People v. Hibbler , 2021 IL App (4th) 200022-U ( 2021 )

NOTICE FILED
This Order was filed under 2021 IL App (4th) 200022-U October 12, 2021
Supreme Court Rule 23 and Carla Bender
is not precedent except in the NO. 4-20-0022 4th District Appellate
limited circumstances Court, IL
allowed under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
DERRELL MISEAN HIBBLER, ) No. 19CF221
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Presiding Justice Knecht and Justice Harris concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed in part, concluding (1) the State proved defendant
guilty beyond a reasonable doubt; (2) the trial court did not err when it permitted
Detective Klein to provide lay opinion testimony; however, the court erred when
it permitted Detective Klein to provide improper lay opinion identification
testimony, but the evidence was not closely balanced; and (3) trial counsel was
not ineffective for failing to file a motion to sever the charges. The appellate
court vacated defendant’s term of mandatory supervised release for unlawful use
of a weapon by a felon and remanded with directions.
¶2 Following a November 2019 trial, a jury found defendant, Derrell Misean
Hibbler, guilty of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2018)) and
two counts of reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2018)). The jury
acquitted defendant of mob action (720 ILCS 5/25-1(a)(1) (West 2018)). In January 2020, the
trial court sentenced defendant to seven years’ imprisonment for unlawful use of a weapon by a
felon to run concurrent to consecutive three-year terms in prison on each count of reckless
discharge of a firearm. The court also ordered defendant to serve two years of mandatory
supervised release (MSR) for unlawful use of weapon by a felon and one year of MSR for the
two counts of reckless discharge of a firearm.
¶3 Defendant appeals, arguing (1) the State failed to prove him guilty beyond a
reasonable doubt; (2) the trial court erred when it permitted Detective Klein to provide improper
lay witness opinion testimony and identification testimony based on the video surveillance;
(3) ineffective assistance of trial counsel for failing to file a motion to sever the unlawful use of a
weapon by a felon charge from the other charges; and (4) the court improperly ordered defendant
to serve two years of MSR for unlawful use of a weapon by a felon. For the following reasons,
we affirm in part, vacate in part, and remand with directions.
¶4 I. BACKGROUND
¶5 In March 2019, the State charged defendant, by indictment, with (1) unlawful use
of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2018)), (2) two counts of reckless discharge
of a firearm (720 ILCS 5/24-1.5(a) (West 2018)), and (3) mob action (720 ILCS 5/25-1(a)(1)
(West 2018)). The charges stemmed from a February 26, 2019, shooting near Franzetti’s Pantry
in Bloomington, Illinois.
¶6 A. Defendant’s Jury Trial
¶7 At defendant’s November 2019 jury trial, the trial court first addressed the State’s
intent to offer defendant’s prior convictions for purposes of impeachment if defendant chose to
testify. The State sought to introduce defendant’s prior theft conviction in McLean County case
No. 15-CF-1296 and his aggravated battery conviction in McLean County case No. 16-CF-864.
The trial court asked defense counsel, “What is your intent as far as the potentially stipulating to
the defendant having a prior felony without having the jury hear the precise nature of same?”
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Specifically, the court inquired about a stipulation to defendant’s conviction for aggravated
battery in McLean County case No. 16-CF-864 where the State used the conviction as a
predicate to charge defendant with unlawful use of a weapon by a felon. After speaking with
defendant, defense counsel stated, “Judge, we would be willing to—we’d be willing to stipulate
there is a felony conviction in lieu of the jury hearing the nature of the charge if that is
permissible by the Court.” The court responded, “Well, actually, it’s up to the defense as
opposed to the Court.” Defense counsel then stipulated to the introduction of the felony
conviction in McLean County case No. 16-CF-864, an element of the unlawful use of a weapon
by a felon charge, in exchange for the jury not being informed as to the specific nature of the
conviction. The court then granted the State’s motion to offer defendant’s other prior conviction
in McLean County case No. 15-CF-1296 for purposes of possible impeachment.
¶8 Below, we summarize the relevant testimony elicited during defendant’s jury trial.
¶9 1. John Orendorff
¶ 10 John Orendorff testified that on February 26, 2019, he worked at Speed Lube
located at the intersection of East Washington Street and North Clinton Street in Bloomington.
Orendorff stated that around 1:30 p.m. on February 26, he stood on the north side of Speed Lube
smoking a cigarette facing East Jefferson Street when he observed three black males walk across
Clinton Street, then cross East Jefferson Street and enter an apartment building on East Jefferson
Street across from Speed Lube. Orendorff then observed the three males exit the apartment a
little while later wearing different clothes. Eventually, Orendorff watched the three males once
more reenter the apartment. Orendorff later spoke to police and identified the apartment building
the men went into. Orendorff testified he did not hear any gunshots and he had no idea what
happened when he saw the men.
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¶ 11 2. Haynes Brothers
¶ 12 Khamahja and Khawaunis Haynes both testified that on February 26, 2019, a little
after 1 p.m., they were walking west on East Washington Street to Franzetti’s Pantry when they
heard gunshots and both “ducked.” Khamahja testified he and his brother, Khawaunis, were
across the street from Franzetti’s Pantry on the north side of East Washington Street when they
were shot at. Khamahja did not see who shot at him but stated the shots came from his “right
side.” Khamahja testified that in response to the shooting he drew his firearm. Khamahja
carried a valid firearm owners identification (FOID) card and valid conceal carry permit. After
Khamahja pulled his firearm out he did not see anyone, so he ran toward where the shots came
from. When he did not see anyone, he eventually went back to his mom’s house on East
Washington Street and his brother went to Franzetti’s Pantry. Khamahja spoke with police after
the incident and told police the individual who shot at him was wearing a gray sweater. On
cross-examination, Khamahja denied telling police that on the day of the shooting he saw “two
light-skinned black males.”
¶ 13 Khawaunis testified that after he ducked, he did not see where the gunshots came
from nor who shot at him. Khawaunis then followed his brother who ran toward the gunshots.
Specifically, Khawaunis and his brother ran toward a car wash. After not finding the shooter, the
brothers turned around, and Khawaunis went to Franzetti’s Pantry. Khawaunis subsequently
spoke with police.
¶ 14 3. Responding Police Officers
¶ 15 Around 1:30 p.m. on February 26, 2019, police officers responded to a shots fired
call around Franzetti’s Pantry and the Speed Lube on East Washington Street in Bloomington.
Alex Freshour, a Bloomington police officer, testified that when he arrived on scene, he spoke
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with Khamahja whom he believed to be the shooting suspect and took a firearm from him.
While Officer Freshour spoke with Khamahja, other officers spoke with Khawaunis. Officer
Freshour testified Khamahja told him “he saw two light-skinned black males.”
¶ 16 Pedro Diaz, a Bloomington police officer, testified that when he responded to the
scene, he went and spoke with a mechanic at Speed Lube. After speaking with the mechanic,
Officer Diaz helped set up a perimeter around 706 East Jefferson Street, Apartment 5, where
witnesses reported seeing suspects running into the apartment. Officer Diaz testified that once
police set up the perimeter, they attempted to contact the occupants of the apartment.
Eventually, Lar-Darius Carroll exited the apartment after his mother contacted him. Later,
defendant and Tiquan Hamer exited the apartment. Officer Diaz testified he was present when
defendant exited the apartment, and Officer Diaz identified defendant in court. Police obtained a
search warrant for the apartment and determined no other individuals were inside.
