People v. Hudson ( 2022 )

2022 IL App (2d) 210492-UNo. 2-21-0492
Order filed December 28, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 17 CF 2548
)
DJAVON A. HUDSON, ) Honorable
) Mark L. Levitt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Justices Schostok and Kennedy concurred in the judgment.
ORDER
¶1 Held: The trial court did not commit plain error in denying defendant’s request for
standby counsel. First, the denial was not a clear or obvious error under the
governing factors. Although the charges were severe, (1) defendant’s request for
standby counsel was equivocal, (2) his motivation for going pro se was simply to
have an earlier trial date, (3) the case was not excessively complex, (4) prior
counsel had significant trial preparation to share with defendant, and (5) defendant
had the experience and ability to present his case. Second, any error in the denial
of standby counsel was not plain error, because the evidence was not closely
balanced, and the claimed error was not structural.
¶2 Following a bench trial, defendant, Djavon A. Hudson, was convicted of numerous
offenses, including attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2016)),
2022 IL App (2d) 210492-Uaggravated criminal sexual assault (id. § 11-1.30(a)(1)), home invasion (id. § 19-6(a)(1)), and
violation of an order of protection (id. § 12-3.4(a)). The trial court merged additional convictions
with those convictions. The trial court sentenced defendant to consecutive prison terms of 26 years
for attempted first-degree murder, 26 years for aggravated criminal sexual assault, and 18 years
for home invasion. The court also imposed a concurrent four-year prison term for violating an
order of protection. On appeal, defendant contends that the trial court committed plain error when
it denied defendant’s request that his retained counsel be allowed to serve as standby counsel while
defendant proceeded pro se. We affirm.
¶3 I. BACKGROUND
¶4 A. Pretrial Proceedings
¶5 On October 18, 2017, the State indicted defendant in case No. 17-CF-2548 on the following
21 offenses: 1 count of attempted first-degree murder (id. § 9-1(a)(1)) (count I), 11 counts of
aggravated criminal sexual assault, variously alleging oral and vaginal penetration (id. § 11-
1.30(a)(1), (a)(3), (a)(4)) (counts II-XII), 3 counts of home invasion (id. § 19-6(a)(1), (a)(2), (a)(6))
(counts XIII-XV), 1 count of armed violence (id. § 12-3.2(a)) (count XVI), 2 counts of aggravated
battery (id. § 12-3.05(a)(1), (f)(1)) (counts XVII-XVIII), 1 count of domestic battery (id. § 12-
3.2(a)(2)) (count XIX), 1 count of violation of an order of protection (id. § 12-3.4(a)) (count XX),
and 1 count of criminal trespass to a residence (id. § 19-4(a)(2)) (count XXI). The charges stemmed
from an incident on September 21, 2017. Together, the charges alleged that defendant entered,
without authority, O.C.’s home at 2703 Galilee Avenue in Zion. Once inside, defendant stabbed
Devontae Domino multiple times with a knife, intending to kill him and, in fact, causing him bodily
harm. He also placed his penis in O.C.’s mouth and vagina using various means of force. The
-2-
2022 IL App (2d) 210492-Ucharges further alleged that defendant committed these acts after being served with an order of
protection prohibiting contact with O.C.
¶6 On January 31, 2018, the State indicted defendant in case No. 18-CF-241 on a single count
of violating an order of protection. He allegedly sent O.C. a letter from the Lake County Jail. (Case
No. 18-CF-241 is currently before this court in appeal No. 2-21-0550, with a pending motion to
withdraw by the Office of the State Appellate Defender.)
¶7 The public defender was appointed as counsel in case Nos. 17-CF-2548 and 18-CF-241.
The cases proceeded together. During the proceedings, defendant made numerous requests to
discharge counsel, reinstate counsel, and discharge counsel again.
¶8 Ultimately, the State elected to proceed in case No. 18-CF-241. A jury trial began on
February 10, 2020, with defendant representing himself. On February 13, 2020, the jury found
defendant guilty of violating an order of protection. The trial court stayed sentencing pending the
resolution of case No. 17-CF-2548.
¶9 On February 20, 2020, defendant, who was pro se, appeared with counsel, Robert P.
Ritacca. Ritacca advised the trial court that he had spoken with defendant and his family regarding
representation. The court told Ritacca that it would give him time to talk to defendant. Ritacca
stated: “And, Judge, so everybody understands, if I get involved, I have to run the show. Okay?
You have to listen to me. Okay? You’ve been here a long time.” Defendant answered: “Yes.”
Ritacca continued: “I’m not going to play with what you believe and what other people believe.
You’ve got to let me do what I think is the most important thing. Okay?” Defendant agreed.
¶ 10 On February 26, 2020, Ritacca advised the trial court that he had filed an appearance in
both cases. Ritacca again stated to defendant: “[Defendant], if I’m involved in a case, I do the
work. Okay?” Defendant agreed.
-3-
2022 IL App (2d) 210492-U¶ 11 On July 27, 2020, Ritacca advised the trial court that he had “filed all [his] motions in th[e]
matter” and “received all the police reports.” He noted that two motions were outstanding: (1) a
motion to dismiss on double-jeopardy grounds because defendant was charged twice with violating
an order of protection and (2) a motion for severance as to the two victims.
¶ 12 On August 13, 2020, the trial court heard arguments on the two outstanding motions and
denied them. Thereafter, the court asked: “Are we in a position to set the matter for trial or do we
need one more status date?” Ritacca responded: “I am prepared for trial, Your Honor.”
¶ 13 On August 20, 2020, at a status hearing, Ritacca indicated that the State might have made
a previous plea offer to defendant. The trial court responded that it believed negotiations were
ongoing between defendant and the State but was not sure whether the State had made a formal
offer. Accordingly, the court asked the State to review its file and advise Ritacca.
¶ 14 On September 1, 2020, the State advised that it had revoked its previous offer. The court
continued the matter to allow for discussions of a possible new offer. On September 8, 2020,
Ritacca asked for more time to review discovery and discuss a new offer.
¶ 15 On September 29, 2020, Ritacca indicated that the defense wished to proceed to trial. The
trial court set a trial date of November 30, 2020.
¶ 16 On November 23, 2020, the parties appeared for a case management conference. Ritacca
indicated he had filed a discovery motion for (1) “[defendant’s] phone[, which] was taken by the
police and given back to [O.C.],” (2) “keys[, which] were part of the inventory belonging to
[defendant],” (3) “[t]he landlord’s lease[, which] should have been signed by [defendant] [and]
was left in the apartment,” and (4) “[the victim’s] medical records.” In response, the State indicated
that it had tendered the medical records in the initial discovery. When the trial court inquired:
-4-
2022 IL App (2d) 210492-U“What’s this business about a lease?” the State responded that it was “not sure.” The court asked
the parties to “get the discovery cleared up” and continued the matter to December 17, 2020.
¶ 17 On December 17, 2020, Ritacca advised the trial court: “We are almost ready with
[defendant].” Accordingly, the court set the matter for trial on January 20, 2021.
¶ 18 On January 20, 2021, defendant stated at the outset of the proceedings that, “[for]
[p]ersonal and legal reasons *** Ritacca will no longer be representing [him]” and that he was
“firing” Ritacca. Ritacca stated: “This is the first time I heard about it, Judge.” Ritacca asked the
trial court for a couple of days to discuss the matter with defendant. Defendant stated: “If it is okay,
I’m pretty sure.” The court asked defendant to give Ritacca the “courtesy” of discussing it with
him, since Ritacca had been representing defendant “for a while now” and “ha[d] [the] case in a
trial posture.” The court continued the matter to February 3, 2021.
¶ 19 On February 3, 2021, Ritacca asked the court “for another date” and stated that he
“want[ed] to go [to trial] probably as soon as possible.” When Ritacca asked for the first week in
March, defendant interrupted, stating: “You said that you would give me two weeks to figure out
if I wanted to proceed by myself or not.” Defendant told the court that he had discussed it with
Ritacca and was proceeding by himself. Ritacca stated: “This is all news to me.” The court told
defendant that he had the right to proceed pro se but that the court needed to make sure that that
was what defendant wanted to do.. The court told defendant to have an answer for it by March 4th.
Defendant responded: “I do have the answer. Today is the day that I’ve waited to give that answer,
and I’m literally giving that answer. I’ve talked to Ritacca. I let him know how I felt.” Ritacca
interjected, commenting: “If [defendant is] looking for the police reports, it’s not going to happen
because there’s too many people that are involved.” Ritacca continued: “I don’t want anybody to
-5-
2022 IL App (2d) 210492-Ucall these people other than me.” Defendant stated that he had the right “to represent [himself] and
to go to trial.” The court continued the matter to February 11, 2021.
¶ 20 On February 11, 2021, the following exchange transpired:
“THE DEFENDANT: Um, Your Honor, I realize people have some concerns if
allowed. I want to address the Court very briefly. If you allow me to, please.
THE COURT: Well, what is going on with Mr. Ritacca? Is he going to remain your
attorney?
THE DEFENDANT: That’s the thing. I realize the concerns of the Court, my
attorney, my family and people praying across the nation have this concern about me going
pro se, because even you rightfully so wanted me to think about it.
I understand why, because of the weight that would be on my shoulders and just
because I have the right to go pro se, it doesn’t necessarily give me the right to overstep
people’s concerns including yours, Your Honor, for me making decisions in the best of my
well-being.
I understand your concerns and other’s concerns, and for this reason I wish to meet
people more than halfway and allow Ritacca the opportunity to stand back and stand by
me if he chooses to actually help me through this matter as he says he wishes to do, but I
am not changing my mind on going pro se and trying to set a trial date on this day, but
whether or not Ritacca wishes to quit as standby counsel is upon him and I totally
understand.
THE COURT: He is not going to be standby counsel. If he is in the case, he is in
the case.
THE DEFENDANT: But I did hire him. I can allow him to be standby counsel.
-6-
2022 IL App (2d) 210492-UTHE COURT: Not without my permission you can [sic].
THE DEFENDANT: Of course with your permission.
