People v. Gayden ( 2020 )

2020 IL App (1st) 162636-USIXTH DIVISION
June 26, 2020
No. 1-16-2636
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 10 CR 18156
)
SAMUEL GAYDEN, ) Honorable
) Domenica A. Stephenson,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court.
Justices Cunningham and Connors concurred in the judgment.
ORDER
¶1 Held: Convictions affirmed where (1) admission of DNA evidence was not an abuse of
discretion, (2) opinion identification testimony of three witnesses was properly
admitted, (3) prior inconsistent statements of a witness were properly admitted as
substantive evidence, and (4) defendant did not receive ineffective assistance of
counsel.
¶2 Defendant Samuel Gayden was convicted by a jury of two first degree murders and one
attempted first degree murder. He was sentenced to natural life in prison for the murders and 20
years for the attempted murder. On appeal, Mr. Gayden argues that he was deprived of a fair trial
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because the trial court erred by (1) allowing the State to use DNA evidence to tie Mr. Gayden to
the gun used in the shootings and letters sent from the jail, (2) allowing three witnesses to identify
him on surveillance video even though they did not witness the shooting, and (3) allowing the
State to present the prior statements of a witness. Mr. Gayden also argues that he received
ineffective assistance of trial counsel. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Just after midnight on September 1, 2010, three men were shot while inside State Garden
Food & Liquors in Chicago, Illinois. Two of them—Marcus Marshall and Shawntelle Harris—
died. The shooting was caught on the store’s surveillance cameras. Mr. Gayden was tried for first
degree murder with respect to Mr. Marshall and Mr. Harris, and attempted murder with respect to
the third man, Chauncey Williams.
¶5 A. Pre-Trial Motions and Rulings
¶6 Mr. Gayden filed numerous motions prior to trial. The following motions are relevant to
this appeal.
¶7 1. Motions to Bar Witness Identifications
¶8 Mr. Gayden sought to bar Akram Jaber, Lolita Garnett, Brian Murdock, Sergeant Jose
Lopez, and Chauncey Williams from identifying him on the surveillance videos because they did
not observe the shooting.
¶9 At the hearing, the State had agreed that Mr. Jaber and Ms. Garnett would not identify Mr.
Gayden on the surveillance video. The court ruled, over Mr. Gayden’s objection, that they could
testify as to what was in the video because they were present at the time of the shooting. The court
also ruled that Mr. Murdock would be permitted to identify Mr. Gayden in the video because he
was familiar with Mr. Gayden. The court then held a separate hearing to determine whether
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Sergeant Lopez would be allowed to identify Mr. Gayden in the video.
¶ 10 At that hearing, Sergeant Lopez testified that he had known Mr. Gayden as “Duke” since
2007 from the neighborhood, had spoken to Mr. Gayden “a half a dozen times,” and was present
when Mr. Gayden was arrested for an unrelated offense in 2007.
¶ 11 The trial court concluded that Sergeant Lopez could identify Mr. Gayden in the video
because “Sergeant Lopez had sufficient knowledge of [Mr. Gayden] and [Mr. Gayden]’s
appearance prior to the incident that is depicted in the video.”
¶ 12 2. Motion to Bar DNA Evidence from the Envelope
¶ 13 Mr. Gayden sought to bar DNA evidence as to the testing done on two letters sent from
jail—purportedly by Mr. Gayden. The State had filed a motion to introduce the letters as evidence
of other crimes and argued the letters were relevant to show Mr. Gayden’s consciousness of guilt.
Mr. Gayden argued that the results of the DNA testing were “too incomplete and fragmented for
any conclusions as to identity to be made.”
¶ 14 At the hearing on the motion, Dr. Karl Reich testified as an expert for Mr. Gayden. The
doctor explained that there are 13 chromosome regions that can be analyzed in DNA testing, called
“loci,” but that there is no standard number of loci that need to match in order to make an
identification. Dr. Reich testified that according to the Illinois State Police (ISP) lab, one envelope
did not yield enough results for comparison. For the other envelope, the lab described receiving
results from six loci and a “sex locus,” which was used to determine that the letter came from a
man. Dr. Reich explained that the ISP lab compared four of the six loci to a sample collected from
Mr. Gayden. According to Dr. Reich, four loci was “not sufficient genetic identification
information to provide any conclusion on identity.” Dr. Reich acknowledged that Mr. Gayden
could not be excluded as a contributor and that the report concluded that approximately 1 in 6.2
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million black individuals could not be excluded from having contributed to the DNA profile.
¶ 15 The trial court denied Mr. Gayden’s motion, finding that his objections went to the weight
of the evidence, rather than admissibility.
¶ 16 3. Motion In Limine to Bar DNA Evidence from the Recovered Gun
¶ 17 Mr. Gayden also filed a motion in limine to bar two DNA reports from swabs taken from
a gun recovered by the police from where he lived at the time during their investigation. The first
DNA report stated that the low-level DNA profile identified did not “contain enough information
to either exclude or imply positive association to Samuel Gayden.” The second report, completed
approximately four years later, employed a different method of quantifying DNA comparisons and
concluded that Mr. Gayden “c[ould] not be excluded,” and gave a probability that “one in four
black, one in three white, [and] one in four Hispanic” individuals could also not be excluded.
¶ 18 The trial court denied this motion as well, finding that the probative value of the DNA
results outweighed any prejudicial effect.
