People v. Carroll ( 2021 )

NOTICE 2021 IL App (4th) 200491-UFILED
This Order was filed under
NO. 4-20-0491 June 7, 2021
Supreme Court Rule 23 and is Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed
IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Jersey County
ROGER W. CARROLL JR., ) No. 18CF68
Defendant-Appellant. )
) Honorable
) Eric S. Pistorius,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Presiding Justice Knecht and Justice Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s conviction, finding the trial court did not
err in its evidentiary rulings and defense counsel’s performance was not
deficient under Strickland v. Washington, 466 U.S. 668 (1984).
¶2 In April 2018, the State filed an amended information against defendant, Roger
W. Carroll Jr., charging him with six felonies associated with Bonnie Woodward’s
disappearance and death in June 2010. The State charged three counts of first degree murder
(720 ILCS 5/9-1(a)(1), (2) (West 2010)), alleging defendant, in June 2010, without lawful
justification and with the intent to kill Bonnie Woodward, shot her. First degree murder, a
nonprobationable special class felony punishable by 20 to 60 years in prison (730 ILCS
5/5-4.5-20 (West 2010)), in this case included a possible minimum of 25 additional years if
defendant was found to have personally discharged a firearm (730 ILCS 5/5-8-1(a)(1)(d)(3)
(West 2010)). The second count alleged the same act but that defendant knew such an act created
a strong probability of death or great bodily harm to Bonnie Woodward thereby causing her
death. Count III alleged defendant committed first degree murder while committing a forcible
felony (aggravated kidnapping (720 ILCS 5/10-1(a)(3) (West 2010))) by shooting Bonnie
Woodward (720 ILCS 5/9-1(a)(3) (West 2010)). The State also charged one count of aggravated
kidnapping, a Class X felony (720 ILCS 5/10-1(a)(3) (2010)) and one count of concealment of a
homicidal death, a Class 3 felony (720 ILCS 5/9-3.4(a) (West 2010)), but these counts were
eventually dismissed before or during trial.
¶3 In March 2020, a jury found defendant guilty on all three first degree murder
counts and found the personal discharge enhancement had been proved. In October 2020, the
trial court sentenced defendant to 40 years in the Illinois Department of Corrections (DOC) on
each count, to run concurrently with an additional 25-year enhancement for discharging a
firearm. On appeal, defendant presents seven arguments: (1) the State’s display of defendant’s
photograph to an eyewitness several weeks before trial constituted plain error; (2) the trial
court’s refusal to allow defendant’s counsel to review Nathan Carroll’s notes after an in camera
inspection and an assertion of attorney-client privilege was error; (3) the admission of other-
crimes evidence was error; (4) it was error for the trial court to limit defense counsel’s cross-
examination of Monica Carroll, which was intended to show a financial interest and bias;
(5) admitting testimony regarding the family’s attitude toward Nathan Carroll after testifying
before the grand jury was error; (6) the trial court’s failure to strike and admonish jurors to
disregard bad character evidence was error; and (7) ineffective assistance of trial counsel. For the
reasons set forth below, we affirm.
¶4 I. BACKGROUND
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¶5 In April 2018, after several amendments, the State eventually filed an information
charging defendant with three counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West
2018)), one count of concealment of a homicidal death, and one count of aggravated kidnapping.
The aggravated kidnapping and concealment of a homicidal death counts were eventually
dismissed prior to the verdict.
¶6 In February 2020, at a final pretrial hearing, several motions in limine were
addressed. The State sought to present evidence of a domestic battery incident between
defendant and his wife which occurred in March 2018 and resulted in a newfound focus on
defendant as a suspect in the disappearance of Bonnie Woodward. In addition to the
circumstances of the domestic battery, the State sought to introduce certain inculpatory
statements defendant made to his wife during the incident as other-crimes evidence. The defense
objected on two grounds: spousal communication privilege and any probative value being
outweighed by the prejudicial impact. The trial court found the incident and statements
admissible, and the State confirmed it would limit the wife’s testimony surrounding the incident,
as well as defendant’s statements.
¶7 At trial, the State’s first witness was Scott Golike, a lieutenant with the Alton
Police Department, where he had been a police officer for over 27 years. Over the course of his
law enforcement career, he had been involved with 65 to 75 homicide investigations. At the time
of his testimony, he was a special investigator for the Madison County State’s Attorney’s Office.
In 2010, he was chief of detectives and oversaw the Bonnie Woodward investigation. He
testified to the various circumstances which led authorities to become suspicious about the
unexplained disappearance of Bonnie Woodward in 2010. These included her unexplained
absence from work, conversations with friends and family, and the fact that her truck was found
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in her workplace parking lot, apparently abandoned, with the doors locked and windows down.
Several employees said they observed an interaction between an unknown man and Bonnie in the
parking lot sometime before she disappeared. Based on descriptions of the person and the vehicle
he appeared to be driving, defendant became a suspect approximately one month after her
disappearance. A search warrant was executed on defendant’s property, and investigators seized
firearms and ammunition, but the case went cold until March 2018 when defendant’s neighbor
contacted Golike, prompting him to contact Detective Nick Manns about defendant’s then
pending domestic battery investigation.
¶8 Golike laid the foundation for admission of a redacted version of defendant’s
interview with police. After defendant was Mirandized (see Miranda v. Arizona, 384 U.S. 436(1966)), he was questioned both at his property and later after being transported to the station for
a recorded interview. During the interview, defendant denied ever speaking with Woodward or
being around, handling, or touching her vehicle. Toward the end of the interview, Golike asked,
“Any chance your fingerprints would be on Bonnie’s car on the driver’s door? Like all over it.
(inaudible). No chance?” Defendant responded, “[N]o, there’s no way that my fingerprints are on
that car door ***.” Later in the trial, a fingerprint analysis expert with the Illinois State Police
testified that a fingerprint and palmprint located on Woodward’s truck door matched defendant’s
fingerprint card.
¶9 Nick Manns spent over 25 years in federal law enforcement before becoming a
detective with the Jersey County Sheriff’s Office in 2017. He testified that in March 2018, he
received a report of defendant committing a domestic battery against his wife (Monica) and
viewed photographs of her injuries. A police search for defendant in the Jerseyville area was
unfruitful. Manns, being familiar with the area, drove by defendant’s home after his shift, and he
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found defendant lying unconscious in a wooded area far off the road. Found on defendant were a
bag of syringes and insulin, which defendant later admitted using, intending to commit suicide
because “he hurt his wife bad.” While investigating the domestic battery, Manns learned from
Detective Golike that defendant was suspected in Bonnie Woodward’s disappearance 10 years
earlier.