THE COURT: That is denied. If you are pro se, you are pro se.
I am not in the practice of putting lawyers in what is essentially an unenviable
position of trying both to serve their obligation to the Court as an officer of the court, and
at the same time standing behind a defendant who has no formal legal education and is not
in a position or well-suited, in fact, to conduct a trial in my estimation. That being said, it
is your absolute right if you want to go pro se, I am going to let you do it. You just tell me.
THE DEFENDANT: Yes, sir, may we set a trial, please.
THE COURT: I didn’t hear the answer to my question.
THE DEFENDANT: Yes, sir.
THE COURT: State, do you have the files with you right now?
MR. HUMKE [(ASSISTANT STATE’S ATTORNEY)]: I do not.
THE COURT: I want to advise [defendant] again of the maximums and minimums.
I want to get all the files together. I am at a disadvantage. I don’t have all the files myself
at this moment. I am going to let you go pro se, but I have to complete the advisals.
[Defendant], I am going to discharge Mr. Ritacca. I will hold your case over on
your motion until next week so I can do that. Okay.”
The court then discussed with defendant (1) the court’s obligation to advise him before accepting
his waiver of counsel and (2) how soon the court could set the case for trial. The court continued
the matter to February 17, 2021, so it could advise defendant before accepting his waiver of counsel
and then set the case for trial. Ritacca interjected, and the following exchange occurred:
-7-
2022 IL App (2d) 210492-U“MR. RITACCA: I talked to the family. I talked to the mother. I will also talk to
the defendant. It’s my opinion that it’s not in his best interest to go pro se based on the
nature of this offense.
He has certain defenses in this matter, but I don’t think he is capable of raising those
defenses. There is also certain strategy types of situations that we need to discuss, and I
don’t think he has any clue as to how to proceed with those issues. This is a family dispute
that escalated to an attempt murder, home invasion, aggravated sexual assault. The
numbers are enormous, enormous. Him going by himself, Judge, is not—
THE COURT: It not my place to get involved. I tried to talk to him in the past. I
have spent a lot of time actually over the time that I have known [defendant]—I have tried
to explain to him what is in his best interest. My hands are tied. A defendant wants to be
pro se, he has the absolute right to do so.
I see he has a number of people that are here today interested in him. If they share
your belief, Mr. Ritacca, they have until next Thursday to talk to [defendant] and have him
allow you to continue to represent him and take him to trial. That is what I intend to do is
to get his case to trial, whether or not he is pro se or not, so we will see you all back here
in one week.
THE DEFENDANT: Your Honor, if I may ask, exactly what is it about me that I
am not particularly—
THE COURT: It’s anybody, [defendant].
THE DEFENDANT: I mean not being allowed standby counsel.
THE COURT: It’s not you, [defendant]. I do not appoint standby counsel. I don’t
appoint them. I don’t. If there is an attorney on the case, the attorney has the obligation to
-8-
2022 IL App (2d) 210492-Umake decisions. If the attorney is not being given the opportunity to make the correct
decisions, you put the attorney in the position of committing malpractice, of doing
unethical things or supporting unethical things.
The attorney is an officer of the court. Therefore, they are in a position to answer
to the decisions that they are being allowed to fully make. That is not fair to do.
If you want to have an attorney, that is great. You can advise and consult with your
attorney in your defense every step of the way. You can see all of your discovery, assist in
the formulation of any theories of defense that you have. Absolutely you can do that, but
when it comes time to make tactical decisions and make decisions that are supposed to be
reserved for the attorney, the attorney makes those decisions and the attorney is responsible
both to me and to the profession.
It’s not fair to have somebody sit by and not be able to do their job, so that is why
I won’t do it. It’s not you. I won’t do it in any case, [defendant], I won’t.
THE DEFENDANT: See you on the 17th.
THE COURT: It’s the 18th.”
¶ 21 On February 18, 2021, the trial court told the parties that it had received a motion via email
from Ritacca and did not know how defendant wished to proceed. Defendant remarked: “I thought
we were, like, 100 percent clear last week. I thought today was about me getting rearraigned and
then setting a trial date.” The court responded that it was “not clear on anything.” Defendant
commented that the court “literally discharged [Ritacca] last week.” Ritacca stated that he would
not withdraw until defendant hired or was appointed new counsel. Ritacca further explained: “The
reason that he wishes me to get not involved is because I believed that he has certain defenses, and
-9-
2022 IL App (2d) 210492-Uhe doesn’t want to hear about those defenses.” He stated: “I think if he just sits down, thinks about
his options, then I think we can further proceed with me being his lawyer.”
¶ 22 Defendant explained that “the elephant in the room” was that he “just want[s] to have this
proceeding over with.” The court explained to defendant the difficulty in setting the case for trial,
given the chief judge’s COVID-19 mitigation procedures and the number of anticipated witnesses.
The court cautioned defendant: “[D]on’t let your decision [to go pro se] be governed by the fact
that you think that Ritacca is holding you back because I can’t get jurors in my courtroom now.”
The court told defendant that it would put his case on the list of trials for April 5, 2021. Defendant
asked Ritacca: “[Y]ou wouldn’t be able to meet that date, would you?” Ritacca responded: “I’ll
push it, [defendant]. I’m trying to help you.” After further discussion, Ritacca expressed concern
about defendant going pro se. This exchange followed:
“THE COURT: Well, I think it’s been resolved because you’re going to be
continuing representing him. He’s going to abide by all the rules and court orders;
otherwise, there’s ramifications for not.
MR. RITACCA: Okay. Good, Judge. That’s good.
THE DEFENDANT: I’m sorry. There was no part where I actually agreed to have
him as my attorney. I thought I was still proceeding pro se, like, on the record last week
we—
THE COURT: And we just had—[defendant], now you’re confusing me. You just
told me—
THE DEFENDANT: I’m trying to proceed pro se so I can go to trial as soon as
possible, and I know that you said that that shouldn’t be my mode of calculus because it’s
not up to me or up to—
- 10 -
2022 IL App (2d) 210492-UTHE COURT: Like I said, [defendant], Mr. Ritacca is not holding you back. The
pandemic is holding you back.
Mr. Humke just told me there’s 17 witnesses that I would have to call into my
courtroom to have this trial conducted. Based on my understanding of how the health
department, the chief judge, and the Supreme Court view that, I would say that, it is not
entirely likely that you will be the very first trial that gets to go.
But you want to go pro se. That’s fine. But, like I told you, it doesn’t make it go
any faster. Is that what you want to do? Because a minute ago you told me that you were
going to have Mr. Ritacca represent you.
THE DEFENDANT: I understand everybody else’s concern with me not going
pro se so—I mean, I’ve tried—we’ve already established me going pro se.
THE COURT: We didn’t establish anything. That’s why—if I established it, I
wouldn’t be having this discussion with you right now. Are you—is that what you’re telling
me now? You want to go pro se?
THE DEFENDANT: I was saying it since January 20th, sir.
THE COURT: [Defendant], if you were me, you would be anywhere from clear on
this because just during the course of this conversation we—two minutes ago had Mr.
Ritacca saying he was coming over to see you right after court, which he would not be
doing if he wasn’t continuing to represent you. You also told me earlier that you were going
to go ahead and have Mr. Ritacca represent you. Now you’re telling me that you don’t want
him to represent you. Is that right?
THE DEFENDANT: That’s exactly what I’m saying.”
- 11 -
2022 IL App (2d) 210492-U¶ 23 The trial court then admonished defendant of the charges against him and the sentences he
faced. Defendant told the court that he wished to proceed pro se, and the court granted his request.
Ritacca again objected to the ruling, and this exchange occurred:
“THE COURT: I don’t have a choice. I don’t have a choice, Mr. Ritacca. He has
an absolute right to proceed pro se if he wants to do that. I’ve admonished him pursuant to
Supreme Court Rule. He has been before me for a long time.
I understand what your concerns are, Mr. Ritacca. You could continue to try to
work with him and work with his family. I see a number of them are present in court today.
But I don’t—I can’t force him to do what he doesn’t want to do. He’ll make decisions; and
if he makes decisions that affect him adversely, that’s what every lawyer does.
MR. RITACCA: Judge, he’s well educated. He speaks well. He—logically he
makes great statements. He’s—for me he’s a good guy, but I hate to see him go for 120
years.”
The court told defendant that it would set the matter for trial on April 5, 2021. Thereafter, defendant
stated:
“—Ritacca obviously got some concerns, and he also is a dear friend of mine. I
know he’s really trying to help me.
Ritacca, can you please meet that trial date? Because I’m not spending the summer
in [the] Lake County Jail. Like, if I got to go through this door or that door, I just want to
get that part—this part of my life over with. I don’t—”
The court then directed defendant and Ritacca to discuss the matter privately. However, “[a]s far
as [the court was] concerned ***, *** [defendant was] pro se.”
- 12 -
2022 IL App (2d) 210492-U¶ 24 On March 18, 2021, the parties appeared for a status hearing. Ritacca and defendant were
present. Ritacca informed the court that he was appearing for defendant because he was still unsure
what defendant wanted to do or how the court would rule. Ritacca asked if he could make a
statement to the court and defendant. The court allowed it. Ritacca stated that he believed it was a
mistake to allow defendant to proceed pro se and defend himself alone against experienced
prosecutors. He said that defendant would need a medical expert to discuss the victim’s injuries
and an investigator to examine the crime scene and interview witnesses. Ritacca specified:
“There’s a manager that needs to be interviewed. The manager being at [defendant’s]
apartment. [Defendant] was living in his own apartment, he was—he was—had his
apartment entered through the alleged victim who had no permission to be there. That’s
not—that’s not a violation of his home—of his apartment, he was residing there. There are
keys. There are—”
The court interjected: “Okay. Mr. Ritacca, if this is a conversation you want to have with
[defendant], that’s fine.” The court explained that it was required to allow defendant to proceed
pro se if he wished. Ritacca responded that he did not believe that defendant was “physically fit to
make those types of decisions by himself.” Ritacca believed that “somebody” was telling
defendant that the victims would not testify against him. In Ritacca’s estimation, defendant was
“rolling the dice” as to whether those witnesses would testify. The court replied that it would not
“get involved in that.” The court told Ritacca that he could talk to defendant and his family and
that the court would “allow [Ritacca] to proceed as [defendant’s] attorney and [Ritacca] can make
the decisions, but if [defendant] is the attorney, [defendant] will make the decisions.” At that point,
defendant interjected and asked the court about witnesses. Defendant also asked if the trial would
happen sooner if he elected a bench trial. The court declined to discuss that matter with defendant
- 13 -
2022 IL App (2d) 210492-Ubut offered to let him speak with Ritacca. Defendant decided to talk with Ritacca. When the
proceedings resumed, Ritacca said: “It’s tough to bring a horse to water, Judge, if they don’t want
to drink.” Ritacca stated that he was no longer representing defendant. Ritacca told defendant that
he would “put together a trial book” for him and “give [him] all [his] work.”
