occupants with a rifle and sexually assaulted A.W.
¶2 Defendant and his confederates were charged with home invasion, armed robbery with a
firearm, and aggravated criminal sexual assault. Sistrunk died while awaiting trial. The other
codefendants were convicted of all charges after simultaneous but severed trials—defendant
and Moore by separate juries, and Coleman before the bench. Defendant was sentenced to an
aggregate prison term of 90 years.
¶3 Defendant raises several issues on appeal. Briefly, he contends that (1) the evidence was
insufficient to prove him accountable for A.W.’s sexual assault; (2) the prosecutors committed
misconduct during their opening statements and closing arguments; (3) the trial court erred in
omitting the bracketed language in Illinois Pattern Jury Instructions, Criminal, No. 3.06-3.07
(4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.06-3.07) when instructing the jury; (4) the
trial court abused its sentencing discretion; (5) the statute authorizing his sentence for home
invasion to be served at 85% time upon a judicial finding of great bodily harm is facially
unconstitutional under Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151 (2013), and
Apprendi v. New Jersey, 530 U.S. 466 (2000); (6) the trial court failed to conduct an adequate
preliminary Krankel inquiry; and (7) his mittimus contains errors.
¶4 Some of these issues are identical to, and others significantly overlap with, issues raised by
Moore and Coleman in their own pending appeals. See People v. Moore, 2017 IL App (1st)
150208; People v. Coleman, 2017 IL App (1st) 143470-U. Here, we resolve these issues only
as they pertain to defendant. For the reasons we explain below, we hold that defendant is
eligible for day-for-day credit on his home-invasion sentence, and we correct the mittimus as
he has requested. We otherwise affirm defendant’s convictions and sentences.
¶5 FACTS
¶6 Believing they were robbing a drug house, defendant, Coleman, Moore, and Sistrunk broke
into an apartment on South Wentworth Avenue in Chicago. The apartment was home to two
couples and a baby: Maritza Morales, Khalil Cromwell Sr., and their eight-month-old son,
Khalil Jr., as well as A.W. and Isaac Andrews.
¶7 Morales, Andrews, and A.W. testified for the State, as did several responding police
officers and forensics experts. None of the codefendants testified or presented any witnesses.
The State’s theory was that the codefendants shared a common design to rob the victims of
drugs and money and that every act or threat of force by any of them—including Coleman’s
sexual assault of A.W.—was an act in furtherance of that common design. The State thus
proceeded on accountability theories of guilt as to all charges. The defense theory was that
although defendant was admittedly in the apartment during the offenses—indeed, the police
arrested him there—he did not participate in them; rather, he was visiting a known drug house
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when his codefendants arrived with their own criminal agenda.
¶8 I. Victims’ Testimony
¶9 Morales, Cromwell, and their baby stayed in the rear bedroom of the apartment, off the
kitchen. Andrews and A.W. stayed in the front bedroom, off the living room. Morales testified
that she awoke to a loud noise around 3:45 a.m. She roused Cromwell, who went to the kitchen
to see what was happening. Morales peeked out of the bedroom door and saw Cromwell on the
kitchen floor. Two men in masks were beating him with their fists and kicking him in the face
and back.
¶ 10 Morales hid in the bedroom closet with the baby. A man wearing a “scary Halloween
mask” came into the bedroom and rummaged through the drawers. Defendant’s DNA was
found on the mask Morales identified. After the baby made a noise, the man opened the closet
door, pulled Morales and the baby into the kitchen, and told Morales to sit on the floor and
stare at the wall. She glanced at Cromwell: He was lying on his stomach, with his hands, feet,
and face duct-taped, and there was blood around him on the floor. The men brought Andrews
and A.W. into the kitchen and ordered them to get down on the floor. They duct-taped
Andrews’s hands, feet, and face. A.W. was naked.
¶ 11 Andrews and A.W. also woke up when they heard noise in the apartment. Andrews got out
of bed and cracked open the bedroom door, where he was confronted by a man dressed all in
black, brandishing a handgun, and wearing a “Halloween scream” mask. Andrews identified
the same mask as Morales. According to Andrews, the man in the mask and two others, who
were also dressed in black, came into the bedroom. A.W. testified that she saw two men: a
taller man wearing a mask and a shorter, heavier man, who was not wearing a mask and whom
she identified as Coleman. One of the men, according to A.W., was pointing a “long wooden
gun” (the exhibits depict what appears to be a rifle) at Andrews.
¶ 12 The men—however many there were—ordered Andrews to get on the floor and keep his
head down. A.W. tried, unsuccessfully, to hide under the covers. The men ordered her to get
out of bed, take off her clothes, and lie down on the floor with Andrews. A.W. testified that
both of the men she saw—Coleman and the taller man in the mask—told her to take off her
clothes. A.W. removed her bra and pajama shorts. She testified that one of the men was
pointing a gun at her. Andrews testified that while A.W. was lying naked on the floor next to
him, the men—Andrews could not be more specific, but he used the plural “they”—told A.W.
to open her legs and said “fat as[s] pussy” or something like that.
¶ 13 The men asked where the “shit” or “white” was, and they threatened to drop a barbell on
Andrews’s head if he did not tell them. Andrews looked up, and one of them hit him in the face
with a crowbar or tire iron. While Andrews was being attacked, A.W. was being taken to the
kitchen. A.W. could not remember which of the men took her to the kitchen, but she testified
that it was only one. Soon after that, Andrews was taken separately to the kitchen.
¶ 14 In the kitchen, Andrews and A.W. were told to lie down on the floor with Cromwell and
Morales (who was holding Khalil Jr.). Andrews was duct-taped in the same fashion as
Cromwell, and A.W. was still naked. The victims saw a total of four men, three of whom were
masked: two of the masks were “Halloween” or “scream” masks of different varieties, and the
third was a black ski mask. Morales, Andrews, and A.W. all identified the fourth man, whose
face they said was visible, as Coleman.
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¶ 15 The men repeatedly threatened to “cut” or “stab” the victims if they did not say where the
money and the “stuff” or “white” was. Everyone understood the men to be asking for drugs,
which the victims denied having. There was no evidence that any drugs, paraphernalia, or large
sums of cash were ever found in the apartment. The men took the victims’ wallets, phones, and
video games instead.
¶ 16 While the others ransacked the apartment, Coleman stood guard over the victims in the
kitchen with a rifle. A.W. testified that Coleman, whose voice she recognized, hovered over
her while she was lying on her stomach. He smacked or grabbed her buttocks and put his
fingers into her vagina. A.W. testified that no one else touched her, but she acknowledged that,
in her handwritten statement, she had previously said that “the biggest man”—who, she said,
was not Coleman—had grabbed her buttocks before Coleman walked over and digitally
penetrated her several times.
¶ 17 Andrews testified that he saw one of the men bend over A.W. in the kitchen, but he could
not see which man it was or what he was doing. He heard the man tell A.W. to spread her legs
and say, “[t]hat’s a big old fat pussy” or some such “little vulgar words towards her pussy.”
Andrews acknowledged that he did not mention this in his statement to the police.
¶ 18 Morales, who remained in the kitchen until the police arrived, did not testify that anyone
touched A.W. or made vulgar comments about her.
¶ 19 Neighbors had called the police, who responded within 20 or 25 minutes of the intruders’
initial entry. A.W. and Morales (along with Khalil Jr.) hid in a utility closet when they heard a
police radio. Andrews testified that when the officers entered, Coleman was still in the kitchen,
two of the men were in the front of the apartment near his bedroom, and the fourth man, whom
Andrews identified as defendant, ran into the bedroom adjoining the kitchen and pretended
that he lived in the apartment.
¶ 20 II. Police Officers’ Testimony
¶ 21 The first responders were Officers Buckhalter and Randall (who testified) and Sergeant
Cruz (who did not). Upon entering the apartment, Randall and Cruz went to the kitchen;
Buckhalter went toward Andrews’s bedroom. Officer Randall testified that when he entered
the kitchen, he saw a man in a mask holding a handgun and kicking one of the male victims. At
Randall’s command, the man—Coleman—took off the mask. He put the gun inside the mask,
tossed those items into the adjoining bedroom, and was detained in the kitchen.
¶ 22 Randall ordered another man to come out of the adjoining bedroom. Defendant walked into
the kitchen and was detained there. Cromwell’s ring and identification card were later
recovered from defendant’s pocket.
¶ 23 Morales and A.W. emerged from the utility closet. A.W. hugged Officer Randall and said,
“God is good.”
¶ 24 Meanwhile, Officer Buckhalter had approached the front bedroom. There, she saw two
men. One opened the bedroom door and said, “help, we are being robbed.” The other was
lurking in the dark. She told the men to come out, but they slammed the door. Buckhalter did
not think it was safe to enter the bedroom until reinforcements arrived. When they did, the men
were gone, and the window—the only other egress in the bedroom—was open.
¶ 25 Outside, several officers had pulled up along Wentworth Avenue and in the rear alley. The
building was surrounded by vacant lots, and the officers saw only two men in the vicinity:
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Sistrunk and Moore. At first, Sistrunk was seen hanging from a window; he was later found
crawling in a vacant lot, 20 or 30 feet from the building, with severe leg injuries.
¶ 26 Officers Powell, Polonio, and Calhoun were among those who chased and apprehended
Moore. They testified, in sum, that Moore came running around the building onto Wentworth
Avenue, headed north, turned into an empty lot, and slipped on a patch of ice. Officer Calhoun
testified that Moore tossed a plastic bag while he was running; inside the bag were some
number of smaller plastic bags. Calhoun’s partner, Griggs, handcuffed Moore after he slipped
and patted him down. Griggs removed a “scream” mask, a neck wrap, and A.W.’s wallet from
Moore’s front pocket. Morales, Andrews, and A.W. identified that mask as having been worn
by one of the intruders.
¶ 27 III. Forensic Evidence
¶ 28 Several items recovered from the apartment were examined for forensic evidence by the
Illinois State Police.
¶ 29 A rubber mask was recovered from the bedroom adjoining the kitchen. It contained two
DNA profiles. The major profile matched defendant, and the other codefendants were
excluded from the minor profile.
¶ 30 A ski mask was recovered from the same bedroom. It contained a DNA mixture from at
least three people. Coleman could not be excluded from the major profile, but the other
codefendants were.
¶ 31 The mask recovered from Moore’s pocket contained a mixture of three DNA profiles, from
which all four codefendants were excluded. Moore’s DNA was found on the black neck fleece
that was also recovered from his pocket.
¶ 32 Officer Buckhalter found a rifle just outside the front bedroom. A handgun was recovered
from the floor of the rear bedroom, right next to the black ski mask. A knife with reddish stains
was found on the kitchen floor. No latent fingerprints suitable for comparison were found on
any of these items. DNA profiles found on the knife excluded all four codefendants.
¶ 33 DNA recovered from the edge of a roll of duct tape excluded all four codefendants but
matched Cromwell. The DNA recovered from the crow bar or tire iron was insufficient to
make a comparison.