¶ 17 Kiel Nowers, a Bloomington police officer, testified he was familiar with the area
around Franzetti’s Pantry and Speed Lube. The State admitted a Google map of the area through
Officer Nowers. Officer Nowers identified the building north of Franzetti’s Pantry, across an
empty lot, as a car wash. Officer Nowers also identified 706 East Jefferson Street as an
apartment building north of the Speed Lube across East Jefferson Street. Officer Nowers
testified he helped establish a perimeter around 706 East Jefferson Street, Apartment 5.
Eventually, Officer Nowers attempted to contact the occupants of the apartment by knocking on
the apartment door. When no one responded, officers tried to open the front door and discovered
a chain on the inside of the door. Officer Nowers testified the occupants eventually exited the
apartment and were placed under arrest.
¶ 18 4. Detective Tyrel Klein
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¶ 19 Tyrel Klein, a detective with the Bloomington Police Department, testified he
began working for the Bloomington Police Department in 2013. Detective Klein started as a
patrol officer, then worked as a patrol officer in the street crimes unit dealing with investigations
involving gangs, drugs, and violence. He then became a detective, which he had been for almost
a year. Detective Klein acknowledged he had been assigned to quite a few firearms cases.
Detective Klein stated he trained with his firearm once a month as part of the special weapons
and tactics (SWAT) team.
¶ 20 Detective Klein testified that on February 26, 2019, a supervisor designated him
the lead investigator on this case. First, Detective Klein interviewed the Haynes brothers at the
Bloomington Police Department. Then, a couple hours later, Detective Klein went down to
Franzetti’s Pantry to collect video surveillance. Detective Klein obtained and watched video
recordings from Franzetti’s Pantry and a Connect Transit bus. The State admitted and published
the video recordings from Franzetti’s Pantry and the Connect Transit bus through Detective
Klein.
¶ 21 First, the State played “channel 4” of the video recording, which depicted the
inside of Franzetti’s Pantry on February 26, 2019. In the video recording, three black males can
be seen walking around the store. After the State played the video recording, Detective Klein
testified he recognized defendant in the video wearing a gray hooded sweatshirt. Detective Klein
then identified defendant in court. In the video recording, Detective Klein also identified Tiquan
Hamer wearing a black hooded sweatshirt and Lar-Darius Carroll wearing a sweatshirt with a
shiny design on the front and wearing glasses. The State asked Detective Klein if he noticed
anything of interest in the video recording. Detective Klein responded defendant’s sweatshirt
pocket appeared to have an object in it. Defense counsel objected to this testimony on the basis
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that it was speculation and drew an opinion. Further, defense counsel argued Detective Klein
was not present at the time of the video recording and never searched defendant. The trial court
overruled the objection, stating Detective Klein could render an opinion as to what he believed
he saw and then it was up to the jury to accept or reject his opinion. Detective Klein then
testified defendant’s “left sweatshirt pocket had a heavy object in it.”
¶ 22 The State then played a video recording from “channel 5,” which depicted the
inside of Franzetti’s Pantry on February 26, 2019, from another angle. After the State played the
video recording, Detective Klein testified he recognized the same three individuals, defendant,
Carroll, and Hamer, in the video recording. Detective Klein stated as defendant walked down an
aisle toward the camera, the object in his left pocket leans forward and “it opens up the pocket to
where you can see the top of it actually.”
¶ 23 The State then played a video recording from “channel 8,” which depicted another
angle from the inside of Franzetti’s Pantry on February 26, 2019. After the State played the
video recording, Detective Klein testified he recognized defendant in the video recording and
that in defendant’s “left hooded sweatshirt pocket there’s a pretty definitive outline of a heavy
object.” The State asked Detective Klein based on his “training and experience do you have an
opinion as to what is in the [d]efendant’s pocket?” Defense counsel objected based on
speculation and that Detective Klein did not personally search defendant. The court overruled
the objection, concluding it went to the weight to be given the testimony as opposed to the
admissibility. Detective Klein then testified the object in defendant’s pocket appeared to be a
handgun. Specifically, Detective Klein stated, “The top portion of the slide is the weight that
you see leaning forward. And then at the bottom of the pocket it looks like the handle grip of a
pistol.”
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¶ 24 The State then played a video recording from “channel 1,” which depicted the
outside of Franzetti’s Pantry on February 26, 2019. Specifically, the video recording showed the
Franzetti’s Pantry parking lot on February 26, 2019, when three men exit the store and walk
through the parking lot. The State then replayed the video recording, paused it, and asked
Detective Klein to identify the three men. Detective Klein identified Carroll in blue pants,
Hamer in red pants, and defendant in a gray hooded sweatshirt with jeans.
¶ 25 The State then played a video recording from “channel 10,” which depicted a
wider view of the outside of Franzetti’s Pantry on February 26, 2019. In the video recording, the
same three individuals exit Franzetti’s Pantry and walk north through the store’s parking lot.
The three individuals start to cross East Washington Street but stop in the middle of the street
and turn their attention to the east. The three individuals then start to walk southeast on East
Washington Street, in the direction they stopped to look. Then, the three individuals start to
quickly walk north and cross back over East Washington Street to the sidewalk facing east.
Abruptly, the three individuals turn and start to run. The three individuals split up with one
individual running north and the other two running northwest through a vacant parking lot and
then across North Clinton Street.
¶ 26 A short time later, two new individuals appear in the video running west on the
north side of East Washington Street. The two new individuals walk on the sidewalk near the
vacant parking lot, stop, and duck. Then, the two new individuals run north and northwest out of
view, in the same direction the three individuals ran.
¶ 27 After the State played the video recording, Detective Klein testified that on the
video recording he recognized the three individuals who exited Franzetti’s Pantry as defendant,
Carroll, and Hamer. Detective Klein recognized the two new individuals who enter the video
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recording later as Khawaunis and Khamahja. Detective Klein testified he was familiar with
Khawaunis and Khamahja because he interviewed them on February 26, 2019. Detective Klein
testified he was familiar with defendant, Carroll, and Hamer based on watching the video
recordings. Detective Klein testified the video recording showed Hamer and Carroll ran
west/northwest across Clinton Street while defendant did not follow and instead “went north
along the side of the building and ultimately to the alley not with the other two.”
¶ 28 Last, the State played a video recording from a Connect Transit bus, which
depicted the outside of Franzetti’s Pantry as the bus drove by. After the State played the video
recording, Detective Klein testified that based on the video recording he recognized Carroll,
Hamer, and defendant standing on the sidewalk of East Washington Street as the bus passed.
Detective Klein testified the bus video recording depicted the same area as the video recordings
from Franzetti’s Pantry. Detective Klein admitted to not being present at Franzetti’s Pantry at
the time of the video recordings and that he did not search defendant.
¶ 29 5. Detective David Ashbeck
¶ 30 David Ashbeck, a crime scene detective with the Bloomington Police Department,
testified that on February 26, 2019, he collected physical evidence around the Clinton and
Washington intersection by Franzetti’s Pantry. Specifically, Detective Ashbeck collected two
9-millimeter caliber shell casings in the northeast corner of the car wash at 221 North Clinton
Street. Detective Ashbeck recovered a bullet from a residence at 804 East Front Street where the
bullet went through the east wall of the residence.
¶ 31 Detective Ashbeck also participated in the execution of the search warrant
obtained for 706 East Jefferson Street, Apartment 5. Inside the apartment, Detective Ashbeck
recovered a firearm that had been taken apart, resulting in three separate pieces being seized.
