People v. Brown , 2021 IL App (1st) 191517-U ( 2021 )

2021 IL App (1st) 191517-UNo. 1-19-1517
Order filed June 24, 2021
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 18 CR 4943
)
EUGENE BROWN, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Presiding Justice Gordon and Justice Reyes concurred in the judgment.
ORDER
¶1 Held: The evidence was sufficient to sustain defendant’s attempt first degree murder
conviction. Defendant forfeited the argument that the State committed prosecutorial
misconduct in opening statement and closing arguments.
¶2 Following a jury trial, defendant Eugene Brown was found guilty of attempt first degree
murder with the additional finding that, during the attempt murder, he personally discharged a
firearm causing great bodily harm (720 ILCS 5/8-4 (West 2016); 720 ILCS 5/9-1(a)(1) (West
2016)), and aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2016)). The court
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merged the counts into a single count of attempt first degree murder and sentenced defendant to
48 years’ imprisonment. On appeal, defendant argues that the State failed to establish his guilt
beyond a reasonable doubt and committed prosecutorial misconduct during its opening statement
and closing argument. We affirm.
¶3 Defendant was charged by indictment with multiple offenses arising from the shooting of
Andre Carothers, including attempt first degree murder and aggravated battery with a firearm. 1
Co-offender Yolanda Neely’s bench trial proceeded simultaneously with defendant’s jury trial. 2
¶4 The State began its opening statement: “ ‘This, Mother F***, this a hit. You know what it
is, b***.’ His words. Not mine,” and asserted that defendant said this to Carothers after shooting
him.
¶5 At trial, Carothers testified that he was convicted in 2004 for criminal drug conspiracy and
manufacture or delivery of cocaine. Defendant and Neely, who dated, were his old friends and he
identified them in court. On October 12, 2017, Carothers was drinking at the home of Latoyce
Pinckney, his ex-girlfriend. Carothers denied Pinckney told him that she had a problem with Neely
earlier that day.
¶6 Carothers left Pinckney’s home and walked 150 or 200 feet to the intersection of Whipple
Street and Madison Street, where he awaited a ride home. A liquor store, Rothschild’s, sat at the
corner. It was dark, but there were streetlights. Someone shot Carothers, but Carothers denied
1
Carothers’s last name is spelled in various ways throughout the record. We adopt the spelling
from his testimony.
2
Neely’s last name is spelled both Neely and Neeley in the record. We adopt the spelling from the
notice of appeal in her separate appeal, No. 19-2060.
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No. 1-19-1517
knowing or remembering the shooter’s identity. He did not recall seeing defendant exit a red
Pontiac Montana minivan on Whipple prior to the shooting.
¶7 On October 19, 2017, Carothers spoke with police officers in the hospital, but he did not
recall what he told them. Carothers testified that he was “under the influence” when he was shot,
the officers told him who was involved in the shooting, and he did not identify defendant as his
shooter before the officers asked him any questions. On November 5, 2017, Carothers met
Detective Brian Drees at the police station. Carothers acknowledged that he signed photographs
of defendant and Neely at the police station. While he did not tell Drees that he did not recall what
happened, he denied recalling what he told Drees.
¶8 Carothers agreed that, before trial, the prosecutor had shown him a video which depicted
Carothers speaking with Drees and an assistant State’s Attorney (ASA), and admitted that the
video did not depict him stating he did not recall what happened. However, when asked about
specific statements he made to the ASA during the video, Carothers did not recall making them.
¶9 The court admitted the videotaped statement into evidence and the State published the
video to the jury. The video is included in the record on appeal. In the video, ASA Jason Fisher
identifies himself, Drees, and Carothers. Carothers states he has known defendant for
approximately 40 years, and the two were once best friends. Carothers identifies and signs
photographs of defendant and a woman he knows as “Yoshi,” who was in a relationship with
defendant and whom Carothers had seen regularly for three or four years.
¶ 10 Carothers explains that, around 8:29 p.m. on October 12, 2017, he was in an alley off
Whipple and saw Yoshi driving a maroon Montana van approximately five to seven feet away,
with defendant in the passenger seat. There were streetlights and alley lights. Carothers exited the
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alley and walked towards Whipple and Madison, where Rothschild’s is located, to await a ride.