¶ 19 4. Mr. Jaber’s Identification Testimony
¶ 20 Just before voir dire of the jury began on May 16, 2016, the State indicated that it, in fact,
did want Mr. Jaber to identify Mr. Gayden on the surveillance video. Defense counsel responded
that, under the recent supreme court decision in People v. Thompson, 2016 IL 118667, a hearing
was necessary prior to his testifying. The court agreed to a hearing but said, prior to the hearing,
that it would allow Mr. Jaber to identify Mr. Gayden in the video if the evidentiary hearing
confirmed what the State had indicated Mr. Jaber would say.
¶ 21 At the evidentiary hearing, Mr. Jaber was shown a still from the video surveillance and
said that he recognized the shooter as one of the store’s regular customers who had come in
“[a]lmost daily” for “a long time, maybe five” years. Mr. Jaber said that he observed that person
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inside the store right before the shooting occurred. Mr. Jaber also identified a photograph of Mr.
Gayden from the time of his arrest as the shooter from the video. Mr. Jaber said, however, he was
not able to identify the person from the photographs in the courtroom.
¶ 22 The trial court ruled that Mr. Jaber would be permitted to testify to Mr. Gayden’s identity
on the surveillance video, as it found Mr. Jaber had “general familiarity with [Mr. Gayden], the
person depicted in the video that he says is a customer or was a customer on a daily basis.” The
court said it would give a limiting instruction to the jury before Mr. Jaber’s testimony. Mr.
Gayden’s counsel agreed to the jury instruction offered by the State.
¶ 23 Just before Mr. Jaber was called to testify, the State notified the court outside the presence
of the jury that Mr. Jaber had disclosed that he recognized Mr. Gayden in court and, in fact, would
also make an in-court identification of him. Defense counsel declined the offer to question Mr.
Jaber about his identification before he testified.
¶ 24 B. Trial
¶ 25 The surviving victim, Mr. Williams, testified that, in the early morning of September 1,
2010, he went to the liquor store with Mr. Marshall and Mr. Harris. After about five minutes, two
men entered the store—one wearing a black t-shirt and shorts, the other a white sleeveless shirt.
Mr. Williams testified that he was face-to-face with the man in the black t-shirt at some point and
noticed the man had “twists, braids or something like that” in his hair. Mr. Williams identified Mr.
Gayden in court as that man, noting that he looked different because he was wearing glasses, did
not “have the braids,” and looked “a little slim.”
¶ 26 Soon after, Mr. Williams saw the door “bust open” and heard shots ring out. Mr. Williams
testified that Mr. Gayden was the shooter and saw him shoot Mr. Marshall. Mr. Williams hid
behind the ATM. Mr. Williams said Mr. Gayden fired “maybe 14, 15” shots, shooting Mr. Harris
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and shooting at, but missing, Mr. Williams. When the police arrived, Mr. Williams told them that
he did not see anything. At trial, Mr. Williams explained that “it was not like a fib, but I don’t—I
don’t really talk to no police.”
¶ 27 Mr. Williams met with Detective Garza on September 7, 2010, and, eventually, told the
detective what he had seen. Mr. Williams then identified Mr. Gayden as the shooter from a photo
lineup and also identified the man in the white sleeveless shirt from another photo lineup. Mr.
Williams later identified Mr. Gayden as the shooter from an in-person lineup. Clips from the
surveillance videos from both inside and outside the store were published to the jury and Mr.
Williams narrated what was happening in the videos.
¶ 28 Mr. Jaber testified that he was the manager of the liquor store in September 2010. He was
working at approximately 12:40 a.m. on September 1, 2010, when he heard gunshots at the store
entrance about 15 feet away. Mr. Jaber threw himself to the ground and did not see the shooter.
When the police arrived, Mr. Jaber showed them the surveillance videos and the State published
photo stills from those videos. Over Mr. Gayden’s objection, Mr. Jaber testified that he knew the
man in the black t-shirt in the photo still as a regular customer prior to September 2010 with whom
he had numerous interactions. Mr. Jaber testified that he identified a photo of Mr. Gayden as that
man in a photo lineup on September 11, 2010, and identified another photo of Mr. Gayden as the
man in the black t-shirt.
¶ 29 On cross-examination, Mr. Jaber acknowledged that he did not witness the shooting when
it happened and did not identify anyone in the courtroom as the man in the black t-shirt at a hearing
that took place earlier that day. On redirect, however, Mr. Jaber said that when he was testifying
at the earlier hearing, “it dawned on me that it’s him. He changed his appearance from the way I
used to know him, the way he dressed. He didn’t have glasses. He used to have cornrows in his
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No. 1-16-2636
head.” Mr. Jaber then identified Mr. Gayden in court as the man in the black t-shirt on the video.
¶ 30 Sergeant Lopez was assigned to investigate the shooting and testified that he had spoken
with Mr. Gayden approximately six times before September 2, 2010. Sergeant Lopez identified
Mr. Gayden in the video as the shooter. Sergeant Lopez noted “[Mr. Gayden] obviously had a
haircut since [the shooting]. He’s wearing glasses. He’s lost, it looks like, quite a bit of weight
since then.” Sergeant Lopez identified the man wearing the white sleeveless shirt in the video as
Brian Murdock. Sergeant Lopez testified that, on September 11, 2010, Mr. Murdock went to the
police station and spoke with Detective Garza. At approximately 1 a.m. on September 12, 2010,
Sergeant Lopez and other officers went to the apartment complex where Mr. Gayden lived and
arrested him. Echo Johnson, who also lived in the apartment, consented to a search of it. During
the search, a .45-caliber semiautomatic pistol was found inside of an access panel in a bedroom
closet and swabbed for DNA.
