People v. Hall ( 2021 )

2021 IL App (1st) 190593-UNo. 1-19-0593
Order filed September 16, 2021
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit
) Court of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 18 CR 9407
)
DARYLE HALL, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Justices Rochford and Martin concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction is affirmed where: (1) his guilt was established beyond a
reasonable doubt; (2) denial of his motion in limine to exclude identification
testimony based on a home surveillance video was not in error; (3) defendant failed
to establish plain error resulting from unobjected-to testimony; (4) defendant failed
to establish plain error resulting from the trial court’s failure to issue a limiting
instruction; and (5) sufficient foundation was laid for the admission of a home
surveillance video.
¶2 Defendant Daryle Hall was charged in an eighteen-count indictment with five counts of
attempted first degree murder (720 ILCS 5/8-4(a), 5/9-1(a)(1) (West 2018)) (Counts 1-5); one
No. 1-19-0593
count of aggravated battery (720 ILCS 5/12-3.05(e)(1) (West 2018)) (Count 6); four counts of
unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2018)) (Counts
7-10); aggravated unlawful use of weapon (720 ILCS 5/24-1.6(a)(1), (3)(A-5) (West 2018))
(Count 11); aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2018))
(Count 12); aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (3)(D) (West 2018))
(Count 13); aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (3)(I) (West 2018))
(Count 14); aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(2), (3)(A-5) (West 2018))
(Count 15); aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(2), (3)(C) (West 2018))
(Count 16); aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a) (2), (3)(D) (West 2018))
(Count 17); and aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(2), (3)(I) (West
2018)) (Count 18).
¶3 The trial court granted defendant’s motion to sever his case from codefendant Marvell
Pearson and his motion to sever Counts 7-10 from the remaining charges. The State nolle
prosequied Counts 8-10, and the jury convicted defendant of unlawful use or possession of a
weapon by a felon (Count 7). The trial court sentenced defendant to nine years in the Illinois
Department of Corrections. Defendant then entered into a fully negotiated plea on the severed
aggravated battery charge (Count 6). Under the terms of the plea deal, the State nolle prosequied
Counts 1-5, and defendant received a concurrent nine-year sentence on the aggravated battery
charge.
¶4 For the reasons that follow, we affirm. 1
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
appeal has been resolved without oral argument upon the entry of a separate written order.
-2-
No. 1-19-0593
¶5 I. BACKGROUND
¶6 A. Pretrial Proceedings
¶7 On January 11, 2019, defendant filed a motion in limine that sought, inter alia to prevent
Officer Mark Evans from identifying him based on People’s Exhibit No. 1, a home surveillance
video that captured the offense. Defendant’s motion alleged that such identification should be
disallowed because before viewing the video, Officer Evans knew that a gunshot victim had
identified defendant as one of his assailants. Defendant’s motion also alleged that Officer Evans
could not make a reliable identification of him where the home surveillance video showed neither
the shooter’s face nor any unique or distinguishing characteristics. Defendant also claimed that he
would be prejudiced by the jury hearing that Officer Evans, a gang enforcement officer, had prior
contacts with him. Defendant maintained that Officer Evans’ testimony would ultimately invade
the province of the jury who could “observe the surveillance video for themselves.”
¶8 On January 11, 2019, the trial court heard arguments on defendant’s motion. The defense
argued that Officer Evans should be prohibited from identifying defendant where his earlier
identification was only made after Officer Evans knew that the victim had identified defendant as
his assailant. Defense counsel further argued that testimony by Officer Evans concerning his
identification of defendant based on the home surveillance video would allow the jury to hear
other-crimes evidence.
¶9 When, in response to questioning by the trial court, defense counsel admitted that Officer
Evans knew defendant prior to this incident, the court stated, “[t]hen certainly he will be allowed
to testify that is your client on the video.” However, the court indicated that it would not permit
Officer Evans to testify that he arrested defendant on 15 prior occasions. The trial court rejected
-3-
No. 1-19-0593
defendant’s claim that Officer Evans’ identification was necessarily tainted due to him possessing
information that the victim had previously identified defendant as his assailant before viewing the
home surveillance video. The trial court observed that counsel could decide, as a matter of trial
strategy, to cross-examine Officer Evans as to these matters.
¶ 10 Defendant maintained that such testimony should still be disallowed because of its
prejudicial impact. The trial court replied, “[e]very case is prejudicial. It has to be unduly.”
The trial court then indicated that “we will put some protections in there ***” and directed the
State to “stay away from how long have you known Mr. Hall.” The trial court stated: “The law is
clear. If the person independently knows this individual before the incident, then he can say that’s
the person and you can cross examine.”
¶ 11 On January 14, 2019, before the trial commenced, the State noted that the caselaw (People
v. Thompson, 2016 IL 118667) required that defendant be permitted to question the identifying
officer about his prior knowledge of defendant, experiences with defendant, and basis of his
identification before the court determined the admissibility of the testimony. The State then
represented that the court:
“[a]fforded the defense that opportunity this morning. I was present when
they questioned Officer Evans with regards to this prior knowledge of the
defendant, the length of time he has known him, as well as how many incidents and
how familiar he is with him.”
¶ 12 The court indicated that it wished to “spread it of record” and granted defense counsel
another opportunity to question Officer Evans. The questioning that followed revealed that before
this incident, Officer Evans knew defendant for three and a half to four years, during which time
-4-
No. 1-19-0593
he was face-to-face with him 15 to 20 times, and that two of those occasions involved processing
defendant for arrests, which took two to three hours.