¶ 10 Nathan Carroll, defendant’s son, now 25 years old, was 16 when Bonnie
Woodward disappeared. He knew Bonnie’s stepdaughter (Heather) through a church group. In
June 2010, after Heather ran away from Bonnie’s home, his father (defendant) offered to have
Heather live with them until she was 18 and able to be on her own. Nathan, testifying under a
grant of immunity, said he never met Bonnie but that defendant told him she “was a bad person”
who was constantly “mean and aggressive and abusive” towards Heather and that Bonnie
“needed to go away and never come back.” When the family was vacationing with in-laws in late
June 2010, defendant told Nathan that Bonnie “needed to die.” Nathan testified he attempted to
talk defendant out of doing anything but eventually, at defendant’s direction, Nathan and he
returned to Jerseyville a day earlier than his wife and Heather, who had accompanied them on
the trip. Nathan said once they arrived, defendant drove to Bonnie’s place of work, pointed at her
truck, and said, “[G]ood[,] she is working today.” Nathan testified defendant was familiar with
Bonnie’s work schedule because he had questioned Heather about what time Bonnie would
typically arrive and leave for work. Nathan said once defendant arrived home from the trip, he
showered, shaved, dressed, loaded his gun, and said, “[T]his has gotta happen whether you like it
or not,” before leaving. In preparation for the murder, Nathan erected a tent away from the house
with the idea that defendant would tell Bonnie that Heather was staying inside the tent to lure
Bonnie inside. When defendant returned, Nathan testified he heard eight or nine gunshots from
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an area behind the garage. When he walked outside through the garage, he saw the lower part of
human legs wearing tan “scrub pants.” Defendant told him “not to go back there because it’s
ugly.” He saw defendant start up the tractor, scoop the body up in the front loader, and dump the
body in a large brush fire previously lit by Nathan. According to Nathan, when defendant
showed him Bonnie’s cell phone, Nathan took it, smashed it with a hammer, put it in a plastic
bag, and threw it on the fire. Nathan and defendant both mowed the grass everywhere Bonnie’s
body had been and continually stoked the fire for several days.
¶ 11 After the fire burned out, defendant scooped up the remains with the tractor and
dumped them in the creek. Nathan testified defendant talked about the murder with Nathan
“[a]lmost nightly for a couple years,” constantly telling him not to talk to police and to delete
some text messages sent from Monica, which she later described as having been sent on the day
Nathan and defendant returned home from vacation early, inquiring about what they were doing.
Nathan admitted lying when first called to testify at the grand jury because he wanted to protect
his father. During the course of his testimony before the grand jury, the prosecutor advised him
his grant of immunity was in jeopardy if he failed to tell the truth. After speaking with his
attorney, Nathan said he then began telling the truth about his and defendant’s involvement in the
murder and disposal of the remains of Bonnie Woodward. Over defense counsel’s objection,
Nathan testified that after his grand jury testimony, he received threats from family members and
most of his father’s family refused to speak with him. After this line of questioning, the
testimony proceeded as follows:
“Q. Did your dad ever kill anything else on that property?
A. Yes.
Q. What?
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A. Dogs.
Q. How many?
A. I can recall two on the property.
Q. Were they your dogs?
A. One of ‘em.
Q. You know why he killed your dog?
[DEFENSE COUNSEL]: Object. May I approach, Your
Honor?”
¶ 12 The comments during the sidebar have been labeled “inaudible,” and as a result, it
is unclear whether the trial court sustained or overruled defense counsel’s objection. Regardless,
the prosecutor went on to a different area of questioning, and defense counsel requested no
further remedy. Nathan told about being provided immunity for his testimony, and he said that
over the course of time, after having attempted to block out much of what happened, he has
remembered more details about the murder. On cross-examination, defense counsel questioned
him about his grant of immunity and confronted him with his prior inconsistent statements before
the grand jury. On redirect examination, the prosecutor inquired further:
“Q. The defense asked you if your memory gets better and
you said yes. Why does it get better in a situation like this? Explain
that to the jury.
A. I spent eight years trying to not think about this…trying
to go on and be normal and forget it…and in the past two
years…my goal is to remember everything I can…and someone
will say somethin’ someone will bring up a topic and then it just
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unrolls from there. I remember more and more information…and
over these past few years I cannot think about the details all the
time. I write it down…I share it in the meetings with the
prosecutor and then I still have to try and function. So, yes my
memory does get better as I’m remembering more things and more
unravels…but after I tell people and I know it’s documented I try
and forget it again…and it’s hard ‘cause I think about it on a
nightly basis.”
This prompted a sidebar request from defense counsel, claiming surprise because although they
had been provided over 40 pages of notes written by Nathan as part of the State’s discovery
compliance, they did not know about the particular notes to which Nathan referred. The State
also indicated they were unaware of these notes as well.
¶ 13 The next day, defense counsel asked for a mistrial, claiming they should have had
access to these notes and they only found out about them during Nathan’s testimony. The State
informed the trial court it spoke with Nathan’s attorney and all of the notes Nathan referenced
were notes he made while meeting with his attorney. The State also noted that a 30-to-40-page
journal in its possession had already been disclosed to the defense and used during Nathan’s
cross-examination. The trial court pointed out defense counsel still had the ability to subpoena
any relevant notes and material from Nathan’s attorney and the court could conduct an in camera
review to determine if the notes contained anything that should be disclosed to the parties.
¶ 14 Later, defense counsel indicated they had spoken with Nathan’s attorney, who
confirmed Nathan had made additional notes regarding his memory of the events but the attorney
refused to provide those notes to counsel without a court order. The trial court recommended a
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subpoena issue to Nathan’s attorney so the trial court could conduct an in camera review of the
notes in order to determine whether they were covered by attorney-client privilege. Defense
counsel agreed to this process. Nathan’s attorney eventually complied with the subpoena request
and tendered copies of the requested notes from Nathan’s notebook and his grand jury testimony
with handwritten notes, both of which Nathan’s attorney claimed were subject to attorney-client
privilege. After an in camera inspection by the court, and after hearing the arguments of counsel,
the court found the attorney-client privilege applicable and denied the defense access to Nathan’s
notes.
¶ 15 During the course of the trial, the State called several family members and friends
of Bonnie Woodward who said the last time they saw or heard from Bonnie was the day she
disappeared. They also said she had engaged in no online activity or financial transactions since
that day. The State called witnesses from Bonnie’s place of employment who testified about
seeing her in the employee parking lot on June 25, 2010. She was seen sitting in her red truck
with a man standing outside her truck door. Although none of the witnesses were able to identify
defendant from a six-person photo lineup they were shown by the police at the time, one of the
witnesses, Wanda Bausily, testified that on that day, as she was leaving work, she saw a man
standing next to Bonnie’s truck and saw his face as they “both looked at each other.” As she
drove away, she saw them standing next to a silver four-door car. She identified the defendant in
open court as the man she saw standing next to Bonnie’s truck that day. She explained she was
unable to pick him out of the photo lineup in 2010 because, as she recalled, the men’s pictures
contained more facial hair. In fact, when shown a copy of what was represented to be the same
lineup, she did not believe it was the same one shown to her 10 years before. On
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cross-examination, she said she got a good look at defendant’s face and was only 10 feet away
from him at one point. Defense counsel then inquired:
“Q. And so, um, did the State’s Attorney show you a
photograph of [defendant] in preparation of your testimony?
A. Yes.
Q. Was it a black and white photo or a color photo?
A. It was color.
Q. Okay and did they tell you how old the photograph was
that they showed to you?
A. I don’t believe so. I don’t remember for sure if she did
or not.
Q. And when did she show you this photograph?
A. Uh, it’s been about a month ago I guess.
Q. And how large was the photograph?
A. It was on a screen.
Q. Like on *** a TV screen, like this?
A. On a laptop.
Q. And was that the only picture you saw of *** a male
that they identified as being [defendant]?
A. Yes but I remember him, I mean, like I said this doesn’t
look like the photo. I know the man that I saw and I have pointed
him out.”