¶ 34 IV. Jury Deliberations and Verdicts
¶ 35 During deliberations, the jury sent three notes to the trial judge. The first requested
transcripts of A.W.’s testimony. The second and third asked, “What happens if we are hung on
one count/verdict,” and “If we are hung on the aggravated sex assault charge, can he be tried
again on that charge?” Those notes were sent during closing arguments in codefendant
Moore’s case, and defendant’s jury returned its verdicts before the trial judge could answer
them.
¶ 36 The jury found defendant guilty on five counts of home invasion (one count against each of
the apartment’s occupants), two counts of armed robbery (against Cromwell and A.W.), and
one count of aggravated criminal sexual assault.
¶ 37 The trial court sentenced defendant to an aggregate term of 90 years in prison: an extended
term of 35 years for home invasion, plus a 15-year firearm enhancement; a concurrent term of
21 years for armed robbery; and a consecutive term of 25 years for aggravated criminal sexual
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assault, plus a 15-year firearm enhancement. The trial judge did not make any findings of great
bodily harm to the victims but nonetheless ordered the entire aggregate term to be served at “85
percent” time.
¶ 38 ANALYSIS
¶ 39 I
¶ 40 Defendant first challenges the sufficiency of the evidence to sustain his conviction for
aggravated criminal sexual assault. Since A.W. identified Coleman as the man who inserted
his fingers into her vagina, the only question is whether defendant was accountable for
Coleman’s offense.
¶ 41 In reviewing a conviction based on a theory of accountability, we ask whether a rational
trier of fact, viewing the evidence in the light most favorable to the State, could have found the
essential elements of the crime beyond a reasonable doubt. People v. Fernandez, 2014 IL
115527, ¶ 13; see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact’s findings on
witness credibility, and the reasonable inferences to be drawn from the evidence—including
inferences about a defendant’s intent—are entitled to significant deference, but they are not
conclusive. People v. Ross, 229 Ill. 2d 255, 272 (2008); see People v. Perez, 189 Ill. 2d 254,
266-67 (2000); People v. Calderon, 393 Ill. App. 3d 1, 7-11 (2009).
¶ 42 A person commits aggravated criminal sexual assault when he knowingly commits an act
of sexual penetration by the use or threat of force, while armed with a firearm. 720 ILCS
5/12-14(a)(8) (West 2010).
¶ 43 A person is accountable for another’s criminal conduct when, “either before or during the
commission of an offense, and with the intent to promote or facilitate that commission, he or
she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or
commission of the offense.” 720 ILCS 5/5-2(c) (West 2010). To prove that the defendant
intended to promote or facilitate the crime, the State must prove beyond a reasonable doubt
either (1) that the defendant shared the principal’s criminal intent or (2) that there was a
common criminal design. Perez, 189 Ill. 2d at 266.
¶ 44 At trial and on appeal, the State has relied on a common-design theory of accountability.
Any party to a “common design or agreement” to commit an offense is accountable for any
other party’s “acts in the furtherance of” the design or agreement to commit that offense. 720
ILCS 5/5-2(c) (West 2010); Fernandez, 2014 IL 115527, ¶ 13.
¶ 45 The State argues that Coleman’s sexual assault of A.W. was an act in furtherance of a
common design to rob the victims because it was just one among many acts of violence meant
to coerce them into giving up their (supposed) money and drugs. If the State’s theory is right,
then all of Coleman’s confederates in that undisputed plan are necessarily accountable for the
sexual assault, too.
¶ 46 Defendant concedes that he shared a common design with his codefendants to rob the
victims, but he contends that the sexual assault was not part of, or an act in furtherance of, that
design. Thus, he argues, he cannot be held accountable for Coleman’s “independent” offense
on a common-design theory.
¶ 47 For the reasons we will discuss below, we agree with defendant’s argument but hold that
defendant was properly convicted of aggravated criminal sexual assault based on a different
theory of accountability than that argued by the State on appeal. While we agree with
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defendant that the evidence did not show that the sexual assault was in furtherance of the
common design to rob the occupants, the evidence did show that the sexual assault was
undertaken as part of a second, independent common criminal design to sexually assault A.W.,
in which defendant actively participated. Defendant was thus properly convicted of aggravated
criminal sexual assault based on accountability.
¶ 48 First, we agree with defendant that the evidence, taken in the light most favorable to the
State, did not show that the sexual violence here was part of a common criminal design to rob
the victims. While it was undoubtedly a criminal act, the evidence does not show that it was
undertaken to further the original plan to rob the occupants.
¶ 49 No doubt, defendant and his accomplices used various methods of coercion to induce the
occupants of the house to tell them where the (supposed) money and drugs were located, such
as repeated threats to stab everyone or to drop a barbell on Andrews’s head. And sexual
violence, like any other form of violence, can certainly be used for coercive purposes. But
there was no evidence that the sexual assault here was used for coercive purposes. The sexual
assault was accompanied by lewd comments but not by requests for information about the
whereabouts of drugs or money or threats or warnings associated with the goals of the robbery.
¶ 50 And while we also acknowledge that stripping someone of their clothes could be used to
further the commission of a robbery, to render a victim defenseless or less likely to flee, there
was no evidence suggesting that the men disrobed A.W. for that reason. The men did not
disrobe anyone else, nor did they sexually assault or even threaten to sexually assault anyone
else.
¶ 51 There was simply no evidence that this sexual assault was part of any original plan to
commit the robbery or that it did anything to further the robbery. The evidence showed,
instead, that the men’s entire course of conduct with A.W.—from stripping her, forcing her to
spread her legs and ogling her and making lewd comments about her genitalia, to Coleman’s
sexual penetration—was an act of sexual violence and degradation unrelated to any initial plan
to rob the occupants.
¶ 52 But that does not mean that defendant can wash his hands of this sexual assault. It only
means that the sexual violence was not part of the original criminal design to commit the
robbery. Even if it had nothing to do with the robbery, the sexual violence was an independent
crime, and defendant can be just as accountable for that crime as he can for any other offense,
provided the elements of the accountability statute are met. And here, we find sufficient
evidence for the jury to conclude that defendant shared a separate common criminal design
with Coleman to sexually assault A.W. To paraphrase the accountability statute, “before ***
the commission of” the sexual assault, “and with the intent to promote or facilitate that
commission,” defendant “aid[ed]” or “abet[ted]” Coleman “in the planning or commission of”
that sexual assault. 720 ILCS 5/5-2(c) (West 2010).
¶ 53 Taken in the light most favorable to the State, the evidence showed that defendant played a
role in the commission of the sexual assault. Coleman did not act alone in sexually assaulting
A.W. It is reasonable to infer that defendant was one of the men who barged into A.W.’s
bedroom. Andrews saw a total of three men in the room, though A.W. only recalled two.
Andrews testified that one of those men wore a “Halloween scream” mask. Later, when the
police arrived, the man in that mask ran into the other bedroom, adjoining the kitchen. When
Officer Randall ordered the man to come out, defendant emerged, alone, and the mask, which
was recovered from the same room, had his DNA on it. Thus, it is reasonable to infer that
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defendant was the man in that mask. As for the others, A.W. identified the unmasked Coleman
as one of them; and for reasons we need not delve into here, it is reasonable to infer that Moore
was the third. See Moore, 2017 IL App (1st) 150208-U, ¶ 81.
¶ 54 In the bedroom, the men found A.W. hiding under the covers, wearing only a bra and
pajama shorts. Two of the men brandished guns: the man who confronted Andrews at the
bedroom door had a handgun, and someone else had a rifle. Some of the men dragged A.W. out
of bed. She noticed one of the men pointing a gun at her, and two of the men—Coleman and a
taller, masked man—ordered her to strip naked.
¶ 55 In so doing, the men in the bedroom—defendant included—initiated a course of conduct
that culminated in the sexual assault of A.W. in the kitchen. Their preliminary act of forcibly
undressing A.W., in particular, facilitated that offense by rendering her vulnerable to
Coleman’s later act of penetration. And there is no doubt that all of the men in that room
contributed to the overall show of force that was used to strip A.W. naked. Thus, regardless of
whether defendant actually pointed his gun at A.W. or whether he was one of the men who
ordered her to undress, his conduct aided Coleman in forcibly undressing and, in turn, sexually
assaulting her.
¶ 56 That establishes defendant’s act of aiding in the commission of the sexual assault. As for
doing so with the requisite intent to facilitate the commission of the sexual assault, a common
purpose or design sufficient for accountability may be inferred from the circumstances of a
defendant’s conduct. People v. Cooper, 194 Ill. 2d 419, 435 (2000); see Calderon, 393 Ill.
App. 3d at 7 (intent generally proven by “inferences drawn from conduct appraised in its
factual environment” (internal quotation marks omitted)). Evidence that a defendant
“voluntarily attached himself to a group bent on illegal acts with knowledge of its design
supports an inference that he shared the common purpose and will sustain his conviction for an
offense committed by another.” Cooper, 194 Ill. 2d at 435. The jury could have rationally
concluded that defendant, in helping forcibly strip A.W. of her clothes, did so with the
common purpose of committing a sexual assault.
¶ 57 In other words, a reasonable jury could find that a spontaneous common design to sexually
assault A.W. emerged in her bedroom and that defendant was a part of it. See id. (common
design need not be planned in advance and may emerge from “spontaneous acts of the group”).
He is therefore accountable for the act, committed by Coleman, that consummated the design.
¶ 58 We do not agree with defendant’s attempts to contrast this case with the decisions in
People v. Tyler, 78 Ill. 2d 193 (1980), and People v. Jones, 184 Ill App. 3d 412 (1989). In
Tyler, as in Jones, the defendant was accountable for a sexual assault committed by a
codefendant in the course of a robbery they were committing together. Tyler, 78 Ill. 2d at
195-96; Jones, 184 Ill. App. 3d at 431-32. Neither reviewing court suggested that the sexual
assault was an act in furtherance of the robbery; rather, the convictions were both affirmed on
the ground that the defendant was aware of the sexual assault as it was happening, failed to
dissociate himself from it, and, indeed, assisted the codefendant by keeping a lookout. Tyler,
78 Ill. 2d at 197; Jones, 184 Ill. App. 3d at 431-32. Our holding is exactly in line with those
cases and indeed presents, if anything, a stronger case for accountability, as here, defendant
played an affirmative role in assisting with the sexual assault.
¶ 59 Defendant argues that, unlike in Tyler and Jones, there was no evidence here that he was
aware of the sexual assault, since he was off ransacking the apartment when it occurred. But as
we have explained, it is reasonable to infer that when defendant assisted Coleman in forcibly
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undressing A.W., he understood that she had been singled out as a sexual target. In this sense,
defendant “ ‘knew perfectly well what was happening.’ ” See Tyler, 75 Ill. 2d at 197. And far
from dissociating himself from the conduct that ultimately led to her sexual assault, he took an
active part in it and thus facilitated the offense. In these circumstances, it is immaterial whether
defendant was aware that Coleman, at that very moment, was following through on the
intentions that had become evident in A.W.’s bedroom. By then, defendant had already
facilitated, and was already accountable for, Coleman’s offense.
