People v. Russell , 2021 IL App (2d) 180874-U ( 2021 )

2021 IL App (2d) 180874-UNo. 2-18-0874
Order filed June 18, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
____________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 14-CF-516
)
STEPHAN A. RUSSELL, ) Honorable
) Daniel P. Guerin,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Bridges and Justice Birkett concurred in the judgment.
ORDER
¶1 Held: Counsel’s failure to seek introduction of favorable lineup evidence did not
prejudice defendant such that his claim of ineffectiveness was viable; trial court did
not abuse its discretion in admitting evidence that defendant and two witnesses
were members of a gang for the limited purpose of assessing witness’s bias;
doctrine of invited error precluded defendant from challenging admission of lay-
opinion regarding identity of person in surveillance recording and trial court did
not abuse its discretion in allowing this testimony and lack of prophylactic
procedures to guard against possible unfair prejudice did not prejudice defendant;
counsel was not ineffective for failing to strike juror, stipulating to admissibility of
surveillance video, or failing to interpose various objections; and defendant’s
sentence did not violate proportionate penalties clause of the Illinois Constitution.
2021 IL App (2d) 180874-U¶2 I. INTRODUCTION
¶3 Following a jury trial in the circuit court of Du Page County, defendant, Stephan A. Russell,
was convicted of first-degree murder and attempted armed robbery. He was sentenced to
consecutive terms of imprisonment of 50 years and 5 years imprisonment, respectively. He now
appeals, raising a number of issues. He raises several arguments concerning the effectiveness of
the representation he received at trial and during a Krankel hearing (see People v. Krankel, 102 Ill.
2d 181 (1984)). He also contends that the trial court abused its discretion in allowing evidence of
his gang affiliation as well as a lay opinion from a police officer regarding the identity of an
individual depicted in a surveillance video recording. Finally, defendant asserts that his sentence
of 50 years’ imprisonment violates the proportionate penalties clause of the Illinois Constitution
(see Ill. Const. art. 1, § 11). We find none of defendant’s points well taken; therefore, we affirm.
¶4 II. BACKGROUND
¶5 Defendant was charged with six counts of first-degree murder based on the shooting death
of Hussein Saghir. Based on the same incident, he was also charged with one count of the
attempted armed robbery of Hussein Saghir and Ahmad Saghir. The jury found defendant guilty
on all counts. Defendant raises issues regarding voir dire and a pretrial motion in limine. Facts
pertinent to those arguments will be discussed when we analyze those issues.
¶6 On January 19, 2014, Hussein Saghir was shot and killed during an attempted robbery of
the store at which he worked, Sam’s Tobacco. Hussein and his brother, Ahmad Saghir were
working to close the store. Two men approached the brothers outside the store and attempted to
force them back inside. A struggle ensued, and Hussein was shot.
¶7 At trial, the following evidence was adduced. The State first called Hanan Faraj, the
victim’s wife. January 19, 2014, was her 40th birthday. The family had plans to celebrate with
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2021 IL App (2d) 180874-Utheir family that evening. Hussein went to the store at about 4 p.m. to help his brother close the
store where they worked at, Sam’s Tobacco. Hussein took his three-year-old nephew with him.
Later that day, Hanan received a telephone call from the victim’s brother, Ahmad, informing her
of the shooting. She later learned that her husband had died.
¶8 Officer Calliendo of the Bensenville Police Department next testified for the State. He was
working the afternoon shift on January 19, 2014. Shortly before 6 p.m., he received a dispatch to
Sam’s Tobacco, which he described as a typical convenience store. When he arrived, he saw a man
standing near the front entrance “slumped over toward the door.” Calliendo was the first to arrive
at the crime scene. The victim was not responsive at that time. He started CPR. Other law
enforcement officers and paramedics arrived. Calliendo subsequently secured video surveillance
recordings from Sam’s Tobacco.
¶9 The State then called James Murphy, who testified that he was a firefighter paramedic with
the Bensenville Fire Protection District. He responded to Sam’s Tobacco shortly before 6 p.m. on
January 19, 2014. When he arrived, a number of police officers were tending to the victim.
Murphy and his partner took over. Murphy noted a single gunshot wound just below the victim’s
right armpit. The victim was not breathing and had no vital signs. They continued treatment and
transported the victim to Elmhurst Memorial Hospital. The victim never regained consciousness.
Upon arrival at the hospital, they turned the victim over to emergency room staff. Shortly
thereafter, emergency room staff pronounced the victim dead. In addition to the gunshot wound,
Murphy also observed a bruise on the left side of the victim’s body. He later learned that the bruise
was “where the bullet ended up.”
¶ 10 Between witnesses, the parties stipulated to the testimony a number of witnesses would
give concerning the foundation of various video recordings. One of the stipulations concerned the
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2021 IL App (2d) 180874-Uproposed testimony of the victim’s brother, Ahmad Saghir regarding the surveillance recording
made at Sam’s Tobacco.
¶ 11 Michael Larson was the State’s next witness. He testified that he is a detective with the
Bensenville Police Department. On January 19, 2014, Larson responded to Sam’s Tobacco. He
“activated” the Du Page County major crimes task force to assist in the investigation. He identified
a number of photographs of the crime scene and surrounding area. He noted what appeared to be
a bullet hole near the front doorway of Sam’s Tobacco and subsequently recovered a bullet. Police
never recovered the weapon used in the murder. They were able to recover security recordings
from both inside and outside the store. There is a segment showing the murder. Part of the
recording was released to the public. On February 7, 2014, two individuals who wished to remain
anonymous provided the police with a tip. As a result of that tip, the police attempted to locate
Kenneth Bardlett. Bardlett was taken into custody the next day. As a result of information Bardlett
provided on February 12, 2014, Larson and other officers recovered surveillance recordings from
a BP gas station and a currency exchange in Chicago. They also obtained a recording from a store
across from Sam’s Tobacco. Shortly after his brother’s murder, Ahmad moved to Lebanon.
¶ 12 On cross-examination, Larson agreed that the surveillance recording from Sam’s Tobacco
showed an individual in a “reddish hooded sweatshirt” holding a gun with his left arm raised at
5:48:45 p.m. The left side of the sweatshirt reads “Abercrombie.” Larson stated he was familiar
with Tremayne Davis. In the recording recovered from the BP gas station, Davis is seen wearing
“what appears to be the exact same Abercrombie sweatshirt.” On February 9, 2014, Larson and
other officers executed a search warrant on Tremayne Davis’s residence. They seized a white
cotton belt from Davis’s living quarters. Larson testified that on February 23, 2014, he went to
1417 North Lotus Street to execute a search warrant but did not seize any evidence.
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2021 IL App (2d) 180874-U¶ 13 On redirect-examination, Larson stated that he could identify the person in the Sam’s
Tobacco surveillance recording. Defense counsel objected when the State asked Larson who that
individual was. The State countered that it was responding to defense counsel’s questions about
the identity of the person wearing the Abercrombie sweatshirt in the BP station video (Larson had
testified that it was Davis in response to a question from defense counsel). Larson then testified
that he had met Davis and defendant a number of times. Over objection, Larson identified the
person in the Sam’s Tobacco recording as defendant.
¶ 14 On recross-examination, Larson acknowledged that one could only see a small portion of
the individual’s face in the Sam’s Tobacco recording. Moreover, the individual in that recording
was wearing the Abercrombie sweatshirt that Davis was wearing in the BP station recording.