¶ 31 Brian Murdock testified that he was present for the shooting at the liquor store on
September 1, 2010. He said that he went to the store alone and was kicked out by the owner of the
store after he asked for change. Mr. Murdock testified that when he was walking out of the store,
he heard gunshots and ran away down the alley. He testified that he did not know Mr. Gayden and
did not know anyone nicknamed “Duke.” However, when Mr. Murdock was shown a picture of
Mr. Gayden, he said he recognized Mr. Gayden. He acknowledged that he was the man in the
white sleeveless shirt seen in the video.
¶ 32 Mr. Murdock admitted in his testimony that he had told Assistant State’s Attorney (ASA)
John Carroll, when he had gone to the police station on September 11, 2010, that he was friends
with Mr. Gayden, that Mr. Gayden came running to the car he was in after the shooting, that he
and Mr. Gayden went to a park to drink alcohol after the shooting, and that he identified Mr.
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No. 1-16-2636
Gayden on the video as the man who he walked into the store with. Mr. Murdock also
acknowledged that, on April 30, 2011, he met with ASA Jose Villarreal at the police station and
gave a written statement about the shooting, signing every page.
¶ 33 Mr. Murdock testified that he was so high when he spoke to the ASAs in 2010 and 2011
that he had no idea what he said to them. He also claimed that everything he told the ASAs was
because Detective Garza threatened him. Mr. Murdock acknowledged that he had prior felony
convictions from 2002, 2003, and 2004, and that at the time of trial he was serving time for being
an armed habitual criminal.
¶ 34 When the State sought to publish Mr. Murdock’s written statement, Mr. Gayden’s counsel
requested that “the impeachment *** be limited to the portions of the handwritten [statement] that
he denied making.” The trial court denied the request and ruled that the State would be permitted
to publish the whole statement, reasoning that although Mr. Murdock admitted to making the
statements, “he always qualified it” by saying he was high and he had been threatened.
¶ 35 ASA Carroll and ASA Villareal both testified that that Mr. Murdock did not appear to be
under the influence of drugs or alcohol when they met with him and that Mr. Murdock never
indicated that he had been threatened by Detective Garza. ASA Carroll showed Mr. Murdock three
surveillance videos from inside the liquor store, and outside in front and on the side of the store.
Mr. Murdock identified himself and Mr. Gayden in all three videos. Mr. Murdock told the ASA
that he had gone to the liquor store with a group that included Mr. Gayden and that he stayed
outside when Mr. Gayden entered the store. ASA Carroll testified that Mr. Murdock told him that
Mr. Gayden then came running outside and told Mr. Murdock that “someone was shooting.”
¶ 36 ASA Villarreal testified that he took Mr. Murdock’s written statement, reviewed the
statement with Mr. Murdock, and had Mr. Murdock sign each page. Mr. Murdock’s statement was
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No. 1-16-2636
then published to the jury.
¶ 37 According to Mr. Murdock’s written statement, early in the morning of September 1, 2010,
he and eight friends—including Mr. Gayden—went in two separate cars to the liquor store. Mr.
Murdock stated that the surveillance video from outside of the store showed Mr. Murdock and Mr.
Gayden together just before Mr. Gayden entered the store a second time. After Mr. Gayden went
into the store the second time, Mr. Murdock immediately heard gunshots and then saw Mr. Gayden
running from the liquor store to the car he had arrived in. Mr. Murdock identified Mr. Gayden on
the surveillance videos entering the store the second time and shooting. Mr. Murdock said that the
group all went to Mr. Gayden’s house after the shooting. Mr. Murdock also said in his statement
that he had been treated well by the police and that he was not under the influence of drugs or
alcohol.
¶ 38 Chicago police detective Anthony Padilla testified that he met with a woman named Jean
Walker at approximately noon on September 1, 2010, because Ms. Walker had contacted 3-1-1 to
say that she “had text messages from her ex-boyfriend Harvey Wilkins concerning a shooting in
which two people were shot.” Detective Padilla photographed the text messages, which were
published to the jury. Mr. Wilkins first texted Ms. Walker at 4:57 a.m. on September 1, 2010,
saying “Wake up i f*** up i need u if i dont need nobody els i just shoot 2 people i need 2 see yall
be4 I go. i need a shirt I hav blood on minds[.]” Detective Padilla testified that he showed Ms.
Walker a still photograph from the store’s surveillance video to determine whether Mr. Wilkins
was the shooter, and that after Ms. Walker saw the photograph, Mr. Wilkins was no longer a
suspect.
¶ 39 Greg Didomenic, a forensic scientist with the ISP and an expert in the field of forensic
DNA analysis, testified that when the DNA swabs from the recovered semiautomatic pistol were
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No. 1-16-2636
initially tested, the ISP determined that the low-level DNA profile was from a male but that it was
considered “incomplete information” and that, at that time, the ISP was only using such incomplete
information “for exclusionary purposes.” More recently, however, a “statistical calculator” was
developed that allowed them to “use that limited information and still apply a frequency of
occurrence.” Mr. Didomenic testified that this was used to conclude that Mr. Gayden and
“approximately one in four black, one in three white or one in four Hispanic unrelated individuals
cannot be excluded as having contributed to that DNA type.” On cross-examination, Mr.