¶ 60 It is of no import that the theory of accountability on which we affirm defendant’s
conviction is not the one the State urges on appeal. We are not bound by a party’s particular
argument or concession on appeal. People v. Horrell, 235 Ill. 2d 235, 241 (2009). We review
the judgment below—the conviction for aggravated criminal sexual assault—and ask whether
a properly instructed jury could have rationally found defendant guilty beyond a reasonable
doubt. People v. Wheeler, 226 Ill. 2d 92, 114 (2007); Jackson v. Virginia, 443 U.S. 307, 318
(1979).
¶ 61 Here, the jury received IPI Criminal 4th No. 5.03, the general instruction on the law of
accountability, and there is no element of our analysis that was not conveyed to the jury by that
instruction. And while the State’s closing argument at trial was not altogether consistent, at
times suggesting that the sexual assault was an act in furtherance of the robbery, the State
certainly argued to the jury, as well, that the men were accountable for Coleman’s sexual
assault of A.W. because they actively participated in it, noting that the men “busted into her
room together. They held her up at gunpoint together. They forced her to take off her clothes
together.” That is precisely the evidentiary basis on which we affirm defendant’s conviction
for aggravated criminal sexual assault. The jury was not required to accept any particular
theory of the prosecution. As long as it was properly instructed (it was) and the evidence, taken
in the light most favorable to the State, supports its verdict (it does), we will affirm that
judgment. We do so here.
¶ 62 II
¶ 63 Defendant next contends that the prosecutors made various improper remarks in their
opening statement and closing argument, and that those remarks, individually and
cumulatively, deprived him of a fair trial. We consider each in turn.
¶ 64 A. Opening Statement
¶ 65 The prosecutor began her opening statement by telling the jury a bit about Khalil Jr. (For
now, we will simply call him Khalil.) Khalil was four years old at the time of trial, and like
most boys his age, he loved superheroes. Nowadays, they would come to him “through his
imagination or through animation,” but when he was eight months old, “he met a couple really
heroes. Real live heroes. On January 17, 2011, those real life heroes were Chicago Police
Officer[s].” And “just as real as those heroes,” the prosecutor continued, was the “nightmare”
that Khalil and the other victims lived through. After summarizing the charged offenses and
the officers’ actions upon arriving at the scene, the prosecutor informed the jury that “you will
get to meet Khalil Cromwell Jr.[’s] super heroes. You will hear from the police.”
¶ 66 Defendant argues that these remarks were calculated to elicit unfair sympathy for Khalil
and Morales and to bolster the credibility of the testifying officers. We agree that these remarks
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were in certain respects improper. In light of the strong evidence of defendant’s guilt, however,
we are confident those limited improprieties did not affect the jury’s verdicts.
¶ 67 The purpose of an opening statement is to give the jury a brief and general introduction to
the factual issues in dispute and what each party expects the evidence to prove. People v.
Kliner, 185 Ill. 2d 81, 127 (1998); People v. Jones, 2016 IL App (1st) 141008, ¶ 22. The parties
do not enjoy the same “wide latitude” in commenting on the case as they do in closing
arguments. Jones, 2016 IL App (1st) 141008, ¶ 22. Comments that are inflammatory, that are
irrelevant to the question of guilt, or that tend to bolster a witness’s credibility are improper.
People v. Richmond, 341 Ill. App. 3d 39, 47 (2003); People v. Fluker, 318 Ill. App. 3d 193, 203
(2000). Improper comments require a new trial only if “ ‘the jury could have reached a
contrary verdict’ ” in their absence or, in other words, if “ ‘the reviewing court cannot say that
[they] did not contribute to the defendant’s conviction.’ ” Jones, 2016 IL App (1st) 141008,
¶ 23 (quoting Wheeler, 226 Ill. 2d at 123). Our review is de novo. Id.¶ 68 As an initial matter, the State alleges that defendant forfeited this issue because defense
counsel failed to object to the prosecutor’s remarks. The State also asserts that defendant
“readily acknowledges” his alleged forfeiture. The State’s claims are both false. Defendant
acknowledges forfeiture with respect to certain allegedly improper remarks in closing
argument, not opening statement. And in fact, counsel objected to these remarks at least twice
during the opening statement (and possibly three times, but the court reporter did not identify
the attorney who objected on the third occasion) and then preserved those objections in a
motion for new trial. We therefore treat this issue as preserved.
¶ 69 We begin with Khalil and the preschooler’s interest in superheroes that he had acquired in
the years since the incident. There was no legitimate reason to broach this topic, much less for
the prosecutor to begin her initial address to the jury on this note, because it was obviously
irrelevant to the question of guilt, did not orient the jury to any factual issue that would be in
dispute, and did not preview for the jury any of the evidence the State expected to elicit. (As
defendant notes and the State concedes, Khalil’s interest in superheroes was never proven up at
trial, and that was surely because it was irrelevant.) In this limited sense, then, Khalil’s
fondness for superheroes was an inappropriate topic for the prosecutor’s opening statement.
¶ 70 But we cannot agree that the mere mention of Khalil is proof that the prosecutor was
unfairly playing to the jury’s emotions. Khalil was a victim of the home invasion, and that
alone was a good reason to mention him in the opening statement. His young age (or more
precisely, that he was under 12) was fair game too; it was alleged in the indictment as a
sentencing aggravator, which had to be found by the jury beyond a reasonable doubt. See 725
ILCS 5/111-3(c-5) (West 2010); People v. Nitz, 219 Ill. 2d 400, 409 (2006). Thus, Khalil was a
perfectly legitimate subject of discussion—to a point—in opening statement.
¶ 71 It bears emphasis that even a clinical and dispassionate description of events that placed a
mother and her baby in the path of extreme violence would itself elicit some sympathy—or
ire—from a jury. The State was not required to excise Khalil (or Morales) from its overview of
the case to avoid eliciting some such response during its opening statement. The question,
rather, is whether the prosecutor “dwelled” on Khalil at undue length or in ways calculated to
appeal unfairly to the jury’s sympathies. See, e.g., People v. Thomas, 137 Ill. 2d 500, 525
(1990).
¶ 72 Our answer, in both respects, is no. For one thing, the prosecutor’s digression into Khalil’s
interest in superheroes was brief; the State’s opening, as a whole, mostly comprised an
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overview of the charged offenses and the testimony the State expected to elicit. Defendant’s
claim that the State’s opening “focused” on Khalil is, at best, an overstatement.
¶ 73 Defendant does not identify, and we do not discern, any specific way in which the
prosecutor’s remarks were likely to elicit undue sympathy toward either Khalil or Morales. In
previewing the case to come, the prosecutor was surely permitted to inform (and did inform)
the jury that the men dragged Morales out of a closet, where she was hiding with baby Khalil,
unleashed a torrent of violence against everyone else in the apartment, including Khalil’s
father, while Morales clung to a screaming Khalil on the kitchen floor, and threatened to kill
Morales and Khalil if they did not “shut up.” These facts themselves, as we noted above, would
likely have a strong emotional pull with any jury. As far as engendering sympathy is
concerned, Khalil’s later-acquired interest in superheroes adds little, if anything, to a brief
recitation of the facts of the case.
¶ 74 In short, the prosecutor’s opening gambit was not calculated, or otherwise apt, to elicit an
unfairly sympathetic reaction from the jury. Rather, its obvious purpose was to provide a foil
for introducing the “superhero” theme that the prosecutor would use to extol the testifying
officers. We turn now to that issue.
¶ 75 As we have noted, the prosecutor’s opening statement described the responding officers,
several of whom testified, as “real life *** super heroes.” This was not the first time a
prosecutor has drawn this comparison in front of a jury. In People v. Rivera, 235 Ill. App. 3d
536, 540-41 (1992), we held that similar remarks in closing argument were improper. We
agree with defendant that the comparison was improper here, too.
¶ 76 In Rivera, the prosecutor began a protracted speech extolling Chicago police officers by
asking the jury to reflect on the “ ‘perception’ ” of them “ ‘in our community.’ ” Id. at 540. The
prosecutor then argued that “ ‘growing up as little kids,’ ” everybody thinks that police officers
are “ ‘running around with little superman outfits under their uniforms.’ ” Id. Everyone
“ ‘looks up to police officers’ ” as “ ‘heroes’ ” and “ ‘wants to be a police officer’ ” when he or
she grows up. Id. The prosecutor offered to explain why: The police officer is “ ‘the same
guy’ ” who “ ‘resuscitates the elderly victim,’ ” who “ ‘goes out in the alley *** we wouldn’t
be caught in,’ ” who “ ‘gets shot at,’ ” who “ ‘has to go into Cabrini Green when there is a
family disturbance’ ” or to “ ‘the South Side and confront the people in the car, a car whose
occupants he cannot see clearly at night.’ ” Id. at 540-41. And so, the prosecutor concluded,
perhaps their “ ‘image’ ” has been “ ‘tarnished’ ” by “ ‘what you see in the news each night,
what you read in the paper each day,’ ” but “ ‘[i]t’s only your perception that has changed.
Maybe they do have a big S on their chest. Perhaps.’ ” Id. at 541.
¶ 77 In substance, the prosecutor’s remarks in this case were very similar to those in Rivera. The
State says that the prosecutor’s description of the officers as superheroes was meant, in the first
instance, to convey that they acted bravely in confronting a dangerous situation. We agree. But
we would add that the same was true in Rivera, where the prosecutor’s speech extolling the
police emphasized the courageous acts they routinely perform for the benefit of others. See id.
at 540-41.
¶ 78 As a corollary to that last point, the State says that the prosecutor’s remarks in this case
were not directed to “the believability of [the officers’] anticipated testimony.” We agree that
comparing the officers to superheroes did not specifically assure the jury that it could take their
testimony as trustworthy. (Nor, as the State says, did the prosecutor personally vouch for the
officers, but defendant does not advance that argument.) Notably, in Rivera, we distinguished
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the superhero comparison from the prosecutor’s separate remark that a State’s witness (who
testified by way of stipulation) was a retired police officer who stood to lose his pension if he
got caught lying under oath. Id. at 540. That remark spoke directly to the officer’s alleged
truthfulness and thus to the believability of his testimony; the superhero comparison did not.
See id.
¶ 79 Yet we agreed with Rivera that the superhero comparison was an improper commentary on
“the police officers’ credibility in general.” Id. We did not elaborate on this point, but our
meaning should be obvious enough: The superhero comparison portrayed the officers as
exemplary individuals who had earned a special solicitude and deference from others. And
when those same officers appear as witnesses for the State, this deferential attitude can
translate, all too easily, into uncritically accepting their testimony or giving it more weight than
it merits—even when the prosecutor has not offered any specific, improper assurances about
their truthfulness. The prosecutor’s remarks in this case carry the same improper implication.