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Detective Ashbeck found the magazine of the firearm in the bottom of a package of toilet paper,
the handle in a plastic bag in the closet, and the slide in the bottom of a laundry basket.
Detective Ashbeck also collected cell phones and a “couple other small things” from the
apartment. Detective Ashbeck testified he believed one of the cell phones belonged to
defendant. Detective Ashbeck later processed the firearm and found a fingerprint on the trigger
that matched Tiquan Hamer. Detective Ashbeck testified he believed the apartment belonged to
Hamer’s girlfriend.
¶ 32 6. Detective Steven Moreland
¶ 33 Steven Moreland, a detective with the Bloomington Police Department, testified
regarding the firearm seized from 706 East Jefferson Street, Apartment 5. Detective Moreland
identified the firearm as a “Smith & Wesson M&P Shield 9 millimeter.” Detective Moreland
testified he owned a .40-caliber M&P Shield and was familiar with the technique utilized to
disassemble the weapon. Detective Moreland then disassembled the firearm seized from 706
East Jefferson Street, Apartment 5, showing that to remove the slide, the “trigger is depressed,
the slide comes off.” The State asked Detective Moreland “is your fingerprint currently on the
trigger of that weapon?” Detective Moreland responded, “It should be.” Detective Moreland
also testified his fingerprint would be on the trigger if he fired the gun.
¶ 34 7. Stipulations
¶ 35 The parties stipulated to the foundation and admission of surveillance videos
obtained from Franzetti’s Pantry and a Connect Transit bus. The parties also stipulated to the
foundation and admission of defendant’s February 26, 2019, police interview with Detective
Jefferey Engle at the Bloomington Police Department. The trial court allowed defendant’s
February 26, 2019, police interview to be played for the jury.
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¶ 36 During the February 26, 2019, police interview, defendant wore a blue sweatshirt
with a white design on the front, black pants, and no shoes. Defendant identified himself in the
interview and told Detective Engle he heard there were shots fired but he was not personally
aware of the shooting. Defendant told Detective Engle that on the day of the shooting he went
with Lar-Darius Carroll to a tattoo appointment. Defendant stated he remained in the car while
Carroll received a tattoo and he could not provide details about Carroll’s tattoo. When asked
whether they went to a house or business for the tattoo, defendant responded, “I don’t know, it
was a house probably.” Defendant identified Tiquan Hamer as his biological brother and stated
Hamer’s girlfriend lived at the apartment on East Jefferson Street.
¶ 37 Defendant also told Detective Engle he went to Franzetti’s Pantry earlier in the
day to get food and that he heard gunshots and ran to “the crib.” Defendant stated he took off
when he heard gunshots and did not know who shot them and did not see anyone. When asked
why someone would shoot at him, defendant said he did not know and that there are cases of
“mistaken identity.”
¶ 38 Detective Engle asked defendant what he wore at Franzetti’s Pantry earlier that
day. Defendant responded, “Why does that matter?” Detective Engle then confronted defendant
about having different clothing on than he wore at Franzetti’s Pantry. In response, defendant
questioned the detective stating, “How do you know what I was wearing?” Detective Engle then
informed defendant to the presence of the video surveillance the police obtained. Defendant told
Detective Engle he wore the same clothes he had on earlier at Franzetti’s Pantry. The interview
then ended.
¶ 39 The parties stipulated to the physical evidence, including two shell casings found
at 221 North Clinton Street, a bullet recovered from 804 East Front Street, and a 9-millimeter
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pistol recovered from 706 East Jefferson Street, Apartment 5. Dustin Johnson, an expert in
firearms and toolmarks, tested and analyzed the physical evidence and determined the shells and
bullet were fired from the recovered pistol. Last, the parties presented a joint oral stipulation to
the jury that defendant had a prior felony conviction in McLean County case No. 16-CF-864.
The trial court then instructed the jury that the joint oral stipulation “is evidence for you to
consider. No other proof is needed. And in your role as factfinders you must accept those facts
as true in the trial.”
¶ 40 8. Jury Deliberation and Verdict
¶ 41 During deliberations, the jury sent a note to the trial court asking, “Channel 10,
Can we watch video of shooting? We want to watch direction of runners[.]” The court
responded, “Yes. People’s Exhibit 4, which includes the video portion from Channel 10 you
requested is being provided momentarily. A representative from the court will provide you with
instructions on how to view the video on a laptop computer.”
¶ 42 Following deliberations, the jury found defendant guilty of unlawful use of a
weapon by a felon and two counts of reckless discharge of a firearm. The jury found defendant
not guilty of mob action.
¶ 43 B. Defendant’s Posttrial Motions and Sentencing
¶ 44 On December 18, 2019, defendant filed a motion for judgment notwithstanding
the verdict or, in the alternative, for new trial. In the motion, defendant alleged (1) the State
failed to prove him guilty beyond a reasonable doubt and (2) the trial court erred in denying
defendant’s motion for directed verdict.
¶ 45 At a January 3, 2020, hearing, the trial court heard arguments on defendant’s
posttrial motion before sentencing defendant. Defense counsel argued the evidence was
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insufficient to convict defendant of unlawful use of a weapon by a felon or reckless discharge of
a firearm. Defense counsel also argued, “For any errors I would cite the ominous clause for any
errors in the record the Court finds that new trial be ordered. Thank you.” The trial court
responded, “Okay. So any objection that was raised for which the objection, more specifically
by defense counsel that was overruled, or any relief not requested by the defendant that was
denied, that you’re indicating that those form the basis then for me granting a new trial?”
Defense counsel responded, “Yes.” The State argued there was sufficient circumstantial
evidence to convict defendant based on video surveillance from Franzetti’s Pantry, the testimony
from multiple police officers, and the ballistic evidence.
¶ 46 Ultimately, the court determined there was no basis for awarding a new trial
where it correctly ruled on evidentiary matters. Further, the court denied defendant’s motion for
judgment notwithstanding the verdict finding the circumstantial evidence was sufficient to
support defendant’s convictions.
¶ 47 The court then sentenced defendant to seven years’ imprisonment for unlawful
use of a weapon by a felon to run concurrent to consecutive three-year terms in prison on each
count of reckless discharge of a firearm. The court also ordered defendant to serve two years’
MSR for unlawful use of weapon by a felon and one year MSR for the two counts of reckless
discharge of a firearm.
¶ 48 This appeal followed.
¶ 49 II. ANALYSIS
¶ 50 On appeal, defendant argues (1) the State failed to prove him guilty beyond a
reasonable doubt; (2) the trial court erred when it permitted Detective Klein to provide improper
lay witness opinion testimony and identification testimony based on the video surveillance;
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(3) ineffective assistance of trial counsel for failing to file a motion to sever the unlawful use of a
weapon by a felon charge from the other charges; and (4) the court improperly ordered defendant
to serve two years of MSR for unlawful use of a weapon by a felon. We turn first to the
sufficiency of the evidence.