Didomenic acknowledged that the percentages he gave were “not a very strong association,” and
that “it’s likely a lot” of the people in the courtroom “could not be excluded from having
contributed to that single DNA type.”
¶ 40 Chicago police officer James Vins identified two letters that had been returned to the Cook
County jail as undeliverable, dated May 10 and May 16, 2014. Both envelopes had Mr. Gayden’s
booking number, were addressed to Atia “Ducie” Johnson at the same address, and had the return
address with the last name Gayden, at the inmate housing location of division 9, tier 2H, bedding
assignment 2261 at 2600 South California Avenue. Both letters were published to the jury.
¶ 41 The May 10 letter said “Jo-Jo and Nitball to stand on that business for me A.S.A.P.,” and
“n**** getting down on me name Chauncey Williams he stay 5657 S. Michigan 3rd floor left hand
side that b**** gotta go A.S.A.P. that why I [sic] Jo-Jo or Nitball stand on that situation.” The
letter also said “I need you to try to find this girl Lolita Garnett on F.B.—I want Lolita to testify
on my behalf saying she seen [sic] the shooter but it wasn’t me and she was scared that why she
didn’t say shit.” The May 16 letter said to “tell broski I said stop f*** playing games with dude
my clock running out my auntie got 5,000 bucks for him right now if he get dude out of the way
A.S.A.P. him or Nitball.”
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¶ 42 Lisa Kell, a second ISP expert in the field of forensic DNA analysis, testified that she
analyzed swabs from the envelopes for possible DNA comparison. The sample from the May 16
letter did not have DNA suitable for comparison, but she was able to analyze the May 10 sample
and found it contained “[a] mixture of human profiles *** and that was interpreted as a mixture of
two people.” She said the major donor was male and she compared the DNA profile of the major
donor to Mr. Gayden’s DNA profile. Ms. Kell concluded that Mr. Gayden could not be excluded
as a possible contributor and that “[a]pproximately 1 in 6.2 million black, 1 in 2.8 million white,
or 1 in 1.5 million Hispanic unrelated individuals cannot be excluded from having contributed to
the DNA profile at the five locations.” Ms. Kell clarified that saying someone could not be
excluded was different than saying someone was a match. She also explained that she did not have
enough information to make a definitive statement that Mr. Gayden was the contributor.
¶ 43 Sergeant Lopez testified that he had listened to three phone calls from the jail made in April
and May of 2014 and that he recognized Mr. Gayden’s voice on each call and Echo Johnson’s
voice on the May 10 call. In an April 18 call, Mr. Gayden told Joe McSpadden to find Lolita
Garnett because Mr. Gayden “need[ed] her to testify” that he was not the shooter. In a May 10
call, Mr. Gayden asked Echo Johnson about “the name and address I had sent you in the mail about
dude who getting down on me” and then told her to write down the name and address of Chauncey
Williams at 5657 South Michigan Avenue. In a May 23 call, Mr. Gayden talked to Atia Johnson
about “Nitball” and asked about the letter he sent her “like two weeks ago” and another “last
week.”
¶ 44 At this time, the State rested. The trial court denied Mr. Gayden’s motion for a directed
verdict without argument.
¶ 45 Jean Walker testified on Mr. Gayden’s behalf that she had a child with Harvey Wilkins and
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No. 1-16-2636
that at approximately 4:57 a.m. on September 1, 2010, she was woken up by the text messages
from Mr. Wilkins that Detective Padilla had testified about in which Mr. Wilkins said that he had
shot two people. Ms. Walker said she called the police the next day. Ms. Walker testified that in
January 2016, one of Mr. Gayden’s attorneys showed her surveillance video from the night of the
shooting. Ms. Walker said that the man on the video had a similar stance to Mr. Wilkins but that
the man on the video “was like too big or the hair is off for it to be [Mr. Wilkins]” and that she
therefore did not think it was Mr. Wilkins.
¶ 46 Harvey Wilkins also testified for the defense. According to Mr. Wilkins, he initially denied
to investigators that he sent the text messages; however, he testified at trial that he did send them
because he was trying to get into the house to see his daughter. On cross-examination, Mr. Wilkins
testified that he was not at the liquor store at 1 a.m. on September 1, 2010.
¶ 47 The parties stipulated that the only double shooting that occurred on September 1, 2010,
was the liquor store shooting. The defense then rested.
¶ 48 After deliberating, the jury found Mr. Gayden guilty of the first degree murders of both
Mr. Marshall and Mr. Harris, and of the attempted first degree murder of Mr. Williams.
¶ 49 C. Post-Trial Proceedings
¶ 50 Mr. Gayden filed a motion for new trial, arguing that the trial court erred by denying his
motion to bar the identification testimony of Mr. Jaber and Sergeant Lopez, denying his motions
to bar the DNA evidence, and allowing the State to introduce the prior statements of Mr. Murdock.
After hearing argument, the trial court denied the motion.
¶ 51 The trial court sentenced Mr. Gayden to a term of natural life in prison without the
possibility of parole for the two murder convictions and 20 years for the attempted murder. Mr.
Gayden’s motion to reconsider his sentence was denied and this appeal followed.
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¶ 52 II. JURISDICTION
¶ 53 Mr. Gayden’s motion to reconsider sentence was denied on September 13, 2016, and he
timely filed his notice of appeal that same day. We have jurisdiction pursuant to article VI, section
6 of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6), and Illinois Supreme Court Rule 603
(eff. Feb. 6, 2013) and Rule 606 (eff. Dec. 11, 2014), governing appeals from final judgments of
conviction in criminal cases.