¶ 25 Defendant waived his right to a jury, and the matter proceeded to a bench trial on May 19,
2021.
¶ 26 B. Bench Trial
¶ 27 1. The State’s Case
¶ 28 On September 5, 2017, the trial court issued an emergency order of protection in favor of
O.C. and her three minor children and against defendant. The order was effective through
September 26, 2017. In the space designated for her “address” or “alternative address,” O.C. chose
“alternative address” and listed “3144 Lebanon[,] Zion[,] IL.” She listed defendant’s address as
“2813 Gideon[,] Zion[,] IL.” Defendant was “ordered to stay at least 500 feet away from” O.C.
and her children. Defendant was also “prohibited from entering or remaining while [O.C.] and/or
[her three minor children] is/are present at”: (1) “[t]heir place of residence,” (2) “[t]heir school,”
and (3) other “specified places, when [O.C.] and/or [her three minor children] is/are present.” The
space for “place of residence” was left blank. In the space for “school” was written “Shiloh
[E]lementary, Zion[,] IL.” In the space for other “specified places” was written “3144 Lebanon[,]
Zion[,] IL.”
¶ 29 That same day, defendant was served at “2813 Gideon Ave[.,] Zion” with a “Short Form
Notification” of the order of protection. The “Short Form Notification” provided: “You must not
enter [O.C.’s] residence.”
- 14 -
2022 IL App (2d) 210492-U¶ 30 O.C., who was 26 years old, testified that defendant was the father of her four children (one
of whom passed away in 2014) and that they had been in a relationship for about six or seven
years. O.C. and defendant broke up about a month before the incident, “[d]ue to domestic
problems.” Before breaking up, O.C. and defendant lived together “[o]n 23rd and Galilee in Zion,”
along with their three children. When O.C. moved out, she took all her belongings to defendant’s
grandmother, Cynthia Taylor’s, house. O.C. then stayed at hotels.
¶ 31 During the second week of September 2017, around the 8th or the 10th, O.C. moved into
a small two-bedroom apartment at 2703 Galilee Avenue. 1 She lived there with her boyfriend,
Domino (whom she had been dating for a few weeks); her three children; her best friend, Arianna
Norman; and Norman’s child. O.C. testified that she received housing assistance and had to pay
only “a small portion of the rent.” She testified that her name alone was on the lease for the
apartment. Before moving into the apartment, she had an inspection done and the utilities turned
on. O.C. put the ComEd bill in defendant’s name, because his mother told her that “[defendant]
would do his part of being a father somehow.”
¶ 32 O.C. testified that, on the evening of September 21, 2017, she was at 2703 Galilee Avenue
with two of her children, Domino, Norman, and Norman’s child. (One of O.C.’s children was at
O.C.’s grandfather’s house.) O.C. and Domino fell asleep in their bedroom. O.C.’s baby was
sleeping in a car seat next to the bed, and her other child was in the other bedroom. Norman and
her child were asleep in the living room. O.C. woke up and saw defendant and Domino fighting.
1
We take judicial notice (see People v. Stiff, 391 Ill. App. 3d 494, 504 (2009)) that 2703
Galilee Avenue is located several blocks due south of 23rd and Galilee, where O.C. testified that
she lived with defendant prior to their breakup.
- 15 -
2022 IL App (2d) 210492-UShe testified that defendant “went to stab [her] daughter,” so she grabbed the car seat and “slid her
down the hallway to [Norman].” She saw defendant stabbing Domino “over and over” with a
“small black throwing knife,” which defendant wanted and she had ordered for him while they
were dating. O.C. saw defendant stab Domino in the abdomen, chest, and back. Defendant initially
stabbed Domino in the bedroom. Domino then ran to the front door twice, and both times defendant
chased Domino and stabbed him. O.C. explained that the front door was locked when she and
Domino went to bed. Domino unlocked it as he was being stabbed. After the stabbing, Domino
returned to the bedroom, laid on the bed, and wrapped himself in covers. O.C. testified that there
was “[b]lood all over [her] floor, [her] bed, the walls, the doors, [and] the hallway.” O.C. identified
several photographs of the apartment taken after the incident.
¶ 33 O.C. testified that, while Domino was lying on the bed, defendant was walking around the
house, completely naked, occasionally asking Domino if he was dead yet. He also told Domino
that he had “ ‘fucked with the wrong baby mama.’ ” O.C. heard defendant ask Norman if her
brother was the father of O.C.’s baby. O.C. also heard defendant ask her five-year-old daughter
for a hug. Eventually, O.C. and defendant went into her daughter’s bedroom. O.C. was afraid that
defendant would kill her and her children, so she told him various lies to appease him. Defendant
held a knife to her vagina. He asked for oral sex, and she complied.
¶ 34 Defendant heard the police outside and told O.C. “ ‘You have to help me. You have to help
me. You know without no weapon there is no case.’ ” O.C. helped defendant rinse off the knife
and they hid it in the tiles of the bathroom ceiling. At O.C.’s direction, defendant climbed on the
top of her daughter’s closet. As O.C. exited the bedroom, the police arrived.
¶ 35 On cross-examination, O.C. testified that defendant, Norman, “Amanda,” and “Petey”
helped her move out of “23rd” and “Galilee” and take her belongings to defendant’s grandmother’s
- 16 -
2022 IL App (2d) 210492-Uhouse. O.C. did not put her new address—2703 Galilee Avenue—on the order of protection
because she did not live there yet. Before the incident, defendant was never with her in the
apartment at 2703 Galilee Avenue. Before the order of protection, she spoke with defendant’s
mother, who told her to put the ComEd bill in defendant’s name. She testified: “Your mother’s
been telling me what type of stuff to do to make you do your part as a father.” O.C. reaffirmed that
she received housing assistance, stating it was “Section 8, Lake County housing.” She also
reaffirmed that she had a “signed lease” and that only she was named on it. She alone had a key to
the apartment, but she “may have handed someone [her] key if they needed it.” When defendant
asked O.C. how he obtained access to the apartment on the night of the incident, O.C. testified that
defendant “climbed through the window.” She stated: “[T]hat’s the only way you could have
possibly gotten in. Everything else was locked.” She also confirmed that she did not think they
had vaginal sex on the night of the incident. She testified that, when the police asked her about an
iPhone found in the apartment, she told them it was hers. The iPhone did belong to her, not
defendant, but she had previously allowed defendant to use it “[f]or a while [sic].” She also
testified that, after the incident, she was “locked out” of the apartment for awhile because
defendant “came in there and almost killed a man and [the landlord] was scared for the rest of his
tenants.”
¶ 36 Domino, who was 29 years old, testified that, at the time of the incident, he was dating
O.C. and living with her at 2703 Galilee Avenue, a basement apartment. He explained that there
was another apartment across the hall and one common door to access the building. O.C.’s children
also lived at the apartment, along with Norman and her child. When Domino arrived home from
work before the incident, O.C., Norman, and the children were present. After eating, smoking
marijuana, and having sex with O.C., he went to sleep with her in the master bedroom. O.C.’s baby
- 17 -
2022 IL App (2d) 210492-Uwas also in the bedroom, asleep in her car seat. O.C.’s oldest daughter was in the other bedroom,
and Norman and her child were in the living room. Domino testified that he and O.C. left the
apartment window open when they went to sleep that night, because it was hot outside
¶ 37 Domino testified that he “woke up in like a cold sweat,” and was “real wet.” He saw blood
on the wall. He saw defendant “going down with a knife in the dark” toward “[defendant’s]
younger daughter,” who was in the car seat. Domino jumped up, pushed defendant, and started
fighting him. Defendant dropped the knife, and Domino ran toward the front door and tried to
unlock it. Defendant picked up the knife and stabbed him in the back before he could get out the
door. Domino turned around, fought defendant again, and then ran down the hallway. Defendant
chased him and stabbed him in the neck. Domino later learned that he also had stab wounds to his
chest and arm. Domino fell to the ground and began coughing and spitting up blood. He crawled
to his bed. He was tired and cold and wrapped himself up in a blanket. Defendant told him that he
“chose the wrong baby momma, and [he will] die tonight.” Domino saw defendant pacing in the
living room and noticed that he was naked. Defendant had taken all the cell phones, but Domino
hid his cell phone behind his mattress. He called 911. The police eventually arrived, and he was
taken by ambulance to the hospital, where he spent four days.
¶ 38 On cross-examination, Domino testified that he moved into the apartment about two weeks
before the incident and had never seen defendant “around there.” When asked whose name was on
the lease, he stated, “[m]ostly hers.” His name could have been on the lease, but he was unsure. At
the time of the incident, he had not seen a lease. He had keys to the apartment, and he and O.C.
both received mail there. Domino also explained that, when he woke up, he was bleeding from his
neck—not sweating, as he thought at the time. He saw defendant with a knife in his hand about to
stab the baby.