¶ 15 The State’s next witness was Kenneth Bardlett. Bardlett refused to come to the court room
and the trial judge issued a drag order to compel his presence. When brought to the court room,
Bardlett initially stated that he would not speak until his attorney was present. Before Bardlett
testified, the trial court read the following limiting instruction.
“Evidence will be received that this witness is a member of a gang. This evidence will be
received on the issues of any bias, interest or motive that the witness may have for his
testimony and may be considered by you only for this limited purpose. It is for you to
determine what weight should be given to this evidence on the issues of bias, interest or
motive for the witness’ testimony.”
Bardlett acknowledged that he was a co-defendant in this case. He stated that he knew he was
going to testify today, but refused to come to the court room. Bardlett denied that he was in a gang
and that he was afraid to testify.
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2021 IL App (2d) 180874-U¶ 16 Subsequently, Bardlett admitted he was in a gang called the OTAs in January 2014.
However, he maintained that he was not afraid to testify. He stated that he did not recall whether
he identified defendant as the shooter to the police in February 2014. He acknowledged meeting
with Detective Ptak and Assistant State’s Attorney Tim Diamond in February 2014, but then
denied being able to tell if he was in a video recording of the conversation. Bardlett further
acknowledged that he had a deal with the State that required him to provide truthful testimony in
this trial and that if he failed to do so, the agreement was void. Bardlett replied “no comment”
when asked whether he, defendant, and Davis were members of the OTA gang. He testified that
he knew Kionta Williams and Kenneth Williams but said he was not sure if they were in the OTA
gang. Bardlett claimed he did not recall whether he was at Sam’s Tobacco on January 19, 2014.
He professed being unable to remember a number of things, and he denied that he was in several
photographs presented to him by the State. Bardlett denied giving his cell phone to Kenneth
Williams on January 19, 2014.
¶ 17 On cross-examination, Bardlett testified that he had known defendant for a long time.
Defendant had never threatened Bardlett. He had not spoken with defendant, aside from passing
small talk, while in jail. Nobody had threatened Bardlett on defendant’s behalf. Bardlett identified
himself, defendant, and Davis in a photograph in which Davis is wearing an Abercrombie & Fitch
shirt. Davis frequently wears Abercrombie & Fitch products. His mother’s telephone number was
(773) 443-8444. He never loaned her phone to anyone. Bardlett was aware that his testimony
would result in his deal with the State becoming void. He stated that the reason he changed his
testimony is that he wanted to tell the truth. He knew that he would likely be charged with first-
degree murder.
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2021 IL App (2d) 180874-U¶ 18 Bardlett identified a written statement he made, dated May 1, 2015, asserting that he
initially lied to the police when he told them that Davis drove the vehicle to the attempted robbery.
In this statement, he asserted that Davis got out of the vehicle about half a block after they left the
BP gas station. He also stated that Davis left his sweatshirt in the vehicle. Bardlett and Davis
signed the statement, and it was notarized. Davis had directed Bardlett to write this statement, and
it was false. Bardlett also identified a note he attempted to pass to defendant in jail in March 2014.
The note states, in pertinent part, “I know you ain’t have nothing to do with it,” and “This you
going be good.”
¶ 19 Bardlett identified (312) 709-4776 as Davis’s telephone number. Kionta Williams’s
number was (773) 263-2199. On January 19, 2014, Kenneth Williams and Kionta Williams
followed the van that Bardlett purportedly drove to Sam’s Tobacco. Bardlett did not recall using
Davis’s phone on January 19, 2014.
¶ 20 After cross-examination, trial recessed for the night. The next morning, Bardlett refused
to come to court and was returned pursuant to a drag order. On redirect-examination, Bardlett
agreed that he had testified there were four people in two vehicles that drove to Sam’s Tobacco,
but he refused to identify them. He denied being able to recall numerous statements he purportedly
made to the police. Bardlett was combative with counsel and the trial judge.
¶ 21 Detective Richard Arsenault was the State’s next witness (his testimony was taken out of
order while Bardlett was being compelled to return to court). Arsenault stated that he is employed
by the Naperville Police Department and assigned to the major crimes task force. On February 8,
2014, Arsenault was tasked with finding defendant and Davis. He was also to find a red
Abercrombie & Fitch sweatshirt and a pair of True Religion jeans. At about 2:20 p.m., he drove
past Davis’s house and saw Davis standing outside. He spoke with Davis about the incident at
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2021 IL App (2d) 180874-USam’s Tobacco. Davis was holding a cell phone, texting someone. Subsequently, Arsenault
learned that Shakyra Clark was the mother of defendant’s child. Arsenault went to her residence,
spoke with her, and conducted a search. He observed a brown canvas belt. Later, he learned that
the person depicted in the Sam’s Tobacco recording was wearing a brown canvas belt. He returned
to Clark’s residence with a team and executed a search warrant. They seized the belt at that point.
¶ 22 On cross-examination, Arsenault testified that after he first made contact with Davis, they
went inside Davis’s residence, with his consent. Several individuals came up from the basement,
including one known as Z Money. Arsenault and Davis went downstairs. Defendant was not
present.
¶ 23 The State next called Tremayne Davis. Davis testified that he was currently being held in
the Du Page County Jail. He knew defendant and Bardlett. Davis was testifying pursuant to a deal
he made with the State. He was to provide truthful testimony and would be sentenced to eight
years’ imprisonment for armed robbery in connection with the murder of Hussein Saghir. He had
been charged with first-degree murder, which was dismissed as part of the deal. In May 2015,
Davis asked Bardlett to write a statement exonerating Davis. Bardlett complied, and the statement
was notarized. The statement indicated that Davis was with a woman at the time of the murder,
and Davis arranged for two women to lie for him as alibi witnesses.
¶ 24 Davis testified that he was a member of the OTA gang. “OTA” stands for “Off The
Avenue.” Defendant and Bardlett were also members. At this point, the trial court again read the
instruction that it gave at the start of Bardlett’s testimony concerning the limited use of evidence
of gang affiliation.
¶ 25 On January 19, 2014, around 4 p.m., Davis was at home. He received a telephone call that
his cell phone indicated was from Bardlett; however, it was actually from Kenneth Williams. This
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2021 IL App (2d) 180874-Uwas not unusual. Williams asked Davis to come outside, and Davis did. The Williams brothers,
defendant, and Bardlett were there. Bardlett had a minivan. After a while, Davis, defendant, and
Bardlett got in the van and started riding around. Bardlett, who was wearing a black hooded
sweatshirt was driving. Davis was wearing a “[m]aroon Abercrombie hoodie,” jeans, and dark
shoes. Davis could not recall what defendant was wearing. They went to a BP gas station, where
Davis purchased “a couple dollars” worth of gas. The Williams brothers followed in a red car.
¶ 26 Davis testified that the heater in the van did not work properly—it was either “on full blast”
or off. When Davis got back into the van after pumping gas, he took his hoodie off an threw it in
the back seat. Davis had his cell phone with him. Bardlett had given his cell phone to the Williams
brothers. Kionta Williams called on Bardlett’s phone to talk to Bardlett.