The van parked on the side of Rothschild’s. He then saw defendant walking down Whipple towards
Madison.
¶ 11 Defendant confronted Carothers regarding a fight between Yoshi and Carothers’s
ex-girlfriend, of which Carothers was unaware. Carothers and defendant were three or four feet
apart and no one else was on the sidewalk. Carothers was not holding anything and did not raise
his hands towards defendant. Defendant drew a firearm, began shooting Carothers, and continued
discussing the fight. Carothers fell facedown. The van pulled away, and defendant paused before
shooting Carothers several more times. Carothers last remembered asking if defendant would kill
him, and defendant responding, “This, mother***, this is a hit. You know what it is.” Carothers
confirms that the police officers had treated him well and his statement was not the result of threats,
promises, or coercion, but his own free will.
¶ 12 Carothers further testified he had seen a video of himself being shot, but did not recall
identifying himself on the video and stated the video was dark. He identified People’s Exhibit
No. 4 as the video he had seen, but was not sure if it showed him and the corner where he was
shot. The video was admitted into evidence. Carothers did not recall lying on the ground after
being shot in the area depicted in the video or speaking to the paramedics.
¶ 13 On cross-examination, Carothers agreed that he used to sell narcotics near where he was
shot. He was drinking Hennessy alcohol at the time of the shooting. When the paramedics arrived,
the shooting was fresh in his mind and he told a paramedic named Jose Val Limbo that he did not
know who shot him.
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¶ 14 Carothers confirmed that he had been on house arrest, but denied it was for a case relating
to selling narcotics and stated it was due to a driving case which had been thrown out. Carothers
confirmed he had another narcotics case earlier that year which was “dismissed” following a jury
trial. Carothers further confirmed that, at the time of trial, he had been charged with criminal
contempt. The court then explained to the jury that Carothers had previously been subpoenaed to
appear for trial but did not, the State filed a contempt petition against him, and the court issued a
warrant to ensure his appearance.
¶ 15 Following Carothers’s testimony, outside the jury’s presence, the State advised the court
that it withdrew the contempt petition against Carothers.
¶ 16 Pinckney testified that she had known Neely and defendant for a few years and identified
both in court. On October 12, 2017, Neely and defendant were dating. Pinckney fought Neely
around 7 p.m. that evening. Following the fight, Pinckney called the police and went home. She
did not know where Neely went. Just after midnight on October 13, Pinckney called a detective
and stated that she observed Neely drop off defendant in the area and then saw defendant shoot
Carothers. She testified, however, that she did not actually see either event because she was in her
house.
¶ 17 The detective drove Pinckney to the police station, where a different detective administered
photograph arrays. Pinckney identified an advisory form and photograph array she signed, and
confirmed that a statement written on the advisory form indicated that she stated the person whose
photograph was circled was the driver and that person’s boyfriend was the passenger and shooter,
but testified that the statement was a lie. Pinckney then identified another advisory form and
photograph array she signed. The advisory form indicated that Pinckney stated the person whose
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photograph she circled shot Carothers and that Pinckney had argued with the shooter’s girlfriend.
The exhibits are in the record on appeal, and the second photograph array contains the notation
“he did it” near the circled photograph.
¶ 18 Pinckney had a videotaped conversation with Drees, another detective, and an ASA, but
testified that she had not seen what she told them she saw. Pinckney confirmed that she had viewed
the video, which accurately depicted the conversation. The video was admitted into evidence,
published to the jury, and is in the record on appeal.
¶ 19 In the video, ASA Luis Muniz, Drees, and another detective identify themselves, and
Muniz notes that it is 5:11 p.m. on October 13, 2017. Pinckney confirms that she spoke with Muniz
previously and detailed the events of the shooting. Pinckney states she knew defendant and Neely
from around the neighborhood. Pinckney saw Neely about once a week for the three prior years
and had seen defendant, who dated Neely, approximately 10 times before. She identifies and signs
photographs of defendant, Neely, and Carothers, her boyfriend. She cries as she identifies
Carothers’s photograph. Pinckney states that she knows defendant to carry a firearm and had seen
him with a firearm approximately three times before.