- 18 -
2022 IL App (2d) 210492-U¶ 39 Norman, age 26, testified that, on the day of the incident, she and her one-year-old daughter
lived at 2703 Galilee Avenue with O.C., her children, and Domino. Everyone was present when
Norman went to sleep that night, except for one of O.C.’s children. Norman slept in the living
room with her daughter. Norman woke up when she heard “a thud, like somebody had fell or
something, and [she saw] some—like a blurry person walking past.” She explained that the person
walked through the living room, from the window to the hallway. At first, she thought it was
Domino. She started to go back to sleep but then heard O.C. screaming. She looked into O.C.’s
bedroom and saw defendant stabbing Domino and trying to stab the baby, who was in a car seat.
Norman testified that O.C. slid the car seat to Norman, and she took the baby into the living room
with the other children. When she looked into the bedroom again, defendant asked her if she knew
that her brother was the father of O.C.’s baby and if she knew what “ ‘bathing in your blood
means.’ ” At one point, Domino got “[t]o the hallway to open the front door.” She testified that he
“unlocked it, but he couldn’t get it open” because defendant started stabbing him in his kidneys.
Domino crawled into the bedroom and closed the door. Defendant told her that he was not going
to kill her but that she was going to watch everyone else die. He said he would bathe in their blood
after killing them. Defendant was “completely naked” and “his penis was hard.” Defendant opened
the bedroom door and asked Domino if he was dead yet. Defendant and O.C. went into the other
bedroom and closed the door. When Norman heard the police outside, defendant and O.C. left the
bedroom. Defendant asked O.C. to help him, and they got cleaning products. Eventually, the police
entered.
¶ 40 On cross-examination, Norman testified that she believed, but was not sure, that O.C.’s
name was on the lease. Norman may have seen a lease, but she could not remember. Only O.C.
and Norman had keys to the apartment.
- 19 -
2022 IL App (2d) 210492-U¶ 41 Police officers testified that, at about 11:35 p.m. on September 21, 2017, they responded
to a 911 hang-up call in the vicinity of 2717 Galilee Avenue. While in the area, they received
information from dispatch that led them to 2703 Galilee Avenue, Apt. E. The officers had to break
down the outer door to the building but found the apartment door unlocked. When they entered,
they saw O.C. pointing at the bedroom, where they found defendant, who was naked and hiding
on top of a “built-out closet.” The officers arrested defendant, secured the apartment, sent Domino
to the hospital, and processed the apartment for evidence.
¶ 42 Officers retrieved a black knife with a 3¼-inch blade from the bathroom ceiling. The knife
bore DNA matching defendant’s. The officers also located a package of zip ties and a man’s watch
outside on the ground next to the window well where defendant allegedly entered the apartment.
Those items contained no DNA suitable for comparison. The window was halfway open. The court
admitted into evidence photographs taken at the scene, including several photos of the window
from different angles. Two fingerprints collected from the exterior windowpane matched
defendant. The window was removed and processed for further evidence.
¶ 43 An emergency room physician testified that he treated Domino for several stab wounds to
his neck, arms, chest, and abdomen. He required emergency surgery. The physician opined that,
without treatment, Domino’s injuries were life-threatening.
¶ 44 At the close of its case-in-chief, the State dismissed counts II-VII and XIII, all of which
alleged that defendant penetrated O.C.’s vagina with his penis.
¶ 45 2. Defendant’s Case
¶ 46 In addition to testifying in his own defense, defendant presented several witnesses,
including his mother, grandmother (Taylor), sister, two cousins, a friend, and two police officers.
- 20 -
2022 IL App (2d) 210492-U¶ 47 Jennifer Hudson, defendant’s mother, testified that she never gave O.C. permission to put
any bills in defendant’s name. She testified that defendant always provided for O.C. and paid her
rent even when he was living with another woman. On September 21, 2017, she went to Goodwill
with defendant to buy a suit and afterward dropped him off at Taylor’s house.
¶ 48 On cross-examination, Jennifer testified that she spoke with defendant by phone from jail
after his arrest. During one of their conversations, defendant told her that, on the night he was
arrested, O.C. had talked him into coming over. He also said “something about blood.” She denied
that defendant told her that O.C. “talked him into coming into the window.” The State played a
recording of one of Jennifer’s phone conversations with defendant from October 2017. She agreed
that, during the conversation, defendant stated “that he was curious enough to go through a
window.” However, she claimed that she had not heard this remark before. She also admitted that
defendant talked about performing a “blood ritual.” She claimed that, when defendant told her
again that he “went through the window,” she was “multitasking” and not “fully focused in on the
conversation.” She further testified that, “after the order of protection,” defendant “was staying
with his grandmother,” who lived at 2813 Gideon Avenue. Jennifer confirmed: “That’s where I
took him that night,” after they went to Goodwill.
¶ 49 Defendant’s sister, Gevia Hudson, testified that O.C. was friends with Amanda Atkinson
and that defendant used to “send[ ] them out to escort.” In “September of 2017,” Gevia saw O.C.
and defendant together. Gevia was “around” when defendant was helping O.C. move. Atkinson
was “around” too. Gevia saw defendant with O.C. and Atkinson on September 8, 2017. When
asked where defendant and O.C. were living then, Gevia responded: “You guys were living in
Hebron. I’m not sure. It was Galilee.” Defendant paid the bills for O.C. even when they were not
- 21 -
2022 IL App (2d) 210492-Utogether. In September 2017, defendant was dating a different woman but was “still *** around
[O.C.] a lot.”
¶ 50 On cross-examination, Gevia testified that, in September 2017, she attended Northern
Illinois University. She lived in De Kalb but visited home “every weekend or so.” She helped O.C.
moved into an apartment on Galilee, but she stated that “[i]t was two different apartments on
Galilee, so [she was] not sure.” When asked if defendant was living there, she responded: “His
stuff was there, so I think they were living.” She was unaware that O.C. had an order of protection
against defendant. She confirmed that she saw them together “in early September.”
¶ 51 Defendant’s cousin, Jamise McNeal, testified that she lived with Taylor—her and
defendant’s grandmother. Defendant did not live with Taylor, but he would visit every two to three
days. McNeal could not remember the address where defendant was living at the time of the
incident, but she stated that he was “staying on 22nd” and lived there with O.C. McNeal was shown
a previously admitted photograph of the apartment at 2703 Galilee Avenue, and was asked whether
it depicted the apartment where defendant was living at the time of the incident. She responded:
“Yeah, yeah. Actually, yeah.” McNeal testified that, when O.C. and defendant moved, they put
their belongings in Taylor’s garage. Everything was still in the garage when O.C. filed the order
of protection and later when the incident occurred. Subsequently, however, O.C. took everything.
McNeal did not maintain her relationship with O.C. after O.C. filed the order of protection.
¶ 52 On cross-examination, McNeal testified that she was aware of the order of protection and
that defendant talked to her about “blood rituals.” On September 21, 2017, defendant was “staying
on 22nd” but left once O.C. obtained the order of protection.
¶ 53 Taylor testified that she lived at 2813 Gideon Avenue in Zion. Defendant visited her house
regularly and ran a mechanic’s shop out of her garage. Sometimes he would spend the night.
- 22 -
2022 IL App (2d) 210492-UDefendant took care of the bills when he lived with O.C. Defendant also took care of his children.
In September 2017, defendant and O.C. “were getting ready to move from 22nd Street over to the
townhouses.”
¶ 54 On cross-examination, Taylor testified that defendant and O.C. stayed with her for “a few
days” before moving into their new apartment. She was present when defendant was served with
the order of protection. “The order of protection came after the police come [sic] and got the kids.”
By that time, O.C. had moved out, “supposedly taking the deposit to the new place.” That is, O.C.
“left with the deposit money that they got from the previous apartment for the new apartment.”
After defendant was served with the order of protection, he stayed with Taylor.
¶ 55 On redirect examination, Taylor testified that she had no knowledge of defendant having
contact with O.C. after the order of protection was served.
¶ 56 Robert Clarke testified that he was defendant’s close friend and had known him and O.C.
for 15 or 20 years. He testified that O.C. was a prostitute. When asked if he knew defendant “to be
around 27th and Galilee,” he responded: “Not much, every now and then if [defendant was] just
walking from down the alley from 30th up that way.” He “[did not] know [defendant] to be around
there like a lot.” On cross-examination, Clarke testified that he never saw defendant after he was
served with the order of protection.
¶ 57 Zion police officer Manuel Rivera testified that he responded to the incident and prepared
a written report. O.C. told him that Domino “made contact” with defendant and then an altercation
ensued. O.C. “didn’t claim to be asleep when this contact was made.” Rivera did not know who
held the lease on the apartment.
¶ 58 Zion police officer Sabas Mercado testified that he interviewed Norman and “attended a
child’s interview.” Norman told him that she had heard sounds at the window and thought she then
- 23 -
2022 IL App (2d) 210492-Usaw somebody, fully clothed, walk past her. She thought she was dreaming until, shortly after, she
heard screaming in O.C.’s bedroom.
¶ 59 Defendant was allowed to testify in a narrative fashion. In summary, defendant claimed
that, on September 21, 2017, he went to 2703 Galilee Avenue twice. The first time he went there,
he did so to “pick up a few things” and “change [his] shirt.” When he arrived, he met Domino. He
thought O.C. was “turning a trick,” so there was “no tension” between him and Domino. He left
and went to a “dice game.” While there, defendant “got into a heated situation with rival gang
members,” and then a person showed up who defendant believed had killed one of his friends.
Defendant thought he was “being set up,” so he left the dice game to retrieve his gun and phone,
which he left on the charger at 2703 Galilee Avenue.
¶ 60 When he returned to 2703 Galilee Avenue, O.C. would not give him his gun, and they
argued. He also became angry when he noticed that his phone was missing. Defendant got nervous
when he realized there were “multiple people outside,” and asked Domino to leave. Domino started
to argue with him, and defendant noticed that Domino had a tattoo on his chest from the same gang
as the person who killed defendant’s friend. Defendant again told Domino to leave. Domino then
hit defendant and tried to wrestle him. Defendant fought back. He did not realize “how far that
fight went” until he heard the doctor testifying about Domino’s injuries.