¶ 54 III. ANALYSIS
¶ 55 On appeal, Mr. Gayden argues that he was deprived of a fair trial because (1) the trial court
erred when it allowed the State to use DNA evidence to tie Mr. Gayden to both the gun and the
letters sent from the jail; (2) the trial court should not have permitted the identification testimony
of Sergeant Lopez, Mr. Jaber, and Mr. Murdock; (3) the trial court erred when it let the State
present the prior statements of Mr. Murdock by ASA Carroll and ASA Villarreal; and (4) Mr.
Gayden received ineffective assistance from his trial counsel. We consider each issue in turn.
¶ 56 A. The Admission of the DNA Evidence Was Not an Abuse of Discretion
¶ 57 The trial court’s ruling on the admission of evidence is generally reviewed for an abuse of
discretion. People v. Harvey, 211 Ill. 2d 368, 392 (2004). “An abuse of discretion will be found
only where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable
person would take the view adopted by the trial court.” People v. Caffey, 205 Ill. 2d 52, 89 (2001).
¶ 58 According to Mr. Gayden, the DNA comparison result from the gun was “so skimpy that
statistically it would only eliminate a portion of the jury from having committed the instant
offense” and was therefore irrelevant. As to the DNA evidence from the envelope, Mr. Gayden
argues that it was far more prejudicial than probative because it “showed the same DNA was twice
as likely to be from a white male and four times more likely to be from a Hispanic male.” The
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State, in turn, argues that the DNA evidence was, in fact, “unquestionably relevant and
admissible.”
¶ 59 “Relevant evidence is evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable than it would be without the
evidence.” Harvey, 211 Ill. 2d at 392. “Probability is probability ‘tested in the light of logic,
experience, and accepted assumption as to human behavior.’ ” People v. Pike, 2016 IL App (1st)
122626, ¶ 33 (quoting People v. Patterson, 192 Ill. 2d 93, 115 (2000)).
¶ 60 Although “ ‘[r]elevance is a threshold requirement [for admissibility] that must be met by
every item of evidence,’ ” a court may exclude even relevant evidence “if the prejudicial effect of
the evidence substantially outweighs its probative value.” Id. ¶ 34 (quoting People v. Dabbs, 239
Ill. 2d 277, 289 (2010)). For the reasons outlined below we find that neither of the challenged
admissions of DNA evidence was an abuse of discretion.
¶ 61 1. Admission of the DNA Evidence from the Gun was Not an Abuse of Discretion
¶ 62 According to the trial testimony, Mr. Gayden could not be excluded as having contributed
to the DNA recovered from the gun and “one in four black, one in three white or one in four
Hispanic unrelated individuals” in general could not be excluded from possibly having contributed
to the DNA on the gun. While this was hardly conclusive evidence tying Mr. Gayden to the gun,
it was not unreasonable for the trial court to conclude that it had “some tendency” to make it more
probable that Mr. Gayden had handled the gun that was used in the shooting.
¶ 63 Mr. Gayden relies on Pike, 2016 IL App (1st) 122626, which we find to be distinguishable.
In Pike, this court found the admitted DNA evidence was irrelevant and admitted in error—
although not rising to the level of plain error—because the fact that 50% of the population could
be a potential contributor to the recovered DNA “did not tend to make [the] defendant’s
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identification more or less probable.” Id. ¶ 77. Here, in contrast, 1-in-4 black males, or 25% could
not be excluded from having contributed to the DNA on the gun, leaving Mr. Gayden in the
minority of the population who might have touched the gun. It was not unreasonable for the trial
court to conclude that this evidence, albeit of limited value, was admissible.
¶ 64 Mr. Gayden also argues that DNA evidence is inherently prejudicial and that therefore any
relevance was outweighed. We would share this concern but for the fact that between his direct
testimony and his cross-examination, Mr. Didomenic was clear that the DNA results did not
identify Mr. Gayden as having handled the gun and that he was part of a very large group of people
who were not excluded, thereby mitigating the potential for prejudice from admitting this evidence.
¶ 65 Mr. Gayden also argues that the State misled the jury as to the weight of this evidence. He
points to this portion of the State’s argument on rebuttal:
“Recalculation of gun on the DNA [sic]. New program, you heard the guy testify.
So what do you want? You want to bury our head in the sand and pretend this doesn’t exist?
What if it would have been an exclusion? What if the new math would have said no, it
couldn’t have been him. Then you wouldn’t [have] heard any complaining, would you?”
¶ 66 According to Mr. Gayden, the State “intentionally confus[ed] the jury by equating the
distinct concepts of genetic exclusion and genetic identification.” But the State did not argue that
the gun identified Mr. Gayden as the DNA contributor, only that if Mr. Gayden had been excluded
as a possible contributor to the DNA, he would have wanted that evidence presented at trial. And,
in fact, the State highlighted the “admittedly, small numbers” in closing argument, also saying that
“[i]t’s 1 in 4. There’s people in this courtroom right now that could also not be excluded.” There
was no reversible error in the State’s closing argument.