¶ 13 The trial court found that a sufficient basis existed to permit Officer Evans to identify
defendant from the home surveillance video. Recognizing the concerns expressed by defendant,
however, the court instructed Officer Evans that he could not bring up defendant’s prior arrests
unless the defense inquired about them.
¶ 14 The State then sought further clarification, indicating its belief that the court should rule
on the precise parameters of Officer Evans’ testimony. The State requested:
“We would be asking that he be allowed to say that he has known him for
three to four years and he’s seen him 15 to 20 times. Sometimes, two to three hours
in length.”
¶ 15 In response to the State’s request, defense counsel replied, “No objection.” The court
allowed the State’s request. The court asked Officer Evans how many times he previously
processed defendant. Officer Evans replied, “[t]wice personally. And one other time as an
assistant.” The court ruled that the two prior arrests would be referred to as “occasions.”
¶ 16 Prior to opening statements, the court instructed the entire jury as to multiple overriding
principles of law, including that:
“Remember, I told you the witness stand is almost like that’s the starting of
a race. Just because somebody has a title, they don’t have to start in back of it. And
just because somebody has a title, they don’t start in front of it. Once people start
testifying, that’s when you use your common sense, your life experience and all the
-5-
No. 1-19-0593
other evidence in this case to evaluate how much weight to be given to their
testimony.”
¶ 17 B. Trial Testimony
¶ 18 Officer Patricia Sheridan testified that on June 18, 2018, 2 at approximately noon, she
responded to a report of a shooting at 5217 South Peoria Street. Officer Sheridan was in a marked
police vehicle and was wearing a body-worn camera. Officer Sheridan turned the body-worn
camera on at 12:03 pm.
¶ 19 Prior to testifying, Officer Sheridan reviewed footage from her body-worn camera and a
home surveillance video taken from 5205 South Peoria Street (People’s Exhibit No. 1). Officer
Sheridan identified People’s Exhibit No. 1 as a DVD of surveillance footage from the home
surveillance video. Officer Sheridan testified that still images from her body-worn camera video
(People’s Exhibit Nos. 2 and 3) depicted her arrival at 5217 South Peoria Street at 12:03 p.m.
Officer Sheridan also identified still images from the home surveillance video that depicted her
arrival at the scene.
¶ 20 In comparing the date and time markings on her body-worn camera with the date and time
markings on the home surveillance video, Officer Sheridan determined that the date and time
stamps on the home surveillance video were inaccurate by 21 days 23 hours. The home
2
In response to the State’s questions which began by asking Officer Sheridan about her actions on
June 18, 2018, Officer Sheridan repeatedly testified about the events of June 18, 2018. This error was
cleared up on cross-examination when defense counsel inquired as to Officer Sheridan’s failure to test the
home surveillance system on June 8, 2018. The remaining evidence, including Officer Sheridan’s correct
calculation of the 21-day 23-hour discrepancy between the date and time markings on her body-worn
camera and the date and time markings on the home surveillance video and the testimony of Officer Richard
Sanchez and Officer Evans clarify that the date of the shooting was June 8, 2018, not June 18, 2018.
-6-
No. 1-19-0593
surveillance video erroneously indicated that the shooting occurred on May 17, 2018, at
12:15 p.m.
¶ 21 When the State sought to introduce People’s Exhibit No. 1 into evidence, the defense
stated, “Your Honor, I object to the foundation.” The State replied that a proper foundation was
laid where Officer Sheridan identified herself on the still images and the video. The court ruled as
follows: “I will allow you wide latitude on cross examination and subject to a motion to strike.
At this time, overruled. Go ahead.”
¶ 22 On cross-examination, the defense established that Officer Sheridan did not witness the
offense, did not know the working order of the surveillance system on June 8, 2018, and only saw
the home surveillance video three days before she testified. Officer Sheridan testified that she was
unfamiliar with the surveillance system itself. Following his cross-examination of Officer
Sheridan, defense counsel neither sought reconsideration of the trial court’s ruling on the
admissibility of the videotape nor moved to strike Officer Sheridan’s testimony.
¶ 23 Officer Richard Sanchez, an evidence technician with the Chicago Police Department,
testified that on June 8, 2018, he processed the shooting scene on the 5200 block of South Peoria
Street. Officer Sanchez found multiple fired cartridge cases on the parkway and sidewalk, which
he photographed, recovered, and inventoried. The fired cartridge cases included an RP 9 mm luger
located in the street, an RP 9 mm luger and a S&W Winchester 40 cartridge located on the grass
parkway, and an S&W Federal 40 cartridge located on the sidewalk in front of the home located
at 5207 South Peoria Street.
¶ 24 Officer Mark Evans testified that on June 11, 2018, he was working as part of a team on
the Deering Violent Crimes Task Force out of the Bureau of Organized Crime. Officer Evans was
-7-
No. 1-19-0593
working in plain clothes in an unmarked car. Two other officers on the team were about a block
away in another vehicle, and Officer Evans was in communication with them via a Nextel “push
talk” device.
¶ 25 The team’s assignment was to “find” defendant, known to Officer Evans as “Little D.”
Officer Evans did not need a photograph to locate defendant because Officer Evans knew
defendant since October of 2014 and was in face-to-face contact with him approximately 15 to 20
times during that time frame. Officer Evans testified that on two prior occasions, he spent
approximately two to three hours with defendant.