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When defense counsel sought to clarify how Bausily had been shown defendant’s photo for the
first time a month before trial, she also revealed that she had been seeing him on social media
over the last 10 years, ever since Bonnie’s disappearance had made the news.
On redirect examination, the State asked Bausily to repeat what she had said when
shown the photograph a month before trial. She responded:
“A. I told you that *** was definitely the man that I would
never forget his face and his eyes kinda [sic] told it all. That photo
lineup doesn’t look like the one I saw 10 years ago when I
happened [sic] but I know who I saw and I know for a fact that
that’s him sittin’ at the end of the table there.”
¶ 16 Monica Carroll, defendant’s wife, testified she and defendant were currently
going through a divorce. She said that upon returning to Jerseyville from the vacation at her
parents’ home in June 2010, she saw a large brushfire which burned continuously for six or
seven days while being repeatedly stoked by defendant and Nathan. She also saw both of them
use the tractor to scoop up the ashes from the brushfire and take them down over the hill to the
creek. When she was asked about the domestic violence incident in March 2018, she said she
was preparing to leave for work one morning when defendant suddenly grabbed her by the hair
and struck her in the head, neck, and across the face “10 or 12” times with a Taser. Defendant
told Monica he “had killed for [her]” and that he was a monster. He admitted to Monica that he
used to be able to control his anger “but he couldn’t anymore.” Monica said she was able to
convince defendant to let her leave, and she immediately drove to the Jersey County Sheriff’s
Office to report the incident.
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¶ 17 On cross-examination, defense counsel questioned Monica about her pending
divorce and asked, “would you say the assets that are involved in the divorce are worth about
$800,000?” prompting a relevance objection from the State and a sidebar conference with the
trial court. Defense counsel argued the question was relevant to show a financial motivation for
Monica’s testimony if she thought she may get a larger percentage of the marital assets if
defendant went to prison. The trial court refused to allow the inquiry to continue in the presence
of the jury until it was determined whether she in fact believed that to be the case. Proceeding
outside the jury’s presence, counsel asked Monica whether she believed a conviction of the
defendant would affect the share of marital assets she might receive. Her response was “no.”
Based on that, the trial court told counsel, “Then you can ask that question and that’s your
answer and then we’re done with that subject. Okay?” To which defense counsel responded,
“Yes, sir.” Once the jury returned, counsel asked the question, received the negative response,
and moved on.
¶ 18 Evidence was presented about the multiday search and excavation of defendant’s
property in April 2018 attempting to find Bonnie Woodward’s body. A 9-millimeter cartridge,
shell casing, and projectile were located within the area where Bonnie Woodward was reportedly
murdered. Throughout the excavation of defendant’s property, the search team located over 25
bone fragments. Forensic scientists with the Illinois State Police testified the projectile and shell
casing had been fired from the Stoeger handgun taken from defendant’s residence. The parties
stipulated to a Federal Bureau of Investigation (FBI) report which said some of the bone
fragments found could not be excluded from being considered of human origin. A forensic
archeologist described some of the bone fragments as having been subjected to “extreme
burning” and were consistent with “incomplete cremation.” Although some fragments were
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found to contain deoxyribonucleic acid (DNA), the scientist said it did not match that of Bonnie
Woodward. He also concluded from finding bone fragments in different locations on defendant’s
property that they were scattered across the ground surface, working their way into the ground
over time.
¶ 19 A research botanist for the United States Department of Agriculture Forest
Service testified he received samples from a tree located near where defendant and Nathan set
the brushfire. After analyzing the tree rings in the samples provided, his opinion was the tree
“clearly experienced a traumatic event during the *** wood growth season of 2010.”
¶ 20 A final stipulation, read to the jury before the State rested, said that after
defendant’s laptop was seized, the term “Bonnie” was found several hundred times after June 25,
2010, but appeared zero times on the hard drive prior to her disappearance date of June 25, 2010.
¶ 21 After deliberating for 3½ hours, the jury found defendant guilty of first degree
murder and found the statutory enhancement for personally discharging a firearm causing death
was proved. Defendant’s motion for a new trial raised most of the claims he asserts here
excluding the objection to testimony about killing dogs on the property and several of the
ineffective assistance of counsel claims. The trial court denied defendant’s motion for a new
trial. At sentencing in October 2020, after hearing victim impact statements and the
recommendations of counsel, the court sentenced defendant to 40 years in prison on each first
degree murder count, to run concurrently, with an additional 25-year enhancement for the use of
a firearm, totaling 65 years in DOC.
¶ 22 This appeal follows.
¶ 23 II. ANALYSIS
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¶ 24 Defendant raises seven issues on appeal: (1) the State’s display of defendant’s
photograph to an eyewitness several weeks before trial constituted plain error; (2) the trial
court’s refusal to allow defendant’s counsel to review Nathan Carroll’s notes after an in camera
inspection and an assertion of attorney-client privilege was error; (3) the admission of
other-crimes evidence was error; (4) it was error for the trial court to limit defense counsel’s
cross-examination of Monica Carroll, which was intended to show a financial interest and bias;
(5) admitting testimony regarding the family’s attitude toward Nathan Carroll after testifying
before the grand jury was error; (6) the trial court’s failure to strike and admonish jurors to
disregard bad character evidence was error; and (7) ineffective assistance of trial counsel. We
take each issue in turn.
¶ 25 A. Improper Pretrial Lineup
¶ 26 Defendant claims plain error occurred when Wanda Bausily testified on
cross-examination that she viewed defendant’s photo on the State’s laptop approximately one
month before trial. Defendant claims this constituted a “lineup” and two errors flowed from it.
First, the State failed to follow the statutory lineup procedure when showing Bausily the photo,
and second, it failed to disclose this “lineup” to defense counsel pursuant to Brady v. Maryland,
373 U.S. 83 (1963). Defendant’s sub-arguments are all predicated on these two claims. Because
we do not agree the State’s actions constituted a lineup or that displaying a defendant’s photo to
a witness would constitute Brady material, we find there was no error, and we do not reach the
merits of his additional sub-arguments.
¶ 27 Despite raising the issue in a posttrial motion, defendant failed to object at trial
during Bausily’s testimony. “Ordinarily, a defendant must both specifically object at trial and
raise the specific issue again in a posttrial motion ***.” People v. Woods, 214 Ill. 2d 455, 470,
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828 N.E.2d 247, 256-57 (2005). “The failure to object to alleged error at trial and raise the issue
in a posttrial motion ordinarily results in the forfeiture of the issue on appeal.” (Emphasis added.)
People v. Allen, 222 Ill. 2d 340, 350, 856 N.E.2d 349, 355 (2006). However, the rule of
forfeiture of appellate issues is a limitation on the parties, not the appellate court. People ex rel.
Resnik v. Curtis & Davis, Architects & Planners, Inc., 58 Ill. App. 3d 28, 31, 373 N.E.2d 772,
774 (1978). Because defendant’s failure to raise a trial objection does not limit our ability to
review the issue, we elect to do so.
¶ 28 Under plain error, reviewing courts may, in the exercise of their discretion, excuse
a defendant’s procedural default under either one of two instances: “(1) when ‘a clear or obvious
error occurred 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) when ‘a
clear or obvious error occurred 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. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675 (quoting People v.
Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007)). As the first step in the plain-error
analysis, we must determine “whether there was a clear or obvious error at trial.” Sebby, 2017 IL
119445, ¶ 49. The burden of persuasion rests with the defendant. People v. McLaurin, 235 Ill. 2d
478, 495, 922 N.E.2d 344, 355 (2009).
¶ 29 A “ ‘Photo lineup’ means a procedure in which photographs are displayed to an
eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a
crime.” 725 ILCS 5/107A-0.1 (West 2018). Section 107A-2 of the Code of Criminal Procedure
of 1963 (Criminal Code) (725 ILCS 5/107A-2 (West 2018)) governs how law enforcement may
conduct lineups, providing two specific methods: (1) “[a]n automated computer program or other
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device that can automatically display a photo lineup to an eyewitness in a manner that prevents
the lineup administrator from seeing which photograph or photographs the eyewitness is viewing
until after the lineup is completed” and (2) “[a] procedure in which photographs are placed in
folders, randomly numbered, and shuffled and then presented to an eyewitness such that the
lineup administrator cannot see or know which photograph or photographs are being presented to
the eyewitness until after the procedure is completed.” 725 ILCS 5/107A-2(2)(3) (West 2018).
The statute further provides: “The photographs, recordings, and the official report of the lineup
required by this Section shall be disclosed to counsel for the accused as provided by the Illinois
Supreme Court Rules regarding discovery.” 725 ILCS 5/107A-2(i) (West 2018).
¶ 30 Other than referencing this statutory lineup procedure, defendant cites no legal
authority supporting his argument that Bausily’s viewing of defendant’s picture as part of pretrial
preparation constitutes a “lineup” within the meaning of the statute. The fact that this procedure
is contained in Title II of the Criminal Code (apprehension and investigation) is at least
persuasive of its intended purpose as part of the arrest and investigation process. Defendant
argues it applies to any postarrest or pretrial display of a defendant’s photo to a witness by a
prosecutor in preparation for trial but provides no authority for such a broad application. The
purpose of the statute is clear—it is intended for investigative identification procedures used by
law enforcement to learn the identity of suspects. Here, defendant had long since been identified
as the suspect, charged, and was proceeding to trial. The witness had already indicated she was
familiar with defendant and had seen him on social media for the past 10 years. Further, as
Bausily testified, she was making her identification of defendant in the courtroom based on her
observation of the person she saw outside Woodward’s truck in the parking lot.
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¶ 31 Additionally, Illinois Pattern Jury Instruction 3.10 states it is proper for an
attorney to interview or attempt to interview a witness for the purpose of learning the testimony
the witness will provide. Illinois Pattern Jury Instructions, Criminal, No. 3.10 (approved October
17, 2014). Further, neither the display of the photograph to Bausily during pretrial preparation
nor Bausily’s statements to the prosecutor upon viewing it constitute a Brady violation. The
Supreme Court in Brady held that “the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” (Emphasis added.)
Brady, 373 U.S. at 87. The lead prosecutor was only required to disclose evidence favorable to
defendant, and there is nothing favorable to the defense in the display of the picture and
Bausily’s pretrial conversation with the prosecutor concerning it. There is nothing in our
supreme court rules that we are aware of, or that defendant cites requiring such a disclosure.
Illinois Supreme Court Rule 412 governs the State’s required disclosures to the defense as part of
discovery. Ill. S. Ct. R. 412 (eff. July 1, 1982). Defendant directs us to no provision therein
which requires the State to disclose any portion of pretrial witness preparation, including
exhibiting photos of the defendant.
¶ 32 Hence, there was nothing erroneous or improper with the prosecutor’s actions.
Although Bausily could not identify defendant from a photo array lineup approximately 10 years
ago, it was proper, reasonable, and even expected an attorney would question his or her
eyewitness on what the witness’s testimony would be in preparation for trial, especially when
considering the significant passage of time. This was not a statutory “photo lineup” but instead
was part of the State’s pretrial preparation, and the State was under no obligation to inform the
defense they had Bausily view a photo of defendant in preparation for trial.
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¶ 33 Notably, defendant does not challenge the sufficiency of Bausily’s in-court
identification, contending instead that, had he known about the display of defendant’s
photograph to her before trial, he might have attacked it. Defense counsel had the same
opportunity to interview Bausily before trial as did the State to learn her testimony. None of the
avenues they now say could have been pursued were foreclosed to them somehow by Bausily’s
testimony, and she emphatically stated she was identifying defendant based on her observation of
him when standing outside Woodward’s truck on the day of her disappearance. Any
inconsistency between Bausily’s 2010 lack of identification and her subsequent in-court
identification of defendant are credibility issues going to the weight of her testimony, not the
admissibility of her statements. The same is true for any argument counsel sought to make
regarding the prosecutor’s pretrial preparation. The jury was free to weigh the impact of showing
the witness defendant’s photo a month before trial. These are matters to be determined by the
trier of fact. See People v. Petermon, 2014 IL App (1st) 113536, ¶ 30, 19 N.E.3d 115 (“The
credibility of identification witnesses and the weight accorded their testimony lie within the
province of the trier of fact.” (citing People v. Curtis, 262 Ill. App. 3d 876, 881, 635 N.E.2d 860,
864 (1994))); see also People v. Lewis, 165 Ill. 2d 305, 357, 651 N.E.2d 72, 96 (1995) (holding
discrepancies in eyewitness identification testimony affect the weight to be given to such
testimony). Independently based in-court identification not unduly influenced by photographs or
other extraneous sources is not error. See People v. Lloyd, 93 Ill. App. 3d 1018, 1024, 418
N.E.2d 131, 135 (1981); People v. Freeman, 60 Ill. App. 3d 794, 802, 377 N.E.2d 107, 113
(1978).
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¶ 34 Bausily’s in-court identification of defendant was based on her memory of seeing
him in the parking lot the day Bonnie disappeared and for the 10 years following. This was
further reinforced on cross-examination:
“Q. And the man you saw, uh, you were fairly close to him when you saw
him, correct?
A. Very close
Q. In fact, you just testified that he looked at you, correct?
A. Yes.
Q. And you looked at him, correct?
A. Yes.
Q. So, you got a very good look at his face, correct.
A. I did.
Q. And, uh [a]bout 10 feet away from him when you saw him?
A. Probably so. If it was even 10.”
¶ 35 In spite of continued questioning about seeing the photo a month before trial,
Bausily maintained her identification was based on the man she saw in 2010: “I know the man I
saw and I have pointed him out.” She continued to assert, “I know who I saw and I know for a
fact that that’s him sittin[g] at the end of the table there.” This was an issue for the trier of fact,
weighing all the circumstances surrounding the identification as well as the credibility of the
witness. Petermon, 2014 IL App (1st) 113536, ¶ 30. Defense counsel had every opportunity to,
and did, cross-examine Bausily on her inability to identify defendant in the line-up 10 years
previously, compared to her ability to identify him in court. Bausily also pointed out she had
seen pictures of defendant for the past 10 years on social media, so any likelihood of shaking her
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identification of him was slim. This would be true whether the State had shown her a photo or
not.
¶ 36 Ultimately, the burden of persuasion for a plain-error analysis rests with
defendant. McLaurin, 235 Ill. 2d at 495. We do not find the prosecutor’s display of a photograph
to witness Bausily fell within the requirements of the statutory lineup procedure defendant
argues without supporting authority. Further, we find it to be a part of pretrial preparation by the
State, also not requiring disclosure under Rule 412 or otherwise falling within the definition of
Brady material mandating disclosure to the defense. Having found no error, there is no need to
consider plain error further. See People v. Hillier, 237 Ill. 2d 539, 545, 931 N.E.2d 1184, 1187
(2010).