¶ 61 Defendant denied doing anything sexual to O.C., but he stated that he understood why she
would say that he did. According to defendant, he “conned [O.C.] into giving the landlord oral sex
so that [he could] pay less rent to move into the apartment.” He deceived her by telling her he
would “give her the keys [to the apartment] when she was done.” In fact, he kept them for himself.
He further testified that he gave keys to Atkinson and was “going to give [the] apartment to
[Atkinson] later on when [he] was done with it.” Defendant explained that he “just wanted to use
- 24 -
2022 IL App (2d) 210492-U[the apartment] for dice games.” He also testified that he “needed to put a roof over [his] children’s
head [sic] at the time, so [he] allowed [O.C.] to be at the apartment.”
¶ 62 On cross-examination, defendant admitted that he “stabbed” and “cut” Domino with the
black knife. Defendant acknowledged inflicting the stab wounds to Domino that were shown in
previously admitted photographs. He claimed that Domino hit him first and knocked him into the
closet. Domino then pinned defendant to the ground. When defendant reached for the knife, which
was under a nearby mattress, Domino got it first. Defendant grabbed the knife, and the blade cut
him as Domino jerked the knife from his grip. Domino dropped the knife, and O.C. picked it up
and handed it to defendant.
¶ 63 Defendant testified that the dice game occurred at “DeRay’s house right across from the
apartment.” He was naked when arrested because he was in his boxers, changing his clothes, when
Domino hit him. He later took off his boxers to wrap his bleeding hand. He admitted that he was
served with an order of protection on September 5, 2017, but he thought it was a “scam” and that
O.C. was trying to get out of paying him money that she owed.
¶ 64 Defendant testified that, on the day of the incident, 2703 Galilee Avenue was “[his]
apartment” and O.C. “wasn’t technically living there. She was just visiting.” He stated that “[O.C.]
punked [Atkinson] out of the keys.” The following colloquy occurred:
“[(ASSISTANT STATE’S ATTORNEY)]: You were living there?
A. It was my apartment.
Q. Okay, where were you living?
A. I am sorry?
Q. Where were you living?
A. Specify when you say living.
- 25 -
2022 IL App (2d) 210492-UQ. Where were you laying to sleep at night on September 22nd, 2017?
A. For most of the duration—wait, you talking about on the—wait, say it again.
Q. Where were you living on September 22nd, 2017?
A. 2703 Apartment—Galilee, Apartment E.
Q. So, you’d actually go there and sleep at night?
A. Not often at that time.
Q. Okay.
A. I mean I kind of spent my time at my grandmother’s house with my family
because there was some things I didn’t want to know.”
¶ 65 Defendant admitted that he and Jennifer were conversing on the October 2017 telephone
conversation that the State had played in court during Jennifer’s testimony. When asked about the
“blood ritual” references and his statement that he “went through the window,” he claimed that he
was “talking jive.” He said: “I can’t fit through that window.” He claimed he said those things
because he was hoping to “get a pass to the mental house and possibly get some food for the
holidays.” He stated: “[I]f I, you know, slipped under the crack of the door to get in, that you
wouldn’t believe it, so I didn’t believe you would believe I actually went through the window.”
¶ 66 On redirect examination, defendant testified that he had no intention to kill Domino. He
stated:
“This all started from a dice game and telling somebody that I didn’t want them to be there.
That’s it. I paid. I paid to be there. I paid bills. I paid rent. I paid—I actually paid to be
there. It was my apartment at the time, and God bless everybody. That’s all’s I got.”
- 26 -
2022 IL App (2d) 210492-U¶ 67 Defendant finished his testimony and rested his case. The State noted for the record that it
had subpoenaed Rebecca C. (O.C.’s mother) at defendant’s request and that she was present in the
hallway. However, neither party called her to testify.
¶ 68 3. Verdict, Posttrial Motion, and Sentencing
¶ 69 On July 15, 2021, following closing arguments, the trial court found defendant guilty of
the remaining charges.
¶ 70 On August 6, 2021, defendant filed a “Motion for Post Conviction,” arguing only that his
statutory right to a speedy trial had been violated. The trial court denied the motion, noting that it
had already ruled on the issue and found no reason to disturb its ruling.
¶ 71 Following an August 17, 2021, sentencing hearing, the trial court sentenced defendant to
consecutive prison terms of 26 years for attempted first-degree murder (count I), 26 years for
criminal sexual assault (count XI), and 18 years for home invasion (count XIV). The court also
imposed a concurrent four-year prison term for violating an order of protection (count XX).
Finally, the court merged all remaining counts into those counts.
¶ 72 This timely appeal followed.
¶ 73 II. ANALYSIS
¶ 74 Defendant contends that the trial court abused its discretion when it denied defendant’s
request that Ritacca be allowed to serve as standby counsel. According to defendant, the court’s
decision was based not on the governing factors from People v. Gibson, 136 Ill. 2d 362, 380 (1990),
but instead on the court’s blanket policy of refusing standby counsel in all cases. Defendant
acknowledges that he has forfeited the issue, but he argues that the court’s abuse of discretion
amounts to plain error under both prongs of the plain-error doctrine.
- 27 -
2022 IL App (2d) 210492-U¶ 75 In response, the State contends that defendant’s request for standby counsel was not valid,
because defendant couched his request as a “compromise” in an attempt to accommodate both
(1) his insistence on going pro se, whether or not Ritacca was willing to serve as standby counsel,
and (2) others’ concerns over him going pro se. Alternatively, the State argues that, under Gibson,
the trial court’s denial of standby counsel was not an abuse of discretion. Finally, the State argues
that any error in the denial of standby counsel did not meet either prong of the plain-error doctrine.
¶ 76 A. Forfeiture
¶ 77 We begin by placing defendant’s arguments in the proper context and establishing
defendant’s burden on appeal. Defendant admits that he failed to raise this issue in his posttrial
motion and, thus, has forfeited it. See People v. Ware, 407 Ill. App. 3d 315, 350 (2011) (by failing
to raise it in his posttrial motion, the defendant forfeited his claim that the trial court abused its
discretion by denying his request for standby counsel). Nevertheless, he argues that we should
review the issue for plain error.
¶ 78 Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) permits the review of unpreserved
errors when:
“(1) a clear or obvious error occurs and the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error occurs and that error is so serious
that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill.
2d 551, 565 (2007).
¶ 79 Under either prong of the plain-error doctrine, the first step requires defendant to establish
“a clear or obvious error.” People v. Jackson, 2022 IL 127256, ¶ 21; see People v. Camacho, 2018
- 28 -
2022 IL App (2d) 210492-UIL App (2d) 160350, ¶ 38 (“We begin a plain-error analysis by determining if there was reversible
error in the first instance, as ‘[a]bsent reversible error, there can be no plain error.’ ” (quoting
People v. Cosby, 231 Ill. 2d 262, 273 (2008))). If the reviewing court finds that a clear or obvious
error has occurred, it is the defendant’s further burden to persuade the court to excuse his forfeiture
under the first or second prong of the plain-error doctrine. Jackson, 2022 IL 127256, ¶ 19.
¶ 80 “[E]rrors reviewable under the first prong of the plain error rule are the type of errors that
are subject to harmless error analysis, and a defendant must establish prejudice resulting from the
error to excuse his forfeiture of such an error.” Id. ¶ 23.
“Analysis under the first prong of the plain error rule typically requires the same
type of analysis as harmless error review. Harmless error analysis applies when the
defendant has properly preserved a trial error for review; plain error analysis applies when
the defendant has failed to preserve a trial error for review. The difference between
harmless error analysis and first-prong plain error analysis is the allocation of the burden
of persuasion. [Citation.]” Id. ¶ 23 n.1.
“[E]rrors that fall under the purview of the second prong of the plain error rule are rare.” Id. ¶ 27.
To obtain relief under the second prong, a defendant must show “structural error.” Id. ¶ 28. If he
does so, he need not show prejudice. Id.
¶ 81 Thus, we first consider whether defendant can establish that the trial court committed clear
or obvious error when it denied defendant’s request for Ritacca to serve as standby counsel.
¶ 82 B. Clear or Obvious Error
¶ 83 Defendant contends that, where the trial court failed to consider any of the Gibson factors
in denying standby counsel and, instead, based the denial on its own blanket policy against standby
counsel, we should find that the court’s failure to exercise its discretion was itself an abuse of
- 29 -
2022 IL App (2d) 210492-Udiscretion that requires reversal. The State responds, first, that defendant did not make a valid
request for standby counsel and, thus, we need not reach the issue. Alternatively, the State argues
that, under the Gibson factors as applied to this case, the court did not abuse its discretion.
¶ 84 Before addressing the State’s argument that defendant did not make a valid request for
standby counsel, we set forth the substantive law governing such requests.
¶ 85 Although a defendant has the right to self-representation, such right “does not carry with it
the right to legal assistance.” People v. Harris, 2020 IL App (3d) 160169, ¶ 38. Accordingly, “one
who chooses to represent himself must be prepared to do so.” Id. Nevertheless, because there is no
statute or rule prohibiting the appointment of standby counsel, the trial court may choose to appoint
standby counsel for a pro se defendant. People v. Khan, 2021 IL App (1st) 190679, ¶ 72. In
determining whether to do so, relevant criteria include “the nature and gravity of the charge, the
expected factual and legal complexity of the proceedings, and the abilities and experience of the
defendant.” Gibson, 136 Ill. 2d at 380. We review for an abuse of discretion a trial court’s refusal
to appoint standby counsel. People v. Hui, 2022 IL App (2d) 190846, ¶ 56. A court abuses its
discretion only where its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable
person would take the trial court’s view. Id.¶ 86 In Gibson, after initially appointing an assistant public defendant (APD) as standby counsel
for the defendant, the trial court erroneously concluded that the Public Defender Act (Ill. Rev. Stat.