¶ 26 On June 11, 2018, at approximately 1 p.m., Officer Evans went to the “Back of the Yards”
neighborhood where he located defendant on the 5100 block of South Racine Avenue. Officer
Evans testified that the intersection of 52nd Street and Racine Avenue is about 3½ to 4 blocks west
of 5207 South Peoria Street. Defendant was arrested and taken to the Area Central Detective
Division at 51st Street and Racine Avenue.
¶ 27 When he was arrested, defendant was wearing a black Adidas hooded sweatshirt with
zippers in the front that were outlined in gray, medium stone washed jeans with rips and tears, and
white and gray low top gym shoes. Officer Evans identified each clothing article as the same
clothing that defendant was wearing when he was arrested. Officer Evans also identified
photographs depicting defendant wearing the same clothing while seated in an interview room at
the police station.
¶ 28 Officer Evans further testified that he assisted the detectives by watching a surveillance
video of the shooting. Officer Evans identified People’s Exhibit No. 1 as the same surveillance
-8-
No. 1-19-0593
video footage that he first viewed on the day of the shooting and testified that the video was in the
same or substantially the same condition as when he first viewed it.
¶ 29 When the State asked leave to publish People’s Exhibit No. 1 in conjunction with Officer
Evans’ testimony, the court asked whether the defense had any objection, and defense counsel
replied, “No objection, Judge.” With the aid of the home surveillance video and still photographs
taken from it, Officer Evans then identified defendant as the person wearing a black hooded
sweatshirt and distressed blue jeans, firing a semiautomatic handgun in a southbound direction on
the parkway area of the 5200 block of South Peoria Street and then turning around and running
northbound on South Peoria Street. Officer Evans also identified still shots of defendant taken
from the home surveillance video (People’s Exhibit Nos. 6-11).
¶ 30 On cross-examination, defense counsel established that Officer Evans went to arrest
defendant at the request of Detective Audie Manois. Leading up to defendant’s arrest, Officer
Evans informed Detective Manois that defendant went by the name of “Little D.” Officer Evans
did not personally inventory defendant’s clothing.
¶ 31 The parties stipulated that defendant was convicted of a felony offense. The State moved
to admit People’s Exhibit Nos. 2 through 23, which included the still photographs from Officer
Sheridan’s body camera as well as the still photographs from the home surveillance video in
evidence. Based on defendant’s assertion that he had “[n]o objection to the admission of such
evidence,” the trial court admitted all of the exhibits.
¶ 32 The State then rested. After his motion for directed finding was denied, the defense rested.
The parties then gave closing arguments, and the court instructed the jury. As is pertinent to this
appeal, the jury was instructed:
-9-
No. 1-19-0593
“You have before you evidence that a law enforcement officer made an
identification of the defendant from a video recording. It is for you to determine
what weight, if any, should be given to that evidence. In determining the weight to
be given to this evidence, you should not draw any inference from the fact that the
witness is a law enforcement officer.”
¶ 33 During the course of its deliberations, the jury sent out three notes. In response to the first
note that asked, “[w]hat was the reason that police were sent to pick up the defendant?” the parties
agreed that the jury should be instructed that they had received the evidence and should continue
to deliberate. With the parties’ agreement, the court sent the following response: “Dear Jury,
You have all the evidence. Please continue to deliberate. Thank you! Judge Vince Gaughan.”
¶ 34 In response to the second note, which requested “[d]efinition of beyond a reasonable
doubt?” the parties agreed that no definition of reasonable doubt should be given based on
People v. Downs, 2015 IL 117934. The parties agreed to the court’s response: “Dear Jury, I cannot
give you a definition of reasonable doubt. It is your duty to define reasonable doubt. Thank you!
Judge Vince Gaughan.”
¶ 35 Less than two hours after the jury began their deliberations, the jury sent a third note which
indicated: “Can’t get a [unanimous] [decision].” The parties agreed that the court should instruct
the jury to continue to deliberate and agreed to the following response: “Dear Jury You have
received all the evidence in this case. Please continue to deliberate. Thank you! Judge Vince
Gaughan.”
- 10 -
No. 1-19-0593
¶ 36 The jury then returned a guilty verdict on the charge of unlawful possession or use of a
weapon by a felon. The record does not indicate how much time transpired between the third note
and the verdict.
¶ 37 On March 7, 2019, the court sentenced defendant to nine years in the Illinois Department
of Corrections. Defendant then entered a negotiated plea of guilty to the previously severed
aggravated battery charge (Count 6), in exchange for a concurrent nine-year sentence.
All remaining charges were nolle prosequied.
¶ 38 II. ANALYSIS
¶ 39 On appeal, defendant alleges: (1) his guilt was not established beyond a reasonable doubt;
(2) his motion in limine to preclude Officer Evans from identifying him from the home surveillance
video was improperly denied; (3) Officer Evans gave irrelevant and prejudicial testimony;
(4) the court failed to provide a limiting instruction when Officer Evans testified; and (5) the home
surveillance video was admitted into evidence without a proper foundation. We consider each
argument in turn.
¶ 40 A. Reasonable Doubt
¶ 41 Defendant first contends that the State’s evidence was insufficient to establish his guilt
beyond a reasonable doubt. When the sufficiency of the evidence is challenged, a criminal
conviction will not be set aside unless the evidence, when viewed in the light most favorable to
the prosecution, is so improbable or unsatisfactory that no rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318-19 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). This standard applies in all cases,
regardless of the nature of the evidence. People v. Pollock, 202 Ill. 2d 189, 217 (2002).