¶ 80 As both parties note, the prosecutor in Rivera extolled police officers generally, whereas
the prosecutor in this case commented on the actions of the specific officers who would testify.
But the prosecutor’s comments in Rivera about the “credibility” of police officers at large were
surely meant to apply—and the jury would surely understand them to apply—to the officers
who testified in that case. We think this is a distinction without a difference, and we see no
need to further address the parties’ arguments about which way it supposedly cuts.
¶ 81 Whether or not the prosecutor specifically intended to bolster the officers’ credibility in the
minds of the jurors by likening them to superheroes, the comparison carried a significant risk
of doing precisely that. And while the prosecutor’s development of the superhero theme was
relatively cursory compared to its treatment in Rivera, the comparison in this case was made in
an opening statement, as opposed to a closing argument, and therefore risked coloring the
jury’s perceptions even before the officers testified. That, of course, is why the parties are not
permitted to argue—about the credibility of their witnesses or anything else—in their opening
statements. See, e.g., Jones, 2016 IL App (1st) 141008, ¶ 22.
¶ 82 In sum, the “superhero” comments were clearly improper. They served no relevant purpose
and risked bolstering the credibility of the testifying officers. We would have hoped, after
Rivera, that the State would have refrained from making such references, and we trust we will
not see this improper commentary in opening or closing statements going forward.
¶ 83 Having found these remarks improper, we must now determine whether they might have
affected the jury’s verdicts and therefore denied defendant a fair trial. With respect to the
charge of aggravated criminal sexual assault, we readily answer no, since the officers did not
provide any testimony relevant to the question of defendant’s accountability for that offense.
With respect to the charges of home invasion and armed robbery, the officers testified that
defendant was in the apartment when they arrived and that they found Cromwell’s ring and
identification card in defendant’s pocket. But in so testifying, the officers’ credibility was
never at issue. Defendant never denied—and in fact conceded—that he was in the apartment
when the officers arrived. Instead, defendant’s theory of defense was that he was visiting a
known drug house when the codefendants, with whom he claimed he had no association,
arrived with their own criminal agenda. He thus conceded the truth of the officers’ testimony
and offered an alternative explanation of the facts that testimony established. And whether the
jury would believe defendant’s theory did not depend in any way on whether it found the
officers’ testimony credible. Lastly, the evidence of defendant’s guilt was overwhelming, as he
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was caught red-handed. We therefore conclude that the improper remarks in the prosecutor’s
opening statement did not affect the jury’s verdicts or deny defendant a fair trial.
¶ 84 B. Closing Argument
¶ 85 In closing argument, defendant contends, the prosecutor (1) repeatedly misstated the law of
accountability, (2) urged the jury to find defendant guilty based on “divine duty” or “divine
prophesy,” and (3) improperly invited the jury to stand in Morales’s shoes.
¶ 86 A prosecutor has wide latitude in closing argument to comment on, and draw reasonable
inferences from, the evidence. Wheeler, 226 Ill. 2d at 123. It is improper, however, for a
prosecutor to make comments that are calculated only to arouse prejudice or inflame the jury’s
emotions (Jones, 2016 IL App (1st) 141008, ¶ 21) or to misstate the law that defines the
offense (People v. Carbajal, 2013 IL App (2d) 111018, ¶ 29). Closing arguments must be
viewed in their entirety, and any challenged remarks must be viewed in their proper context,
which may include statements by the prosecutor to which the defense did not properly object.
Wheeler, 226 Ill. 2d at 122. As with an opening statement, improper comments in closing
argument require a new trial only if “the jury could have reached a contrary verdict” in their
absence, and our review of this question is de novo. Id. at 123.
¶ 87 First, defendant argues that the prosecutor misstated the law of accountability in three
separate remarks to the jury. The first was this: “Because the law recognizes that criminals are
cowards.” Defendant does not explain the context of this remark. And in his opening brief, he
does not support his assertion that it was improper with any analysis or authority. Defendant
does argue his position, for the first time, in his reply brief, leaving the State without a fair
opportunity to respond. That aside, defendant’s belated arguments are unconvincing.
¶ 88 It is helpful, at the outset, to put this remark in its broader context. The prosecutor began
her discussion of accountability—the pivotal legal doctrine for the State’s theory of the
case—with a verbatim recitation of IPI Criminal 4th No. 5.03, the pattern jury instruction that
defines accountability. There is no doubt that aspect of the prosecutor’s discussion accurately
conveyed the applicable law to the jury. The prosecutor then proceeded to argue what that
instruction means, as applied to the facts of this case. Her argument began:
“It means that in this case, since all four defendants went there to commit this home
invasion and commit this armed robbery, anything that they do together, any act that
they do in furtherance of this, each defendant is responsible for as if he had done it
himself. Why? Because the law recognizes that criminals are cowards. That what they
might not do by themselves, when they get together with two or three people, they
might go and accomplish.”
¶ 89 The prosecutor’s first, and main, point in these remarks was that the codefendants were all
responsible for each others’ acts in furtherance of their common design. Whatever those acts
included—a proper subject for argument, which the prosecutor went on to address in
detail—this was an accurate statement of the general accountability principle that the jury was
charged with applying. The question, then, is whether the remark that followed—“Because the
law recognizes that criminals are cowards”—might have misled the jury about the meaning or
proper application of that legal principle.
¶ 90 To be clear, we do not approve of a prosecutor making such flippant comments about the
law to a jury. “Criminals are cowards”—at the risk of belaboring the obvious—is not a
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principle that the law “recognizes,” nor, as the prosecutor suggested, is the law of
accountability premised on the notion that criminals commit crimes together because they are
too cowardly to go it alone. See, e.g., People v. Dennis, 181 Ill. 2d 87, 105 (1998) (purpose of
accountability is to deter concerted criminal action). That said, the prosecutor’s remark did not
misstate the findings the law requires for a conviction based on accountability, and therefore
did not mislead the jury with respect to any question it would actually have to decide.
¶ 91 In the next disputed remark, the prosecutor continued:
“So every act, every word, every beat, every threat, every action that happened is if
Ned James did it himself, every single one. You don’t have to determine who did what.
Every single one is responsible for in furtherance of the [objection overruled] those
acts. Any time you see the defendant, or one for whom he is legally responsible,
defendant Ned James or Henry Sistrunk or Rashawn Coleman or Cortez Moore,
defendant, or one for whom he is legally responsible, did an act.”
¶ 92 Defendant argues that these comments misstated the law by omitting a critical point: that
he could not be held accountable for any of his codefendant’s acts unless the State proved those
acts were in furtherance of their common design. As we have noted, the prosecutor explicitly
acknowledged this burden and argued at length that all of the acts of violence committed in the
course of the home invasion were in furtherance of the common design to steal money and
drugs. She was not obliged to repeat these points ad nauseam. Thus, reading this remark in its
proper context (see Wheeler, 226 Ill. 2d at 122), we find nothing improper.
¶ 93 In the third disputed remark, defendant contends, the prosecutor conflated accountability
with but-for causation. Defendant again fails to explain the context of the remark, which, in
this instance, was the prosecutor’s discussion of IPI Criminal 4th No. 11.58, the issues
instruction for aggravated criminal sexual assault. The prosecutor began by reading the
propositions the State was required to prove, one of which says “that the act was committed by
force or threat of force.” She then addressed this proposition:
“Now we know, we have already gone over the force and threat of force. We know
it’s by force or threat of force. They would [not] have been able to do it without it. We
know it is while they are armed with a firearm and we know [defendant] is accountable
for those actions because they broke down the door together. They busted into [A.W.’s]
room together. They held her up by gun point together. They forced her to take off her
clothes together. They forced her to go into that kitchen and lay down on the ground
together.
And while only one person insert—grab her buttocks, inserted her [sic] fingers in
her and tried to degrade her, they never would have been able to do that but for
everyone else’s actions. Just like the home invasion and armed robbery, they never
would have been able to commit that sexual assault upon [A.W.] without the use of the
other people and what they were doing.”
Quoting just the second paragraph, defendant argues that the prosecutor used but-for causation
as the applicable legal standard in arguing that he was accountable for the sexual assault.
¶ 94 The context of the prosecutor’s remark, however, reveals that she was not using but-for
causation as the legal standard for accountability. Rather, she was arguing that the
codefendants were acting together when they committed various forcible acts and that each
codefendant’s use of force helped make possible—in other words, facilitated—the sexual
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assault. The phrase “but for” was perhaps unnecessary to argue that Coleman’s codefendants
facilitated his offense against A.W., but that argument was proper, as it did not misrepresent
the findings the law requires for a conviction based on accountability. (Indeed, the prosecutor
was presenting the rudiments of the accountability theory that we articulated in affirming
defendant’s conviction for aggravated criminal sexual assault.) In sum, the prosecutor’s
accountability arguments were proper.
¶ 95 Second, defendant contends that the prosecutor made an improper religious argument to
the jury when she recalled A.W.’s words to Officer Randall: “When you come back with those
verdicts of guilty, just like [A.W.] said to Officer Randall, she will say, ‘God is good.’ ”
¶ 96 In this remark, defendant asserts, the prosecutor “implored” the jury to find him guilty in
order to fulfill “divine prophesy” and its “divine duty to A.W.” and, thus, “specifically linked
the goodness of God to a guilty verdict.” Defendant offers these characterizations without
analyzing either the context of A.W.’s original utterance or the prosecutor’s reprise of her
phrase in closing argument. As a result, defendant’s argument mistakes a figure of speech for a
genuine invocation of religion.
¶ 97 In People v. Moore, 358 Ill. App. 3d 683, 692 (2005), we recognized that not every
expression that includes the word “God” conveys a genuinely religious thought or sentiment.
The defendant in Moore argued that the prosecutor had improperly appealed to the jury’s
“religious values” in closing argument by suggesting that it was only “ ‘by the Grace of God’ ”
that the victim survived being shot in the head by the defendant. Id. We disagreed, finding that
the prosecutor had properly used a “commonplace” “idiomatic expression[ ],” which the jury
“would not misconstrue” as an appeal to religious values. Id. We have not found any other
published case in Illinois that addresses this issue, but courts in other jurisdictions have
reached the same conclusion about various colloquial expressions that include the word “God”
or biblical imagery. For example, in Sechrest v. Baker, 816 F. Supp. 2d 1017, 1055 (D. Nev.
2011), the federal habeas court found that although various expressions the prosecutor had
used in closing argument—“ ‘thank the Good Lord,’ ” “ ‘by God,’ ” and “ ‘out of the mouths
of babes’ ”—“derive[d] from religious sources” and “include[d] mention of God and the
Bible,” they “actually carried little religious meaning.” More precisely, they did not “convey
any religious doctrine” to the jury or “summon religious authority” in support of the
prosecution’s position. Id.; see also People v. Harrison, 106 P.3d 895, 921 (Cal. 2005) (“not
every reference to the Bible is an appeal to religious authority” because the Bible is not only a
religious text but also one of the “best-known literary works in our culture”). To the contrary,
they were everyday “figures of speech.” Sechrest, 816 F. Supp. 2d at 1055.