¶ 27 Bardlett drove to Sam’s Tobacco, which was in a strip mall. They parked behind the
building. Defendant asked Davis if he could wear his maroon hoodie, and Davis stated that he
could. Defendant and Bardlett got out and went to the store. A minute or two later, defendant and
Bardlett came running back around the corner of the building. Davis jumped in the driver’s seat
and drove off. After they got back into the van, defendant said, “I didn’t do anything wrong, did
I?” Bardlett was sitting in the front passenger seat, and defendant was sitting in the back. Davis
observed a revolver on the seat next to defendant. Kionta Williams called Davis’s phone, which
Bardlett answered.
¶ 28 Davis drove to a currency exchange. Davis was wearing a light green shirt at this time.
Bardlett and Davis switched seats. Davis went home. Davis had previously seen the gun, but
never saw it again. He also never saw his maroon hoodie after January 19, 2014. Defendant was
the last person Davis saw in possession of the hoodie. Davis identified pictures of himself at the
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2021 IL App (2d) 180874-UBP gas station wearing the maroon hoodie. He also identified two pictures where the Williams
brothers were driving a red car following the van he was in.
¶ 29 On February 8, 2014, a plainclothes police officer came to Davis’s residence. The officer
asked if Davis had seen a recording of the murder at Sam’s Tobacco. The officer asked to go
inside, and Davis gave him permission to do so. After the police left, Davis sent a text message to
Kionta Williams stating, “Tell Steph to get gone dey slid on me.” He explained that “Steph” refers
to defendant and “dey slid on me” meant that the police came to see Davis. The police asked if he
recognized anyone in the video recording, and he stated that one of the individuals might look like
defendant (though he actually knew it was defendant) and that he did not know Bardlett.
¶ 30 Davis testified that he had previously seen the gun that he saw in the backseat next to
defendant. A few days before the murder, a photograph of defendant holding the gun was taken
by Davis.
¶ 31 On cross-examination, Davis testified that when he first went outside on the afternoon of
January 19, 2014, and met his fellow gang members, Bardlett was smoking PCP. This was
something Bardlett did regularly. There were a lot of clothes and things in Bardlett’s van. He did
not know what they were going to do when he got in the van on January 19, 2014. He did not
know anyone was armed. Davis stated that he did not ask where they were going. On the trip to
Sam’s Tobacco, there were three or four calls made between Bardlett and the Williams brothers.
When defendant exited the van to walk to the front of Sam’s Tobacco, he was wearing Davis’s
Abercrombie hoodie. When defendant and Bardlett returned to the van, they were running. After
defendant got in the van, he received a phone call.
¶ 32 Davis had two contacts for defendant saved in his cell phone. One was for “Kool Kuntry,”
with a number of (312) 469-4557; the other was for “Fats” and had a number of (312) 316-1964.
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2021 IL App (2d) 180874-UBoth were nicknames for defendant. Another contact, number (773) 443-8444 and labelled “K
Jeezy” was for Bardlett. There was another entry for “Z Money.”
¶ 33 Davis stated that he never asked Bardlett or defendant what had transpired at Sam’s
Tobacco. When he was questioned by Arsenault on February 8, 2014, he still did not know
anything about the murder. Despite not knowing anything, he acknowledged, he texted Z Money
and told him to hide the gun. He lied to Arsenault when he stated he did not recognize Bardlett in
the recording of the murder because he did not want to get involved. He told Arsenault that the
shooter looked like defendant, but he also stated that the shooter looked like him. He added, “[I]t
looks like an awful lot of people.” Davis identified a photograph of himself holding the revolver
used in the murder the night before it occurred. The photograph was take in Davis’s home.
Another photograph depicted Davis wearing the maroon Abercrombie & Fitch hooded sweatshirt.
He identified several other similar photographs taken about a year and a half before January 19,
2014. Davis testified that he liked True Religion brand clothing.
¶ 34 Davis stated that he had a room at the house located at 1417 North Lotus Street. The police
executed a search warrant there. He kept personal items in the room, including in a dresser. He
identified a cotton belt that the police seized during the search. Davis was taken into custody on
February 21, 2014. He was interviewed by detectives Dooley and Larson at that time. On February
22, 2014, Davis called Arniko Miller from the Du Page County Jail and “told him to hide the mop.”
Davis explained that the term “mop” referred to a gun. In May 2015, Davis admitted that he
attempted to create a false alibi. Bardlett assisted him in doing so. According to the alibi, Davis
parted with defendant and Bardlett shortly after they left the BP station. In February 2016, Davis
was offered a deal by the State. All first-degree murder charges against him would be dismissed
if Davis pleaded guilty to armed robbery. He was to serve eight years’ imprisonment, with day-
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2021 IL App (2d) 180874-Ufor-day credit as well as credit for the approximately two years he had been held in custody prior
to trial.
¶ 35 On redirect-examination, Davis explained that when he texted Z Money and told him to
hide the gun, he was referring to a gun other than the murder weapon. He also clarified that a
“mop” is a gun with a 30-round clip. When he instructed Miller to hide the mop, he was also
referencing a gun other than the murder weapon. There were photographs of other guns in Davis’s
house. When he saw defendant and Bardlett running back to the van, he jumped in the front seat.
He believed something was wrong, “maybe somebody got shot and hurt.” He explained that he
did this out of “instinct,” as there is “a lot of danger where [he was] from.” Part of his plea
agreement with the State is that he testify truthfully.
¶ 36 The State’s next witness was Sergeant Brad Swanson of the Bensenville Police
Department. On March 17, 2014, he was sitting in a vehicle outside an apartment in Chicago
belonging to defendant’s mother. He was looking for defendant. Defendant came out of the
apartment, and Swanson, along with other officers, took him into custody. Defendant was placed
in Swanson’s vehicle, in the rear seat in the middle of the vehicle. Swanson was in the front
passenger seat. Swanson did not ask defendant anything, and defendant asked what was
happening. Swanson told him that a detective would speak with him shortly. A few minutes later,
defendant said that he knew that “hanging around with those guys would get him in trouble.”
Defendant added that he “doesn’t do shit like that” and that “[h]e just likes to fuck his hoes and
rap.” Defendant asked to see his mother. Subsequently, he stated that his mother would be mad
at him “for hanging out with those guys” and that “he would never shoot anybody unless it was in
self-defense.” Defendant told Swanson that he sang in the church choir.
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2021 IL App (2d) 180874-U¶ 37 On cross-examination, Swanson agreed that defendant was not free to leave after he was
placed in the back of Swanson’s vehicle. Defendant had been handcuffed by this time.
¶ 38 The State then called Deputy Chief Brian Dooley of the Bensenville Police Department.
On January 19, 2014, he was a detective sergeant and was involved in the investigation of the
murder of Hussein Saghir. The police department requested assistance from the major crimes task
force. Early in the investigation, the department released some still footage and a small amount of
running footage from the video surveillance recording taken at Sam’s Tobacco on January 19,
2014. As a result, they received some information from juveniles who wished to remain
anonymous. Dooley then attempted to locate Bardlett. Bardlett was taken into custody on
February 8, 2014, and interrogated by Dooley and other officers. Based on information Bardlett
provided, they began to search for a silver Chevrolet Venture. It was located a few weeks later. It
had been sold to new owners.