- 11 -
No. 1-19-0593
¶ 42 A reviewing court may not retry the defendant. People v. Rivera, 166 Ill. 2d 279, 287
(1995). The trier of fact assesses the credibility of the witnesses and the weight to be given to their
testimony, resolves conflicts in the evidence, and draws reasonable inferences therefrom, and we
will not substitute our judgment for that of the trier of fact on these matters. People v. Hommerson,
399 Ill. App. 3d 405, 411 (2010). Testimony may only be found insufficient under the Jackson
standard, where the record evidence compels the conclusion that no reasonable person could accept
it beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 280 (2004).
¶ 43 In this case, to convict defendant guilty of unlawful use of a weapon by a felon, the jury
had to find both that defendant knowingly possessed a firearm, and that defendant was previously
convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2018). Where defendant stipulated that he was
previously convicted of an offense that qualified under section 5/24-1.1(a) of the Criminal Code,
the only remaining question is whether the evidence established that defendant knowingly
possessed a firearm. Viewing the evidence in the light most favorable to the State, we conclude
that this element of the offense was proven beyond a reasonable doubt.
¶ 44 While defendant alleges that the evidence was insufficient to establish that he possessed a
firearm, his argument, however, relies in part on the claimed inadmissibility of the home
surveillance video and Officer Evans’ identification testimony. We believe that reliance on such
evidentiary rulings improperly conflates two distinct analytical claims and undermines the Jackson
standard. We will not graft defendant’s admissibility claims onto what remains a reasonable doubt
claim that requires consideration of the evidence heard by the trier of fact. Again, we are charged
with determining whether such evidence, viewed in the light most favorable to the prosecution, is
so improbable or unsatisfactory that a rational trier of fact could not have found the essential
- 12 -
No. 1-19-0593
elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Collins, 106 Ill.
2d at 261.
¶ 45 Here, Officer Evans’ uncontroverted testimony established that he knew defendant for four
years before the commission of this offense, during which time he interacted with defendant
between 15 and 20 times. On two of those occasions, he was in prolonged contact with defendant
for two or three hours. Defendant was arrested three days after this offense, only three to four
blocks away, wearing what the trier of fact could reasonably conclude was the same clothing
depicted in the home surveillance video. We disagree with defendant’s assessment of the probative
value of this evidence. A reasonable trier of fact could find that the hoody, pants, and shoes that
defendant was arrested in were identical to what was depicted on the home surveillance video.
Of particular significance is the grey piping around the zippers on the front of the hoody, which
appears in both the still photographs and the home surveillance video. The jury was given the
actual clothing and had ample basis to convict defendant. We will not substitute our judgment for
that of the jury.
¶ 46 We likewise reject defendant’s claim that the jury’s requested definition of reasonable
doubt and expressed lack of unanimity may properly support his request for an outright reversal
of his conviction. We believe that defendant erroneously relies on an inapposite proposition of law
to support his position where he states:
“This Court has held that notes during deliberations indicating an impasse can
show that the evidence in a case was closely balanced. People v. Lee, 2019 IL
App (1st) 162563, ¶ 67. Accordingly, it follows that the jury’s notes to the trial
court about reasonable doubt and the impasse it had reached support Hall’s
- 13 -
No. 1-19-0593
argument that the State’s evidence was insufficient to prove that he was guilty of
possessing a firearm beyond a reasonable doubt.”
¶ 47 We do not believe that a reviewing court’s consideration of jury notes in deciding whether
a case is “closely balanced” such that plain error review is appropriate makes “it follow” that
consideration of jury notes is appropriate as a basis for outright reversal of a conviction.
The extension of such concept to a sufficiency of the evidence claims would both threaten to
undermine the Jackson standard and contravene the prohibition against impeaching a jury’s verdict
with evidence of their motive, method or process of deliberations. People v. Sullivan, 2011 IL App
(4th) 10005, ¶¶ 24-26.
¶ 48 Even if we were to consider the notes, however, it would not alter our opinion. One need
only quickly peruse People v. Downs, 2015 IL 117934, to note that it is a commonplace fact that
juries routinely request a definition of “reasonable doubt.” Nor does the jury’s lack of unanimity
a mere two hours into their deliberations make the evidence in this case “closely balanced.”
We further note that assessing the strength of the evidence based on a jury’s questions ignores the
possibility that the notes are reflective of a “holdout juror.” People v. McCoy, 405 Ill. App. 3d 269,
278 (2010).
¶ 49 For the aforementioned reasons, we find that the evidence was sufficient to convict
defendant of unlawful use or possession of a weapon by a felon.
¶ 50 B. Denial of Defendant’s Motion in Limine
¶ 51 In his next assignment of error, defendant alleges that the trial court erroneously allowed
Officer Evans to identify defendant from the surveillance video. We disagree.
- 14 -
No. 1-19-0593
¶ 52 In People v. Thompson, 2016 IL 118667, ¶ 50, our supreme court held that lay opinion
identification testimony of an officer is admissible under Illinois Rule of Evidence 701 (eff. Jan.
1, 2011) if:
“(a) the testimony is rationally based on the perception of the witness and
(b) the testimony is helpful to a clear understanding of the witness’s testimony or a
determination of a fact in issue. Lay opinion identification testimony is helpful
where there is some basis for concluding the witness is more likely to correctly
identify the defendant from the surveillance recording than the jury. A showing of
sustained contact, intimate familiarity, or special knowledge of the defendant is not
required. Rather, the witness must only have had contact with the defendant, that
the jury would not possess, to achieve a level of familiarity that renders the opinion
helpful.”