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¶ 67 2. The DNA from the Envelope was Properly Admitted
¶ 68 For similar reasons, we find no reversible error in the admission of Lisa Kell’s DNA
testimony about the May 10 envelope. That testimony was that Mr. Gayden could not be excluded
as a possible contributor and that only 1 in 6.2 million black, 1 in 2.8 million white, or 1 in 1.5
million Hispanic unrelated individuals also could not be excluded. This is significantly stronger
than the DNA evidence about the gun and certainly makes the possibility that Mr. Gayden himself
handled the envelope, and therefore the possibility that he authored the letter, more probable than
it would be without the evidence.
¶ 69 Defense counsel spent time on her cross-examination of Ms. Kell emphasizing that the
DNA evidence was not an identification and the fact that Mr. Gayden could not be excluded did
not mean there was a match. The statistic was fully presented, including the fact that a white or
Hispanic individual was more likely to not be able to be excluded than a black one. Like the DNA
comparison from the gun, the DNA comparison from the envelope was put into its proper context
and it was not unduly prejudicial to Mr. Gayden.
¶ 70 Mr. Gayden argues that the State mischaracterized Ms. Kell’s statistics in its rebuttal
argument, saying “6.2 million to 1 that DNA occurs in the general population of African American
individuals” and “Partial profile on the envelope. 6.2 million to 1, we know that.” We agree with
Mr. Gayden that 6.2 million to 1 is not quite the same as 1 in 6.2 million, but these were two
statements amidst 20 pages of closing and 20 pages of rebuttal arguments by the State. Also, the
trial court properly instructed the jury, both before and after arguments, that closing arguments are
not evidence which, we have recognized, diminishes any possible prejudicial impact of closing
argument. People v. Willis, 409 Ill. App. 3d 804, 814 (2011).
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¶ 71 B. The Admission of the Identifications Was Not an Abuse of Discretion
¶ 72 Mr. Gayden next argues that the trial court erred when it permitted Mr. Jaber, Mr. Murdock,
and Sergeant Lopez to identify Mr. Gayden as the shooter in the surveillance video and also erred
in its identification instruction to the jury. Evidentiary rulings are reviewed for an abuse of
discretion (Thompson, 2016 IL 118667, ¶ 53), and the question of whether the applicable law was
correctly conveyed by a jury instruction is reviewed de novo (People v. Parker, 223 Ill. 2d 494,
501 (2006)).
¶ 73 1. The Opinion Identifications Were Properly Admitted
¶ 74 In Thompson, 2016 IL 118667, ¶¶50-51, our supreme court held that opinion identification
testimony is admissible 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.” Id. ¶ 50. The court noted that “[l]ay 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.” Id. “A showing of sustained
conduct, 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.” Id. The court used a totality-of-the-
circumstances approach, including 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. The court also said that “the absence of any particular
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factor does not render the testimony inadmissible.” Id. According to our supreme court, if lay
opinion identification testimony “is admitted under the above standards, it would not invade the
province of the jury because the jury is free to reject or disregard such testimony and reach its own
conclusion regarding who is depicted in the surveillance recording.” Id.¶ 75 The Thompson court also held that “when the State seeks to introduce lay opinion
identification testimony from a law enforcement officer, the circuit court should afford the
defendant an opportunity to examine the officer outside the presence of the jury” and that, if the
testimony is admitted, “the circuit court should probably instruct the jury, before the testimony
and in the final charge to the jury, that it need not give any weight at all to such testimony and also
that the jury is not to draw any adverse inference from the fact the witness is a law enforcement
officer.” Id. ¶ 59.
¶ 76 The identification testimony in this case was properly admitted in accordance with the
Thompson criteria. Each witness was familiar with Mr. Gayden’s appearance at the time of the
shooting: Mr. Jaber testified that Mr. Gayden was an almost-daily customer of his, Mr. Murdock
told the ASAs in his prior statements—which we will discuss further and in more detail in the next
section—that he and Mr. Gayden were friends and had gone to the liquor store together, and
Sergeant Lopez testified that he had known Mr. Gayden since 2007 and had spoken to him “half a
dozen times.” Witnesses also testified that at trial Mr. Gayden had a different appearance than at
the time of the shooting—at trial he appeared to have lost weight, was wearing glasses, and had a
different hairstyle. And, perhaps most importantly, the quality of the surveillance footage was
poor—it was grainy and difficult to make out specific details.
¶ 77 With respect to Sergeant Lopez, the trial court conducted a hearing before trial which gave
Mr. Gayden the required “opportunity to examine the officer outside the presence of the jury” (id.)
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and instructed the jury that it should not draw an inference adverse to Mr. Gayden simply because
the sergeant was a law enforcement officer.
¶ 78 Because of their independent knowledge of Mr. Gayden, the poor quality of the
surveillance video, and Mr. Gayden’s changed appearance, it was reasonable for the trial court to
conclude that the identification testimony of Mr. Jaber, Mr. Murdock, and Sergeant Lopez was
rationally based on the perception of each witness and would have aided the jury in determining
the identity of the shooter in the video.
¶ 79 Mr. Gayden largely emphasizes the poor quality of the video as a reason these witnesses
should not have been permitted to testify, but that is contrary to how the supreme court suggested
this factor would apply. Although not explicit to its holding, in looking to federal law for guidance
on this subject, the court noted that “many courts” found that lay opinion identification testimony
is more helpful to the jury and “more likely to be admissible where the surveillance recording is
of poor or grainy quality, or where it shows only a partial view of the subject.” Id. ¶ 48.