¶ 39 Based on information obtained from Bardlett, the police obtained phone records from
various phones, including phones with the following numbers: (773) 443- 8444 belonging to Debra
Scott (Bardlett’s mother); (312) 221-6038 with the post office box of James N. Luis of Irvine,
California listed as the billing address (Dooley testified that criminals sometimes buy prepaid
phones with cash and provide false information as to the ownership of the phone); (312) 259-2292
belonging to Teshia Russell (defendant’s mother); and (773) 667-3067 belonging to Shakyra
Clark. They also obtained Facebook records pertaining to defendant. Defendant’s Facebook
records shows he listed Clark’s number as the number of this “BM,” which Dooley explained
meant “baby mama.” The police compared the records from defendant’s mother’s phone, Clark’s
phone, and the P.O. Box phone (the phone registered to James N. Luis). In the approximate month
preceding January 19, 2014, there were 88 calls and texts from defendant’s mother’s phone to the
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2021 IL App (2d) 180874-UP.O. Box phone; 126 calls and texts from the P.O. Box phone to defendant’s mother’s phone; 326
calls and texts from Clark’s phone to the P.O. Box phone; and 180 calls and texts from the P.O.
Box phone to Clark’s phone. Clark’s phone and defendant’s mother’s phone had the highest level
of call and text traffic with the P.O. Box phone.
¶ 40 Dooley testified regarding three calls or texts. Two calls occurred within 10 minutes prior
to the murder and one that occurred minutes after. Also during this period, an incoming text was
received by the P.O. Box phone from the Clark phone. The first such call was from the P.O. Box
phone to the Scott phone (Bardlett’s mother’s phone), occurring at about 5:47 p.m. local time. It
lasted 27 seconds. The second call was from the Scott phone to the P.O. Box phone at
approximately 5:50 p.m. and lasted 35 seconds. Both phones were routed through a cell tower
consistent with them being in the general area of Sam’s Tobacco, though Dooley explained that a
phone’s location could not be pinpointed using such information. Both phones were routed
through the same cell tower. Dooley testified that video surveillance recordings from a currency
exchange across the street from Sam’s Tobacco showed a red car following Bardlett’s van.
Surveillance recordings from a second currency exchange show the van pulling in followed by the
red car. The red car pulls alongside the van for about 30 seconds. The two vehicles leave, and the
car continues to follow the van.
¶ 41 On cross-examination, Dooley agreed that he had also obtained phone records from a
phone he “attributed” to Kionta Williams. He forwarded these records to the State’s Attorney’s
office.
¶ 42 Dr. Steven White testified that he performed an autopsy on Hussein Saghir. White opined
that the victim died from a single gunshot wound to the chest. He further opined that the death
was a homicide.
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2021 IL App (2d) 180874-U¶ 43 The State’s final witness was Tim Diamond, Chief of the Criminal Division of the Du Page
County State’s Attorney’s Office. He is a member of the major crimes task force. On February
11, 2014, in the early evening, Diamond met with Bardlett at the Bensenville Police Department.
Detective Mike Ptak was also present. At about 7:45 p.m., Bardlett asserted his Miranda rights,
and the interrogation ceased. Diamond went home, but about 45 minutes later, he received a call
indicating that Bardlett had decided to speak with Diamond and Ptak. Diamond returned to the
police station. The second round of questioning continued into the early-morning hours of
February 12. Officer Dexter Stephens was also present. Diamond identified portions of the
interview, which was recorded, and those portions were played for the jury. The recordings
indicate that Bardlett stated that defendant was the shooter at Sam’s Tobacco. He described the
route they took to Sam’s Tobacco. He explained how he parked outside Sam’s Tobacco. He and
defendant walked to the front door. Defendant looked inside and saw that two people were present.
Defendant and Bardlett walked away and waited. They approached when two men were leaving
the store and told them to get back inside. Defendant drew his gun. There was a little boy in the
store. Bardlett struggled with a man near the door. Bardlett thought a car was pulling up, so he
ran back to the van. Bardlett did not mention Davis. The trial court admitted the recorded
statement as substantive evidence.
¶ 44 According to Diamond, Bardlett was then charged with first-degree murder. Diamond met
with Bardlett again during the afternoon of February 12, 2014. Dooley was also present. Bardlett
wanted a deal. This meeting was recorded and portions were played for the jury. Diamond said
he would not make any promises at this time. Bardlett then told Diamond he had more information.
He indicated that there were others involved and named Davis and the Williams brothers. No deal
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2021 IL App (2d) 180874-Uwas made that day. Diamond and Dooley met with Bardlett on February 14, 2014. In the early
part of March 2014, an agreement between Bardlett and the State was reached.
¶ 45 Early in the investigation, portions of the video recordings were released to the media in
an effort to identify the perpetrators. However, portions showing that there was a young boy in
the store were not released, nor were portions showing the victim stepping toward where the
shooter was standing. Diamond testified that neither the P.O. Box phone nor Scott’s phone were
ever recovered.
¶ 46 On cross-examination, Diamond admitted that he was aware that Bardlett first gave an alibi
when he was interviewed by Dooley and Ptak. Diamond was aware that Bardlett gave a false alibi
for Davis in May 2015. The State’s Attorney’s Office sent out investigators and determined that
the alibi was false. Diamond agreed that this could be considered a violation of the deal between
the State and Bardlett, which required Bardlett to remain cooperative. Diamond further believed
that the deal could have been revoked on this basis. They chose not to do so and go forward with
the prosecution of defendant and put Bardlett on the stand.
¶ 47 The parties stipulated that Ptak would testify that he interviewed Bardlett on February 11,
2014. Bardlett identified two individuals in two still photographs taken from the Sam’s Tobacco
surveillance video as defendant and himself. He circled both individuals on the photographs and
wrote who each was. The person identified as defendant is wearing a red hooded sweatshirt.
¶ 48 The State rested, and defendant moved for a directed finding. Defendant then called
Stephanie Russell. Stephanie testified that she is defendant’s sister. She stated that she knows
Davis, but “[n]ot very well.” The same is true of Bardlett, and she does not know Kenneth
Williams or Kionta Williams. Stephanie was home on January 19, 2014. She woke up around 11
a.m. During the day, defendant was home, as was her mother and other siblings. Defendant never
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2021 IL App (2d) 180874-Uleft the home, to her knowledge. She never lost sight of him for more than 30 minutes or 45
minutes. Her mother had to work at 6 p.m. Around 5:30, her mother was getting ready for work.
Defendant was present and was “kind of sad” as it was “the anniversary of our godbrother being
killed.” Defendant was playing a video game. Defendant was responsible for watching the
younger siblings and feeding them. Defendant was also responsible for watching Stephanie.
Stephanie usually would stay up until her mother got home around 3 a.m. Defendant never left.
¶ 49 On cross-examination, Stephanie agreed that defendant was sad about the death of his
godbrother for several days around that time. She acknowledged that she did not come forward
with this alibi until July 2016.
¶ 50 Defendant next called Teshia Russell, his mother. Teshia testified that she knew Davis,
Bardlett, and the Williams brothers. They grew up in the same neighborhood with defendant. On
January 19, 2014, defendant was living at home. He had a girlfriend named Shakyra Clark. On
January 19, 2014, Teshia awoke about 11 a.m. or noon. All of her children, including defendant,
were home. She had to work at 7 p.m. that day. Defendant was home all day. She estimated that
she left for work around 5:30 p.m. Defendant was home at that time. As the oldest, defendant
was responsible for watching his younger siblings. She returned home between 1:30 a.m. and 2
a.m., and defendant was present. Teshia explained that January 19 is significant to them, as
‘[s]omeone close to [them] died the day before a year prior.”