¶ 51 A. Sufficiency of the Evidence
¶ 52 When considering the sufficiency of the evidence, we determine whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the required elements of the crime beyond a reasonable doubt. People v. Bradford, 2016
IL 118674, ¶ 12, 50 N.E.3d 1112. “It is the responsibility of the trier of fact to resolve conflicts
in the testimony, weigh the evidence, and draw reasonable inferences from the facts.” Id.“Accordingly, a reviewing court will not substitute its judgment for the fact finder on questions
involving the weight of the evidence or the credibility of the witnesses.” Id. “A conviction will
be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that it
justifies a reasonable doubt of the defendant’s guilt.” People v. Belknap, 2014 IL 117094, ¶ 67,
23 N.E.3d 325.
¶ 53 “Circumstantial evidence is sufficient to sustain a criminal conviction, provided
that such evidence satisfies proof beyond a reasonable doubt of the elements of the crime
charged.” People v. Hall, 194 Ill. 2d 305, 330, 743 N.E.2d 521, 536 (2000). “The trier of fact
need not, however, be satisfied beyond a reasonable doubt as to each link in the chain of
circumstances. It is sufficient if all the evidence taken together satisfies the trier of fact beyond a
reasonable doubt of the defendant’s guilt.” Id. (citing People v. Jones, 105 Ill. 2d 342, 350, 475
N.E.2d 832, 835 (1985)).
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¶ 54 Defendant argues the State failed to present any evidence directly showing he
fired or possessed a firearm, and the evidence failed to identify him as the shooter. The State
argues that while it presented no eyewitness or video evidence of the actual shooting, a plethora
of circumstantial evidence exists proving defendant’s guilt. Specifically, the State presented
circumstantial evidence in the form of video surveillance from Franzetti’s Pantry, the Haynes
brothers’ testimony, multiple police officer’s testimony, defendant’s police interview, and
physical evidence found at multiple locations near the scene of the shooting. We first turn to
whether the State proved defendant guilty of two counts of reckless discharge of a firearm
beyond a reasonable doubt.
¶ 55 1. Reckless Discharge of a Firearm
¶ 56 To prove a defendant guilty of reckless discharge of a firearm (720 ILCS
5/24-1.5(a) (West 2018)), the State must present evidence to establish beyond a reasonable doubt
that defendant (1) discharged a firearm in a reckless manner and (2) endangered the bodily safety
of an individual. 720 ILCS 5/24-1.5(a) (West 2018). Here, defendant argues that while there is
no serious dispute over the fact someone discharged a firearm in the direction of Khamahja and
Khawaunis, or that doing so endangered their bodily safety, the State failed to present sufficient
evidence to prove defendant discharged the firearm. We disagree and find adequate
circumstantial evidence existed to prove defendant guilty of reckless discharge of a firearm
beyond a reasonable doubt.
¶ 57 At trial, the testimony revealed that on February 26, 2019, a little after 1 p.m.,
Khamahja and his brother, Khawaunis, walked west on East Washington Street to Franzetti’s
Pantry when they heard gunshots and “ducked.” Khamahja testified he did not see who shot at
him but stated the gunshots came from his “right side.”
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¶ 58 Around 1:30 p.m. on February 26, 2019, Orendorff stood on the north side of
Speed Lube smoking a cigarette facing East Jefferson Street when he observed three black men
walk across Clinton Street, then cross East Jefferson Street and enter an apartment building on
East Jefferson Street. Later, Orendorff observed those same three men exit the apartment
building wearing different clothes. Orendorff then once more watched the three men reenter the
apartment.
¶ 59 Responding officers testified to being dispatched around 1:30 p.m. on February
26, 2019, to the area around Franzetti’s Pantry and the Speed Lube on East Washington Street
for a shots fired call. Officer Nowers testified he was familiar with the area around Franzetti’s
Pantry and Speed Lube. Officer Nowers identified the building north of Franzetti’s Pantry,
across an empty lot, as a car wash. Officer Nowers also identified 706 East Jefferson Street as an
apartment building north of the Speed Lube across East Jefferson Street.
¶ 60 Upon arrival at the scene, Officer Diaz spoke with a mechanic at Speed Lube.
After speaking with the mechanic, Officer Diaz helped set up a perimeter around 706 East
Jefferson Street, Apartment 5, where witnesses reported potential suspects running into the
apartment. Both Officer Diaz and Officer Nowers testified that once the police set up the
perimeter, they attempted to contact the occupants of the apartment. Eventually, Carroll, Hamer,
and defendant exited the apartment. Police obtained a search warrant for the apartment and
determined no other individuals were inside.
¶ 61 Detective Ashbeck testified he participated in the execution of the search warrant
for the apartment and recovered a firearm that had been taken apart, resulting in three separate
pieces being seized. Detective Ashbeck found the magazine of the firearm in the bottom of a
package of toilet paper, the handle in a plastic bag in the closet, and the slide in the bottom of a
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laundry basket. Detective Ashbeck later processed the firearm and found a fingerprint on the
trigger that matched Hamer.
¶ 62 Detective Ashbeck also collected physical evidence around the Clinton and
Washington intersection by Franzetti’s Pantry. The parties stipulated to the physical evidence,
including two shell casings found at 221 North Clinton Street, a bullet recovered from 804 East
Front Street, and a 9 millimeter pistol recovered from 706 East Jefferson Street, Apartment 5.
Firearms expert Johnson tested and analyzed the physical evidence and determined the shells and
bullet were fired from the recovered pistol.
¶ 63 Further, the jury viewed video surveillance from inside and outside Franzetti’s
Pantry on the day of the shooting. Video recordings from inside Franzetti’s Pantry show three
black males enter the store a little before the shooting and walk around. In the video, one male
wore a black hooded sweatshirt with red pants, another wore a sweatshirt with a shiny design on
the front, blue pants, and glasses, and the third male wore a gray hooded sweatshirt with jeans.
In the video recording, a bulge can be observed in the left sweatshirt pocket of the man with the
gray sweatshirt. Detective Klein identified defendant in the video as the man wearing the gray
hooded sweatshirt, Hamer as the man wearing the black hooded sweatshirt and red pants, and
Carroll as the man wearing the sweatshirt with a shiny design, glasses, and blue pants. Detective
Klein testified he observed a bulge in defendant’s pocket and opined that, although he did not
personally search defendant, the object in defendant’s pocket appeared to be a handgun. Defense
counsel objected, and the trial court overruled the objection, concluding it went to the weight to
be given the testimony as opposed to the admissibility.
¶ 64 The jury also viewed video surveillance from outside Franzetti’s Pantry. In the
video recordings from outside the store, the three men eventually exit Franzetti’s Pantry and
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walk north through the store’s parking lot. The three men start to cross East Washington Street
but stop in the middle of the street and turn their attention to the east. The three men then start to
walk southeast on East Washington Street, in the direction they stopped to look. Then, the three
men start to quickly walk north and cross back over East Washington Street to the sidewalk
facing east. Abruptly, the three men turn and start to run. The three men split up, with the
individual in the gray hooded sweatshirt running north and the other two individuals running
northwest through a vacant parking lot and then across North Clinton Street.
¶ 65 A short time later, two new individuals appear in the video running west on the
north side of East Washington Street. The two new individuals walk on the sidewalk near the
vacant parking lot, stop, and duck. Then, the two new individuals run north and northwest out of
view, in the direction the three men ran. Detective Klein recognized the two new individuals
who enter the video recording later as Khawaunis and Khamahja. Detective Klein testified he
was familiar with Khawaunis and Khamahja because he interviewed them on February 26, 2019.
¶ 66 The State argues the video surveillance corroborates the testimony of the Haynes
brothers who both testified that on February 26, 2019, a little after 1 p.m., they were walking
west on East Washington Street to Franzetti’s Pantry when they were shot at. The State asserts
that while the video surveillance does not have audio, you can see the exact time the shooting
occurred where the Haynes brothers both stopped and “ducked.” Khamahja initially testified he
did not know who shot at him; however, he later stated that he told police the individual who
shot at him was wearing a gray sweater. Officer Freshour testified he spoke with Khamahja right
after the shooting and Khamahja told him that at the time of the shooting “he saw two light-
skinned black males.” Khamahja denied he told police that.