¶ 80 Mr. Gayden additionally argues that the “evolution of matters over the course of the case”
weighs against the admissibility of the opinion identifications by Sergeant Lopez and Mr. Jaber.
Mr. Gayden argues that Sergeant Lopez “claimed” to know Mr. Gayden from observing him
operate drug sales despite having not memorialized any such observations in “contact cards.” But
the trial court heard this testimony at the pretrial hearing, and Mr. Gayden had the opportunity to
cross-examine Sergeant Lopez at that time. It is well-established that “a court of review will not
substitute its judgment for that of the trier of fact on questions involving the weight of the evidence
or the credibility of the witnesses.” People v. Gray, 2017 IL 120958, ¶ 35.
¶ 81 Mr. Gayden relies on the fact that Mr. Jaber was initially unable to identify Mr. Gayden in
court during the hearing, but then revealed, just before he testified, that he could, in fact, identify
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Mr. Gayden in court. These circumstances, however, relate to the weight to be given to the
testimony, not the admissibility of the testimony itself. There was plenty of evidence that Mr.
Gayden looked different at trial than he had at the time of the shooting almost six years before.
Defense counsel questioned Mr. Jaber about his failure to identify Mr. Gayden as the shooter in
the courtroom earlier that day, and Mr. Jaber explained that Mr. Gayden looked different than he
did at the time of the shooting. It was within the province of the jury to accept or reject Mr. Jaber’s
identification. Id. These circumstances do not affect the admissibility of his identification.
¶ 82 Mr. Gayden also argues that the trial court erroneously ruled that Mr. Jaber’s identification
of Mr. Gayden was admissible before holding a hearing, essentially shifting the burden to Mr.
Gayden to prove that the identification was not admissible. But this is simply not what occurred.
¶ 83 The court heard argument on the admissibility of Mr. Jaber’s identification testimony.
After reviewing Thompson, the trial court stated that it would allow the testimony because it would
“not invade the provinces of the Jury,” noting that “based on what the parties ha[d] told” the court,
Mr. Jaber had familiarity with Mr. Gayden, Mr. Gayden’s appearance had changed since the time
of his arrest, and the video was not clear. The court then held the hearing the following day, at
which time Mr. Jaber’s testimony matched the representations made by the State and the court
confirmed the admissibility of his identification testimony.
¶ 84 This was not an error. The court’s initial ruling was based on the representations of the
State as to Mr. Jaber’s testimony which were confirmed at an evidentiary hearing. The court made
this clear, stating, “I know yesterday I said that the State’s motion was granted, but that’s only
granted if they can establish with the witnesses the totality of the circumstances and that’s why I
held it for a hearing today.” There was no improper burden shifting.
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¶ 85 2. The Trial Court Did Not Err Instructing the Jury on Identifications
¶ 86 Mr. Gayden also argues that the trial court erred legally when it instructed the jury just
before each witness made their identifications. The instruction was substantially as follows:
“[L]adies and gentlemen, you will hear testimony from witnesses that it is their opinion the
identity of the man depicted in the video before and during the shooting is Samuel Gayden.
In considering the opinion testimony of a witness, you must decide what weight to
give the evidence. In weighing the opinion evidence, you are not to draw any adverse
inference against [Mr. Gayden] if such testimony is given by a law enforcement officer.
Where the opinion testimony of a witness differs from your own observations of
the video, you need not give any weight at all to such opinion testimony.”
¶ 87 The purpose of a jury instruction is “to guide the jury in its deliberations and to assist the
jury in reaching a proper verdict through application of legal principles to the evidence and law.”
Parker, 223 Ill. 2d at 501. Mr. Gayden argues that this instruction failed to do so because it
“virtually directs the jury to accept the identifications.”
¶ 88 The State argues that Mr. Gayden has forfeited review of this issue because his trial counsel
agreed to it. This is true, but forfeiture is a limitation on the parties, not on the reviewing court.
People v. Holmes, 2016 IL App (1st) 132357, ¶ 65. And here, because Mr. Gayden also supports
his ineffective assistance of counsel claim with his trial counsel’s failure to object to what he now
argues was an improper instruction, we will address the merits of this argument.
¶ 89 On the merits, the State points out that the trial court’s instruction is consistent with the
supreme court’s announcement in Thompson that a trial court should instruct the jury “before the
testimony and in the final charge to the jury, that it need not give any weight at all to such testimony
and also that the jury is not to draw any adverse inference from the fact the witness is a law
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enforcement officer if that fact is disclosed.” Thompson, 2016 IL 118667, ¶ 59.
¶ 90 The instruction given by the trial court precisely follows the holding of Thompson, and it
did not require the jury to accept the identifications. As with any evidence, the jury was free to
determine how much weight to give to each identification. People v. Sutherland, 223 Ill. 2d 187,
242 (2006). This was not an improper instruction.
¶ 91 C. The Admission of Mr. Murdock’s Prior Statements Was Not an Abuse of Discretion
¶ 92 Mr. Gayden next argues that the trial court erred in admitting the two prior statements of
Mr. Murdock as substantive evidence: his oral statement to ASA Carroll 10 days after the shooting
and his written statement to ASA Villareal in April 2011. Specifically, Mr. Gayden argues that
neither statement was admissible as substantive evidence, that the trial court erred by not correctly
instructing the jury that the statements were admissible only as impeachment, and that the oral
statement was not even inconsistent and therefore was completely inadmissible. We review these
admissibility issues for an abuse of discretion. People v. Wilson, 2012 IL App (1st) 101038, ¶ 38.