¶ 51 Teshia testified that in January 2014, defendant did not have a phone. He would use her
phone, Clark’s phone, or his friends’ phones. Defendant would sometimes use Kenneth
Williams’s phone. Defendant was closest to Kenneth Williams; Teshia was close to his mother.
Teshia stated it was “more than likely” that she took her phone to work with her on January 19,
2014. Teshia identified 60 calls and 28 texts on a phone record from her phone to Kenneth
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2021 IL App (2d) 180874-UWilliams’s phone. She explained that this would have been her trying to contact defendant or
defendant using her phone. There were also 90 calls and 39 texts from Kenneth Williams’s phone
to her phone. These would have been Kenneth Williams trying to contact defendant or defendant
using Kenneth Williams’s phone to contact Teshia. The records also indicated that there was a
text from Kenneth Williams’s phone to her phone at about 9:45 p.m. on January 19, 2014, and
there is no reply. This, Teshia explained, was because she does not respond to texts when she is
at work.
¶ 52 On cross-examination, Teshia explained that defendant stayed at his girlfriend’s house at
times. He kept some clothes there. Defendant spent a lot of time with Kenneth Williams, seeing
him “almost every day.” Teshia learned that she would be an alibi witness a couple months before
the trial.
¶ 53 Defendant then testified. He is 23 years old. Before being taken into custody, he lived
with his girlfriend (Clark) and would also stay at this mother’s house at times. Defendant stated
that he went to school with Bardlett and Davis and that Kenneth Williams is his best friend. Kionta
Williams is Kenneth’s little brother. Defendant saw Davis wearing the Abercrombie & Fitch
hoodie seen in the surveillance recordings a lot. Davis was wearing it in the surveillance recording
taken at the BP Station. Kenneth Williams was also seen in this recording. He has a phone in his
hand. At the time, Kenneth Williams had his own phone.
¶ 54 He and Kenneth Williams became best friends when they learned that both their mothers
had had breast cancer. Defendant liked to play basketball and rap. He made rap videos with his
friends, and they put a lot of effort into it. Sometimes they would take photographs. Defendant
identified one of the pictures of him holding two weapons, which was admitted during the State’s
case. It was taken in Davis’s basement. The belt the police recovered from Clark’s home was not
-18-
2021 IL App (2d) 180874-Uhis. Defendant did not have a phone in January 2014, so he would frequently use the phones of
Kenneth Williams, Teshia, and Clark. Records showed a text from Kenneth Williams’s phone to
Teshia’s phone in the evening of January 19, 2014. Defendant was at his mother’s house.
¶ 55 On January 19, 2014, defendant awoke at his mother’s house. His four siblings were there.
He did not recall what time he woke up. He did not leave the house that day. After it got dark,
his mother started getting ready for work. Defendant remained at the house because he was
responsible for watching his siblings. He frequently takes care of them. Stephanie was 17 years
old at this time. He was concerned about boys coming over to see her. His mother returned home
around 1 a.m. or 2 a.m. The day before January 19, 2014, was the first anniversary of defendant’s
godbrother’s death. There were three calls between Clark’s phone and Kenneth Williams’s phone
around 11:30 p.m. on January 19, 2014. He stated he had Clark’s phone at the time. There were
about 20 texts from Clark’s phone to Kenneth Williams’s phone that day between 2:37 p.m. and
4:44 p.m. There is a two hour gap in texting between the phones, and then a number of texts
beginning at 6:48 p.m. continuing until 10:35 p.m. There were a number of texts that day from
Kenneth Williams’s phone to Clark’s phone, with a gap from about 4:30 p.m. to 8:30 p.m.
¶ 56 Defendant was arrested on March 17, 2014, at about 9:15 p.m. He was leaving from his
mother’s home to go to the store. Defendant stated, “[A] lot of officers jumped out.” He could
not remember exactly how many, but it was more than six. Defendant was handcuffed and put in
the back of a police car. The police asked him about his rapping, and he told them he liked to rap
and “have sex with his hoes.” He also told them he sang in the church choir, which was true.
Defendant acknowledged stating that his mother told him not to hang around with the people he
was hanging around with because they would get him in trouble. He also said he would only shoot
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2021 IL App (2d) 180874-Ua gun in self-defense, but this was because the police were asking about it. He did not know what
he was in custody for.
¶ 57 On cross-examination, defendant agreed that he and Davis were friends in January 2014,
but not close friends. The same was true of Bardlett. They were all in the OTA gang, as was
Kenneth Williams. At this point, the trial court again read the limiting instruction regarding gang-
related evidence that it gave at the start of Bardlett’s testimony. In January 2014, defendant was
involved in no conflicts with Davis or Bardlett. Defendant stated that he did not become upset
with Bardlett when Bardlett told the police that defendant was the shooter. When defendant was
arrested, he assumed it was for the murder at Sam’s Tobacco.
¶ 58 On redirect-examination, defendant testified that he did not shoot anyone on January 19,
2014. He reaffirmed this on recross-examination. Defendant then rested.
¶ 59 The jury found defendant guilty of first-degree murder and attempted armed robbery. It
further found that he personally discharged a firearm during the offense, proximally causing the
death of Hussein Saghir. Counsel filed a post-trial motion, and defendant filed several more pro
se. The pro se motions included claims of ineffective assistance of counsel. Therefore, the trial
court conducted a first-stage Krankel hearing. It found one of defendant’s claims well founded
and advanced the claim to the second stage. That claim concerned trial counsel’s failure to present
evidence that the victim’s brother Ahmad Saghir, who witnessed the crime, failed to identify
defendant in a photographic lineup. In addition, the police did not include Davis in a photographic
line up for Ahmad to consider. The trial court appointed new counsel to represent defendant in
further proceedings. An evidentiary hearing was held on defendant’s motion. The trial court
rejected defendant’s claim of ineffectiveness, finding that counsel’s omission did fall below an
objective standard of reasonableness but did not prejudice defendant.
-20-
2021 IL App (2d) 180874-U¶ 60 Subsequently, a sentencing hearing was held. Ultimately, the trial court sentenced
defendant to 50 years’ imprisonment for the murder and an additional 5 years’ imprisonment, to
be served consecutively, for the attempted armed robbery. Following denial of a pro se motion to
reconsider, this appeal ensued.
¶ 61 III. ANALYSIS
¶ 62 On appeal, defendant raises five main issues. First, he argues that trial counsel was
ineffective for failing to present potentially exculpatory lineup evidence at trial. Second, he asserts
that the trial court abused its discretion in allowing the State to introduce evidence of gang
affiliation where the offenses defendant was charged with were unrelated to gang activities. Third,
defendant contends that counsel was ineffective and the trial court erred in the handling of certain
“lay opinion identification testimony” given by a police officer. Fourth, defendant argues that the
cumulative impact of defense counsel’s errors constituted ineffective assistance of counsel. Fifth,
defendant claims that his sentence of 50 years’ imprisonment is a de facto life sentence and that it
therefore violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. art. 1,
§ 11), as he was only 20 years old at the time of the offense. For the reasons that follow, we affirm.