¶ 20 Pinckney confirms that, around 8 p.m. on October 12, 2017, Neely requested Pinckney
drive her to her vehicle, Pinckney dropped Neely off near the maroon Montana van which
Pinckney knew Neely had recently obtained, and Neely confronted Pinckney over an old social
media message. Pinckney then parked at Madison and Whipple, and Neely arrived in the maroon
van. Neely and Pinckney exited their vehicles and fought for about two minutes. Pinckney called
the police, who arrived quickly and told everyone to leave. Pinckney then parked her vehicle in an
alley behind her home.
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¶ 21 Pinckney sat in her vehicle for 15 to 20 minutes, then saw Neely and defendant enter the
alley from Whipple in Neely’s van. She saw defendant’s face as he lay back in the passenger seat.
The front windows of the van were not tinted, and Pinckney could see through them clearly.
¶ 22 Carothers exited Pinckney’s home and had a short argument with Pinckney. He then
walked down the alley towards Sacramento Boulevard. The van reversed and drove towards
Whipple. Pinckney followed the van on foot, and from the mouth of the alley looked towards
Madison and Whipple. Nothing blocked Pinckney’s view, and although it was dark, there were
streetlights and lights on Rothschild’s storefront. She saw defendant and Carothers arguing right
next to each other. She had not seen defendant exit the van. Neely remained in the van’s driver’s
seat.
¶ 23 Pinckney demonstrates how defendant drew a firearm from his waistband and pointed it at
Carothers. Carothers raised his hands, which Pinckney demonstrates, and ducked. From four or
five feet away, defendant fired two shots at Carothers. Pinckney ran through the alley towards her
home, called the police, and told the dispatcher that a maroon Montana van was “shooting people.”
She heard the van drive away but did not hear more gunshots. An ambulance and police officers
arrived quickly. Pinckney then walked back towards Whipple and Madison and saw Carothers
lying on the ground shot.
¶ 24 Pinckney confirms that she viewed photographs at the police station around 2:20 a.m. on
October 13, 2017, and identifies an advisory form and photograph array in which she identified
Neely as the driver of the van by circling Neely’s photograph and placing her name and birthday
near the photograph. She then identifies an advisory form and photograph array in which she
identified defendant as the shooter by circling his picture, writing “he did it,” and adding her name
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and birthday. Pinckney confirms that the advisory forms indicated she had not consented to being
recorded while she viewed the arrays, but that she now consents to be videotaped. Pinckney
confirms she is giving the statement freely and voluntarily, she had been treated well by the
officers, her statement was not the result of threats or promises, and that she was not under the
influence of drugs or alcohol during her videotaped statement or when she spoke with Muniz
previously.
¶ 25 Pinckney further testified that, the morning of trial, she met with prosecutors and stated
that she did not remember what happened and had been drinking that morning. She identified the
maroon vehicle in People’s Exhibit No. 4 as Neely’s.
¶ 26 On cross-examination, Pinckney stated that, in 2017, she had been dating Carothers for
approximately five years. She first agreed that she called the police from her cell phone right after
her fight with Neely around 7:30 or 8 p.m., and the police broke up the fight. She then stated,
however, that she did not call the police after the fight, but officers were already arriving.
She called the police approximately an hour later when she heard gunshots, and told the dispatcher
that there was a male passenger in a maroon Montana van shooting people and the occupants were
from the 20 block of South Harding Avenue, but did not give defendant’s or Neely’s name.
Pinckney had been drinking that day and denied that Carothers was with her. She was also drinking
the day of her videotaped statement. Pinckney confirmed that she did not see defendant shoot
Carothers, she was under oath, and she was telling the jury the truth.
¶ 27 Drees testified that he was assigned to the investigation around 8:30 p.m. on October 12,
2017, and proceeded to Whipple and Madison. On the east side of Whipple is Rothschild’s and to
the west of Whipple is a vacant lot. An alley runs east to west just south of Rothschild’s.
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¶ 28 Drees observed blood, clothing, and what appeared to be four bullet fragments on the
sidewalk. Drees obtained footage from cameras affixed to Rothschild’s, which captured a shooting.
Drees identified People’s Exhibit Nos. 4 and 17 as the footage, which were admitted into evidence,
published, and are included in the record on appeal. 3 Neither video includes any audio.