¶ 98 So too was the expression “God is good.” Consider the context in which A.W. originally
uttered it: After the police arrived and detained the intruders, A.W. emerged from a utility
closet, naked, where she was hiding with Morales, hugged Officer Randall, and said, “God is
good.” A reasonable jury would understand A.W.’s utterance to express her gratitude to the
officers and—above all—her relief that this terrifying violence was over. In these
circumstances, we can just as easily imagine A.W. saying “thank God,” “thank Heaven,”
“thank goodness,” or, as in Sechrest, “thank the Good Lord,” as she hugged Officer Randall.
Indeed, in a remark that defendant does not challenge, the prosecutor described the arrival of
the police like this: “But then, thank God, just when they thought they couldn’t take any more,
just when they thought they and their loved ones would be killed, the Chicago Police
Department arrived ***.” A.W.’s expression was just one more variant of this common idiom.
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¶ 99 We see no indication that the prosecutor intended anything other than this same idiomatic
meaning. The prosecutor reprised A.W.’s utterance at the conclusion of her argument, as part
of her final appeal to the jury: “with your verdicts of guilty,” “the terror will end,” and A.W.
will again say “God is good.” In this context, the prosecutor was referring not to God’s will but
to a sense of closure and relief for the victims.
¶ 100 In sum, we find no indication that either A.W. or the prosecutor was literally commenting
on the will of God. Rather, they were using one of the many commonplace idioms in the
English language that include the word “God” but are routinely used without conveying any
genuinely religious meaning. Thus, we find the prosecutor’s remark proper.
¶ 101 Defendant’s cited authorities, State v. Ceballos, 832 A.2d 14 (Conn. 2003), and Sandoval
v. Calderon, 241 F.3d 765 (9th Cir. 2000), are not persuasive because the prosecutors in these
cases made genuinely religious arguments to the jury. In Sandoval, 241 F.3d at 775-76, the
prosecutor argued at the penalty phase of a capital trial that God approved of the death penalty,
liberally paraphrased Romans 13:1-5, a New Testament passage commonly understood as
providing justification for the death penalty, and argued that sentencing the defendant to death
would be “ ‘doing what God says.’ ” Here, in contrast, the prosecutor did not genuinely claim
that God approved of the State’s position (for the reasons we have already given) or invoke any
religious doctrine or authority to support that position.
¶ 102 In Ceballos, 832 A.2d at 30-31, the prosecutor argued that the victim was credible because
she “ ‘believed God would punish her if she lied’ ”; the defendant, in contrast, was not credible
because he was “ ‘not concerned about what God is going to do to him, not now anyways. He’s
worried about what you people are going to do, and that’s why he had to say what he said
yesterday.’ ” The court held that this argument intruded on the jury’s role as the sole judge of
the witnesses’ credibility by suggesting that “another trier of fact, a divine one nonetheless,”
had already found the defendant guilty and was waiting “to punish him for his lack of
veracity.” Id. at 36. Here, the prosecutor conveyed no such meaning and did not use religious
belief as a basis for distinguishing the credibility of competing witnesses. And in Ceballos, the
prosecutor further argued that the defendant wanted the jury “ ‘to believe that pure evil,
Satan’s daughter, appeared *** in this courtroom’ ” in the form of the victim. Id. at 31. But
here, for the reasons we have given, there were no such “direct invocations of religious
characters,” and thus no “inflammatory emotional appeal to the passions and prejudices of the
jury” made on that basis. See id. at 36.
¶ 103 We would urge prosecutors to be cautious in their use of idiomatic references to God or
literary allusions to religious texts. We agree with the Supreme Court of California that the line
between their permissible use and improper religious appeal to the jury is often “a fine one,”
and that a prosecutor who employs such references freely therefore “runs a grave risk” of
committing misconduct. See Harrison, 106 P.3d at 921. That fine line, however, was not
crossed in this case.
¶ 104 Third, defendant contends that the prosecutor improperly “placed the jurors in the shoes of
Maritza Morales.” After Morales saw the men attack Cromwell, she hid in the bedroom closet
with baby Khalil. Looking out into the bedroom, Morales saw a man, whom the State argued
was defendant, walk in wearing a mask. Over defense objection, the prosecutor asked the jury,
“Can you imagine that scene?” She then proceeded to describe the “scene” in these terms:
“She is cowering in there. What does Khalil Cromwell [Jr.] do? Oh look, a
hang[e]r. He pulls a hang[e]r. His head flips around. His head. [‘]What do you think
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you are playing with me?[’] [Defendant] drags her out of the closet by her hair and she
is dragged into the kitchen where she sees her loved one, Khalil, on the ground duct
taped and screaming. [‘]Please don’t hurt my baby. Please don’t hurt my baby.[’] She is
carrying her baby in and sees blood all over the floor. She is cowering on the corner,
turned around making sure Khalil [Jr.] is not going to die is what they told you, making
sure he is not going to die.”
¶ 105 A prosecutor is free to describe a “cold-blooded and horrific” offense for what it was but
may not “invite the jurors to enter into some sort of empathetic identification with the victims.”
People v. Spreitzer, 123 Ill. 2d 1, 38 (1988). In Spreitzer, on which defendant relies, the
prosecutor asked the jurors to “ ‘[t]hink of it. You, any of us walking down a street, being
grabbed by one, two or three individuals like this man, who have one intent, to kill somebody,
to kill you.’ ” Id. at 37. He then explicitly invited the jurors, no less than three times, to
“ ‘[p]lace yourself in the shoes’ ” of the victims and think about “ ‘[w]hat went through their
minds’ ” as the offense unfolded. Id. at 38. These remarks were improper because they invited
the jurors to identify with the victims—that is, to imagine themselves as the victims of similar
offenses—and, in turn, to sentence the defendant to death based on the fear of being similarly
victimized that this imaginative exercise provoked. See id. at 37-38.
¶ 106 The remarks at issue here were unlike those in Spreitzer. By and large, the prosecutor was
simply describing what defendant did to Morales, rather than inviting the jurors to imagine
themselves as Morales. Here, the prosecutor did not ask the jurors to put themselves in
Morales’s shoes; she asked them to imagine “the scene,” by which, the State says, she was
asking them to picture the crime scene. After describing the events in Morales’s bedroom
closet, the prosecutor immediately began to describe what the codefendants did to Andrews
and A.W. in the other bedroom. This supports the State’s contention that the prosecutor was
walking the jury, room by room, through the crime scene, marshalling evidence that the home
invasion was committed by force or threat of force with respect to each of the victims. We
agree that it was gratuitous and pushing the bounds of propriety for the prosecutor to add,
“Please don’t hurt my baby. Please don’t hurt my baby,” into her description of the “scene.”
That did not help the prosecutor prove the proposition relating to the use of force for home
invasion. But this was a single, fleeting remark, made in a context in which (as we have noted)
the mere reminder that a mother had to endure this senseless violence while holding a
nine-month-old baby surely would have stirred the jurors’ emotions, anyway. We cannot say
that this alone was misconduct.
¶ 107 The remaining cases cited by defendant are easily distinguished. In People v. Wood, 341
Ill. App. 3d 599, 603 (2003), the prosecutor “asked the jurors to imagine themselves in the
shoes of the victim and her family.” In this way, Wood is just like Spreitzer, and therefore
unlike this case for the same reasons. And People v. Fortson, 110 Ill. App. 2d 206 (1969), is
simply irrelevant. The prosecutor’s error in that case was singling out the women on the jury
and asking them to imagine themselves “ ‘in the place of’ ” the rape victim. Id. at 216
(“individual members of the jury should not be singled out by counsel”).
¶ 108 For these reasons, we find no error in the prosecutor’s closing argument. Thus, we do not
address defendant’s plain-error or ineffective-assistance arguments regarding those remarks
that were not met with defense objection at trial.
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¶ 109 C. Cumulative Error
¶ 110 Lastly, defendant argues that the prosecutor’s various remarks, taken cumulatively, were
reversible error, even if no one remark was reversible error on its own. Since we have only
found one error, pertaining to opening statement, and that error was harmless, there was no
cumulative error, either.
¶ 111 III
¶ 112 Defendant contends that the trial court erred in omitting the following bracketed language
from IPI Criminal 4th No. 3.06-3.07:
“You have before you evidence that the defendant made statements relating to the
offenses charged in the indictment. It is for you to determine [whether the defendant
made the statements, and, if so,] what weight should be given to the statement [sic]. In
determining the weight to be given to a statement, you should consider all of the
circumstances under which it was made.” IPI Criminal 4th No. 3.06-3.07.
That bracketed language should be omitted only when the defendant admits that he made the
statements at issue. IPI Criminal 4th No. 3.06-3.07, Committee Note; Richmond, 341 Ill. App.
3d at 51. Here, the instruction was based on the codefendants’ repeated threats to kill or stab
the victims and the various commands (e.g., to give up their money and drugs, to stay on the
floor, or in A.W.’s case to take off her clothes and spread her legs) that they directed at the
victims in the course of the offenses. Defendant did not admit that he made any of these
“statements,” and they could not be attributed to him with certainty, since the intruders were
mostly masked and the victims were not sure who said what. Thus, defendant argues, the jury
should have been instructed that it was free to decide for itself whether he made any of these
“statements” in the first place.
¶ 113 We hold that the threats and commands on which the instruction was based were not
“statements” within the meaning of IPI Criminal 4th No. 3.06-3.07. Because the instruction
does not apply to those utterances (as we will continue to call them), we reject defendant’s
argument that the jury should have been given the instruction with the bracketed language
included. Instead, we hold that it was error for the trial court to give this instruction at all.
Defendant has forfeited that error, but in any event, it was harmless.
¶ 114 A
¶ 115 Our first task is to interpret the meaning of the phrase “statements relating to the offenses
charged” in IPI Criminal 4th No. 3.06-3.07. The meaning of a word or phrase used in a jury
instruction presents a question of law. People v. McBride, 2012 IL App (1st) 100375, ¶ 51. Our
review is therefore de novo. See In re A.A., 2015 IL 118605, ¶ 21.
¶ 116 When we interpret a statute, we begin with the plain and ordinary meaning of the words
used. People v. Bywater, 223 Ill. 2d 477, 481 (2006). In particular, we give an “undefined
word” in a statute “its ordinary and popularly understood meaning.” In re Ryan B., 212 Ill. 2d
226, 232 (2004). To discern that meaning, “it is ‘entirely appropriate’ to consult the
dictionaries.” People v. Barnes, 2017 IL App (1st) 142886, ¶ 35 (quoting People v. Bingham,
2014 IL 115964, ¶ 55). Since the interpretation of a jury instruction is, in many respects, akin
to statutory interpretation, we think these principles provide a helpful starting point for our
inquiry here, too.