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¶ 67 The jury also viewed a video recording of defendant’s February 26, 2019, police
interview with Detective Engle. The parties stipulated to the admission of the video recording.
During the interview, defendant wore a blue sweatshirt with a white design on the front, black
pants, and no shoes. Defendant told Detective Engle he went to Franzetti’s Pantry on February
26, 2019, and ran to “the crib” when he heard gunshots. Defendant stated he did not know who
shot at him and did not see anyone. Detective Engle confronted defendant about having different
clothes on than what he wore at Franzetti’s Pantry earlier in the day. Defendant asked Detective
Engle, “How do you know what I was wearing?” Detective Engle then informed defendant
about the existence of video surveillance. Defendant maintained he wore the same clothes he
had been wearing earlier at Franzetti’s Pantry.
¶ 68 The State argues that when viewing the evidence as a whole, it is apparent
defendant discharged the firearm towards the Haynes brothers where the video surveillance
showed defendant wore a gray sweatshirt and ran in the direction the shooting occurred while the
other two males ran in a different direction. In the video surveillance from inside Franzetti’s
Pantry, the individual wearing the gray sweatshirt had a bulge in his pocket. Khamahja told
police the individual who shot at him was wearing a gray sweater.
¶ 69 Further, when the three men exited Franzetti’s pantry and eventually began
running, the individual in the gray sweatshirt ran north and the other two individuals ran
northwest through a vacant parking lot and then across North Clinton Street. A short time later,
the Haynes brothers walked west on East Washington Street to Franzetti’s Pantry when they
were shot at. Khamahja testified the shots came from his “right side.” The State argues the right
side of Khamahja would have been the direction defendant ran.
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¶ 70 Also, Detective Ashbeck later found two shell casings at 221 North Clinton
Street, near where defendant ran. Firearms expert Johnson tested and analyzed the physical
evidence and determined the shells and bullet were fired from the pistol recovered from the
apartment at 706 East Jefferson Street. Police obtained a search warrant for the apartment and
discovered no other individuals were inside besides defendant, Hamer, and Carroll.
¶ 71 The State acknowledges Detective Ashbeck found Hamer’s fingerprints on the
firearm but argues Hamer’s fingerprints on the firearm could have resulted from disassembling
the weapon where the weapon was found in three pieces. Detective Moreland demonstrated that
to disassemble the weapon, an individual would need to place their finger on the trigger. The
State asserts besides finding Hamer’s fingerprint on the gun, no other evidence implicates him in
the shooting where all the evidence viewed together implicates defendant in the shooting.
¶ 72 Defendant argues the evidence does not establish defendant discharged the
firearm where his fingerprints were not found on the firearm. Rather, Detective Ashbeck
identified Hamer’s fingerprint on the firearm. Further, defendant contends Orendorff’s
testimony that he saw three men run into the East Jefferson Street apartment is inconsistent with
the State’s theory that defendant split up from his companions when they left Franzetti’s Pantry.
Defendant also questioned the credibility of the Haynes brothers’ testimony. The State asserts
that other than his fingerprint on the gun, no evidence implicates Hammer in the shooting.
According to the State, all the evidence viewed together implicates defendant in the shooting.
¶ 73 When viewing the evidence as a whole, we find the State presented sufficient
evidence to show defendant discharged a firearm in the direction of the Haynes brothers. Under
the circumstances, the jury was in the best position to assess the credibility of the witnesses,
weigh the evidence, and resolve any conflict or inconsistencies in the evidence. See Bradford,
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2016 IL 118674, ¶ 12. Thus, where the jury viewed the video recordings from Franzetti’s
Pantry, the video recording of defendant’s police interview, and observed defendant in court, the
jury was in the best position to determine whether defendant was the man in the gray sweatshirt.
Accordingly, we find the jury, acting as a rational trier of fact, reasonably found defendant guilty
of two counts of reckless discharge of a firearm beyond a reasonable doubt. We next turn to
whether the State proved defendant guilty of unlawful use of a weapon by a felon beyond a
reasonable doubt.
¶ 74 2. Unlawful Use of a Weapon by a Felon
¶ 75 To prove defendant guilty of unlawful use of a weapon by a felon (720 ILCS
5/24-1.1(a) (West 2018)), the State must present evidence to establish beyond a reasonable doubt
that (1) defendant had a prior felony conviction and (2) defendant knowingly possessed a
weapon. 720 ILCS 5/24-1.1(a) (West 2018). We note, in this matter, the parties stipulated
defendant had a prior felony conviction in McLean County case No. 16-CF-864 and defendant
offers no challenge to the knowledge component of his alleged possession. Thus, we turn to
whether defendant actually or constructively possessed a firearm.
¶ 76 “Possession may be established by evidence of actual physical possession.”
People v. Alexander, 202 Ill. App. 3d 20, 24, 559 N.E.2d 567, 569 (1990). To prove actual
possession, testimony must show that the defendant exercised physical dominion over the item in
question. Id. Possession may be inferred from circumstantial evidence. People v. Peete, 318 Ill.
App. 3d 961, 965, 743 N.E.2d 689, 692 (2001). In fact, “a conviction may be sustained wholly
upon circumstantial evidence.” Id.¶ 77 Defendant argues the State’s theory of actual possession relies largely on the
argument presented above that defendant was the shooter along with the video recordings from
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inside Franzetti’s Pantry and Detective Klein’s testimony. Defendant asserts Detective Klein’s
opinion that the bulge in defendant’s sweatshirt pocket was a handgun was improper and
speculative. Defendant provides the bulge could have been a cell phone where police found cell
phones inside the apartment on East Jefferson Street.
¶ 78 We find when viewing the evidence presented at trial as a whole, the jury
reasonably found defendant possessed the weapon where video recordings showed the man in
the gray sweatshirt with a bulge in his sweatshirt pocket inside Franzetti’s Pantry, then
immediately after exiting the store, the man in the gray sweatshirt ran in the direction where
police later recovered shell casings matching the firearm. Defendant was later apprehended in
the apartment where police found the firearm. Further, Khamahja testified the shooter wore a
gray sweater.
¶ 79 Where the jury viewed the video recordings from Franzetti’s Pantry, the video
recording of defendant’s police interview, and observed defendant in court, we find they were in
the best position to infer whether defendant was the man in the gray sweatshirt. Accordingly, as
stated above, we will not substitute our judgment for the fact finder on questions involving
weight of the evidence and credibility of the witnesses. See Bradford, 2016 IL 118674, ¶ 12.
Therefore, when viewing the evidence in the light most favorable to the State, we find the State
proved defendant guilty of unlawful use of a weapon by a felon beyond a reasonable doubt.
¶ 80 B. Lay Witness Opinion and Identification Testimony
¶ 81 Defendant next argues the trial court erred in allowing Detective Klein to testify
to the identification of defendant, Carroll, and Hamer in the video recordings, as well as provide
his opinion that in the video recordings defendant had a heavy object in his sweatshirt pocket that
could be a handgun. The State disagrees and argues the trial court did not err in allowing
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Detective Klein to testify about the identification of defendant and other events depicted in the
video recordings. The State asserts Detective Klein’s testimony was proper where it was helpful
to the jury because of his position as lead investigator, his interview with the Haynes brothers,
and his familiarity with the location depicted in the video surveillance.