¶ 63 A. INEFFECTIVE ASSISTANCE: LINEUP EVIDENCE
¶ 64 Defendant first argues that trial counsel was ineffective in failing to present certain
exculpatory evidence concerning two photographic lineups the police conducted. Ahmad Saghir,
the victim’s brother and a witness to the shooting, moved to Lebanon shortly after the shooting
occurred. Sergeant Brian Dooley contacted Ahmad and sent him, via email, two photographic
arrays. The first one included a photograph of Bardlett. Ahmad identified Bardlett as one of the
offenders. Defendant was in the second lineup. Ahmad stated that he did not recognize anyone in
the second array. Additionally, defendant points out, Tremayne Davis was in neither lineup.
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2021 IL App (2d) 180874-UDefendant observes that identity was a key issue at trial. We note, however, that defendant
expressly agreed to proceed in this manner. Before the trial court accepted the stipulation
regarding what Ahmad would testify to regarding the foundation for the Sam’s Tobacco
surveillance recording, it explained to defendant that Ahmad would not be coming to court and
would not be cross-examined. The trial court asked, “You are agreeing to proceed in that manner.”
Defendant replied, “Yes.”
¶ 65 Pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), the trial court conducted an inquiry
into defendant’s pro se allegations of ineffective assistance of counsel. The trial court found
several of the issues potentially meritorious and appointed outside counsel to assist defendant. The
issue of counsel’s failure to present the lineup evidence was presented to the trial court during
second-stage Krankel proceedings.
¶ 66 The trial court found that trial counsel’s performance fell below an objective standard of
reasonableness, but that this omission did not prejudice defendant. It recounted the evidence
against defendant. It noted Davis’s testimony and Bardlett’s videotaped statement of February 11,
2014, which had been admitted as substantive evidence. The trial court acknowledged that there
were credibility issues with both Davis and Bardlett; however, it noted that such matters were
presented to the jury. It further noted that their testimony was corroborated by surveillance videos
recorded at the BP station prior to the shooting, at Sam’s Tobacco during the shooting, and at a
currency exchange where they met after the shooting. It noted that there were differences in the
clothing of the shooter and Davis in the recordings, specifically the pants and shoes. The trial
court pointed to the statements defendant himself made to the police. Moreover, there was
circumstantial evidence concerning the gun used in the crime—i.e., a photograph of defendant
holding the gun that was taken by Davis. The trial court then ruled that in light of all of this
-22-
2021 IL App (2d) 180874-Uevidence, the fact that Ahmad was unable to identify defendant in a single line up along with the
fact that he was never given an opportunity to identify Davis did not create a reasonable probability
that the outcome of the trial would have been different.
¶ 67 When a defendant alleges that trial counsel is ineffective, the familiar standards first
articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), control. To
succeed on such a claim, a defendant must show (1) counsel’s performance fell below an objective
standard of reasonableness and (2) counsel’s deficient performance prejudiced the defendant.
People v. Manning, 241 Ill. 2d 319, 341 (2011). Counsel’s performance is to be judged with
reference to prevailing professional norms. People v. Cherry, 2016 IL 118728, ¶ 24. To show
prejudice, a defendant must show that there is a reasonable probability that but for counsel’s
unprofessional errors, there is a reasonable probability that the result of the proceedings would
have been different. Id. A “reasonable probability” is one sufficient to undermine confidence in
the outcome. People v. Spann, 332 Ill. App. 3d 425, 433 (2002). An attorney’s trial strategy is
generally immune from an ineffectiveness claim. People v. Walton, 378 Ill. App. 3d 570, 589
(2007).
¶ 68 Where, as here, the trial court has conducted a Krankel hearing and ruled on the merits of
defendant’s ineffectiveness claim, we will disturb its decision only if it is manifestly erroneous.
People v. Jackson, 2020 IL 124112, ¶ 98. Defendant argues for a mixed standard of review—
deferential for the trial court’s factual findings and de novo on the ultimate question of the
adequacy of counsel’s performance. However, the cases he cites in support of this position do not
involve situations where the trial court conducted a Krankel hearing and ruled on the defendant’s
claim. See People v. Harris, 389 Ill. App. 3d 107, 131 (2009). Accordingly, we will follow the
supreme court’s clear pronouncement in Jackson, 2020 IL 124112, ¶ 98, and apply the manifestly-
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2021 IL App (2d) 180874-Uerroneous standard of review. Our supreme court has explained, “Manifest error is error that is
clearly evident, plain, and indisputable.” Id. Since a defendant must satisfy both prongs of the
Strickland test, if a court is able to resolve the claim adversely to the defendant on one prong, it
need not address the other one. People v. Evans, 186 Ill. 2d 83, 94 (1999). We turn first to the
prejudice prong.
¶ 69 Defendant argues that the evidence of record is such that the failure to present the lineup
evidence creates a reasonable probability that the result of the proceedings would be different. He
reminds us that prejudice may be found where the prospect of acquittal is “ ‘significantly less than
50 percent.’ ” People v. McCarter, 385 Ill. App. 3d 919, 935 (2008) (quoting Miller v. Anderson,
255 F.3d 455, 459 (7th Cir. 2001)). He begins by assailing Bardlett’s testimony.
¶ 70 Defendant notes that by the time Bardlett spoke with the police on February 11, 2014, the
evidence against him was already significant. Ahmad had identified him by this time. Moreover,
a tattoo on his face made him easily identifiable in the surveillance video and his minivan was
used to travel to and from Sam’s Tobacco. Thus, defendant reasons, “His only hope for leniency
was to curry favor with the State by naming someone else as the shooter.” While we agree that a
desire to work out a deal would have been a powerful motive for Bardlett to cooperate with the
State, defendant does not explain how that would have been a motive to name the wrong person
as the shooter. The evidence showed that Bardlett, Davis, and defendant were friends and fellow
gang members. How this motive would have led Bardlett to identify one friend and associate
rather than another is not apparent to us. At trial, Bardlett testified that he had a deal with the State
that required him to provide truthful testimony and that if he failed to do so, the agreement was
void. Presumably, the statement he made in February 2014 that formed the basis of the deal would
have been the testimony he intended to give at trial. Since the deal was dependent upon Bardlett
-24-
2021 IL App (2d) 180874-Utestifying truthfully and since he was seeking a deal at that time, the same powerful motive that
Bardlett had to secure a deal would have further incentivized him to tell the truth, since lying would
jeopardize the deal. Indeed, Bardlett’s agreement with the State required him to cooperate with
the police; misidentifying the shooter would certainly not amount to cooperation, In short, we do
not find Bardlett’s statement as problematic as defendant asserts.
¶ 71 It is true the Bardlett recanted at trial, causing him to lose the benefit of his deal with the
State. Whatever his reason for recantation, be it loyalty to a friend or fear of reprisal, we find his
claim that he recanted because he wanted to tell the truth incredible. Quite simply, he did not
identify the shooter at trial, he simply said the shooter was not defendant. Had Bardlett had an
actual desire to tell the truth, he would have accurately identified the shooter.
¶ 72 Defendant observes that Davis had a strong motive to fabricate a story. Davis made a deal
with the State whereby all murder charges against him were dismissed and he was to serve a
sentence of 8-years’ imprisonment. Moreover, Davis acknowledged that the Abercrombie & Fitch
sweatshirt worn by the shooter belonged to him. There was evidence that the murder weapon was
in his possession the day prior to the shooting. Moreover, Davis spoke with two people about
hiding a gun, though he testified that he was not referring to the gun used in the murder. Davis
acknowledged lying to the police in February 2014. We agree that Davis’s testimony can be fairly
challenged on these bases; however, we note, as the trial court did, that it is not uncorroborated.