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¶ 117 Generally speaking, the term “statement” has several related meanings. In the context of a
criminal case, one such meaning is particularly relevant: “An account of a person’s knowledge
of a crime, taken by the police during their investigation of the offense.” Black’s Law
Dictionary (10th ed. 2014); see also Webster’s Third New International Dictionary 2229 (“a
formal declaration *** made in the course of some official proceeding (as a statement of a
witness ***)”). Examples of such formal statements, which are commonly introduced into
evidence at criminal trials, include a defendant’s handwritten or other custodial statement
given to the police or prosecutors in the course of an interrogation.
¶ 118 But an admissible statement need not be formal, in the above sense, or made to law
enforcement. A witness’s prior inconsistent hearsay statement, for example, may be admissible
for the limited purpose of impeaching the declarant, and the statement need not have been
made to the police. See 725 ILCS 5/115-10.1(c) (West 2010). This usage reflects the most
general definition of the term “statement,” which includes any “verbal assertion or nonverbal
conduct intended as an assertion.” Black’s Law Dictionary (10th ed. 2014); see also Webster’s
Third New International Dictionary 2229 (“something stated: as a report or narrative (as of
facts, events, or opinions)”; “a single declaration or remark: allegation, assertion”); 725 ILCS
5/115-10.1(c)(2) (West 2010) (prior inconsistent statement may be admissible if it “narrates,
describes, or explains an event or condition of which the witness had personal knowledge”).
¶ 119 We need not decide, at this time, whether IPI Criminal 4th No. 3.06-3.07 applies only to
formal statements given to law enforcement or, more broadly, to any assertions of fact about
the offense that the defendant may have made, to anyone, in any informal context. But either
way, to qualify as a statement, an utterance or writing must make a claim about a matter of fact;
it must express a proposition that is either true or false. Threats and commands are not
assertions, and thus, even in the most general sense of the term, they are not statements.
¶ 120 We acknowledge that defendant, the State, and the trial court all seemed to think it was
obvious that the threats and commands directed at the victims were “statements relating to the
offenses” within the meaning of the instruction. We think this conflates the term “statement,”
in its proper usages, with the far more general term “utterance,” which could apply to these (or
any other) types of nondeclarative speech. Notably, the parties have not cited, and we have not
found, any case in which the instruction was based on a threat, command, or other type of
nondeclarative utterance. In every case to reach a reviewing court, the instruction was based on
the defendant’s confession, admission, or false exculpatory statement—in a word, the
defendant’s self-incriminating statement. We are not aware of any case specifically limiting
IPI Criminal 4th No. 3.06-3.07 to these (or any other) types of statements, but we now
explicitly hold that this is the instruction’s proper scope.
¶ 121 The history and origins of IPI Criminal No. 3.06-3.07 support this interpretation. The
instruction was adopted in the second edition of the IPI, and it has not been modified since. It
was meant to consolidate and replace two instructions from the first edition—Nos. 3.06 and
3.07—that had proven problematic.
¶ 122 Instruction No. 3.06 in the first edition of the IPI, titled “Admission,” provided as follows:
“You have before you evidence that [the] [a] defendant made [an
admission—admissions] of [a fact—facts] relating to the crime charged in the
indictment.
It is for you to determine [whether the defendant made the admission(s), and, if so,]
what weight should be given to the [admission—admissions]. In determining the
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weight to be given to an admission, you should consider all of the circumstances under
which it was made.” Illinois Pattern Jury Instructions, Criminal, No. 3.06 (1st ed. 1961)
(hereinafter IPI Criminal 1st No. 3.06).
¶ 123 Similarly, Instruction No. 3.07, entitled “Confession,” provided as follows:
“You have before you evidence that [the] [a] defendant confessed that he
committed the crime charged in the indictment. It is for you to determine [whether the
defendant confessed, and, if so,] what weight should be given to the confession. In
determining the weight to be given to confession, you should consider all of the
circumstances under which it was made.” IPI Criminal 1st No. 3.07
¶ 124 As with the current instruction, IPI Criminal 4th No. 3.06-3.07, the committee notes
accompanying both instructions in the first edition specified that the bracketed portions should
be “deleted only when the defendant admits making all the material statements attributed to
him.” IPI Criminal 1st Nos. 3.06, 3.07, Committee Notes.
¶ 125 Having two separate jury instructions required the parties to litigate the question whether a
statement was a strict confession of guilt or merely an admission of an incriminating fact. And
it required the trial court to communicate this legal conclusion in its instructions to the jury.
This line can be difficult to draw, and the wrong instruction could prove highly prejudicial,
because a judge’s “characterization of a statement as a confession may discourage a jury from
making a close analysis of what defendant actually said.” (Internal quotation marks omitted.)
People v. Horton, 65 Ill. 2d 413, 418 (1976). For this reason, it was error, and often reversible
error, “to instruct a jury that defendant has confessed to a crime when he has made only an
admission.” (Internal quotation marks omitted.) Id. (citing cases); see, e.g., People v. Floyd,
103 Ill. 2d 541, 548-49 (1984) (conviction reversed on this ground).
¶ 126 In the second edition, these two instructions were consolidated into one, IPI Criminal No.
3.06-3.07, which used the general term “statement” in place of the more specific terms
“confession” and “admission.” Illinois Pattern Jury Instructions, Criminal, No. 3.06-3.07 (2d
ed. 1981) (hereinafter IPI Criminal 2d No. 3.06-3.07). These changes were made to “avoid[ ]
the complications that ensue when a judge characterizes a statement” and thereby eliminate
this unnecessary risk of prejudice to the defendant. IPI Criminal 2d No. 3.06-3.07, Committee
Note; Floyd, 103 Ill. 2d at 549. Notably, the Seventh Circuit’s substantively identical pattern
instruction also “utilizes the word ‘statement’ in place of words such as ‘admission’ and
‘confession’,” and for precisely the same reasons: “the word ‘statements’ is a more neutral
description” that does not convey any judicial characterization of the defendant’s words to the
jury, and it “eliminates the need for additional debate or litigation regarding whether a
particular statement fits the definition of a ‘strict confession.’ ” (Internal quotation marks
omitted.) Pattern Criminal Jury Instructions of the Seventh Circuit, No. 3.09, Committee
Comment (2012 ed.); United States v. Gardner, 516 F.2d 334, 345-46 (7th Cir. 1975); see
Opper v. United States, 348 U.S. 84, 91 (1954) (“a strict confession,” as distinct from an
admission, is a “complete and conscious admission of guilt”).
¶ 127 There is no indication that the general term “statement” was meant to be broader than the
antecedent categories it replaced. Indeed, the committee made clear in its comment that the
new instruction reflected its determination that “whether a statement is an admission,
confession, or false exculpatory statement is a legal conclusion that ought not to be
communicated to the jury.” IPI Criminal 2d No. 3.06-3.07, Committee Note. While this might
seem to add a new category—false exculpatory statements—to the instruction’s purview, such
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statements are considered a species of admissions because they are incriminating. See, e.g.,
Miranda v. Arizona, 384 U.S. 436, 477 (1966) (“no distinction may be drawn between
inculpatory statements and statements alleged to be merely ‘exculpatory,’ ” as the latter, when
proven false, are “incriminating in any meaningful sense of the word”); People v. Gerrior, 155
Ill. App. 3d 949, 954 (1987) (defendant’s statement to police denying that he committed
robbery “was relevant as an admission” of certain material facts). In short, IPI Criminal 2d No
3.06-3.07 did not substantively extend the scope of the first-edition instructions it replaced.
Like its predecessors, it applies only to a defendant’s self-incriminating statements:
confessions and admissions, in the first instance, and false exculpatory statements by
extension.
¶ 128 Moreover, the instruction addresses a specific problem that arises only when a defendant
has made a self-incriminating statement about the charged offense(s). For the moment, we will
follow the practice of the relevant case law and speak in terms of confessions, but as we will
see, the point applies to self-incriminating statements generally.
¶ 129 To be admissible, a confession must be voluntary, a threshold legal determination that is
made by the trial judge. People v. Jefferson, 184 Ill. 2d 486, 498 (1998). But even after a
confession has been found to be voluntary, a defendant may still present evidence to the jury
that affects its credibility or weight or that challenges its reliability or truth. Id.; People v.
Cook, 33 Ill. 2d 363, 369-70 (1965); People v. Johnson, 385 Ill. App. 3d 585, 598 (2008); see
also 725 ILCS 5/114-11(f) (West 2010) (“The issue of the admissibility of the confession shall
not be submitted to the jury. The circumstances surrounding the making of the confession may
be submitted to the jury as bearing upon the credibility or the weight to be given to the
confession.”). The jury’s credibility inquiry will often turn on largely the same evidence as the
judge’s voluntariness inquiry, but the two are nonetheless “separate inquires,” and the latter, a
factual matter, is “exclusively for the jury to assess.” Crane v. Kentucky, 476 U.S. 683, 688
(1986).
¶ 130 In Crane, the Supreme Court emphasized the importance of giving the jury an active role in
assessing the credibility of a defendant’s (alleged) confession. If that evidence could not be put
before the jury, the defendant would be “effectively disabled from answering the one question
every rational juror needs answered: If the defendant is innocent, why did he previously admit
his guilt?” Id. at 689. Evidence concerning “the manner in which a confession was secured”
will often be critical to the defendant’s attempt to cast doubt upon the confession’s
“credibility,” minimize its “probative weight,” or show that it was “insufficiently corroborated
or otherwise unworthy of belief.” (Internal quotation marks omitted.) Id. at 688-89. And all of
this applies equally to admissions and statements intended to be exculpatory—both of which
entail “the pressure of coercion” and “possibilities for error,” and so “call for corroboration to
the same extent as,” strict confessions. See Opper, 348 U.S. at 91-92.
¶ 131 IPI Criminal 4th No. 3.06-3.07 instructs the jury to undertake this factual inquiry and
guides the jury in this role. By instructing the jury to expressly consider whether the
defendant’s self-incriminating statement was credible, given the circumstances in which it was
elicited, the instruction prevents the jury from simply assuming that the defendant must be
guilty because he (ostensibly) admitted his guilt. As Crane reminds us, that inference is all too
easy for a jury to make. 476 U.S. at 689; see also People v. R.C., 108 Ill. 2d 349, 356 (1985)
(“[A] confession is the most powerful piece of evidence the State can offer, and its effect on a
jury is incalculable.”). The presentation of a defendant’s self-incriminating statement to a jury
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thus warrants a special cautionary instruction. IPI Criminal 4th No. 3.06-3.07 is that
instruction.