¶ 37 B. Nathan Carroll’s Written Notes
¶ 38 Defendant claims the trial court erred when it concluded Nathan’s notes fell under
the protection of attorney-client privilege. Although defendant cites general propositions of law
regarding attorney-client privilege, he fails to cite any specific authority to support his claim the
court erred in concluding it applied here.
¶ 39 It is axiomatic that communications between the client and the client’s attorney
are privileged. Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 727 N.E.2d
240 (2000). The purpose of the attorney-client privilege is to encourage and promote full
communication between the client and attorney without fear the confidential information will be
disseminated to others. People v. Simms, 192 Ill. 2d 348, 381, 736 N.E.2d 1092, 1117 (2000).
“Where legal advice of any kind is sought from a lawyer in his or her capacity as a lawyer, the
communications relating to that purpose, made in confidence by the client, are protected from
disclosure by the client or lawyer, unless the protection is waived.” Center Partners, Ltd. v.
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Growth Head GP, LLC., 2012 IL 113107, ¶ 30, 981 N.E.2d 345. The attorney-client privilege
protects communications that the client either expressly made confidential or that he could
reasonably believe, under the circumstances, would be understood by the attorney as such. Garvy
v. Seyfarth Shaw LLP, 2012 IL App (1st) 110115, ¶ 30, 966 N.E.2d 523. Whether the
attorney-client privilege applies to a communication requires an examination of the
circumstances surrounding the communication. People v. Knippenberg, 66 Ill. 2d 276, 282-83,
362 N.E.2d 681, 683 (1977). The party seeking disclosure from an attorney has the burden of
establishing that the attorney-client privilege does not apply. DeHart v. DeHart, 2012 IL App
(3d) 090773, ¶ 50, 978 N.E.2d 12. When deciding the applicability of the attorney-client
privilege, a reviewing court applies a de novo standard of review. Hayes v. Burlington Northern
& Santa Fe Ry. Co., 323 Ill. App. 3d 474, 477, 752 N.E.2d 470, 473 (2001).
¶ 40 After receiving a subpoena to appear and produce Nathan Carroll’s notes, his
attorney provided them to the trial court. Nathan’s attorney described two types of notes: those
connected with Nathan’s grand jury testimony, the nature of answers he had given, and
discussions with counsel about his testimony; and notes contained in a notebook related directly
to conversations between Nathan and his attorney also regarding his representation. Defense
counsel admitted that it was “probably attorney client [privilege]” but still requested the notes
based on defendant’s right to confront the witness.
¶ 41 Nathan’s attorney described the notes as communications between Nathan and
counsel regarding the facts and circumstances surrounding the murder, discussed in confidence
with his attorney. He also described them as having been written either contemporaneously or
shortly after meeting with his attorney. Counsel also clarified the notes were from various
one-on-one meetings Nathan had with his attorney, not the prosecutor, and denied, upon direct
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inquiry by the court, the existence of any other notes relating to meetings with the prosecutor.
Once we evaluate the circumstances under which the writings were made (see Knippenberg, 66
Ill. 2d at 282-83), as described by Nathan’s attorney, it becomes evident they were based on
conversations with his attorney alone, in confidence, and not intended for dissemination to
anyone. It is reasonable to conclude Nathan believed the notes were to remain confidential under
the attorney-client privilege. Garvy, 2012 IL App (1st) 110115, ¶ 30. Further, unless otherwise
apparent from the record, we are to give the trial court the benefit of the doubt that the court is
cognizant of the law and knows how to apply it. People v. Howery, 178 Ill. 2d 1, 32, 687 N.E.2d
836, 851 (1997). Here, after the court’s in camera review, the court also concluded the material
was privileged and not subject to disclosure. Lastly, defense counsel essentially conceded the
material was covered by the privilege. The record clearly supports such a conclusion, and we
find no reason to find otherwise.
¶ 42 Nathan’s attorney confirmed that Nathan was not waiving his attorney-client
privilege. Absent waiver, defendant was not entitled to the privileged communications between
Nathan and his attorney. Center Partners, Ltd., 2012 IL 113107, ¶ 30. It is the defendant’s
burden to establish that the attorney-client privilege does not apply (DeHart, 2012 IL App (3d)
090773, ¶ 50), and we find defendant has failed to do so.
¶ 43 C. Other-Crimes Evidence
¶ 44 Defendant claims the trial court abused its discretion by allowing Monica to
testify, as other-crimes evidence, about the domestic battery incident in March 2018, which
ultimately led to renewed interest in defendant as a suspect in the disappearance of Woodward
10 years earlier. We disagree.
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¶ 45 In February 2020, the State filed a motion in limine requesting to introduce the
domestic battery as other-crimes evidence, claiming it was part of a continuing narrative of
events showing defendant’s consciousness of guilt. The next day, defense counsel filed their own
motion in limine contending this evidence was not admissible due to spousal privilege or as
character evidence under Illinois Rule of Evidence 404 (eff. Jan. 1, 2011). The trial court denied
defendant’s motion in limine, thereby also implicitly granting the State’s motion, finding the
probative value outweighed the risk of unfair prejudice.
¶ 46 Other-crimes evidence encompasses misconduct or criminal acts that occurred
either before or after the alleged criminal conduct for which the defendant is standing trial.
People v. Illgen, 145 Ill. 2d 353, 365, 583 N.E.2d 515, 520 (1991). Normally, other-crimes
evidence is inadmissible if the evidence is relevant only to demonstrate defendant’s propensity to
engage in criminal activity. People v. Richee, 355 Ill. App. 3d 43, 50-51, 823 N.E.2d 142, 149
(2005). It may be admissible, however, if it is part of a continuing narrative of the event that
gave rise to the offense (People v. Thompson, 359 Ill. App. 3d 947, 951, 835 N.E.2d 933, 936
(2005)), or to explain an aspect of the crime charged that otherwise would be implausible or
inexplicable. People v. Carter, 362 Ill. App. 3d 1180, 1190, 841 N.E.2d 1052, 1060 (2005).
¶ 47 Evidence may be admissible to prove a material fact relevant to the case other
than propensity. People v. Donoho, 204 Ill. 2d 159, 170, 788 N.E.2d 707, 714 (2003). Even if
relevant, a trial court may still exclude the evidence if the prejudicial effect substantially
outweighs the probative value. Illgen, 145 Ill. 2d at 365. We will review the trial court’s decision
under an abuse of discretion standard. Donoho, 204 Ill. 2d at 182. “An abuse of discretion has
occurred when the trial court’s decision is arbitrary, fanciful, or unreasonable or when no
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reasonable person would take the position adopted by the trial court.” People v. Wilson, 2015 IL
App (4th) 130512, ¶ 75, 44 N.E.3d 632.