Not only is it corroborated by Bardlett’s statement made in February 2014, surveillance videos
corroborated it as well.
¶ 73 Defendant also asserts that Detective Larson gave improper lay opinion testimony about
the identity of the shooter depicted in the surveillance video recorded at Sam’s Tobacco. We will
address this testimony later. Suffice to say for now, the trial court did not reference this opinion
-25-
2021 IL App (2d) 180874-Uin finding that defendant suffered no prejudice as a result of counsel’s failure to present the lineup
evidence. Like the trial court, we will not consider it in the context of this argument. As such, it
is not relevant here.
¶ 74 We further note that there was significant evidence regarding cell phone usage around the
time of the murder. Defendant states that he did not own a cell phone; however, there was evidence
from which it could be inferred that defendant was in control of the P.O. Box cell phone. Notably,
defendant’s girlfriend’s phone and defendant’s mother’s phone had the highest level of call and
text traffic with the P.O. Box phone. Two calls, one shortly before the murder and one after, were
made between the P.O. Box phone and Bardlett’s mother’s phone. Both phones were routed
through a cell tower in the general vicinity of Sam’s Tobacco. This evidence, though not
conclusive, provides some additional corroboration for Davis’s testimony and Bardlett’s
statement.
¶ 75 Finally, we note that it is unknown why Ahmad failed to identify defendant in the lineup
or whether he would have identified Davis had he been given an opportunity to do so. It is possible
that his attention was diverted by something (the child inside the store perhaps) and he simply was
not focusing on the shooter. A defendant must show actual prejudice, not mere speculation.
People v. Bew, 228 Ill. 2d 122, 135-36 (2008). In People v. Sturgeon, 2019 IL App (4th) 170035,
¶ 97, the court found the defendant’s claim of prejudice (in the context of an ineffectiveness claim)
speculative where the defendant asserted that defense counsel did not appropriately cross examine
two witness. The court noted that it was unknown whether the witnesses’ testimony lacked an
adequate foundation. Id. Similarly, in this case, Ahmad may have easily explained his failure to
identify defendant in the first lineup. If evidence can be developed that would refute such a
possibility, such a claim might be cognizable in a postconviction petition.
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2021 IL App (2d) 180874-U¶ 76 In light of the evidence and the standard of review, we cannot hold that the trial court
committed manifest error when it concluded that even if the lineup evidence at issue here had been
presented, there was not a reasonable probability that a different result would have followed.
Accordingly, we affirm its decision on this point.
¶ 77 B. GANG EVIDENCE
¶ 78 Defendant next argues that the trial court erred in allowing the admission of evidence of
his gang affiliation. He asserts that “[n]one of the evidence adduced at trial suggested that the
murder of Hussein Saghir and attempted armed robbery of Sam’s Tobacco had any relation to gang
activity.” The trial court allowed the State to introduce evidence that defendant, Bardlett, and
Davis were members of the OTA street gang. Defendant contends:
“The judge’s decision triggered a cascade of errors (some of which are raised separately).
From voir dire to closing arguments, gang affiliation loomed large over the trial despite the
fact it was tangential to the disputed issue—the identity of the shooter.”
He concludes that the prejudicial impact of this evidence substantially outweighed its probative
value. Of course, evidence of gang affiliation may not be admitted where its probative value is
substantially outweighed by its unfairly prejudicial effect. People v. Johnson, 208 Ill. 2d 53, 102
(2003). The decision to admit gang-related evidence is reviewed using the abuse-of-discretion
standard. Johnson, 208 Ill. 2d at 102. Therefore, we will reverse only if no reasonable person
could agree with the trial court. People v. Kladis, 403 Ill. App. 3d 99, 105 (2010).
¶ 79 The trial court found evidence of the relationship between Bardlett, Davis, and defendant
to be relevant to the issue of bias. It noted that Bardlett had been inconsistent in relating what had
happened at Sam’s Tobacco, sometimes implicating defendant and sometimes not. The trial court
found that the gang affiliation of defendant and the other witnesses was relevant to why Bardlett
-27-
2021 IL App (2d) 180874-Uchanged his version of events. The trial court further ruled that a limiting instruction would be
given to the jury indicating that this evidence could only be used on the issue of the bias, interest,
or motive of any witness for the testimony the witness gave. In fact, at or near the beginning of
each occasion where such evidence was presented to the jury, such an instruction was given.
¶ 80 We find no abuse of discretion in the manner in which the trial court handled this evidence.
A reasonable person could conclude that a close relationship between Bardlett and defendant
would be a motive for Bardlett to wish to refrain from implicating defendant in a crime. Chapman
v. Hubbard Woods Motors, Inc., 351 Ill. App. 3d 99, 105 (2004) (“Even though the subject of
Linda’s friendship with Mr. Berger was not brought out on direct examination, it would have been
proper for the plaintiffs’ attorney to question her about it to reveal any bias she would have had in
favor of Hubbard Woods Motors.”). Indeed, evidence of gang affiliation has been held to be
relevant to the issue of bias. People v. Blue, 205 Ill. 2d 1, 18 (2001); People v. Gonzalez, 104 Ill.
2d 332, 337-38 (1984). In other words, the trial court did not abuse its discretion in finding this
evidence relevant.
¶ 81 Defendant argues that the close relationship between Bardlett, Davis, and defendant, which
the trial court found relevant to their potential bias, could have been established simply by asking
how Davis and Bardlett knew [defendant] and the extent of their relationship.” According to
defendant, going beyond this into evidence of gang affiliation was unfairly prejudicial, as there
was no evidence that the crime for which he was on trial was gang related. See People v. Roman,
2013 IL App (1st) 110882, ¶ 30. Our supreme court has held that despite the fact “that, particularly
in metropolitan areas, there may be strong prejudice against street gangs,” “evidence
of gang affiliation need not be excluded if it is otherwise relevant and admissible.” People v.
Smith, 141 Ill. 2d 40, 58 (1990). Thus, the mere fact that some prejudice accrued to defendant is
-28-
2021 IL App (2d) 180874-Unot enough to exclude such evidence as the trial court determined it was relevant to bias, and, as
we explain above, this determination was not an abuse of discretion. Indeed, evidence of gang
affiliation has been held to be probative regarding why a witness has changed his or her testimony.
People v. Maldonado, 398 Ill. App. 3d 401, 419 (2010) (“The State did correctly use the gang
evidence in closing arguments to explain why the witnesses changed their stories.”);
¶ 82 Moreover, we reject defendant’s contention that the trial court abused its discretion because
evidence of the relationship between Davis, Bardlett, and defendant could have been presented
without referring to their gang affiliation. A reasonable person could conclude that the
relationship inherent in gang membership is not the same as the relationship that exists between
friends. Moreover, in this case, defendant and the witnesses were both friends and members of
the same gang, which would allow an inference of an even closer relationship, so a reasonable
person could conclude both were relevant. Moreover, unlike evidence of an amicable relationship,
evidence of gang affiliation suggests the possibility of retaliation if Bardlett testified against
defendant.
¶ 83 It is true that Bardlett denied that he had been threatened by defendant or anyone else.