¶ 132 In contrast, this cautionary instruction has no meaningful application to nondeclarative
utterances like threats and commands. There is no intelligible concern that a defendant may
have been led to falsely incriminate himself when he threatened or verbally coerced a victim. It
makes no sense to ask whether a threat or command was elicited in circumstances that rendered
it unworthy of belief. And there is no question of how much “weight” to give a defendant’s
threat of force against a victim; when the defendant is charged with armed robbery or home
invasion, for example, the use or threat of force is an element of the offense, and the defendant
either engaged in that conduct or not. See 720 ILCS 5/18-2(a) (West 2010); 720 ILCS
5/12-11(a)(1) (West 2010) (recodified as amended at 720 ILCS 5/19-6 (West 2014)). To be
sure, there is a question of how much weight to give the testimony of the witnesses who
reported the alleged threats, but by its terms, IPI Criminal 4th No. 3.06-3.07 does not apply to
their testimony. And it does not need to; their testimony is fully addressed by IPI Criminal 4th
No. 1.02, the general instruction on the jury’s role as the sole judges of “the believability of the
witnesses and of the weight to be given to [their] testimony.” IPI Criminal 4th No. 1.02. In
short, there is simply no meaningful way to apply IPI Criminal 4th No. 3.06-3.07 to
nondeclarative utterances like threats or commands.
¶ 133 For these reasons, we hold that IPI Criminal 4th No. 3.06-3.07 applies to a defendant’s
self-incriminating statements—confessions, admissions, or false exculpatory statements—
relating to the charged offense(s).
¶ 134 As we have interpreted the instruction, its guiding concern is the possibility that a false or
unreliable incriminating statement was elicited from the defendant. This concern, at a
minimum, is most pressing when the statement at issue was a formal statement made to law
enforcement. See, e.g., United States v. Broeske, 178 F.3d 887, 889-90 (7th Cir. 1999)
(limiting circuit’s corresponding instruction to statements made to law enforcement). As we
noted at the outset, however, we do not need to decide in this case whether IPI Criminal 4th
No. 3.06-3.07 is limited to such statements, and we reiterate that our holding today should not
be taken to answer that question.
¶ 135 B
¶ 136 Having settled on the meaning of the term “statements relating to the offenses” in IPI
Criminal 4th No. 3.06-3.07, we must now determine whether it was error for the trial court to
instruct the jury as it did and, if so, whether that error entitles defendant to a new trial. We
review the trial court’s decision whether to give a jury instruction for an abuse of discretion.
People v. Lovejoy, 235 Ill. 2d 97, 150 (2009).
¶ 137 It was error for the trial court to give IPI Criminal 4th No. 3.06-3.07 in this case. As we
have noted, the instruction was given based solely on the threats and commands that the
codefendants directed at the victims throughout the home invasion. No self-incriminating
statements by defendant, either to law enforcement or any other third parties, were put before
the jury. Thus, there was no basis for this instruction. It should not have been given—with or
without the bracketed language.
¶ 138 Defendant, however, has forfeited that error. Our supreme court has held that “a specific
objection [to a jury instruction] waives all other unspecified grounds.” E.g., People v.
Cuadrado, 214 Ill. 2d 79, 89 (2005). On appeal, defendant contends only that the omission of
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the bracketed language was error, arguing, as he did in the trial court, that none of the
utterances at issue could be specifically attributed to him. He does not claim that it was error to
give the instruction at all, and he does not dispute that the utterances at issue were “statements”
to which the instruction applies. Nor, for that matter, did defendant raise this error in the trial
court. There, defendant did object to giving the instruction, but he did so on the ground that the
utterances at issue could not be specifically attributed to him; he did not dispute the assumption
that those utterances were “statements” and thus a proper basis for the instruction in the first
place.
¶ 139 Forfeiture aside, the improper instruction was inconsequential; even if the error had been
preserved at trial and raised on appeal, we would find it harmless. An error in a jury instruction
is harmless if a properly instructed jury would have rendered the same verdicts. People v.
Kirchner, 194 Ill. 2d 502, 557 (2000).
¶ 140 We begin with a preliminary question: How might defendant’s jury have understood this
instruction? The jury heard no evidence that defendant made, or allegedly made, any
statements about the offenses. Thus, if the jury understood the term “statements” to have its
ordinary meaning, it would not have found any use for this instruction. Moreover, the jury
instructions as a whole did not define the term “statements” or specify what alleged
“statements” fell within the instruction’s purview. So what, if anything, might the jury have
done with the instruction? We cannot know for sure. But one possibility is that the jury did not
apply the instruction at all because there was nothing it logically applied to. In those
circumstances, the superfluous instruction might have puzzled the jury, but it did not prejudice
defendant.
¶ 141 The other possibility is that the jury (mis)understood the instruction in the same way as the
parties, and so applied—or tried to apply—it to the threats and commands at issue. Indeed, if
the jury applied the instruction to anything, it must have been these utterances, since the jury
did not hear evidence of any others. The question we then face is whether the instruction, as
given and thus understood, prejudiced defendant. Defendant argues that it did because it
prevented the jury from considering whether he personally uttered any of those threats or
commands. We disagree.
¶ 142 The State’s theory was that the codefendants were all accountable for each other’s actions
because they shared a common criminal design. The threats of violence and other verbal acts of
compulsion were directed at the victims in furtherance of the common design. (Granted, we
have rejected the State’s common-design theory with respect to the sexual assault, but since
defendant was still accountable for that offense, our conclusion here does not change.) As the
prosecutor argued in closing, the codefendants “act[ed] together” and “worked together,” so
that “every act, every word, every beat, every threat, every action that happened is as if Ned
James did it himself, every single one.” (Emphases added.) Indeed, if defendant was
accountable for his confederates’ actions, it is irrelevant whether he personally uttered any
threats or commands at the victims. The instruction did not prejudice defendant.
¶ 143 Defendant argues, however, that attributing these utterances to him was “crucial” to the
State’s proof of accountability, especially with respect to the sexual-assault charge. Not so.
With respect to the armed robbery and home invasion, defendant was caught red-handed: He
was still in the apartment when the police arrived, he had Cromwell’s wallet in his pocket, and
his DNA was found on one of the masks worn by an intruder during the offenses. The evidence
of his guilt was overwhelming, without attributing any commands or threats to him at all.
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¶ 144 With respect to the charge of aggravated criminal sexual assault, defendant argues that
nothing linked him to Coleman’s offense except the commands that A.W. undress and spread
her legs and the accompanying vulgar remarks about her genitals. We disagree. As we
previously explained, defendant was accountable for the sexual assault because he contributed
to the show of force used to strip A.W. in the bedroom—whether or not he was one of the men
who actually ordered her to undress or spread her legs. Because it was not necessary for the
jury to find that defendant personally ordered her to do so, we conclude that the erroneous
instruction did not affect the jury’s verdict.
¶ 145 For these reasons, we conclude that the trial court’s erroneous instruction does not entitle
defendant to a new trial.
¶ 146 IV
¶ 147 Defendant contends that the trial court failed to conduct an adequate preliminary Krankel
inquiry. See People v. Krankel, 102 Ill. 2d 181 (1984). Pursuant to Krankel, the trial court must
“conduct some type of inquiry into the underlying factual basis, if any, of a defendant’s pro se
posttrial claim of ineffective assistance of counsel.” People v. Moore, 207 Ill. 2d 68, 79 (2003).
No specific procedure is mandated, but an adequate inquiry will generally involve “some
interchange” between the judge, the defendant, and counsel. Id. at 78. The defendant must be
permitted to articulate his complaints about counsel and explain their factual basis, while
counsel may help “explain the facts and circumstances surrounding the defendant’s
allegations.” Id. If this initial “probe” reveals that the allegations are “conclusory, misleading,
or legally immaterial,” or do not state a “colorable claim” of ineffective assistance, the trial
court “may be excused from further inquiry.” (Internal quotation marks omitted.) People v.
Ford, 368 Ill. App. 3d 271, 276 (2006). We review the adequacy of the trial court’s inquiry
de novo. People v. Lewis, 2015 IL App (1st) 122411, ¶ 80.
¶ 148 At his sentencing hearing, defendant alleged that his attorney was ineffective. His first
specific allegation was, “I kept telling my lawyer I want to testify.” Liberally construed, we
take this statement to allege that counsel prevented him from testifying. Because this allegation
could potentially support a claim of ineffective assistance (People v. Youngblood, 389 Ill. App.
3d 209, 217 (2009)), the trial court had a duty to ascertain its factual basis and not reject it
out-of-hand. Defendant argues that the court did just that, with no inquiry into its factual basis
at all.
¶ 149 We disagree. The trial court did not pose any questions to defendant about this allegation or
make any explicit findings as to its possible merit. But that does not show that the trial court
brushed it off without any inquiry into its purported basis. The trial court gave defendant the
floor, and he elaborated on his statement that he had told counsel that he wanted to testify. In
doing so, defendant referred to a note he had passed to counsel expressing that desire, which
also had counsel’s response on it. As defendant said to the judge, “I didn’t testify on the stand.
You asked me. I wrote it down. I passed it to [counsel]. I passed it to her. I said, [counsel], the
judge asked me could I testify. [Counsel] said—she wrote back, which is her writing, her
writing right here, she said, ‘Dear Ned, the trial is over, you don’t need to take the stand.’ ”
While defendant’s remark was in some respects disjointed and difficult to follow, it certainly
implied that his allegation was based on an exchange he had with counsel after the trial had
concluded. And indeed, counsel soon asked the judge that she “be allowed to clarify that in
fact, [defendant] did ask me and I did respond after the verdict was returned.”
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¶ 150 In short, defendant explained the purported factual basis of this allegation, counsel helped
to clarify the circumstances from which it arose, and together their explanations revealed that
the allegation was deficient on its face. Thus, the trial court conducted all the inquiry—in the
broad and “flexible” sense recognized by the Krankel procedure (see, e.g., Moore, 207 Ill. 2d at
78)—that was necessary with regard to this allegation.
¶ 151 Defendant’s second specific allegation was, “And I feel like she made a few errors during
her closing argument when she told [the jury] that, yes, Mr. Ned James was in the—at the
house, and yes, Mr. Ned James was struck by *** one of the victims.”
¶ 152 Faced with overwhelming and undisputed evidence, counsel had conceded that defendant
was in the apartment at the time of the offenses. Counsel had argued, however, that defendant
was merely visiting a known drug house when the others, with whom he had no association,
arrived with their own criminal agenda. Counsel also conceded, based the undisputed
testimony of Andrews and Officer Randall, that Andrews punched or kicked defendant after he
was detained by the police inside the apartment.
¶ 153 These concessions were “errors” and “prejudice to the defense,” defendant argued, because
“[n]one of the victims got up there and identified me and said I did anything.” When the trial
court observed that the police actually found him inside the apartment, defendant presented a
new defense, one sharply at odds with the theory counsel had argued: After the police detained
the three intruders they were told by dispatch to look for, the officers found him in the
stairwell, took him to the apartment, and insisted—for whatever reason—that he was “the
fourth person.” This is the theory, defendant implied, that counsel should have advanced in
closing argument—and the “story” that he “need[ed]” to “tell” on the witness stand.