¶ 82 To preserve an error for consideration on appeal, a defendant must object to the
error at trial and raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48, 89
N.E.3d 675. Failure to do so constitutes forfeiture. Id. However, we may consider a forfeited
claim where the defendant demonstrates a plain error occurred. Ill. S. Ct. R. 615(a) (eff. Jan. 1,
1967). To prevail under the plain error doctrine, defendant must first demonstrate a clear and
obvious error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11
(2007). If an error occurred, we will only reverse where (1) “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) the “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.” Id.¶ 83 While defendant objected at trial to Detective Klein’s testimony regarding his
observation and opinion that defendant had an object in his sweatshirt pocket that resembled a
handgun in the video recordings, defendant failed to object to Detective Klein’s testimony
identifying defendant in the video recordings. Further, defendant failed to raise either of these
issues in a posttrial motion. Thus, defendant forfeited these issues on appeal. See Sebby, 2017
IL 119445, ¶ 48. We first turn to whether a clear or obvious error occurred when Detective
Klein testified regarding his observation and opinion that in the video recordings, defendant had
an object in his sweatshirt pocket that resembled a gun.
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¶ 84 1. Lay Witness Opinion Testimony
¶ 85 Under Illinois Rule of Evidence 701, lay witness testimony “in the form of
opinions or inferences is limited to those opinions or inferences which are (a) rationally based on
the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony
or the determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011).
Under Illinois Rule of Evidence 702, testimony that is based on specialized knowledge may be
given in the form of an opinion by “a witness qualified as an expert by knowledge, skill,
experience, training, or education.” Ill. R. Evid. 702 (eff. Jan. 1, 2011).
¶ 86 “[A] lay witness may testify to his observations or sensory perceptions.” People
v. McCarter, 385 Ill. App. 3d 919, 934, 897 N.E.2d 265, 279 (2008). However, it is ultimately
up to the trier of fact to weigh the evidence and draw reasonable inferences from the facts.
Bradford, 2016 IL 118674, ¶ 12.
¶ 87 Defendant argues Detective Klein’s opinion testimony that he observed in the
video recordings from inside Franzetti’s Pantry that defendant had an object in his sweatshirt
pocket that resembled a gun was improper. Additionally, defendant argues Detective Klein’s
opinion about the bulge in defendant’s pocket was inadmissible to the extent the State attempted
to base admissibility on Detective Klein’s specialized knowledge without admitting him as an
expert. The State argues the weight to be given to Detective Klein’s lay opinion testimony was
for the trier of fact to assess.
¶ 88 We note, to the extent Detective Klein’s opinion about the bulge in defendant’s
pocket on the video recordings related to his “training and experience” as a police officer and
working with firearms, the State failed to offer Detective Klein as an expert witness. Had the
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State sought to offer Detective Klein as an expert witness, it is likely the request would have
been granted.
¶ 89 However, we find Detective Klein’s lay opinion testimony was admissible under
Illinois Rule of Evidence 701 (eff. Jan. 1, 2011), where his testimony was (1) rationally based on
his own perception of the video and (2) helpful for the jury to determine a fact at issue, whether
defendant had an object in his pocket. Specifically, Detective Klein’s testimony was helpful to
the jury where he provided context and guidance as to the area around Franzetti’s Pantry and
explained to the jury the location of the shooting and assisted the jury in understanding the
surrounding areas, the direction each individual ran in the video recordings, and how the position
of each individual related to other individuals and the location of the shooting.
¶ 90 After Detective Klein viewed the video recordings from inside Franzetti’s Pantry,
the prosecutor asked him if he noticed anything out of the ordinary with any of the individuals.
Detective Klein testified defendant’s sweatshirt pocket appeared to have a heavy object in it.
When counsel for the State asked Detective Klein what the object could be, defense counsel
objected. In overruling the objection, the trial court concluded the objection went to the weight
of the testimony as opposed to admissibility. Detective Klein testified the object in defendant’s
pocket appeared to be a handgun. Also, during cross-examination, defense counsel elicited that
Detective Klein was not present at Franzetti’s Pantry at the time of the video recording and that
he did not personally search defendant.
¶ 91 Here, the prosecutor generally asked Detective Klein to provide his observations
of the individuals in the video recordings. Based on his own perceptions, Detective Klein
testified that defendant appeared to have a heavy object in his sweatshirt pocket and opined the
object in defendant’s pocket appeared to be a handgun where “[t]he top portion of the slide is the
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weight that you see leaning forward. And then at the bottom of the pocket it looks like a handle
grip of a pistol.” At no point did Detective Klein offer an opinion identifying what he observed
in defendant’s pocket as a specific make, model, or type of handgun. Further, the trial court
informed the jury “to the extent that the witness’ observation which would be supported by the
evidence he can render an opinion as to what he believes that he sees. Ultimately it’s up to the
trier of fact, the jury to either accept or reject that opinion because they are the factfinder and
they are the ones who viewing this exhibit can and will make their own determination.”
¶ 92 In this instance, Detective Klein could give his opinion as to what he observed in
the video recording and it was up to the jury to weigh the evidence and to accept or reject his
opinion. See Bradford, 2016 IL 118674, ¶ 12. Accordingly, defendant fails to demonstrate a
clear or obvious error occurred when the trial court admitted Detective Klein’s lay opinion
testimony. We next address whether a clear or obvious error occurred when Detective Klein
provided lay opinion testimony identifying defendant in video recordings.
¶ 93 2. Lay Witness Opinion Identification Testimony
¶ 94 a. Clear or Obvious Error
¶ 95 The Illinois Supreme Court in People v. Thompson, 2016 IL 118667, 49 N.E.3d
393, addressed the admissibility of lay opinion identification testimony. The supreme court
determined lay opinion identification testimony is admissible where “(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 (citing
Ill. R. Evid. 701 (eff. Jan. 1, 2011)). As it related to an identification from a surveillance
recording, the court found,
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“[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. 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.” Id.¶ 96 The court adopted a totality of the circumstances approach that considers the
following factors “in determining whether there is some basis for concluding the witness is more
likely to correctly identify the defendant.” Id. ¶ 51. The factors are:
“[(1)] the witness’s general familiarity with the defendant; [(2)] 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;
[(3)] whether the defendant was disguised in the recording or
changed his/her appearance between the time of the recording and
trial; and [(4)] the clarity of the recording and extent to which the
individual is depicted.” Id.However, the supreme court noted “the absence of any particular factor does not render the
testimony inadmissible.” Id.¶ 97 Further, the supreme court in Thompson held “that when the State seeks to
introduce lay opinion identification testimony from a law enforcement officer, the circuit court
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should afford the defendant an opportunity to examine the officer outside the presence of the
jury.” Id. ¶ 59. The court stated, “This will provide the defendant with an opportunity to explore
the level of the witness’s familiarity as well as any bias or prejudice.” Id.¶ 98 In Thompson, the supreme court found the identification testimony of three
witnesses was not admissible, and the trial court erred in admitting the testimony. Id. ¶ 66. One
witness provided no basis to conclude he would be more likely to identify the defendant than the
jury where there was “no testimony as to how long he had known defendant, how many times he
had seen defendant, and under what conditions or circumstances he had seen defendant.” Id.
¶ 63. Therefore, the court determined his testimony was inadmissible. Id. As to the other two
witnesses, the court found their testimony inadmissible where they were law enforcement
officers and the trial court failed to take the appropriate precautions before admitting their
testimony. Id. ¶¶ 62, 65.