1987, ch. 34, ¶¶ 5601-5608) provided no authority for the appointment. Therefore, the court
granted the APD’s motion to withdraw. Gibson, 136 Ill. 2d at 372-75. The defendant’s first trial
resulted in a mistrial when the jurors could not agree on a verdict. Id. at 374. Following a second
jury trial, the defendant was convicted of murder and sentenced to death. Id. at 365.
- 30 -
2022 IL App (2d) 210492-U¶ 87 On appeal, the supreme court first determined that the trial court had the discretion to
appoint standby counsel. Id. at 379. The court next considered whether the defendant was entitled
to a new trial in light of the APD’s withdrawal from the case. Id. The defendant argued, as does
defendant here, that the trial court’s “failure to exercise [its] discretion, without more, should
necessarily require reversal of the judgment below.” Id. at 380. In support, the defendant in Gibson
relied on People v. Queen, 56 Ill. 2d 560 (1974), where the court noted that the trial court errs
when it “ ‘refuses to exercise discretion in the erroneous belief that it has no discretion.’ ” Gibson,
136 Ill. 2d at 379 (quoting Queen, 56 Ill. 2d at 565). The court suggested that the “defendant’s
reliance on Queen may be questioned” (id. at 380) given Queen’s additional comment “that the
effect of such a failure to exercise discretion must be assessed in the context of the entire
proceeding.” Id. at 379. The court also had critical remarks for the defendant’s proposed remedy
of automatic reversal:
“[T]he utility of the defendant’s suggested rule of automatic reversal is doubtful. For
example, if it could be determined that the refusal to appoint standby counsel would not
have been an abuse of discretion, there would be no purpose now in remanding the cause
for further proceedings solely on the ground that the trial judge failed to exercise his
discretion.” Id. at 380.
The court in Gibson took the analytical path it outlined in these remarks. That is, the court could
determine from the record that, had the trial court exercised its discretion in denying the
appointment of standby counsel, it would have abused that discretion. Id. at 379-80. Thus, the
Gibson court did not need to determine whether Queen supported automatic reversal based on the
trial court’s failure to exercise its discretion. Id.
- 31 -
2022 IL App (2d) 210492-U¶ 88 In analyzing whether the trial court’s denial of standby counsel would have been an abuse
of discretion, the court began:
“Relevant criteria appropriately considered by a trial court in deciding whether to
appoint standby counsel to assist a pro se defendant in a criminal case include the nature
and gravity of the charge, the expected factual and legal complexity of the proceedings,
and the abilities and experience of the defendant.” Id. at 380.
After applying those factors to the facts of the case, the Gibson court concluded that, had the trial
court exercised its discretion in denying standby counsel, it would have abused its discretion. The
court noted that the defendant had been charged with a capital offense. The court further noted that
the prosecution’s case rested on forensic evidence, expert testimony, and testimony from the
defendant’s fellow inmates. The court found “[o]f particular significance” the fact that the trial
court had appointed the APD as standby counsel when it believed it had the discretion to do so. Id.
at 381. But later, the court permitted the APD to withdraw because the court came to believe that
the appointment was not authorized by statute. Id. at 381. The court observed that the trial court’s
“initial decision reflected [its] view that appointment of standby counsel would be appropriate in
the present case, and there is no indication that [it] later changed [its] mind in that regard.” Id.¶ 89 After finding that, had the trial court exercised its discretion in denying standby counsel,
the denial would have been an abuse of that discretion, the Gibson court turned to the issue of
prejudice. “Without determining whether the erroneous refusal to appoint standby counsel is
prejudicial per se and must in every case necessitate a new trial,” the court concluded that “[t]he
prejudicial effect of the judge’s erroneous ruling [was] apparent from a consideration of the trial
proceedings.” Id. at 381-82. The court noted the State’s concession on appeal that certain evidence
contradicting the defendant’s theory was improperly admitted. The court further noted that (1) the
- 32 -
2022 IL App (2d) 210492-Udefendant’s cross-examination of certain witnesses was “perfunctory,” (2) he insisted on calling
witnesses whose testimony the court had already ruled inadmissible, and (3) he repeatedly argued
a previously rejected contention. Id. at 382. The court also emphasized that “[t]he jurors at the
defendant’s first trial were unable to agree on a verdict in the case, and the resulting mistrial
illustrate[d] fully the closeness of the evidence in the case.” Id. at 382-83.
¶ 90 Based on Gibson, the trial court’s blanket denial here of defendant’s request to allow
Ritacca to act as standby counsel does not, without more, warrant reversal. As Gibson recognizes,
“if it [can] be determined that the refusal to appoint standby counsel would not have been an abuse
of discretion, there [is] no purpose *** in remanding the cause for further proceedings solely on
the ground that the trial judge failed to exercise his discretion.” Id. at 380.
¶ 91 We acknowledge this court’s decision in People v. Bernard, 2021 IL App (2d) 181055. In
Bernard, we held that the trial court’s failure to recognize that it had the discretion to appoint
counsel to represent the defendant on his petition under section 2-1401 of the Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2014)) was, standing alone, an abuse of discretion. Bernard,
2021 IL App (2d) 181055, ¶¶ 25, 27. We further held that reversal was warranted because the
record did not conclusively establish that the error was harmless. Id. ¶ 35.
¶ 92 First, we note that Bernard is distinguishable because there is no indication in the present
case that the trial court was unaware that it had the discretion to appoint counsel. In any event,
Gibson clearly prescribes how we must conduct our analysis. We first consider whether, had the
trial court considered the Gibson factors in denying standby counsel, that denial would have been
an abuse of discretion. If the trial court would not have abused its discretion, then (as Gibson states)
“there would be no purpose now in remanding the cause for further proceedings solely on the
- 33 -
2022 IL App (2d) 210492-Uground that the trial judge failed to exercise its discretion.” Gibson, 136 Ill. 2d at 380. If the trial
court indeed would have abused its discretion, then the question turns to prejudice.
¶ 93 Defendant is critical of subsequent opinions interpreting Gibson “as holding that a
defendant must show prejudice by showing that the judge would have abused his discretion if he
had denied standby counsel after considering the appropriate factors.” He directs us to People v.
Ware, 407 Ill. App. 3d 315 (2011). In Ware, the defendant argued that the trial court committed
plain error when it denied his request for standby counsel without considering the Gibson factors.
Id. at 350-51. The court rejected the defendant’s argument that the trial court’s decision was a
“blanket policy.” Id. at 351. It then stated that, even if it agreed with the defendant’s claim that the
trial court’s decision not to appoint standby counsel amounted to a “blanket policy,” it “[could not]
find that [the] defendant was prejudiced because, even if [the] trial court had exercised its
discretion and denied [the] defendant standby counsel, that decision would not have been an abuse
of discretion.” Id. The court set forth the defendant’s arguments based on the Gibson factors.
Without concluding whether the Gibson factors themselves warranted a finding of an abuse of
discretion, the court addressed the defendant’s arguments as to how the absence of standby counsel
negatively impacted him at trial. The court said that, “despite defendant’s arguments [on the
Gibson factors], [the court could not] find that the trial court would have abused its discretion in
denying defendant standby counsel.” Id. at 352. In support of that conclusion, the trial court
discussed the pretrial and trial proceedings and noted that the evidence against the defendant was
“overwhelming.” Id. The court further commented that “[t]he presence of standby counsel likely
would not have made a difference in [the] defendant’s ability to defend his case.” Id.¶ 94 To be sure, it does appear that the Ware court incorporated a prejudice analysis into its
discussion of whether the trial court abused its discretion. Similarly, in People v. Harris, 2020 IL
- 34 -
2022 IL App (2d) 210492-UApp (3d) 160169, when the court applied the Gibson factors in determining whether the trial court
abused its discretion in denying standby counsel, the court seemed to implicitly incorporate a
discussion of whether the defendant was prejudiced, as the court discussed the defendant’s
performance at trial. Id. ¶ 39. However, under Gibson, abuse of discretion and prejudice are
separate issues.
¶ 95 We note, too, that defendant seems to be under the impression that Gibson did not address
prejudice. He argues that “Gibson contains no discussion of the facts of the case or any prejudice
the defendant suffered as a result of being without standby counsel.” Again, citing Bernard, 2021
IL App (2d) 181055, ¶ 35, defendant argues that the proper test for determining prejudice is
whether “the record does not conclusively establish that the defendant was not harmed by the
error.” However, as noted above, Gibson did discuss prejudice. Specifically, the court
“conclude[d] that the defendant was prejudiced by the trial judge’s failure to continue in force the
appointment he was empowered to make.” (Emphasis added.) Gibson, 136 Ill. 2d at 381-82. To
support its prejudice finding, the court noted (1) the State’s concession on appeal that the trial court
improperly admitted certain evidence contradicting the defendant’s theory, (2) the defendant’s
poor performance at trial, (3) the fact that the defendant’s first trial resulted in a mistrial, and (4) the
closeness of the evidence. Id. at 382. With clear and controlling guidance in Gibson, we need not
consider Bernard.
¶ 96 We now determine whether, had the trial court considered the Gibson factors in denying
defendant’s request to allow Ritacca to proceed as standby counsel, that denial would have been a
clear or obvious abuse of discretion. As noted, under Gibson, “[r]elevant criteria *** include the
nature and gravity of the charge, the expected factual and legal complexity of the proceedings, and
the abilities and experience of the defendant.” Gibson, 136 ll. 2d at 380. However, we will not
- 35 -
2022 IL App (2d) 210492-Uaddress those factors here in a vacuum. Also relevant are the nature and context of defendant’s
request for standby counsel.