¶ 29 The first video depicts an intersection. It is dark, but bright light emanates from the
storefront and there is street lighting. A person walks towards the intersection on the same side of
the street as the camera and leaves the frame. A red or maroon van then arrives and parks near the
intersection. A second person then walks towards the intersection from the same direction as the
first. The two individuals then walk back the way they came, passing by the van. They are a few
feet apart and appear to speak to each other. They exit the frame. The second person then reappears,
moving quickly, and gestures towards a point on the ground just offscreen. The person walks
towards the passenger door of the van, but circles and gestures towards the ground in the same
place. The van pulls forward and turns right, and the person jogs in the same direction.
¶ 30 The second video depicts the same events but is filmed from the side of the store. As the
two people speak, the second person turns towards the first person and points something at that
person. The first person raises his hands and falls to the ground. The second person approaches the
other person, leans down, and gestures. A muzzle flash is visible. The shooter circles towards the
van and then back towards the person on the ground and gestures downward again. The van drives
away, and the shooter follows the van. The victim lies on the ground.
3
Both videos are contained on a CD, but the file names do not distinguish which is People’s Exhibit
No. 4 and which is People’s Exhibit No. 17.
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¶ 31 Drees learned that the victim was sedated and intubated at the hospital, and returned to the
police station. After midnight on October 13, 2017, Drees received a phone call from Pinckney,
who stated that she witnessed part of the shooting and that defendant shot her boyfriend, Carothers.
Pinckney also provided Neely’s name. Drees asked if Pinckney would come to the police station
and sent other officers to pick her up. Drees then prepared photograph arrays for another detective
to show Pinckney.
¶ 32 Pinckney arrived at the police station and viewed the arrays. Drees identified the advisory
forms and photograph arrays, in which Pinckney identified Neely and defendant and wrote “he did
it” near defendant’s photograph.
¶ 33 Drees and another officer then spoke with Pinckney, and Pinckney related the events she
later described in her videotaped statement. Pinckney told Drees she could show him Neely’s
residence, where defendant often stayed, and they drove to the 2700 block of South Central Park
Avenue, where Pinckney identified Neely’s residence. As they drove away, Pinckney identified
Neely’s maroon Montana van, which resembled the van depicted in the videos. The officers took
Pinckney home, then returned to the residence, where they saw Neely, whom Drees identified in
court. Drees spoke with Neely and arrested her. Neely gave Drees a set of keys which Drees used
to open the Montana van. The address Neely gave while being processed matched the residence
Pinckney had identified.
¶ 34 Pinckney returned to the police station and spoke with Drees and Muniz. Pinckney repeated
what she had told Drees. Muniz then spoke with Pinckney privately, and Pinckney agreed to give
the videotaped statement.
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¶ 35 On October 19, 2017, Drees spoke with Carothers, who was hospitalized in intensive care.
Carothers told Drees that defendant shot him and Neely was present. Drees then showed Carothers
photographs of defendant and Neely, but Carothers was too weak to sign them.
¶ 36 Carothers came to the police station on November 5, 2017, and gave a more detailed
statement. Fisher arrived and met with Drees and Carothers, and then Carothers alone, and
Carothers agreed to give the videotaped statement.
¶ 37 On cross-examination, Drees testified that he requested the maroon van be towed and held
for investigation, but he never requested an evidence technician process the vehicle. Drees ran the
van’s license plate and received a vehicle identification number, but did not recall the vehicle
identification number being affiliated with a different vehicle.
¶ 38 The State entered a stipulation that a Chicago police detective would testify that he
administered to Pinckney two photograph array packets prepared by Drees and did not speak with
Drees about the investigation, and would identify the advisory forms and photograph arrays.
¶ 39 Officer Balcarzak testified that he was an evidence technician with the Chicago Police
Department. 4 Balcarzak processed the scene at Whipple and Madison, and observed bloody,
discarded clothes, a blood stain, and firearm evidence on the sidewalk. Balcarzak recovered the
evidence and took photographs which were published to the jury. On cross-examination, Balcarzak
testified that no one requested he process a red van.
¶ 40 Dr. Harvey Louzan testified that he worked in the emergency room the night of October
12, 2017. Carothers arrived by ambulance around 9:30 p.m. in critical condition. Carothers had
been shot five times, in his right hand, left arm, right chest, left chest, and the back of his head.