¶ 99 Here, Detective Klein’s lay opinion testimony identifying defendant in the video
surveillance was improper. Detective Klein testified he was familiar with defendant based on
watching the multiple video recordings from Franzetti’s Pantry. However, Detective Klein never
had any prior contact with defendant where he did not interview him or interact with him on the
day of the shooting. Rather, Detective Klein based his identification testimony solely on the fact
he previously watched the video recordings. However, no evidence was provided to show how
many times Detective Klein reviewed the video recordings. Detective Klein’s position as the
lead investigator and his interviews with the Haynes brothers failed to show he was familiar with
the identity of defendant.
¶ 100 Besides the State providing testimony that defendant changed out of his clothing
on the day of the shooting, there is no evidence defendant changed his appearance between the
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date of the video recordings and trial. Also, there is no question the video recordings are clear.
There is nothing in the record to show Detective Klein was more likely to correctly identify
defendant than the jury. Therefore, we find his testimony was not admissible. Moreover, the
trial court failed to engage in the precautionary procedures required for law enforcement
witnesses.
¶ 101 Accordingly, we find the trial court committed a clear or obvious error in
admitting Detective Klein’s testimony as lay opinion identification testimony. Having found a
clear or obvious error, we turn to whether the error amounted to first-prong plain error.
¶ 102 b. First-Prong Plain Error
¶ 103 “Where the defendant claims first-prong plain error, a reviewing court must
decide whether the defendant has shown that the evidence was so closely balanced the error
alone severely threatened to tip the scales of justice.” Sebby, 2017 IL 119445, ¶ 51. To
determine “whether the evidence adduced at trial was close, a reviewing court must evaluate the
totality of the evidence and conduct a qualitative, commonsense assessment of it within the
context of the case.” Id. ¶ 53 (citing Belknap, 2014 IL 117094, ¶¶ 52-53). “A reviewing court’s
inquiry involves an assessment of the evidence on the elements of the charged offense or
offenses, along with any evidence regarding the witnesses’ credibility.” Id. Throughout this
inquiry, the burden of persuasion remains on the defendant. People v. Nowells, 2013 IL App
(1st) 113209, ¶ 19, 1 N.E.3d 578.
¶ 104 Defendant argues the evidence is closely balanced where Detective Klein’s
improper identification of defendant, Carroll, and Hamer and his description of their actions in
the video recordings tipped the scales of justice against defendant on the issue of whether he was
the shooter. Defendant also argues the evidence was similarly close with regard to defendant’s
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unlawful use of a weapon conviction where the State mainly relied on defendant being the
shooter to prove possession of the firearm. The State argues the evidence is not closely balanced
based on the totality of the evidence. We agree with the State.
¶ 105 Even without Detective Klein’s testimony identifying defendant in the video
recordings, the video evidence is still compelling. The video recordings from Franzetti’s Pantry
depicts three males, one in a gray sweatshirt, move around inside the store. In the video
recordings inside the store, the male with the gray sweatshirt appears to have a bulge in his
sweatshirt pocket. Detective Klein testified the bulge could be a handgun. It was up to the jury
to decide how much weight to give Detective Klein’s opinion testimony.
¶ 106 Then, the video recordings show the three males exit the store. After the three
men exited Franzetti’s Pantry, they eventually take off running. The individual in the gray
sweatshirt ran north, and the other two individuals ran northwest through a vacant parking lot
and then across North Clinton Street. A short time later, the Haynes brothers appear in the video
recording walking west on East Washington Street when you see them stop and duck.
¶ 107 Further, Khamahja testified the shots came from his “right side.” Khamahja also
told police the shooter wore a gray sweater. Moreover, Detective Ashbeck later recovered two
shell casings at 221 North Clinton Street, near where the individual in the gray sweatshirt ran.
¶ 108 The jury also viewed defendant in the courtroom and watched defendant’s
February 26, 2019, police interview. In his interview, defendant admitted to being at Franzetti’s
Pantry on the day of the shooting. Defendant told Detective Engle he ran to “the crib” when he
heard gunshots. Defendant denied that he changed his clothes after leaving Franzetti’s.
¶ 109 Further, police found defendant in the apartment where they later located the
firearm used in the shooting. Firearms expert Johnson tested and analyzed the physical evidence
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and determined the shells and bullet were fired from the pistol recovered from the apartment at
706 East Jefferson Street. Police obtained a search warrant for the apartment and discovered no
other individuals were inside besides defendant, Hamer, and Carroll. Besides finding Hamer’s
fingerprints on the weapon, all the evidence points to the man in the gray sweatshirt being the
shooter.
¶ 110 Based on the record, we find the totality of the evidence substantiates the
commonsense assessment that this case was not closely balanced. Even without Detective
Klein’s identification testimony, the evidence present was more than sufficient to prove
defendant was the same man in the video recordings wearing the gray sweatshirt and therefore,
the shooter. Specifically, the jurors saw the extensive video evidence, watched defendant’s
interview, and learned that defendant was eventually found in the same location as the weapon
used in the shooting. It logically flows that if defendant was the shooter, he possessed a firearm.
Given the evidence in this case was not closely balanced, defendant fails to satisfy the first prong
of plain error. See Piatkowski, 225 Ill. 2d at 565.
¶ 111 c. Ineffective Assistance of Counsel
¶ 112 In the alternative, defendant argues his trial counsel was ineffective for failing to
object to Detective Klein’s lay witness opinion identification testimony and preserve the claim in
his posttrial motion.
¶ 113 We review claims of ineffective assistance of counsel under the standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim of ineffective
assistance of counsel, defendant must show (1) the attorney’s performance fell below an
objective standard of reasonableness and (2) the deficient performance prejudiced the defendant.
Id. at 687.
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¶ 114 Both prongs of the Strickland test must be satisfied; therefore, a finding of
ineffective assistance of counsel is precluded if a defendant fails to satisfy one of the prongs.
People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601. “A court may resolve a claim of
ineffective assistance of counsel by reaching only the prejudice prong, as a lack of prejudice
renders irrelevant the issue of counsel’s alleged deficient performance.” People v. Hall, 194 Ill.
2d 305, 337-38, 743 N.E.2d 521, 540 (2000). Prejudice results when there is a reasonable
probability that, but for counsel’s unprofessional error, the result of the proceedings would have
been different. People v. Simms, 192 Ill. 2d 348, 362, 736 N.E.2d 1092, 1106 (2000).
¶ 115 We find trial counsel’s failure to object to Detective Klein’s lay witness opinion
identification testimony and preserve the claim in his posttrial motion did not prejudice
defendant. As stated above, the totality of the evidence was more than sufficient to prove
defendant was the shooter and possessed the firearm. Absent Detective Klein’s testimony
identifying defendant in the video recordings, there is no reasonable probability the result of the
proceedings would have been different. Therefore, we find defendant’s ineffective assistance of
counsel claim fails.
¶ 116 C. Ineffective Assistance of Counsel
¶ 117 Defendant next argues ineffective assistance of trial counsel where his counsel
failed to file a motion to sever the charge of unlawful use of a weapon by a felon from the two
counts of reckless discharge of a firearm and one count of mob action. At trial, the parties
presented a joint stipulation informing the jury that defendant had a prior felony conviction in
McLean County case No. 16-CF-864. The prior crime was not disclosed to the jury, only the
fact of a prior conviction. According to defendant, if his counsel had sought severance, it is
likely such motion would have been granted, then the jury on the two counts of reckless
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discharge of a firearm would not have learned that he had a prior felony conviction. The State
argues trial counsel did not err where the decision to not file a motion to sever was a matter of
trial strategy.