¶ 48 We find the trial court did not abuse its discretion because the other-crimes
evidence presented here was admissible as part of a continuing narrative. At the hearing on the
dueling motions, the State indicated it had no intention of turning Monica’s testimony into a
“mini trial.” Rather, it argued the domestic incident was probative not only because of
defendant’s statements but to explain how the incident led to the reopening of the Bonnie
Woodward investigation approximately eight years later and as part of a continuing narrative of
defendant’s actions and behavior after the murder. The State also argued the incident explained
Nathan’s motivation for coming forward to tell the truth about the Woodward murder eight years
later—conduct which might otherwise have been inexplicable without some context. Carter, 362
Ill. App. 3d at 1190. In addition to defendant’s claim its admission would result in a “mini trial,”
he also argued it should be excluded under Illinois Rule of Evidence 403 (eff. Jan. 1, 2011),
which provides for the exclusion of otherwise relevant evidence if the probative value is
substantially outweighed by the risk of unfair prejudice. The trial court, after a proper inquiry,
balanced the probative value against any undue prejudice. The State limited its evidence to the
purpose of the continuing narrative exception, and we find the trial court’s decision to allow it
was not arbitrary, fanciful, or unreasonable. Wilson, 2015 IL App (4th) 130512, ¶ 75.
¶ 49 Here, the trial court was in the best position to determine whether other-crimes
evidence was admissible and weigh the prejudicial impact of this evidence in the context of the
entire case before deciding to admit it. We conclude the court did not abuse its discretion when
doing so. Donoho, 204 Ill. 2d at 182.
¶ 50 D. Monica’s Cross-Examination
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¶ 51 Defendant contends the trial court erred by limiting Monica’s cross-examination
about her financial interest and bias in testifying against defendant. The State claims defendant
waived the issue. We agree with the State.
¶ 52 Although defendant raised this issue in his posttrial motion, he failed to object to
limiting Monica’s cross-examination during the course of the proceedings. In order to preserve the
issue for appeal, he is required to do both. Woods, 214 Ill. 2d at 470. Defendant cannot pursue one
course of action before the trial court and then claim error for having done so once he appeals. “It
is well settled that a party cannot acquiesce to the manner in which the trial court proceeds and
later claim on appeal that the trial court’s actions constituted error.” People v. Hibbler, 2019 IL
App (4th) 160897, ¶ 60, 129 N.E.3d 755; see also People v. Hughes, 2015 IL 117242, ¶ 33, 69
N.E.3d 791 (“[A] party cannot complain of error that it brought about or participated in.”). “Active
participation in the direction of proceedings *** goes beyond mere waiver.” People v. Villarreal,
198 Ill. 2d 209, 227, 761 N.E.2d 1175, 1184 (2001).
¶ 53 During cross-examination, to show a financial interest, bias, and a possible motive
for wanting defendant convicted of this offense, defendant’s counsel confirmed the pendency of
Monica’s divorce case and asked whether the marital assets at stake were worth “about $800,000.”
The trial court heard counsel’s justification for the question and the State’s relevance objection
and proposed asking the question outside the jury’s presence since, it reasoned, if she did not
believe a conviction would impact the asset distribution in the divorce, there was no reason for the
question other than to raise an improper inference. See People v. Crane, 2020 IL App (3d) 170386,
¶ 29 (stating that reasonable inferences based on the evidence are permissible, unreasonable or
speculative inferences are not). As the court noted, since the comment about marital assets of
“about $800,000” was already before the jury, if she did not believe a conviction improved her
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position in the divorce, then counsel would not be permitted to inquire further. Defense counsel
acquiesced to this procedure. The jury was removed, and Monica denied believing a conviction
would improve her position. The trial court told counsel he was limited to that question and answer
in the presence of the jury, and defense counsel again agreed.
¶ 54 Here, defendant’s acquiescence waived any claim of error in the trial court’s refusal
to allow further cross-examination on that issue. Hibbler, 2019 IL App (4th) 160897, ¶ 60. Defense
counsel voiced no objection to the trial court’s suggested procedure, twice agreed with the
proposed course of action, and proceeded with a different line of questioning after Monica’s
answer. Counsel’s direct participation in the decision results in estoppel from any claim of error,
and we decline to consider this issue on appeal. People v. Harvey, 211 Ill. 2d 368, 385, 813 N.E.2d
181, 192 (2004).
¶ 55 E. Nathan’s Testimony About His Family Relationships
¶ 56 Defendant contends it was error for the trial court to permit the prosecutor to elicit
testimony from Nathan about the negative reactions he received from other family members after
he testified before the grand jury. We disagree.
¶ 57 Over defendant’s objection, Nathan testified his paternal grandparents would no
longer speak to him after he testified before the grand jury and implicated defendant in the
disappearance of Woodward. He also had been threatened by other members of defendant’s family.
Defense counsel objected, contending this information was neither material nor relevant. The trial
court found it went to the credibility of the witness.
¶ 58 “It is well established that trial courts possess discretion in determining the
admissibility of evidence, and a reviewing court may overturn a trial court’s decision only when
the record clearly demonstrates the court abused its discretion.” People v. Harris, 231 Ill. 2d 582,
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588, 901 N.E.2d 367, 370 (2008). “An abuse of discretion occurs where no reasonable person
would agree with the position adopted by the trial court.” People v. Farris, 2012 IL App (3d)
100199, ¶ 26, 968 N.E.2d 191.
¶ 59 It was reasonable for the trial court to conclude this testimony was relevant to the
issue of the witness’s credibility because it helped explain his reluctance to come forward
because of the anticipated reaction he might expect from other family members for having done
so. People v. Tenney, 205 Ill. 2d 411, 428, 793 N.E.2d 571, 582 (2002). Because the trial court’s
basis for admitting this testimony appears reasonable under the circumstances, we cannot find
the trial court’s decision amounted to an abuse of discretion. Harris, 231 Ill. 2d at 588.
¶ 60 F. The Killing of Dogs on Defendant’s Property
¶ 61 Defense counsel next argues the trial court erred by failing to strike bad character
evidence in the form of Nathan’s testimony about defendant killing dogs on the property. The
State says this issue is forfeited. We agree with the State.
¶ 62 “To preserve a claim of error for consideration by a reviewing court, a defendant
must object to the error at trial and raise the error in a posttrial motion.” People v. Staake, 2017
IL 121755, ¶ 30, 102 N.E.3d 217. Failure to do either results in forfeiture of the issue. Staake,
2017 IL 121755, ¶ 30. “[A]n objection to evidence is untimely if not asserted as soon as its
ground become apparent.” People v. Koch, 248 Ill. App. 3d 584, 593, 618 N.E.2d 647, 653
(1993). If an objection does not arise until after the admission of evidence, the appropriate action
is to make a motion to strike. Koch, 248 Ill. App. 3d at 593. The motion to strike must be made
as soon as possible “or the would-be movant will be deemed to have waived any complaint with
regard to that evidence.” Koch, 248 Ill. App. 3d at 593.
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¶ 63 During the relevant portion of Nathan’s direct examination, the State’s inquiry
went as follows:
“Q. Did your dad ever kill anything else on that property?
A. Yes.
Q. What?
A. Dogs.
Q. How many?
A. I can recall two on the property.
Q. Were they your dogs?
A. One of ‘em.
Q. You know why he killed your dog?
[DEFENSE COUNSEL]: Object. May I approach, Your
Honor?”
¶ 64 After the sidebar, defense counsel’s objection was sustained; however, counsel
never sought to have either the question or response stricken. Here, defendant contends the trial
court erred by not striking the offending testimony sua sponte.