4
Officer Balcarzak’s first name is not in the report of proceedings.
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He stabilized in a medically-induced coma. Scans revealed a large bullet fragment in his skull and
a small blood clot or small amount of bleeding surrounding his brain, air in his plural cavity, a
contusion and laceration of his lung, and two fractured vertebrae.
¶ 41 Muniz testified that he spoke with Pinckney at the police station around 5 p.m. on October
13, 2017. Pinckney spoke clearly and concisely, but was “visibly distraught” and occasionally
cried. Pinckney agreed to give a videotaped statement and told Muniz privately she had not been
forced or threatened to speak with him, gave her statement freely and voluntarily, and that her
statement described what she had witnessed.
¶ 42 Fisher testified that he met with Carothers at the police station on November 5, 2017.
Carothers agreed to give a videotaped statement and never told Fisher that the police suggested to
him who had shot him.
¶ 43 ASA Christopher Thor Martin testified that he met with Pinckney and Carothers the
morning of trial. Pinckney told Martin that she could not remember anything from the shooting.
Carothers had been subpoenaed for a previous court date and did not appear, so Martin’s office
filed a petition for contempt against him and the court issued a warrant for his arrest.
¶ 44 On cross-examination, Martin confirmed that the petition for contempt against Carothers
had been withdrawn following Carothers’s testimony. Martin was in the courtroom for Carothers’s
testimony and for approximately 20 seconds of Pinckney’s testimony while dropping off a
document. He had introduced himself to Fisher and Muniz, whom he had never met before, and
spoke to defense witnesses whom he knew the other ASA’s had not spoken to previously. He did
not speak to the witnesses about their testimony.
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¶ 45 The defense called Limbo, who refreshed his memory with his run sheet from October 12,
2017, when he treated Carothers. Carothers had been shot but was alert and oriented. Limbo asked
Carothers if he knew who shot him, and according to the run sheet, Carothers stated an “unknown
person” shot him. Had Carothers named the shooter, Limbo would have written it down and told
the police.
¶ 46 On cross-examination, Limbo agreed that, apart from the run sheet, he did not recall what
happened on October 12, 2017, including Carothers’s appearance or where he was shot. When a
patient responds that he does not know who shot him or gives no answer, Limbo writes that the
shooter is unknown. On redirect examination, Limbo testified that if the run sheet indicated the
patient stated the shooter was unknown, that is what happened.
¶ 47 Erin Hansen, a supervisor for the City of Chicago’s Offices of Emergency Management
Communication (OEMC), testified that OEMC keeps records of 911 calls that show the phone
number placing the call. No calls regarding a fight near Sacramento and Madison were made
between 7 and 8 p.m. on October 12, 2017. Hansen identified a report for a phone number which
indicated that a 911 call came from that number at 8:35 p.m. on October 12, 2017. On cross-
examination, Hansen stated that she did not have an audio recording of that call.
¶ 48 Carol Knudsen testified that she took 911 calls for OEMC. When a 911 call comes in, the
employee taking the call puts the information into a ticket. Knudsen identified a ticket she created
for a 911 call at “8:35” on October 12, 2017. The ticket noted the phone number from which the
call came but did not indicate that the caller gave a name.
¶ 49 On cross-examination, Knudsen agreed that all she wrote on the ticket was “Red Montana
van, female black, dark skinned driving, male passenger shooting, they live at 27 South Harding.”
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Knudsen did not remember taking the call, but, based on the ticket, stated that the caller was frantic
as she relayed what she saw.
¶ 50 The defense entered a record from the Illinois Secretary of State that the vehicle
identification number associated with the license plate Drees searched from the maroon van
matched a 2002 Lincoln Continental. The defense also entered a stipulation that an employee of
the City of Chicago’s auto pound would testify that a 2002 Pontiac van, with a vehicle
identification number which was different than the one Drees obtained and linked to someone
other than Neely, was held there on October 13, 2017, and that a notice of disposal of unclaimed
vehicle was sent to that person in January 2018.
¶ 51 The State began its closing argument:
“ ‘B*** mother***, this is a hit. You know what this is. This is a hit.’ Eugene
Brown knows Andre Carothers. There’s an argument between Eugene Brown’s girlfriend
and the ex of Andre Carothers, and Eugene Brown was going to take care of it. ‘B***
mother***, this is a hit, you know what this is.’ ”
¶ 52 Later, the State argued that the statement showed that defendant intended to kill Carothers.