¶ 53 In deciding the admissibility of the evidence, the court should employ a totality of the
circumstances approach and consider the following factors:
“the witness’s general familiarity with the defendant; the witnesses’
familiarity with the defendant at the time the recording was made or where the
witness observed the defendant dressed in a manner similar to the individual
depicted in the recording; whether the defendant was disguised in the recording or
changed his/her appearance between the time of the recording and trial; and the
clarity of the recording and extent to which the individual is depicted.” Id. ¶ 51.
- 15 -
No. 1-19-0593
¶ 54 The existence of one or more of these factors will permit the evidence to be admitted, while
the absence of any factor does not render the evidence inadmissible. Id. ¶ 49. The trial court’s
determination is reviewed under an abuse of discretion standard. Id.¶ 55 Defendant alleges that the trial court erroneously denied his motion in limine where it failed
to apply a “totality of the circumstances” approach and consider each of the factors discussed in
Thompson. Defendant alleges that the trial court’s ruling relied on an explicitly rejected
requirement that the witness has familiarity with defendant at or before the time of the recording.
¶ 56 We believe that defendant misapprehends the import of Thompson, which expanded the
bases for the admission of lay witness identification testimony and rejected a higher standard of
proven familiarity between the witness and the accused:
“A showing of sustained contact, intimate familiarity or special knowledge
of the defendant is not required. Rather, the witness must only have had contact
with the defendant, that the jury would not possess, to achieve a level of familiarity
that renders the opinion helpful.” Thompson, 2016 IL 118667, ¶ 50.
¶ 57 While Thompson does not require proven familiarity as a basis for admitting such evidence,
it certainly does not disallow evidence that meets that higher standard. Here, Judge Gaughan
simply recognized the enduring force that proven familiarity between the witness and the accused
retains as a basis for admitting such identification testimony.
¶ 58 The fact that Judge Gaughan did not view the surveillance video does not alter our
conclusion where Thompson explicitly held that the absence of any relevant factor does not render
the evidence inadmissible. Id. ¶ 51. We also note that defendant never requested that the trial court
review the surveillance video before ruling on its admissibility and did not allege this as an error
- 16 -
No. 1-19-0593
in his posttrial motion. As such, this complaint is forfeited. See People v. Woods, 214 Ill. 2d 455,
470 (2005) (“Defendant must both specifically object at trial and raise the issue again in a
post-trial motion to preserve any alleged error for review.”) We reject defendant’s attempt to now
broaden the basis of his objection to the admission of Officer Evans’ testimony on appeal.
¶ 59 Furthermore, we have viewed the surveillance video and disagree with defendant’s claim
that had Judge Gaughan looked at the surveillance video that he would have granted defendant’s
motion. The surveillance video does not compel the conclusion that Officer Evans was not better
suited to identify defendant than was the jury. While it is true that the video does not contain a
close-up view of the shooter’s face, the images depicted on it are clearly visible. Based on his
uncontroverted familiarity with defendant, we find that Officer Evans was properly permitted to
identify defendant from the home surveillance video.
¶ 60 We also reject defendant’s claim that Officer Evans should have been disallowed from
identifying him because he possessed prior knowledge that the victim had identified defendant as
the shooter. Nothing in Thompson purports to require that evidence be excluded for this reason.
Where Thompson held that the extent of the witness’s opportunity to observe the defendant only
goes to the weight to be accorded such evidence and not to its admissibility, Thompson, 2016 IL
118667, ¶ 53, we find that the same principle holds true in this case. We agree with the trial court
that Officer Evans was certainly subject to cross-examination as to these matters but that these
facts implicated the weight to be accorded the evidence and not its admissibility.
¶ 61 The trial court gave defense counsel wide berth to exercise his discretion in conducting his
cross-examination of Officer Evans and defense counsel cautiously availed himself of that right.
- 17 -
No. 1-19-0593
Defense counsel elicited that defendant was arrested by Officer Evans at Detective Manois’
direction only after Officer Evans told Detective Manois that defendant was known as “Little D.”
¶ 62 Finally, insofar as defendant’s claim of undue prejudice is concerned, we note that the trial
court followed the procedure set out in Thompson by granting the defense two opportunities to
question Officer Evans; one which was spread of record, and one which was apparently not
recorded. As the court properly noted, the probative value of the evidence must be substantially
outweighed in order to be excluded under Illinois Rule of Evidence 403 (eff. Jan. 1, 2011). While
the identification testimony was undoubtedly the linchpin of the State’s case, that fact alone did
not make it either unfairly prejudicial or potentially misleading. See, Swift v. Schleicher, 2017 IL
App (2d) 170218, ¶ 78 (“Relevant evidence may, nevertheless, be excluded if it is unfairly
prejudicial or has the potential to mislead the jury.”). We agree with the trial court’s finding that
the probative value of Officer Evans’ testimony was not clearly outweighed by its prejudicial
nature.
¶ 63 C. Testimony of Officer Evans
¶ 64 Next, defendant faults the trial court for allowing Officer Evans to provide irrelevant and
prejudicial testimony. Defendant acknowledges that this claim was forfeited but claims that his
forfeiture should be excused under the plain error doctrine. We disagree.