¶ 97 This is not the typical case of a pro se defendant seeking the appointment of standby
counsel. By the time defendant first alluded to Ritacca serving as standby counsel—on February
11, 2021—Ritacca had been representing defendant for over a year. During that time, Ritacca had
answered ready for trial on more than one occasion. On July 27, 2020, Ritacca advised the trial
court that he had filed all his motions and received all the police reports. After the court resolved
the pending motions, Ritacca answered ready for trial on August 13, 2020. On September 29, 2020,
after a few continuances for purposes of plea discussions, Ritacca again answered ready for trial,
and the court set a trial date of November 30, 2020. On November 23, 2020, Ritacca indicated that
some discovery issues were pending, and the court continued the matter. On December 1, 2020,
Ritacca again answered ready for trial, and the court set a trial date of January 20, 2021. Thus, by
January 20, 2021, when defendant first indicated that he was “firing” Ritacca and wanted to
proceed pro se, the case was ready for trial. Defendant made no mention of needing standby
counsel. At that time, the court was well within its discretion to admonish defendant and allow
him to proceed pro se. Nevertheless, because Ritacca objected to defendant’s request to proceed
pro se, the court continued the matter, allowing time for the parties to talk. On February 3, 2021,
Ritacca asked the court for a trial date. Defendant again strongly indicated that he wanted to
proceed pro se, and the court again continued the matter. On February 11, 2021, defendant stated:
“I understand your concerns and other’s concerns, and for this reason I wish to meet
people more than halfway and allow Ritacca the opportunity to stand back and stand by
me if he chooses to actually help me through this matter as he says he wishes to do, but I
am not changing my mind on going pro se and trying to set a trial date on this day, but
- 36 -
2022 IL App (2d) 210492-Uwhether or not Ritacca wishes to quit as standby counsel is upon him and I totally
understand.” (Emphasis added.)
¶ 98 The State argues that defendant’s remark was not a valid request, describing it as a
“ ‘compromise’ ” request. In support, the State cites People v. Smith, 2022 IL App (2d) 200338-
U, ¶ 20, where this court found that the defendant’s request for “ ‘side counsel’ ” to help him with
notes was a request, not for standby counsel, but for a “note-taker.” Id. Although we do not
necessarily agree with the State that the defendant made no genuine request for Ritacca to serve as
standby counsel, defendant certainly was ambivalent on the issue, indicating that “whether or not
Ritacca wishes to quit as standby counsel is upon him.” Moreover, the record, particularly
defendant’s comments on February 18, 2021, makes clear that defendant’s motivation in
discharging Ritacca was to go to trial “as soon as possible.” When the court proposed a date,
defendant asked Ritacca if he could “meet that date,” and Ritacca responded that he would “push
it” because he was “trying to help [him].” Ultimately, defendant decided to go pro se. However,
even after being admonished and allowed to proceed pro se, defendant asked Ritacca if he could
“please meet that trial date.”
¶ 99 Although defendant asserts that his motivation for seeking standby counsel does not matter,
we disagree. The trial court did not specifically inquire why defendant wanted standby counsel, as
the trial court did in Smith. Nonetheless, defendant’s basis for the request was clear, and the court
should have considered it. Defendant wanted to go to trial as soon as possible, with or without
Ritacca. It was only because Ritacca continually opposed defendant’s attempts to go pro se that
defendant stated that he would “allow Ritacca the opportunity to stand back and stand by [him] if
[Ritacca] chooses.”
- 37 -
2022 IL App (2d) 210492-U¶ 100 We note, too, that Ritacca at no point indicated that he was willing to act as standby
counsel. Defendant argues that we have no way of knowing what Ritacca would have done if the
court had granted defendant’s request. We disagree. Ritacca made ongoing and strenuous
objections to defendant being allowed to go pro se. Thus, we can reasonably conclude that, had
Ritacca been willing to serve as standby counsel, he would have so indicated. Indeed, the record
suggests that Ritacca would not have agreed to serve in that capacity. When Ritacca first took the
case, he made clear that “if [he was] involved in a case, [he does] the work.” He told defendant on
the record: “I’m not going to play with what you believe and what other people believe. You’ve
got to let me do what I think is the most important thing.” At one point, Ritacca informed the court
that he “believed that [defendant] has certain defenses, and he doesn’t want to hear about those
defenses.” Ritacca also referenced police reports and stated: “I don’t want anybody to call these
people other than me.” Moreover, as noted, defendant indicated that he wanted to go to trial as
soon as possible and asked Ritacca more than once if he could meet a given trial date. Ritacca
never unequivocally indicated that he could.
¶ 101 With the above in mind, we discuss the “relevant criteria” from Gibson, which include “the
nature and gravity of the charge, the expected factual and legal complexity of the proceedings, and
the abilities and experience of the defendant.” Gibson, 136 ll. 2d at 380.
¶ 102 Regarding the first factor, defendant contends that the charges here were serious. They
included five separate Class X felonies subject to mandatory consecutive sentencing—creating a
potential aggregate sentencing range of 30 to 120 years. 730 ILCS 5/5-4.5-25(a), 5-8-4(f)(1) (West
2016). The State concedes that this factor favors defendant, and we agree.
¶ 103 However, applying the second and third factors is not so clear cut. Neither factor
overwhelmingly favors defendant. The case was not excessively complex. The allegations were
- 38 -
2022 IL App (2d) 210492-Ustraightforward. There was no question what weapon defendant wielded against Domino or that
defendant caused Domino’s numerous severe injuries. His defense to attempted first-degree
murder was that he acted in self-defense. His defense to home invasion was that he leased the
apartment and did not enter through the window. His defense to sexual assault was simply to deny
it happened, making the issue one of credibility. Notably, the case did involve medical testimony
on the issue of Domino’s injuries and forensic testimony from crime lab personnel—and this tends
to favor defendant. See Gibson, 136 Ill. 2d at 381 (noting that the prosecution’s case consisted of,
among other things, forensic evidence, and expert testimony). However, even the critical forensic
evidence was consistent with the defense. First, defendant’s fingerprints on the exterior
windowpane were consistent with his claim that the apartment was his. Second, his DNA on the
knife was consistent with his claim that he grabbed the knife to defend himself.
¶ 104 As for defendant’s abilities and experience, the record reflects that, at the time of trial,
defendant was 28 years old. He had completed the 11th grade but did not graduate. He had an
extensive criminal history and had previously represented himself at trial. See Harris, 2020 IL
App (3d) 160169, ¶ 39 (“[the] defendant had a lengthy and extensive criminal history and, thus,
would have had extensive familiarity with the criminal justice system”). The record reflects that
defendant was very articulate. Defendant concedes that, during the former trial at which he
represented himself, he “demonstrated that *** he was capable of conceiving a coherent defense,”
albeit on that occasion, his defense “lacked a legal basis and, in fact, effectively served as a
confession to the offense.” Defendant argues that his “background and performance in his first
trial showed him to be a capable litigant with very poor understanding of the law, who would have
benefited immensely from guidance by standby counsel.” However, we also consider that, by the
time defendant made his request, Ritacca had answered ready for trial several times. Thus, Ritacca
- 39 -
2022 IL App (2d) 210492-Uhad already done much of defendant’s trial preparation. Indeed, Ritacca told defendant that he
would “put together a trial book” for him and “give [him] all [his] work.”
¶ 105 Thus, considering and reflecting on the totality of the factors as noted above, in
combination with other circumstances—the equivocal and ambivalent nature of defendant’s
request for standby counsel, the motivation for the request, the relationship between defendant and
Ritacca, Ritacca’s failure to indicate that he would be willing to serve as standby counsel, and the
procedural posture of the case—we cannot find a clear and obvious abuse of discretion in the denial
of the request.
¶ 106 More importantly, even if the defendant could establish a clear or obvious error in the trial
court’s denial of his request for standby counsel, he cannot establish plain error. As noted, some
decisions applying Gibson have considered prejudice in determining whether the trial court’s
decision to deny standby counsel was an abuse of discretion. Here, because defendant forfeited the
issue, he must show prejudice in the context of plain error. He has not met that burden here.
¶ 107 C. First-Prong Plain Error
¶ 108 As noted, to obtain relief under the first prong of the plain-error doctrine, defendant must
establish that “the evidence is so closely balanced that the error alone threatened to tip the scales
of justice against the defendant.” Piatkowski, 225 Ill. 2d at 565.
¶ 109 Defendant contends that the evidence was closely balanced, “particularly with respect to
the charge of home invasion,” and more particularly, on the issue of “whether [he] leased the
apartment.” Another “point of disagreement,” he asserts, “concerned the manner in which [he]
entered the apartment.” As to the closeness of the evidence on the remaining convictions, he argues
only that “had [he], with the assistance of standby counsel, been able to prove that he actually did
rent the apartment, that would have significantly undermined the credibility of all of the State’s
- 40 -
2022 IL App (2d) 210492-Uwitnesses.” The State responds that whether defendant had a lease on the apartment was irrelevant
because the order of protection barred him from O.C.’s residence. The State also argues that the
remaining evidence is not close.
¶ 110 In support of his argument about his home invasion conviction, defendant cites only two
cases—People v. Ried, 179 Ill. 2d 297, 316 (1997), and People v. Delacruz, 352 Ill. App. 3d 801,
811-12 (2004)—for the proposition that he could not be guilty of home invasion if proven “that he
leased the apartment in which the home invasion allegedly occurred.”
¶ 111 We begin by setting forth the elements of home invasion as charged in this case (we note
defendant failed to reference them). Section 19-6 of the Criminal Code of 2012 (Code) (720 ILCS
5/19-6(a)(1), (a)(2), (a)(6), (d) (West 2016)) provides:
“(a) A person who is not a peace officer acting in the line of duty commits home
invasion when without authority he or she knowingly enters the dwelling place of another
when he or she knows or has reason to know that one or more persons is present *** and
(1) While armed with a dangerous weapon, other than a firearm, uses force
or threatens the imminent use of force upon any person or persons within the
dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury, except as provided in subsection (a)(5),
to any person or persons within the dwelling place, or
***
(6) Commits, against any person or persons within that dwelling place, a
violation of Section *** 11-1.30 *** of this Code.
***
- 41 -
2022 IL App (2d) 210492-U(d) For purposes of this Section, ‘dwelling place of another’ includes a dwelling
place where the defendant maintains a tenancy interest but from which the defendant has
been barred by a divorce decree, judgment of dissolution of marriage, order of protection,
or other court order.”