The State again referred to the statement in rebuttal.
¶ 53 The jury found defendant guilty of attempt first degree murder with the additional finding
that, during the attempt murder, he personally discharged a firearm causing great bodily harm, and
aggravated battery with a firearm. Defendant’s motion to reconsider or for a new trial was denied.
The court merged the counts into one count of attempt first degree murder, and following a hearing,
sentenced defendant to 48 years’ imprisonment. Defendant’s motion to reconsider sentence was
denied.
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¶ 54 On appeal, defendant first argues that the State failed to prove he was the shooter where
neither Carothers nor Pinckney identified him as the shooter at trial. Defendant further alleges that
the record on appeal contains no evidence that Carothers or Pinckney told police officers that
defendant was the shooter, and even if Pinckney so advised the officers, she recanted at trial.
¶ 55 When a defendant challenges the sufficiency of the evidence, we review whether,
considering the evidence in the light most favorable to the State, any rational trier of fact could
find the essential elements of the crime beyond a reasonable doubt. People v. Brown, 2013 IL
114196, ¶ 48. We draw all reasonable inferences in favor of the prosecution. People v. Lloyd, 2013
IL 113510, ¶ 42. The trier of fact is responsible for fairly resolving conflicts in the testimony,
weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts.
Brown, 2013 IL 114196, ¶ 48. “Therefore, a reviewing court will not substitute its judgment for
that of the trier of fact on issues involving the weight of the evidence or the credibility of the
witnesses.” Id. We will only reverse a conviction if the evidence is so unreasonable, improbable,
or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. Id.¶ 56 Defendant was convicted of attempt first degree murder. “A person commits the offense of
attempt when, with intent to commit a specific offense, he or she does any act that constitutes a
substantial step toward the commission of that offense.” 720 ILCS 5/8-4(a) (West 2016). In turn,
a person commits first degree murder when he, without legal justification, kills another person
while intending to kill or do great bodily harm to that person or knows that his actions will cause
the person’s death. 720 ILCS 5/9-1(a)(1) (West 2016).
¶ 57 Accordingly, to prove defendant’s guilt of attempt first degree murder, the State must show
that defendant “performed an act that constituted a substantial step toward the commission of first
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degree murder and that the defendant did so with the specific intent to kill the victim.” People v.
Reynolds, 2021 IL App (1st) 181227, ¶ 34. A defendant’s intent is rarely shown by direct evidence
and may be inferred from surrounding circumstances such as the attack’s character, the use of a
deadly weapon, and the nature and extent of the injuries inflicted. Id. Shooting a firearm at another
person has been held to be evidence that the defendant acted with the intent to kill. People v. Tabb,
374 Ill. App. 3d 680, 693-94 (2007).
¶ 58 At the outset, we observe that Carothers’s and Pinckney’s videotaped statements were
admitted into evidence and published during the trial as prior inconsistent statements. See 725
ILCS 5/115-10.1 (West 2018). Carothers testified that he did not know or remember who shot him,
and although he identified the video of himself talking to Drees and Fisher, he did not recall
relaying the events that he described. In the video, which is included in the record on appeal,
Carothers details how he knew defendant nearly all his life. He explains that he saw defendant and
Neely in a maroon Montana van five to seven feet away in an alley, and when he walked to
Madison and Whipple, he observed the van parked on the street. Then, according to Carothers,
defendant confronted him, drew a firearm, and shot him multiple times from several feet away.
Carothers asked if defendant would kill him, and defendant responded that the shooting was
“a hit.” Fisher testified that he spoke with Carothers in private and Carothers did not tell him that
the police suggested his shooter’s identity. Moreover, Drees testified that Carothers identified
defendant as the shooter while in the hospital on October 19, 2017.