¶ 154 The credibility of these allegations aside, it is clear that defendant objected to counsel’s
choice of defense theory. “[T]he choice of defense theory is ordinarily a matter of trial
strategy,” and since counsel “has the ultimate authority to decide” that strategy, an
ineffective-assistance claim cannot be based on counsel’s choice of an allegedly “inadequate”
strategy. People v. Guest, 166 Ill. 2d 381, 394 (1995). Because defendant’s explanation made
clear that he could not state a “colorable claim” of ineffective assistance based on his
contention of “errors” in closing argument, the trial court did not need to conduct any further
inquiry. See Ford, 368 Ill. App. 3d at 276.
¶ 155 Lastly, defendant also told the trial judge at his sentencing hearing that he had prepared a
pro se “motion for ineffectiveness of counsel.” The trial judge did not review the motion or
make any inquiry into its allegations. Instead, the judge told defendant to “[f]ile that after”
sentencing and then proceeded to sentence defendant. Before admonishing defendant as to his
appeal rights, the trial court said, “Mr. James, we’ll go over one last thing together, and then
I’ll wait for your post-trial motions, and if necessary, I’ll appoint counsel to represent you on
any assertions you make at that time.” It does not appear from the record that defendant filed
his motion. On appeal, he argues that the judge “actively misled” him because the motion,
which he now describes as a motion for new trial, would have been “procedurally barred” after
sentencing.
¶ 156 We reject this argument. A “pro se posttrial motion alleging ineffective assistance of
counsel is not a new trial motion” and therefore is not subject to the procedural limitations that
apply to the latter. People v. Patrick, 2011 IL 111666, ¶ 30 (pro se motion alleging ineffective
assistance not subject to time limitation in section 116-1(b) of the Code of Criminal Procedure
of 1963 (725 ILCS 5/116-1(b) (West 2010))). In Patrick, our supreme court held that the trial
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court was required to conduct a preliminary Krankel inquiry into a pro se motion alleging
ineffective assistance that was filed after the defendant was sentenced but before he filed a
notice of appeal. Id. ¶¶ 11-14, 39-43. Under Patrick, the trial court could not have dismissed
defendant’s motion as “procedurally barred” if defendant had filed it as the trial court
instructed him to. Moreover, the trial court specifically reminded defendant to file his motion
at the end of the sentencing hearing, but defendant failed to do so. Without defendant’s motion
in hand, there was no further inquiry for the trial court to make.
¶ 157 V
¶ 158 Defendant, who was found accountable for the aggravated criminal sexual assault against
A.W., was sentenced to 40 years for this offense. Coleman, who actually committed the
offense, was sentenced to 21 years—the minimum prison term, including the mandatory
15-year firearm enhancement. See 720 ILCS 5/12-14(a)(8), (d)(1) (West 2010); 730 ILCS
5/5-4.5-25(a) (West 2010). Defendant claims that, because Coleman was the more culpable
party, their sentences are unfairly disparate, and he requests that we reduce his sentence to the
same minimum term of 21 years. See Ill. S. Ct. R. 615(b)(4). Defendant does not request any
lesser relief in the alternative—such as reducing his sentence to a term somewhere between 21
and 40 years or remanding for resentencing—so we do not consider whether any such relief is
warranted.
¶ 159 A disparity in codefendants’ sentences may be warranted by differences in the nature and
extent of their participation in the crime or by other relevant sentencing factors, including,
especially, their respective criminal histories and potential for rehabilitation. People v. Spears,
50 Ill. 2d 14, 18 (1971); People v. Jackson, 145 Ill. App. 3d 626, 646 (1986). A trial court has
broad sentencing discretion, and we will not reverse its decision absent an abuse of that
discretion. People v. Patterson, 217 Ill. 2d 407, 448 (2005).
¶ 160 We agree that Coleman was more culpable than defendant for this offense, as it was
Coleman who digitally penetrated A.W. But we do not agree that defendant necessarily
deserves the same minimum sentence as Coleman on this basis alone. To accept defendant’s
argument, we would have to conclude that defendant’s participation in, and thus his culpability
for, the sexual assault was so minimal that it would be unfair to increase his sentence at all
based on any other sentencing factors. We reject this extreme contention, for two principal
reasons.
¶ 161 First, while Coleman was the more culpable actor, defendant dramatically overstates this
point. We cannot accept his assertion that he “did not participate in nor assist Coleman’s
assault on A.W. in any way.” As we explained in rejecting his reasonable-doubt argument, the
evidence supported a finding that defendant participated in the preliminary conduct in A.W.’s
bedroom that culminated in, and indeed facilitated, her sexual assault. At gunpoint, the men
forced A.W. to get out of bed, strip naked, spread her legs, and display her genitals for the
men’s inspection and commentary. This conduct was highly culpable and offensive in its own
right; it also facilitated A.W.’s sexual assault by rendering her vulnerable to Coleman’s act of
penetration. Defendant’s involvement in, and culpability for, this offense was therefore
substantial.
¶ 162 Second, defendant’s criminal history was also substantial—and significantly worse than
Coleman’s. Coleman had one prior conviction for harassment and stalking, a gross
misdemeanor in Minnesota (Minn. Stat. § 609.749 (West 2009)), for which he was sentenced
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to two years of probation. See People v. Jimerson, 404 Ill. App. 3d 621, 634 (2010) (reviewing
court may take judicial notice of codefendant’s related appeal). The trial judge based
Coleman’s minimum sentence, in part, on “the fact that [Coleman] has a limited criminal
history, distinguishing him from pretty much at least all the other defendants I sentenced in this
case, Mr. Ned James.”
¶ 163 Defendant’s criminal history included a conviction for attempted first degree murder, for
which he was sentenced to 12 years in prison. Defendant served his entire sentence, having lost
all of his good-time credits; moreover, he was convicted of aggravated battery of a peace
officer while he was in custody and sentenced to another two years in prison. As a result,
defendant was still on mandatory supervised release when he committed the present offenses.
At his sentencing hearing, Cook County sheriff’s officers testified that while these proceedings
were pending in the circuit court, defendant attacked a guard in the Cook County jail and
intimidated an inmate, who had cooperated with federal authorities on another matter, into
paying $3000 in protection money to the Gangster Disciples.
¶ 164 Defendant’s criminal history thus comprised a more-or-less continuous stream of violent
and coercive conduct, both in and out of custody. Because of this troubling pattern, the trial
court observed that defendant “is, in every sense of the word, a recidivist” and that his
“recidivism consistently involves hurting other people.” Moreover, because defendant’s
violent and coercive conduct has continued even while he has been incarcerated, his criminal
history demonstrates, quite starkly, that his prospects for rehabilitation are regrettably poor.
¶ 165 In light of defendant’s substantial culpability for this offense and his significant criminal
history, we cannot conclude that the trial court abused its sentencing discretion at all, much less
that defendant is entitled to have his sentence reduced to the statutory minimum. We affirm his
sentence for aggravated criminal sexual assault.
¶ 166 VI
¶ 167 The trial court ordered defendant to serve his 50-year sentence for home invasion at 85%
time. Defendant challenges this ruling, arguing, among other things, that the trial court never
made the necessary finding of great bodily harm before ordering that the home-invasion
sentence be served at 85%.
¶ 168 Defendant was sentenced to consecutive prison terms of 50 years for home invasion and 40
years for aggravated criminal sexual assault. Summing up, the trial court stated, “[t]hat’s a
90-year sentence of which he has to serve 85 percent.” Any sentence for aggravated criminal
sexual assault must be served at 85% time. 730 ILCS 5/3-6-3(a)(2)(ii).
¶ 169 But a sentence for home invasion is served at 50% time, unless the trial court makes a
finding that “the conduct leading to conviction *** resulted in great bodily harm to a victim.”
730 ILCS 5/3-6-3(a)(2)(iii), 3-6-3(a)(2.1), 5-4-1(c-1) (West 2010). The trial court did not
make that finding. The State did not argue for that finding. Nor did the State present any
evidence of the victims’ injuries at the sentencing hearing. Rather, the State simply presented
this outcome as a fait accompli: “85 percent on the sex case. 85 percent on the home invasion.”
That was not a fair statement of the law, but the trial court evidently followed it. As a result,
defendant is serving his sentence at 85% rather than 50% time based on what appears to have
been a simple misapprehension of the law.
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¶ 170 At oral argument, the State conceded error. We appreciate and agree with that concession.
Absent a finding of great bodily harm supported by the evidence, there was no basis for
ordering that defendant serve his conviction for home invasion at 85% time. See People v.
Cunningham, 365 Ill. App. 3d 991, 997 (2006).
¶ 171 We thus reverse the trial court’s order that defendant’s home-invasion sentence be served
at 85% time, and we order that defendant shall be eligible for day-for-day credit on his
sentence for home invasion.
¶ 172 In light of our disposition of this issue, we need not address defendant’s argument that
section 3-6-3(a)(2)(iii) of the Unified Code of Corrections, which permits a judicial finding of
great bodily harm without submission of the issue to the jury or proof beyond a reasonable
doubt, is facially unconstitutional under Alleyne, 570 U.S. 99, 133 S. Ct. 2151, and Apprendi,
530 U.S. 466.
¶ 173 VII
¶ 174 Defendant was convicted of five counts of home invasion, two counts of armed robbery,
and one count of aggravated criminal sexual assault. At sentencing, the trial court merged the
home-invasion convictions together and merged the armed-robbery convictions together. The
mittimus, however, lists five counts of home invasion and two counts of armed robbery.
¶ 175 The State concedes that defendant’s mittimus should be corrected to reflect the court’s oral
pronouncement, which is controlling. People v. Smith, 242 Ill. App. 3d 399, 402 (1993). As to
the home-invasion counts, we agree with defendant that judgment and sentence should be
entered on count I, which was the most serious of those counts, because it sought an
extended-term sentence on the ground that the victim (Khalil Jr.) was under 12 years old. See
In re Samantha V., 234 Ill. 2d 359, 379 (2009) (most serious count, on which judgment and
sentence should be entered, is count that carries highest maximum punishment); People v.
Morgan, 385 Ill. App. 3d 771, 773 (2008) (home-invasion statute supports only single
conviction for entry to residence, no matter how many victims). As to the armed-robbery
counts, because the punishments are identical and we cannot determine the more serious
offense, we remand to the trial court to make that determination. See In re Samantha V., 234
Ill. 2d at 379-80; In re Rodney S., 402 Ill. App. 3d 272, 285 (2010).
¶ 176 Pursuant to Rule 615(b)(1), we direct the clerk of the circuit court of Cook County to
correct the mittimus as we have specified regarding the home-invasion convictions. We
remand to the trial court to determine which of the armed-robbery convictions should be
included in the mittimus.
¶ 177 CONCLUSION
¶ 178 For the foregoing reasons, we hold that defendant is eligible to receive day-for-day
good-time credit on his home-invasion sentence. We therefore reverse the trial court’s order
requiring defendant to serve that sentence at 85% time. We remand to the trial court for a
determination of which armed robbery conviction should be included in the mittimus. We also
direct the clerk of the circuit court of Cook County to correct the mittimus as we have
specified. We otherwise affirm defendant’s convictions and sentences.
¶ 179 Affirmed in part; reversed in part; remanded.
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