¶ 65 Specifically, defendant claims that even if Officer Evans could properly testify to his
identification of defendant from the surveillance video that “the trial court nonetheless erred by
allowing all of Evans’ additional testimony surrounding his identification, which was irrelevant
and highly prejudicial.” Defendant alleges that Thompson was violated where (1) Officer Evans
testified that he knew defendant since October of 2014, had face-to-face contact with him 15 to 20
- 18 -
No. 1-19-0593
times during that time frame and spent between two and three hours with him on two prior
occasions, and (2) Officer Evans testified that he was working as part of the Deering Violent
Crimes Task Force out of the Bureau of Organized Crime, was working in plain clothes and in an
unmarked car alongside two other officers, one of whom was an ATF officer. We reject both claims
of error.
¶ 66 1. Officer Evans’ Familiarity with Defendant
¶ 67 To the extent that defendant now charges that Officer Evans was improperly permitted to
testify to his familiarity with defendant, such claim is not well taken. To preserve an issue for
appellate review, both a trial objection and a written posttrial motion raising the issue are required.
People v. Enoch, 122 Ill. 2d 176, 186 (1988). A defendant who fails to preserve an issue in a
posttrial motion forfeits review of such issue unless he can establish plain error. Id. Under the plain
error doctrine, we may consider a forfeited claim when
“(1) 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) 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. Piatkowski, 225 Ill.
2d 551, 565 (2007).
¶ 68 However, plain error review only applies to cases involving procedural forfeiture, not those
that involve affirmative acquiescence. People v. Ortega, 2021 IL App (1st) 182396, ¶ 87;
People v. McGuire, 2017 IL App (4th) 150695, ¶ 29. Waiver involves the intentional
relinquishment of a known right, whereas forfeiture is the failure to make a timely assertion of a
- 19 -
No. 1-19-0593
known right. People v. Phipps, 238 Ill. 2d 54, 62 (2010). “In the course of representing their clients,
trial attorneys may (1) make a tactical decision not to object to otherwise objectionable matters,
which thereby waives appeal of such matters, or (2) fail to recognize the objectionable nature of
the matter at issue, which results in procedural forfeiture.” People v. Bowens, 407 Ill. App. 3d
1094, 1098 (2011). In determining whether a claim is waived, the court will examine the particular
facts and circumstances of the case. Phipps, 238 Ill. 2d at 62.
¶ 69 Here, defendant’s motion in limine sought to prevent Officer Evans from testifying to his
prior contacts with defendant where such testimony would be prejudicial. While the trial court
denied defendant’s motion to bar Officer Evans from identifying defendant from the surveillance
video, it took pains to ameliorate the potential prejudicial impact of such testimony by instructing
Officer Evans that he was disallowed from testifying that he previously arrested defendant. Even
more precautionary measures were taken at the State’s request when the State made an oral proffer
as to precisely what testimony it sought to produce from Officer Evans. The State explicitly
requested: “[w]e would be asking that he be allowed to say that he has known him for three to four
years and he’s seen him 15 to 20 times. Sometimes, two to three hours in length.” Before the court
ruled on the request, defense counsel stated, “[n]o objection.”
¶ 70 Officer Evans’ testimony did not stray from these agreed-upon parameters where he
testified that he knew defendant since October 2014, had face-to-face contact with him
approximately 15-20 times, and spent two to three hours with him on two separate occasions.
Defendant plainly stated “no objection” disallows him from now alleging as error what he
acquiesced to before the trial court. People v. Ortega, 2021 IL App (1st) 182396, ¶ 87.
- 20 -
No. 1-19-0593
¶ 71 2. Officer Evans’ Assignment
¶ 72 Turning to defendant’s claim that Officer Evans should have been disallowed from
testifying that he was part of the Deering Violent Crimes Task Force out of the Bureau of
Organized Crime, was working in plain clothes and in an unmarked car alongside two other
officers, one of whom was an ATF officer we find no plain error. Our conclusion finds support in
the fact that defense counsel’s motion in limine sought to exclude what he believed to be potentially
prejudicial to defendant; namely, gang evidence. Defendant’s motion in limine alleged that Officer
Evans’s identification as a gang enforcement officer would allow the jury to make inferences that
would prejudice him. The court granted defendant’s request to disallow any gang evidence.
Notably, Officer Evans did not identify himself as a gang enforcement officer. Officer Evans’s
only testified about the arrest in this matter. The manner under which an individual comes to be
arrested is properly admitted at trial. People v. Chambers, 179 Ill. App. 3d 565, 583-84 (1989).
¶ 73 We do not believe that the unobjected-to introductory remarks by Officer Evans constituted
clear error to permit plain error review of this claim. Our conclusion finds support in People v.
Butler, 58 Ill. 2d 45, 48-49 (1974), where the court rejected the defendant’s fully preserved claim
of error where the arresting officer testified that the defendant was arrested and taken to “Area 4
Homicide Unit,” removed to central detention facilities and later returned to “Area 4 Homicide”.
The court found that while some jurors may have concluded that the defendant had been originally
arrested for another murder, that it “seems unlikely and is by no means certain that they did so.”
Id. at 49.
- 21 -
No. 1-19-0593
¶ 74 In this case, we find it even more unlikely that Officer Evans’ discussion of his assignment
caused the jury to draw any negative inferences. In sum, we reject defendant’s claim of error based
on Officer Evans’ testimony.
¶ 75 D. Jury Instructions Concerning Officer Evans
¶ 76 Defendant also challenges the trial court’s failure to contemporaneously instruct the jurors
that they should not draw any adverse inferences from Officer Evans’ status as a police officer at
the time that such testimony was elicited. Defendant asks that we review this claim under the plain
error doctrine. As has been previously discussed, under the plain error doctrine, issues not properly
preserved may be considered by a reviewing court when the evidence is closely balanced or when
the error is so substantial that it is necessary to remedy the error to preserve the integrity of the
judicial process. People v. Hall, 194 Ill. 2d 305, 335 (2000).