¶ 59 Likewise, Pinckney testified at trial that she did not see who shot Carothers. In her
videotaped statement, however, she stated that she had fought with Neely, saw Neely and
defendant in Neely’s van in the alley behind her home, followed the van when it drove to Whipple
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after Carothers left her home, and saw defendant and Carothers arguing near the parked van before
defendant shot Carothers. Muniz testified that he spoke privately with Pinckney and she indicated
she was giving her statement freely and voluntarily. Thus, the jury had the opportunity to determine
Carothers’s and Pinckney’s credibility in view of their trial testimony and videorecorded
statements, and we will not substitute our judgment for the jury’s. Brown, 2013 IL 114196, ¶ 48.
¶ 60 To the extent defendant argues that Carothers did not tell Limbo that defendant was the
shooter, Limbo testified that his reports state an offender is “unknown” both when the patient states
he does not know who shot him or gives no answer. Notably, Carothers stated in his videotaped
statement that the last thing he remembered was defendant saying that the shooting was “a hit”
and continuing to shoot him, and at trial he testified that he did not remember speaking to the
paramedics, although he also testified that he told Limbo he did not know who shot him. Based on
this evidence, a rational trier of fact could conclude that defendant was unable to identify the
shooter for Limbo moments after being shot five times, including in his head. See id. (trier of fact
may draw reasonable inferences from basic facts to ultimate facts). In any case, again, it was the
jury’s responsibility as the trier of fact to weigh the evidence and determine the witnesses’
credibility (id.), and contrary to defendant’s contentions, there is ample evidence in the record on
appeal that Carothers and Pinckney named defendant as Carothers’s shooter. We will not substitute
our judgment for the jury’s, and conclude that a rational trier of fact could find the State proved
defendant’s identity as the offender beyond a reasonable doubt.
¶ 61 Next, defendant argues that the State committed prosecutorial misconduct during opening
statement and closing arguments by asserting that defendant swore at Carothers and said that the
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shooting was “a hit.” According to defendant, that statement was “never actually adduced by
witnesses at trial,” and moreover, “unduly inflamed the jury.”
¶ 62 As the State notes, the defense did not contemporaneously object to the State’s use of the
statement during opening statement and closing arguments. Consequently, the issue is forfeited.
See People v. Cregan, 2014 IL 113600, ¶ 15 (“To preserve an issue for review, a party ordinarily
must raise it at trial and in a written posttrial motion.”).
¶ 63 Defendant neither acknowledges that he failed to preserve the issue for review nor requests
review under the plain-error doctrine. Accordingly, defendant has forfeited his argument that the
State committed prosecutorial misconduct and unduly inflamed the jury. Ill. S. Ct. R. 341(h)(7)
(eff. Oct. 1, 2020) (points not argued in opening brief are forfeited); see also People v. Hillier,
237 Ill. 2d 539, 545-46 (2010) (“[W]hen a defendant fails to present an argument on how either of
the two prongs of the plain-error doctrine is satisfied, he forfeits plain-error review.”).
¶ 64 Forfeiture aside, however, we observe that defendant’s argument that the challenged
statement was never adduced at trial is unfounded. To the contrary, while he denied recalling it at
trial, Carothers provided a substantially similar statement in his videotaped interview. Carothers’s
videotaped statement was admissible as substantive evidence where (1) it was inconsistent with
his testimony at trial that he did not recall the events of the shooting; (2) he was subject to cross-
examination on the statement; (3) the statement narrated, described, or explained an event of which
he had personal knowledge; and (4) Drees testified that the video truly and accurately captured
Carothers’s interview. See 725 ILCS 5/115-10.1(a), (b), (c)(2)(C) (West 2018) (prior inconsistent
statements admissible if inconsistent with trial testimony, witness is subject to cross-examination
on statement, statement narrates, describes, or explains event or condition of which witness had
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No. 1-19-1517
personal knowledge, and statement is proven to have been accurately recorded); see also People
v. Sangster, 2014 IL App (1st) 113457, ¶ 61 (prior inconsistent statements admissible as
substantive evidence to prevent witness from denying earlier statement made under circumstances
indicating it was likely true). Accordingly, the State did not commit misconduct by referring to the
statement in opening statements and closing arguments, in which it contended the statement proved
defendant’s intent to kill Carothers. People v. Jones, 2016 IL App (1st) 141008, ¶ 21 (prosecutors
given wide latitude during opening statements and closing arguments and may comment on
evidence if comments not intended only to arouse prejudice and passion of jury).
¶ 65 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 66 Affirmed.
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