¶ 118 As stated above, to succeed on a claim of ineffective assistance of counsel,
defendant must show (1) the attorney’s performance fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S.
at 687. “We must show great deference to the attorney’s decisions as there is a strong
presumption that any attorney has acted adequately.” People v. Moore, 2012 IL App (1st)
100857, ¶ 43, 964 N.E.2d 1276 (citing Strickland, 466 U.S. at 689).
¶ 119 “Two or more offenses may be charged in the same indictment, information or
complaint in a separate count for each offense if the offenses charged, whether felonies or
misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same
comprehensive transaction.” 725 ILCS 5/111-4(a) (West 2018). “If it appears that a defendant
or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or
by joinder of separate charges or defendants for trial the court may order separate trials, grant a
severance of defendants, or provide any other relief as justice may require.” 725 ILCS
5/114-8(a) (West 2018). Here, defendant was charged by indictment with two counts of reckless
discharge of a firearm, one count of mob action, and one count of unlawful use of a weapon by a
felon.
¶ 120 “Generally, a defense decision not to seek a severance, although it may prove
unwise in hindsight, is regarded as a matter of trial strategy.” People v. Fields, 2017 IL App
(1st) 110311-B, ¶ 24, 75 N.E.3d 503; see also People v. Poole, 2012 IL App (4th) 101017, ¶ 10,
972 N.E.2d 340. Further, “an attorney’s failure to pursue a motion to sever cannot amount to
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ineffective assistance where, even if presented, the motion would have been unsuccessful.”
People v. Bock, 242 Ill. App. 3d 1056, 1080, 611 N.E.2d 1173, 1189 (1993).
¶ 121 To show defense counsel’s failure to file a motion to sever was not sound trial
strategy, defendant cites People v. Utley, 2019 IL App (1st) 152112, 142 N.E.3d 352. In Utley,
the defendant faced charges of possession of a controlled substance with intent to deliver, being
an armed habitual criminal, and unlawful use of a weapon by a felon. Id. ¶ 1. Defense counsel
did not move to sever the gun counts from the drug counts and tried them all together in one
proceeding. Id. Counsel also failed to try to limit what the State could introduce to prove-up the
defendant’s prior offenses by either filing a motion in limine or stipulating to the predicate
felonies. Id. ¶ 48.
¶ 122 The defendant appealed, arguing trial counsel provided ineffective assistance by
not moving to sever the charges where “to prove the gun charges, the State was required to
introduce evidence of defendant’s prior convictions for aggravated battery with a firearm and
delivery of a controlled substance, neither of which would have been admissible to prove the
possession of a controlled substance offense.” Id. ¶ 39. The appellate court held that counsel
was ineffective for failing to move to sever defendant’s unlawful use of a weapon by a felon
charge from his drug charges. Id. ¶ 53. Specifically, the court found counsel’s failure to move to
sever did not amount to trial strategy since the names of the predicate offenses were provided to
the jury and counsel made no attempt to minimize the prejudice. Id. ¶ 48. We find Utley
distinguishable.
¶ 123 Here, the evidence presented at trial to prove defendant guilty of unlawful
possession of a weapon by a felon and reckless discharge of a firearm would essentially be the
same. Both charges were based on the same comprehensive transaction or occurrence. But for
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the prior felony conviction, the evidence presented for each offense would involve the same
witness testimony and physical evidence. Further, the parties presented a joint stipulation to the
jury establishing that defendant had a prior felony conviction in McLean County case No. 16-
CF-864. The prior crime was not disclosed to the jury, only the fact of a prior conviction.
¶ 124 Our case is analogous to Fields, 2017 IL App (1st) 110311-B. The Fields court
opined that “when deciding whether to seek a severance, defense counsel may choose to pursue
an ‘all or nothing’ trial strategy, in which the defendant is acquitted or convicted of all charges in
a single proceeding.” Id. ¶ 28. “The mere fact that an ‘all or nothing’ strategy proved
unsuccessful does not mean counsel performed unreasonably and rendered ineffective
assistance.” Id. In Fields, the reviewing court observed that “while an ‘all or nothing’ strategy
required exposing the jury hearing the armed robbery charge to prejudicial information it would
not have heard if the cases had been severed, the stipulation to the mere fact of the conviction
mitigated the prejudice to defendant.” Id. The court reasoned that defense counsel may have
believed that the odds were greater to get two acquittals in one proceeding instead of two
separate proceedings. Id. For this reason, the court held the defendant failed to overcome the
presumption that defense counsel’s action was the product of sound trial strategy and rejected
defendant’s ineffective assistance of counsel claim. Id.¶ 125 We agree with the reasoning in Fields. Here, defense counsel opted to try all
charges together and relied on the circumstantial evidence to try and prove defendant was not the
shooter and did not possess a weapon. Counsel’s trial strategy indicated an “all or nothing”
approach, and we cannot find this strategy fell below an objective standard of reasonableness.
Further, the stipulation to the prior conviction did not disclose what the prior felony was for.
Thus, where the jury never learned that defendant was previously convicted of aggravated
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battery, any potential prejudice was greatly reduced. For the reasons stated, we find defendant’s
claim of ineffective assistance fails.
¶ 126 D. Mandatory Supervised Release
¶ 127 Last, defendant argues the trial court improperly ordered him to serve a two-year
term of MSR for unlawful use of a weapon by a felon. The State concedes the court lacked
authority to impose a two-year term of MSR, and thus, a new sentencing order should be issued
reflecting a one-year term of MSR for unlawful use of a weapon by a felon. We accept the
State’s concession.
¶ 128 A trial court has no discretion when it comes to imposing a statutorily mandated
MSR term. People ex rel. Berlin v. Bakalis, 2018 IL 122435, ¶ 18, 106 N.E.3d 979. The
imposition of a statutorily unauthorized sentence affects substantial rights, which may be
considered by a reviewing court even if not properly preserved in the trial court. People v.
Hicks, 181 Ill. 2d 541, 544-45, 693 N.E.2d 373, 375 (1998).
¶ 129 Here, it is undisputed that defendant’s two reckless discharge of a firearm
convictions constituted Class 4 felonies and his unlawful use of a weapon by a felon conviction
constituted a Class 3 felony. Under sections 5-4.5-40 and 5-4.5-45 of the Unified Code of
Corrections (730 ILCS 5/5-4.5-40, 5-4.5-45 (West 2018)), defendant’s offenses carry a term of
one-year MSR. Given the one-year MSR was statutorily mandated, the trial court in this case
had no discretion but to impose that term on defendant. See Berlin, 2018 IL 122435, ¶ 18 (citing
Round v. Lamb, 2017 IL 122271, ¶ 16, 90 N.E.3d 432). Accordingly, as the State correctly
concedes, a new sentencing order reflecting a one-year term of MSR for defendant’s unlawful
use of a weapon by a felon conviction should be issued.
¶ 130 III. CONCLUSION
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¶ 131 For the reasons stated, we affirm in part, vacate in part, and remand with
directions. We vacate defendant’s term of MSR for unlawful use of a weapon by a felon and
remand for the issuance of a new sentencing order reflecting a one-year term of MSR for
unlawful use of a weapon by a felon.
¶ 132 Affirmed in part and vacated in part; cause remanded with directions.
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