¶ 77 In People v. Lopez, 371 Ill. App. 3d 920, 939 (2007), the defendant alleged that the trial
court’s failure to provide a limiting instruction at the time other crimes evidence was introduced
constituted plain error. The court disagreed, finding that no evidence rebutted the presumption that
the jury followed the oral and written limiting instruction given at the close of the evidence.
See also People v. Rush, 401 Ill. App. 3d 1, 16 (2010) (failure to provide a limiting instruction to
the jury to explain the limited purpose for the admission of evidence related to the investigative
steps taken by police waived by the defendant).
¶ 78 Here, we decline to find plain error. The trial court explicitly instructed the jury before the
start of the trial that:
“[r]emember, I told you the witness stand is almost like that’s the starting
of a race. Just because somebody has a title, they don’t have to start in back of it.
- 22 -
No. 1-19-0593
And just because somebody has a title, they don’t start in front of it. Once people
start testifying, that’s when you use your common sense, your life experience and
all the other evidence in this case to evaluate how much weight to be given to their
testimony.”
¶ 79 After the parties rested, the court properly instructed the jury:
“You have before you evidence that a law enforcement officer made an
identification of the defendant from a video recording. It is for you to determine
what weight, if any, should be given to that evidence. In determining the weight
to be given to this evidence, you should not draw any inference from the fact
that the witness is a law enforcement officer.”
¶ 80 Defendant has failed to show that the trial court’s failure to provide a contemporaneous
limiting instruction when Officer Evans testified constituted a clear error where defendant
requested no limiting instruction, where before the trial even began, the trial court alluded to the
instruction and where the instruction was properly given at the conclusion of the trial.
¶ 81 E. Admissibility of Surveillance Video
¶ 82 In his final assignment of error, defendant alleges that no proper foundation was laid for
introducing the home surveillance video. The State maintains that the trial court did not err in
allowing the videotape to be admitted into evidence. We agree with the State.
¶ 83 A recording containing video is admissible if the State presents the necessary foundation
for its admission. People v. Smith, 321 Ill. App. 3d 669, 674, (2001). A proper foundation may be
laid by an individual who has personal knowledge of the filmed object and who can testify that the
film accurately portrays what it purports to show. In re D.Q., 2016 IL App (1st) 160680, ¶ 25.
- 23 -
No. 1-19-0593
This foundational consideration is a lower standard than the one used when admitting videotape
under the “silent witness” theory.
¶ 84 Under the “silent witness” theory, “a witness need not testify to the accuracy of the image
depicted in the photographic or videotape evidence if the accuracy of the process that produced
the evidence is established with an adequate foundation.” In re D.Q., 2016 IL App (1st) 160680,
¶ 25, citing People v. Taylor, 2011 IL 110067, ¶ 32.
¶ 85 The admission of a surveillance video is within the sound discretion of the trial court whose
decision will not be disturbed absence an abuse of discretion. Taylor, 2011 IL 110067, ¶ 27.
An abuse of discretion occurs when the court’s ruling is fanciful, unreasonable, or where no
reasonable person would adopt the trial court’s view. Id.¶ 86 In Taylor, our supreme court examined the foundational requirements for the admission of
surveillance camera recordings. Taylor, 2011 IL 110067, ¶¶ 30-35. At trial, the defendant filed a
motion in limine to bar the State from using a VHS tape that depicted a theft. The recording
contained a 29-second skip. Id. ¶ 11. The appellate court reversed and remanded, finding that the
State failed to lay a proper foundation where it did not establish the reliability of the process that
produced the tape. Id. ¶ 22. The appellate court held that the State failed to: (1) establish a proper
chain of custody; (2) establish that the camera was working properly, and that the original DVR
recording was preserved; and (3) explain the process of copying the recording on the DVR to the
VHS tape. Id. ¶ 22.
¶ 87 Our supreme court agreed with the appellate court that the trial court may consider the
following factors in determining the admissibility of a video recording under the “silent witness”
theory: (1) the device’s capability for recording and general reliability; (2) competency of the
- 24 -
No. 1-19-0593
operator; (3) proper operation of the device; (4) showing the manner in which the recording was
preserved (chain of custody); (5) identification of the persons, locale, or objects depicted; and
(6) explanation of any copying or duplication process. Id. ¶ 35. The court cautioned, however, that
while the referenced factors are properly considered, they comprise a non-exclusive list of factors
that may be considered and that each case must be evaluated on its own particular facts, with the
dispositive issue being the accuracy and reliability of the process that produced the recording.
Id. ¶ 35.