¶ 112 As noted, defendant argues that he had a lease to the apartment and that a person cannot be
convicted of home invasion for entering his own home. According to defendant, the evidence was
closely balanced because only defendant and O.C. claimed firsthand knowledge of whether
defendant rented the apartment. He argues that his “failure to introduce the lease can be explained
by his lack of understanding of the rules of evidence and his inability to locate the document and
the appropriate witness, both of which would have been helped had he had assistance from standby
counsel.”
¶ 113 The State responds that whether defendant leased the apartment is irrelevant because, even
if he had a tenancy interest in the apartment, he enters the “dwelling of another” under section 19-
6(d) if he has been barred from that dwelling pursuant to, among other things, an “order of
protection.” Id. § 19-6(d).
¶ 114 In reply, defendant argues that “the order of protection did not prohibit [him] from entering
the apartment and, if [his] testimony was true, could not prohibit him from entering it.” Without
any explanation, he cites section 60/214(b)(2) of the Illinois Domestic Violence Act of 1986 (Act)
(750 ILCS 60/214(b)(2) (West 2016)). That section provides that an order of protection can
“[p]rohibit respondent from entering or remaining in any residence, household, or premises of the
petitioner, including one owned or leased by respondent, if petitioner has a right to occupancy
thereof.” Id. Subsection (b)(2)(A) of that section provides:
- 42 -
2022 IL App (2d) 210492-U“A party has a right to occupancy of a residence or household if it is solely or jointly owned
or leased by that party, that party’s spouse, a person with a legal duty to support that party
or a minor child in that party’s care, or by any person or entity other than the opposing
party that authorizes that party’s occupancy (e.g., a domestic violence shelter).” Id.§ 60/214(b)(2)(A).
¶ 115 We presume defendant’s argument to be that, if defendant had a lease for the apartment
and O.C. did not, then O.C. would not have a right of occupancy and, thus, an order of protection
could not prevent defendant from entering the apartment.
¶ 116 However, the evidence on the issue is not close. O.C. testified that she alone signed a lease
for the apartment. Although no apartment lease was admitted into evidence, O.C.’s testimony
about the lease was not contradicted. To be sure, defendant argues that one of his defenses to the
home-invasion charge was that he leased the apartment. He argues that any failure on his part to
contradict O.C.’s testimony—by introducing a lease that he signed—was because he did not have
counsel. We note, however, that during his testimony defendant did not even suggest that he ever
signed a lease. His testimony was that he paid the rent, and his name was on a utility bill. Thus,
we will not presume the existence of a lease signed by defendant.
¶ 117 We continue to the cases upon which defendant relies, which seem to focus on the
defendant’s payment of rent. Defendant cites Ried for the proposition that “[d]efendant could not
commit home invasion in [an] apartment he rented, even if he was forbidden from entering it by
an order of protection.” While that may be an accurate reflection of Ried’s holding, defendant fails
to acknowledge that Ried predated the language of section 19-6(d) of the Code, enacted in 1998.
See Pub. Act, 90-787, § 5 (eff. Aug. 14, 1998) (amending 720 ILCS 5/12-11, now codified at 720
ILCS 5/19-6). As section 19-6(d)’s language makes clear, “unless a defendant has both the
- 43 -
2022 IL App (2d) 210492-Urequisite tenancy interest and a possessory interest in the dwelling place, he can be charged with
home invasion.” (Emphases in original.) People v. Howard, 374 Ill. App. 3d 705, 712 (2007). “The
tenancy interest alone is no longer sufficient.” (Emphasis omitted). Id.¶ 118 Defendant cites Delacruz for the proposition that, “[i]n the absence of evidence of a formal
living arrangement, uncontradicted testimony that the defendant paid rent for [the] apartment
precluded [a] conviction of home invasion in that apartment.” To be sure, the fact that the
defendant in Delacruz had paid rent for the apartment was a relevant factor in determining that the
evidence was insufficient to find the defendant guilty beyond a reasonable doubt of home invasion.
Delacruz, 352 Ill. App. 3d at 810-811. However, it was but one factor among many. Not only did
the defendant pay rent, but both State’s witnesses conceded that the defendant was residing at the
apartment when the offense occurred. Id. at 811. Additional evidence showed that the defendant
had many possessions in the apartment, such as furniture, tools, and clothing. Id. The court also
noted that there was no evidence of forced entry. Id. at 812. Delacruz does not support defendant’s
argument that the evidence here was close.
¶ 119 Indeed, Delacruz makes clear that, when assessing whether a defendant who is or was in a
relationship with the victim entered the “dwelling place of another,” we are “to look beyond the
form of the tenancy relationship and to determine the substance of the relationship, considering
formal legal documents, informal arrangements, and any other evidence in the record.” Id. at 810.
Even taking as true defendant’s claim that he paid rent and that his name was on the ComEd bill,
these facts alone do not render the totality of the evidence close on the issue of whether defendant
had a possessory interest in the apartment.
¶ 120 Here, O.C. testified that she obtained an order of protection against defendant on
September 5, 2017, and defendant admitted being served with it. The order of protection prohibited
- 44 -
2022 IL App (2d) 210492-Udefendant from entering O.C.’s residence, but it did not provide a specific address for O.C. This
makes sense, since O.C. testified that she moved into the apartment at 2703 Galilee Avenue during
the second week of September 2017, after she had already obtained the order of protection against
defendant. She testified that, when she obtained the order of protection, she was not yet living at
2703 Galilee Avenue. Before that time, she lived in hotels or, according to Taylor, stayed at
Taylor’s residence. O.C. further testified that, after obtaining the order of protection, she lived at
2703 Galilee Avenue with her three children, along with Domino, Norman, and Norman’s child.
Domino and Norman corroborated her testimony. She also testified that she obtained housing
assistance, signed a lease, and paid “a small portion of the rent.”
¶ 121 None of defendant’s witnesses testified that defendant lived with O.C. after she obtained
the order of protection on September 5, 2017. Jennifer (defendant’s mother) testified that, “after
the order of protection,” defendant “was staying with his grandmother,” who lived at 2813 Gideon
Avenue. Jennifer stated that, on the evening of the incident, she shopped with defendant and then
dropped him off at Taylor’s house. Although McNeal was shown photos of 2703 Galilee Avenue
and testified that it was where defendant lived, she also testified that, on the night of the incident,
defendant was “staying on 22nd” (where the parties had previously lived) but left once O.C. filed
the order of protection. Although McNeal’s testimony was confusing, it established at least that
defendant did not live with O.C. after September 5, 2017. Taylor (defendant’s grandmother)
testified that she was present on September 5, 2017, when defendant was served with the order of
protection and that he thereafter stayed with her. In addition, although defendant stated that it was
“[his] apartment” and that he “paid to be there,” he also testified that he rented the apartment “to
use it for dice games” and that he “needed to put a roof over [his] children’s head [sic] at the time,
- 45 -
2022 IL App (2d) 210492-Uso [he] allowed [O.C.] to be at the apartment.” We note, too, that defendant’s evidence also
established that he routinely paid O.C.’s rent even when he lived elsewhere.
¶ 122 Further, the overwhelming evidence established that defendant gained entrance through the
window. See People v. Lawrence, 2020 IL App (1st) 171399, ¶ 33 (the defendant’s use of a brick
to gain entrance to the residence was a factor to consider in determining that the defendant
committed home invasion despite his name being on the lease). Norman testified that she heard “a
thud, like somebody had [fallen]” and she saw “a blurry person” walk from the window through
the living room to the hallway. She then heard O.C. screaming. Domino testified that he and O.C.
left the window open when they went to sleep that night, because it was hot outside. Defendant’s
fingerprints were found on the exterior windowpane. O.C. testified that the apartment door was
locked, and that Domino attempted to unlock it to escape from defendant. Defendant told Jennifer,
during a phone call from the jail, that he entered through the window. Defendant claims that
standby counsel could have had someone visit the apartment to measure the window. However,
the evidence on the matter was not close. Notably, the trial court viewed several photographs of
the window.
¶ 123 Based on the foregoing, the overwhelming evidence established that defendant did not
reside at 2703 Galilee Avenue on the evening of the incident. Accordingly, the evidence was not
close on whether defendant committed home invasion.
¶ 124 Defendant does not make any specific arguments on the closeness of the evidence as to the
other charges. He argues only that, if he had “been able to prove that the State’s witnesses were
lying about who leased the apartment and how they came to be in it on the night of [the offense],
the judge would have been more inclined to believe [defendant’s] version of events.” Given the
overwhelming evidence as to the remaining charges, we disagree that any evidence confirming
- 46 -
2022 IL App (2d) 210492-Uthat defendant had paid the rent would have “significantly undermined the credibility of all the
State’s witnesses.” On the contrary, such evidence would have had extremely limited impact on
defendant’s overall credibility.
¶ 125 Based on the foregoing, even assuming that the trial court committed a clear or obvious
error, defendant has failed to meet his burden of proving first-prong plain error.
¶ 126 D. Second-Prong Plain Error
¶ 127 Defendant also argues that any error was plain error under the second prong of the plain-
error doctrine. However, as noted, to obtain relief under this prong, it is a defendant’s burden to
show “structural error.” Jackson, 2022 IL 127256, ¶ 28.
¶ 128 In support of his argument, defendant relies solely on Gibson. Defendant acknowledges
that Gibson did not expressly discuss forfeiture or plain error. Nevertheless, he argues: “Given that
Gibson contains no discussion of the facts of the case or any prejudice the defendant suffered as a
result of being without standby counsel, the only reasonable interpretation of the holding is that
the error was plain error because it involved a fundamental right.” However, as noted, Gibson did
indeed address prejudice. In fact, it expressly emphasized “the closeness of the evidence in the
case.” Gibson, 136 Ill. 2d at 383. Thus, if anything, we would assume that Gibson considered the
issue as first-prong plain error.
¶ 129 Because Gibson does not suggest that defendant’s claimed error rises to the level of
structural error, and he makes no other argument for that conclusion, he has not met his burden of
proving second-prong plain error.
¶ 130 III. CONCLUSION
¶ 131 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 132 Affirmed.
- 47 -