¶ 65 Because counsel failed to object when the topic of killing dogs was first broached
by the State and then did not seek to have the allegedly improper testimony stricken, defendant
will be found to have forfeited this argument before us. See Staake, 2017 IL 121755, ¶ 30;
People v. Outlaw, 388 Ill. App. 3d 1072, 1088, 904 N.E.2d 1208, 1223 (2009).
¶ 66 G. Ineffective Assistance of Counsel
¶ 67 Finally, defendant combines all the preceding claims of error, plus a few more, to
argue he was denied the effective assistance of counsel at trial.
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¶ 68 A defendant’s claim of ineffective assistance of counsel is analyzed under the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach,
2017 IL 120649, ¶ 29, 89 N.E.3d 366. To prevail, “a defendant must show both that counsel’s
performance was deficient and that the deficient performance prejudiced the defendant.” People
v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). “Deficient performance” means
“counsel’s performance ‘fell below an objective standard of reasonableness.’ ” People v. Valdez,
2016 IL 119860, ¶ 14, 67 N.E.3d 233 (quoting Strickland, 466 U.S. at 688). “Prejudice” in the
context of an ineffective assistance of counsel claim requires a showing of a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been different.
People v. Evans, 209 Ill. 2d 194, 219-20, 808 N.E.2d 939, 953 (2004) (citing Strickland, 466
U.S. at 694). “Satisfying the prejudice prong necessitates a showing of actual prejudice, not
simply speculation that defendant may have been prejudiced.” People v. Patterson, 2014 IL
115102, ¶ 81, 25 N.E.3d 526.
¶ 69 “ ‘A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’ ” People v. Peeples, 205 Ill. 2d 480, 513, 793 N.E.2d 641, 662 (2002) (quoting
Strickland, 466 U.S. at 694).
¶ 70 A defendant must satisfy both prongs of Strickland, and the failure to satisfy
either prong precludes a finding of ineffective assistance of counsel. People v. Clendenin, 238 Ill.
2d 302, 317-18, 939 N.E.2d 310, 319 (2010). “We review a defendant’s claim of ineffective
assistance of counsel in a bifurcated fashion, deferring to the trial court’s findings of fact unless
they are contrary to the manifest weight of the evidence, but assessing de novo the ultimate legal
question of whether counsel was ineffective.” People v. Manoharan, 394 Ill. App. 3d 762, 769,
916 N.E.2d 134, 141 (2009).
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¶ 71 1. Defense Counsel’s Stipulation to Bone Fragment Evidence
¶ 72 Reviewing courts are to make every effort to evaluate counsel’s performance
from his perspective at the time, rather than in hindsight. See People v. Madej, 177 Ill. 2d 116,
157, 685 N.E.2d 908, 928 (1997). Defendant must overcome a strong presumption that defense
counsel’s conduct “falls within the wide range of reasonable professional assistance and that the
challenged conduct constitutes sound trial strategy.” People v. Smith, 326 Ill. App. 3d 831, 841,
761 N.E.2d 306, 316 (2001) (citing Strickland, 466 U.S. at 689). “The mere use of stipulations
does not establish ineffective assistance of counsel.” Smith, 326 Ill. App. 3d at 851 (citing People
v. Coleman, 301 Ill. App. 3d 37, 46, 704 N.E.2d 690, 697 (1998)). In order to successfully claim
trial counsel was ineffective by agreeing to a stipulation, defendant must satisfy Strickland’s
prejudice prong and overcome the strong presumption it was part of counsel’s trial strategy.
Coleman, 301 Ill. App. 3d at 47.
¶ 73 The report authored by Dr. Angie Christenson of the FBI analyzed the bone
fragments found in the area of the burn pile on defendant’s property. The stipulated report
included her findings that human origin could not be excluded from the bone fragments and
some of the fragments were “thermally altered.” Barring any likelihood defendant had a
competing expert available to refute the findings of the FBI forensic scientist, the fact he may
have chosen to minimize the import of bone fragment evidence by stipulating to the ultimate
findings is not an unreasonable trial strategy. Defense counsel had two options: allow a seasoned
FBI scientist to walk the jury through each excruciatingly macabre detail about the bone
fragments and their exposure to heat and charring, thereby keeping the thought of a burning
human being in the forefront of their minds for as long as the testimony takes, or read an
emotionless stipulation stating sterile facts to the jury in a perfunctory fashion, thereby hoping to
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minimize the impact. See People v. Penrod, 316 Ill. App. 3d 713, 725, 737 N.E.2d 341, 352
(2000). It is also conceivable defense counsel did not want Dr. Christensen highlighting the fact
there were dozens of untested bone fragments found on defendant’s property, which could not be
excluded as coming from Woodward. The stipulation to such evidence was a reasonable trial
strategy, defendant’s claim of prejudice is speculative at best, and he fails to overcome the
“reasonable trial strategy” presumption. Coleman, 301 Ill. App. 3d at 47.
¶ 74 2. Failure to Strike Bausily’s In-Court Identification
¶ 75 Defendant claims “[d]efense counsel failed to invoke any of 725 ILCS 5/107A-2
breached safeguards or mandated disclosures.” As previously discussed, the showing of the
photo by the prosecutor as part of pretrial preparation did not fall under the investigatory lineup
statute under section 107A-2. There was therefore no error by trial counsel in failing to raise it as
an issue. Thus, we will not find trial counsel ineffective for failing to assert it. See People v.
Bradford, 2019 IL App (4th) 170148, ¶ 14, 123 N.E.3d 1285 (stating defense counsel will not be
found ineffective for failing to assert a meritless objection); see also People v. Williams, 147 Ill.
2d 173, 238-39, 588 N.E.2d 983, 1009 (1991) (“[D]efense counsel is not required to undertake
fruitless efforts to demonstrate his effectiveness.”); People v. Anderson, 2013 IL App (2d)
111183, ¶ 65, 992 N.E.2d 539 (concluding counsel was not ineffective for failing to raise a
meritless motion).
¶ 76 Defendant contends trial counsel was ineffective for failing to prevent Bausily
from what he characterizes as “improperly enhancing the credibility of her eyewitness
identification testimony.” Defendant cites no legal authority in support of his argument. Under
Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018), each argument is to be supported by
citation to relevant authority. “Both argument and citation to relevant authority are required.”
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Vancura v. Katris, 238 Ill. 2d 352, 370, 939 N.E.2d 328, 340 (2010). “A reviewing court is
entitled to have the issues on appeal clearly defined with pertinent authority cited and a cohesive
legal argument presented. The appellate court is not a depository in which the appellant may
dump the burden of argument and research.” Thrall Car Manufacturing Co. v. Lindquist, 145 Ill.
App. 3d 712, 719, 495 N.E.2d 1132, 1137 (1986). “ ‘The failure to provide proper citations to the
record is a violation of Rule 341(h)(7), the consequence of which is the forfeiture of the
argument.’ ” Enbridge Pipeline (Illinois), LLC v. Hoke, 2019 IL App (4th) 150544-B, ¶ 43, 123
N.E.3d 1271. However, where the appellate court finds the flaws were not “so serious as to
interfere with [the appellate court’s] ability to understand and adjudicate [the] case,” the court
may address the issue presented. State Farm Mutual Automobile Insurance Co. v. Burke, 2016 IL
App (2d) 150462, ¶ 22, 51 N.E.3d 1082.