¶ 93 Generally, “hearsay, defined as an out of court statement *** offered to prove the truth of
the matter asserted, is inadmissible at trial.” (Internal quotation marks omitted.) Id. One exception
to the general rule, however, is “for prior inconsistent statements of a testifying witness, which
may be admitted to impeach the witness’s credibility.” Id. In addition, pursuant to section 115-
10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2016)), a prior
inconsistent statement may also be offered as substantive evidence if specific criteria are met. The
statute requires that the witness be subject to cross-examination and that: “(1) the statement is
inconsistent with the witness’s trial testimony,” (2) “the witness acknowledged under oath the
making of the statement *** at a trial, hearing, or other proceeding,” and (3) the statement
“narrates, describes, or explains an event or condition of which the witness had personal
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knowledge.” 725 ILCS 5/115-10.1(c)(2)(B) (West 2016). The statements at issue in this appeal
met the three criteria for admissibility as substantive evidence under the statute.
¶ 94 First, Mr. Murdock’s prior statements were inconsistent with his trial testimony. For the
purposes of section 115-10.1, the term “inconsistent” “is not limited to direct contradictions but
also includes evasive answers, silence, or changes in position.” People v. Cook, 2018 IL App (1st)
142134, ¶ 43. At trial, Mr. Murdock testified that he went to the liquor store alone on September
1, 2010, that he was kicked out, that he heard gunshots as he was walking away, and that he then
ran away down the alley. He also testified that he did not know Mr. Gayden, although he later
admitted to recognizing him when shown a photo. Mr. Murdock’s pretrial statements that he knew
Mr. Gayden, had gone to the liquor store with a group that included Mr. Gayden, was with Mr.
Gayden after the shooting, and that he could identify Mr. Gayden in the video of the shooting all
directly contradicted his testimony at trial.
¶ 95 Mr. Murdock’s admission that he made the prior statements—under oath at trial—does not
render them consistent with his trial testimony. Rather, this met the second criterion for substantive
admissibility under section 115-10.1. The statute requires that “the witness acknowledged under
oath the making of the statement *** at a trial, hearing, or other proceeding.” 725 ILCS 5/115-
10.1(c)(2)(B) (West 2016). See also People v. Stremmel, 258 Ill. App. 3d 93, 117 (1994) (finding
a witness’s prior inconsistent statement to be admissible as substantive evidence where the witness
acknowledged at trial having made the statement, but not the prior inconsistent statement that the
witness could not recall having previously made).
¶ 96 Finally, the third criterion was met because both of Mr. Murdock’s prior inconsistent
statements involved him narrating or explaining the events of September 1, 2010, of which he had
personal knowledge. Mr. Gayden argues that because Mr. Murdock was not an eyewitness to the
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shooting, he could not claim personal knowledge of the shooter’s identity. Mr. Gayden relies on
People v. Simpson, 2015 IL 116512. In Simpson, our supreme court held that a witness’s
videotaped statement that he heard the defendant confess to the crime at issue was not admissible
as substantive evidence because the witness “had no personal knowledge of the beating allegedly
delivered by [the] defendant.” Id. ¶ 34. Here, in contrast to Simpson, Mr. Murdock’s prior
statements involved the events of the night of the shooting that were within his personal
knowledge.
¶ 97 In summary, both of Mr. Murdock’s prior statements were inconsistent with his trial
testimony, he admitted to making both statements, and his statements involved events surrounding
the shooting within his personal knowledge. Accordingly, they were properly admitted as
substantive evidence under section 115-10.1.
¶ 98 Mr. Gayden’s argument that the trial court should have instructed the jury on the limited
purpose for which these statements were admitted is based on his claim that the statements were
not properly admitted as substantive evidence. Because we have found that the statements were
properly admitted substantively, Mr. Gayden’s argument on this point is now moot.
¶ 99 D. Mr. Gayden Did Not Receive Ineffective Assistance of Trial Counsel
¶ 100 Mr. Gayden’s last argument is that he received ineffective assistance of trial counsel,
largely based on the “aforesaid errors” argued throughout the rest of his brief. An ineffective
assistance of counsel claim “is evaluated under the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984).” People v. Henderson, 2013 IL 114040, ¶ 11. To show
ineffective assistance, a defendant must show both that “counsel’s performance fell below an
objective standard of reasonableness, and a reasonable probability exists that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. “A defendant’s
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failure to establish either prong of the Strickland test precludes a finding of ineffective assistance
of counsel.” Id.¶ 101 Here, Mr. Gayden cannot make a showing under either prong of Strickland. Mr. Gayden’s
trial counsel vigorously tried this case, objecting to and preserving most of the evidentiary errors
that Mr. Gayden claims on appeal. Moreover, as we have discussed, there was no error in the
admission of any of this evidence. In addition to all of the challenged evidence, the gun used in
the shooting was recovered from the apartment where Mr. Gayden was staying, the letters that
appeared to reference the shooting had Mr. Gayden’s name and prison information on them, and
Mr. Gayden also appeared to discuss the shooting on the phone call recordings presented to the
jury. In short, there was no showing of errors by counsel or any reasonable probability that Mr.
Gayden would not have been convicted but for the alleged errors of counsel. Accordingly, Mr.
Gayden cannot show he received ineffective assistance of trial counsel.
¶ 102 VI. CONCLUSION
¶ 103 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 104 Affirmed.
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