¶ 88 After considering the case’s particular facts, the supreme court rejected the appellate
court’s determination that an inadequate foundation was laid to admit the recording. Id. ¶ 36. With
respect to the defendant’s claim that the State failed to establish a proper foundation based on the
29-second skip, the court held:
“The record discloses that the first segment recorded for 12 seconds,
nothing recorded for 29 seconds, then the second segment recorded for
8 seconds. In any event, the fact that the camera recorded for fewer than
15 seconds is not fatal to a finding that the camera was working properly. While
the camera may not have worked perfectly, it clearly worked. As one court has
stated, “[t]he fact that the tape[ ] exist[s] at all is evidence that the tape recorder
was functional and that [the operator] knew how to operate it.” Willett v. Russell
M. Stookey, P.C., 568 S.E.2d 520, 526 (Ga. Ct. App. 2002). Moreover, “the
evidence showed that the camera was working at least well enough for the events
and persons portrayed thereon to be recognizable.” Smith v. State, 647 S.E.2d
346, 349 (Ga. Ct. App. 2007). See Oslund, 453 F.3d at 1056; Robinson v. State,
- 25 -
No. 1-19-0593
621 So. 2d 389 (Ala. Crim. App. 1993). See also Carl T. Drechsler, Admissibility
of Videotape Film in Evidence in Criminal Trial, 60 A.L.R.3d 333, -10- § 2(a)
(1974) (“[T]he fact that portions of a [recording] are inaudible or incomplete
does not bar the use of the film as evidence, unless *** [it is] so substantial as
to render the film as a whole untrustworthy”); Jordan S. Gruber, Foundation for
Contemporaneous Videotape Evidence, in 16 Am. Jur. Proof of Facts 3d 493,
§ 27, at 539-40 (1992) (videotape may have technical problems, including
missing segments; however, this does not require automatic exclusion if
videotape is sufficiently probative and that decision is left to sound discretion of
trial judge); Jordan S. Gruber, Videotape Evidence, in 44 Am. Jur. Trials 171,
§ 67, at 300 (1992) (same). The State adequately demonstrated the camera and
system were able to record and were generally operating properly.” Id. ¶ 39.
¶ 89 In D.Q., this court considered whether the State laid a sufficient foundation to admit a video
that showed a minor being repeatedly struck by a female adult. In re D.Q., 2016 IL App (1st)
160680, ¶ 23. The minor’s father, Christopher Q., testified that he received the video from the
respondent on his cell phone and then provided it to the River Grove police department. Id. ¶ 9.
Christopher Q. testified that the video that was played in court was identical to the video that he
received on his cell phone, and it showed the respondent abusing his daughter Id. ¶¶ 8-9. The trial
court admitted the video into evidence over the respondent’s objection to lack of a sufficient
foundation. Id. ¶ 18.
¶ 90 This court found that an adequate foundation for the video was laid under both the “silent
witness” and “personal knowledge” theories to admit such evidence. Id. ¶¶ 26-27. The court relied
- 26 -
No. 1-19-0593
on the fact that Christopher Q. positively identified both the respondent and D.Q. and that
“the camera used to record the video was clearly operational at the time and was able to record
sufficiently clearly so that the individuals in the video were identifiable, as were their actions.”
Id. ¶ 28. Relying on Taylor, the court found Christopher Q.’s testimony sufficient to demonstrate
the authenticity of the recording where he testified that the video that he received on his cell phone
was “the exact same video” played in court, and that there was no evidence that the video was
altered or tampered with to make it unreliable or untrustworthy. Id. ¶ 28. The court concluded that
the juvenile court properly exercised its discretion in admitting the recording. Id. ¶ 30.
¶ 91 We follow our supreme court’s instruction in Taylor and evaluate this claim on its own
particular facts. In so doing, we consider both the enumerated factors in Taylor and any other
relevant evidence that establishes the accuracy and reliability of the process that produced the
recording. Taylor, 2011 IL 110067, ¶ 35. We find the evidence provided sufficient indicia of
accuracy and reliability to satisfy the foundational requirements for admission of the home
surveillance video.
¶ 92 Officer Sheridan’s testimony established her personal knowledge of that portion of the
surveillance video that showed her arrival at the scene of the shooting approximately fifteen
minutes after it occurred. Officer Sheridan’s testimony shored up the apparent date and time
discrepancy in the home surveillance video. A comparison of the recordings from the body camera
with the surveillance video established that the surveillance video was inaccurate by 21 days and
23 hours, meaning that although the surveillance video indicated that the date and time of the
shooting were May 17, 2018, at 12:15 p.m., the actual event transpired on June 8, 2018,
at 11:48 a.m.
- 27 -
No. 1-19-0593
¶ 93 We reject defendant’s claim that Officer Sheridan’s testimony was insufficient to establish
the necessary foundation for that portion of the video for which she lacked personal knowledge.
Such argument cannot be reconciled with Taylor, where our supreme court specifically rejected
the 29-second gap in the recording as a basis for disallowing its admission into evidence. We have
reviewed the video in its entirety, and it clearly depicts the front yard at 5205 South Peoria Avenue,
as well as the adjacent sidewalk and street. The recording contains an uninterrupted 25 minute and
3-second recording that depicts the shooting and subsequent activities in the area, including the
arrival of the police on the scene. Officer Evans testified that People’s Exhibit No. 1 was in the
same or substantially the same condition as the home surveillance video that he reviewed on
June 11, 2018. Officer Evans further testified that he assisted the detectives by watching a
surveillance video of the shooting. With the aid of the home surveillance video and still
photographs taken from it, Officer Evans then identified defendant as the person wearing a black
hooded sweatshirt and distressed blue jeans, firing a semiautomatic handgun in a southbound
direction on the parkway area of the 5200 block of South Peoria Street and then turning around
and running northbound on South Peoria Street. Officer Evans identified People’s Exhibit No. 1
as the same surveillance video footage that he first viewed on the day of the shooting and testified
that the video was in the same or substantially the same condition as when he first viewed it.
Nothing about this recording suggests that it is inaccurate or altered in any way. In conclusion, we
find no error in the trial court’s admission of the home surveillance video into evidence.
¶ 94 III. CONCLUSION
¶ 95 For the foregoing reasons, we affirm defendant’s conviction.
¶ 96 Affirmed.
- 28 -