¶ 77 On direct examination, Bausily acknowledged being unable to pick defendant out
from the photo lineup she was shown 10 years before. After defense counsel asked Bausily about
seeing defendant’s picture a month before trial, counsel showed her a copy of what he
represented to be the photo lineup she had seen previously. Although she disputed it was the
same photo array, she acknowledged the defendant seated at the defense table was photo
“number four” on the photo lineup. On redirect examination, the State asked what she said when
she saw his picture a month before trial, and she responded:
“I told you that that was definitely the man that I would never
forget his face and his eyes kinda told it all. The photo lineup
doesn’t look like the one I saw 10 years ago when it happened[,]
but I know who I saw and I know for a fact that that’s him sittin’ at
the end of the table there.”
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¶ 78 Here, the State was simply asking a follow-up question based on defendant’s
cross-examination, which it is allowed to do. See People v. Tingle, 279 Ill. App. 3d 706, 716,
665 N.E.2d 383, 391 (1996) (stating the purpose of redirect examination is to explain new
matters brought out on cross-examination). On redirect examination, the prosecutor was
establishing that Bausily informed him, well before trial, that her ability to identify defendant
was based on the person she saw that day. Further, she explained why she was unable to identify
him from the photo lineup at the time. This was legitimate redirect examination based on
defendant’s cross-examination. Counsel may well have chosen not to object in order to avoid
highlighting the testimony even further or inviting further explanation, which might only
reinforce Bausily’s in-court identification. See People v. Owens, 372 Ill. App. 3d 616, 625, 874
N.E.2d 116, 122 (2007) (opining that defense counsel may have opted not to object to avoid
highlighting the testimony). Because there was no error in Bausily’s redirect examination
testimony, we do not find defense counsel ineffective for failing to assert a meritless objection.
Bradford, 2019 IL App (4th) 170148, ¶ 14.
¶ 79 3. Monica Carroll’s Cross-Examination
¶ 80 Defendant claims counsel was ineffective for failing to question Monica about a
civil suit in which she was seeking “substantial compensatory and punitive damages.” We are
unable to locate any mention of a pending civil suit against defendant. “ ‘The failure to provide
proper citations to the record is a violation of Rule 341(h)(7), the consequence of which is the
forfeiture of the argument.’ ” Hoke, 2019 IL App (4th) 150544-B, ¶ 43. Therefore, due to
defendant’s failure to properly cite to the record or to any relevant legal authority on this issue,
we find it is forfeited and will not be considered.
¶ 81 4. The Killing of Dogs on the Property
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¶ 82 Defendant states defense counsel was ineffective for failing to object to Nathan’s
testimony about defendant killing dogs on his property. A failure to object to certain trial
testimony may be a matter of trial strategy and does not necessarily establish substandard
performance. People v. Graham, 206 Ill. 2d 465, 478-79, 795 N.E.2d 231, 239-40 (2003).
Defendant must overcome the strong presumption this fell within defense counsel’s trial strategy.
Smith, 326 Ill. App. 3d at 841. Even if there is error, defendant is still tasked with the
responsibility to show how he was so substantially prejudiced by the testimony that the outcome
of the trial is reasonably likely to have been different. Evans, 209 Ill. 2d at 219-20 (citing
Strickland, 466 U.S. at 694).
¶ 83 As previously stated, some of the physical evidence consisted of bone fragments
from the location of a burn pit on defendant’s property. Several other bones were recovered from
various “quadrants” on the property. Although some of the bones could not be excluded to be of
human origin, others, for various reasons, were never tested. It is not an unreasonable trial
strategy to allow the testimony about dogs being killed on the property to stand in order to allow
the jury to surmise some of the bones found could have been those of dogs or other wildlife one
might assume to have accumulated over time on defendant’s wooded country property.
Moreover, as noted by the State, there was nothing in the testimony to suggest the dogs were
killed maliciously. Any juror familiar with life in the country may have been able to relate to
those unfortunate circumstances where a family pet had to be put down for one reason or
another. Defendant fails to establish how trial counsel’s failure to object was objectively
unreasonable. Valdez, 2016 IL 119860, ¶ 14. As a result, defendant has failed to carry his burden
on this issue. Clendenin, 238 Ill. 2d at 317-18.
¶ 84 5. Nathan’s Notes
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¶ 85 Defendant claims, “Defense counsel failed to provide argument essential to
obtaining key evidence highly favorable to the defendant.” Defendant sums up his entire
argument in one brief paragraph:
“Nathan Carroll’s written notes were likely evidence
favorable to the defense harboring inconsistencies between what
they recorded and his trial testimony. Counsel allowed the trial
court to apply non-precedential foreign guidance without
advancing existing Illinois opinions that warranted a disclosure of
their contents even if an attorney-client privilege exi[s]ted.
Moreover, they failed to point out that inconsistencies were
substantive evidence under Illinois law rendering the foreign
guidance relied upon completely inapplicable.”
¶ 86 Aside from ignoring the fact that, once defense counsel objected and made his
record, the trial court, and not defense counsel, determined what would transpire, defendant
seems to be arguing that since defense counsel “allowed” this to happen, he was somehow
deficient. We would note, however, defense counsel objected to the application of any
attorney-client privilege and maintained throughout that he was entitled to the notes. Defendant’s
objection and subpoenaing of the notes prompted an evidentiary hearing on the matter, where
they again maintained their right to review the records for use in conducting an adequate
cross-examination of the most damaging State’s witness. Again, defendant is required to cite to
the record and to relevant authority to support his claims on appeal. Mere contentions without
proper citation to authority do not merit our consideration on appeal. Hall v. Naper Gold
Hospitality LLC, 2012 IL App (2d) 111151, ¶ 12, 969 N.E.2d 930. His failure to do so results in
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forfeiture of this issue on appeal. Hoke, 2019 IL App (4th) 150544-B, ¶ 43.
¶ 87 6. Defendant’s Taped Interrogation
¶ 88 Finally, defendant contends defense counsel was ineffective for failing to redact
what he considers “damaging passages” on the taped interview with Detective Golike.
¶ 89 Defendant cites to two passages he claims should have been redacted. In the first,
defendant states, “I was instructed by the attorneys not to say anything and maybe that’s why
(inaudible). Just shut my yap and just, you know, not say anything.” The second occurs at the
very end of the interview when defendant states, “So, when do I get to talk to my attorney?”
¶ 90 Both statements are admissible. We have previously held these types of
statements are not hearsay because they are not offered for the truth of the matter asserted but are
helpful in providing context during a police interrogation to explain defendant’s answers in light
of questions being asked. See People v. Whitfield, 2018 IL App (4th) 150948, ¶ 49, 103 N.E.3d
1096 (stating that without providing proper context of the interrogation, “the meaning and
significance of defendant’s answers, comments, behaviors—or even, at times, his silence—
would be difficult to discern”). Again, defense counsel cannot be found ineffective for failing to
pursue a meritless motion to redact admissible evidence. Anderson, 2013 IL App (2d) 111183,
¶ 65.
¶ 91 There is nothing about defense counsel’s performance that we find deficient.
Defendant is required to satisfy both prongs of Strickland, and the failure to satisfy either
precludes a finding of ineffective assistance. Clendenin, 238 Ill. 2d at 317-18. We therefore need
not address the prejudice prong at all.
¶ 92 III. CONCLUSION
¶ 93 For the reasons stated, we affirm defendant’s conviction.
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¶ 94 Affirmed.
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