However, in People v. Shief, 2016 IL App (1st) 141022, ¶ 62, the court found such evidence
admissible under similar circumstances:
“This court has rejected the notion that, for gang evidence to be admissible to explain a
witness’s recantation, the State must have evidence of ‘an actual decision by the gang to
intimidate [the specific] witness or the gang’s practice to “always” intimidate testifying
witnesses.’ As we have explained, ‘the witness may have a legitimate fear of gang
retaliation, whether or not the State can prove that the gang made an ‘actual’ decision with
respect to this specific witness or the gang failed to retaliate for every witness.’ [Citation.]
-29-
2021 IL App (2d) 180874-UIn this case, the State was not required to elicit testimony from [the witness] that the
Gangster Disciples had a practice of retaliating against witnesses or that they had actually
threatened him. The State permissibly relied on the notion that [the witness] would be
afraid to testify against a fellow gang member regardless of the existence of an actual threat
or official retaliation policy.”
The same rationale applies here; a reasonable person could conclude it was relevant on this basis
as well.
¶ 84 Moreover, any danger of unfair prejudice was substantially mitigated when the trial court
instructed the jury on three separate occasions as to how it could properly use this evidence—that
is, as evidence of bias alone. The jury is presumed to follow the instructions given to it by the trial
court. People v. Taylor, 166 Ill. 2d 414, 438 (1995). Where evidence is admitted for a proper
purpose and a trial court instructs a jury that it may only be considered for that purpose, “this
prevents error.” People v. Miller, 302 Ill. App. 3d 487, 494-95 (1998). Hence, we must presume
that the jury properly considered evidence of gang affiliation only on the issue of bias, as the trial
court instructed. Indeed, defendant’s repeated assertions that the crime in this case had nothing to
do with gang activity is consistent with the trial court limiting the use of this evidence in the manner
it did.
¶ 85 Defendant points out that he was willing to stipulate that defendant, Davis, and Bardlett
knew each other and were friends. However, it is well established that “as a general matter, it [is]
‘unquestionably true’ that ‘the prosecution is entitled to prove its case by evidence of its own
choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the
full evidentiary force of the case as the Government chooses to present it.’ ” People v. Walker,
211 Ill. 2d 317, 333 (2004) (quoting Old Chief v. United States, 519 U.S. 172, 186 (1997)). While
-30-
2021 IL App (2d) 180874-Uit is equally true that “the prosecution has no entitlement or right to present evidence that is unfairly
prejudicial when equally probative, nonprejudicial evidence is available and will serve the same
purpose” (Id. at 339), as explained above, a reasonable person could conclude that the gang-
affiliation evidence showed a relationship beyond what ordinary friendship would entail.
¶ 86 Defendant also takes issue with the fact that the trial court did not give the limiting
instruction at the beginning of two witnesses’ testimony (instead giving it after the subject arose)
or during voir dire. However, the trial court did give the instruction three times during the trial
and again before the jury began deliberations. In People v. Heard, 187 Ill. 2d 36, 61 (1999), our
supreme court held a trial court’s failure to instruct a jury regarding the limited purpose to which
other crimes evidence could be used until the close of trial did not constitute reversible error. If
the single instruction given in Heard was sufficient, a fortiori, the four given in this case were as
well. We perceive no reason to disregard the presumption that the jury followed its instructions
based on the manner in which this instruction was given. See People v. Harris, 288 Ill. App. 3d
587, 605 (1997).
¶ 87 Finally, we note that defendant, in his reply brief, points out the State’s lengthy recitation
(about two single-spaced pages) of the trial court’s reasoning regarding gang evidence. Defendant
asserts that this was apparently included to show that the trial court “thoughtfully considered” this
issue. Defendant counters that the passage shows that the trial court did not properly consider the
degree of prejudice this evidence caused defendant. While the reasoning of a trial court may be
persuasive or useful in many circumstances, we ultimately review the trial court’s decision rather
than its reasoning. People v. Nash, 173 Ill. 2d 423, 432 (1996). That is, here, we simply must
determine whether any reasonable person could agree with the trial court’s decision, regardless of
the reasoning that produced it.
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2021 IL App (2d) 180874-U¶ 88 In sum, a reasonable person could conclude that the evidence of gang affiliation admitted
in this case was relevant to the issue of bias. Such a person could further conclude that the potential
for unfair prejudice was prevented by the instructions the trial court gave to the jury on the subject.
In turn, a reasonable person could find that the risk of unfair prejudice did not substantially
outweigh this evidence’s probative value. Accordingly, no abuse of discretion occurred.
¶ 89 C. LAY OPINION ON IDENTITY
¶ 90 Defendant next asserts that the trial court erred by allowing Detective Larson to opine about
the identity of the shooter depicted in the surveillance video recorded at Sam’s Tobacco.
Additionally, he contends that the trial court should have “engaged in the requisite precautionary
procedures designed to safeguard a defendant from unfair prejudice.” He also charges that
Krankel counsel was ineffective for failing to preserve these issues and trial counsel was
ineffective for failing to interpose an objection regarding the latter.
¶ 91 Larson testified that he had “seen defendant on a number of occasions.” He later stated
that he had spent “[a] few hours” with defendant. Under questioning by the State, Larson testified
that the individual wearing the Abercrombie & Fitch sweatshirt in the surveillance video taken at
Sam’s Tobacco was defendant and not Davis. On cross-examination, the following colloquy
occurred:
“Q. Your analysis, your conclusion that that’s him in this picture is based on of
course the entire video, right?
A. Yes
Q. But it’s based on what you can see, which is this little piece of face, is that fair
to say?
A. Yes, it is.
-32-
2021 IL App (2d) 180874-UQ. And from that little area here, right, that’s actually enlarged, this little area here
you are reaching the conclusion that Stephan Russell is that person?
A. Yes, I am.”
Defendant acknowledges these issues are not properly preserved as neither was included in the
posttrial motion filed by Krankel counsel, though, we note, trial counsel did object to the admission
of this testimony but did not request any procedures be employed to guard against unfair prejudice.
Accordingly, as defendant points out, these issues must be reviewed either as plain error or as
claims of ineffective assistance of counsel. In either case, we must first determine whether any
error occurred at all.
¶ 92 Before turning to the merits of this issue, we note that the State argues, and we agree, that
the doctrine of invited error applies here. Pursuant to this doctrine, “a defendant may not request
to proceed in one manner and later contend on appeal that the course of action was in error.”
People v. Harding, 2012 IL App (2d) 101011, ¶ 17. Here, Larson, on cross-examination by defense
counsel, was asked about a still photograph made from the Sam’s Tobacco video, specifically,
whether the person holding the gun was wearing the Abercrombie & Fitch sweatshirt. Larson
answered affirmatively. Larson was not asked the identity of this individual. Defense counsel
then inquired as to whether the person in the recording made at the BP station wearing the
Abercrombie & Fitch sweatshirt was Davis. The clear implication of this questioning was that
Davis, who was wearing the Abercrombie & Fitch sweatshirt in the BP station video was the
person holding the gun in the Sam’s Tobacco video. This inference was possible due to Larson’s
identification of Davis in the BP station video. By acquiescing in the relevance of Larson’s
opinions on identification, defense counsel invited the State to explore the subject further. As
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2021 IL App (2d) 180874-Usuch, defendant cannot now complain that the State was permitted to do so. Moreover, this forfeits
plain error review. Id.¶ 93 Defendant asserts, in his reply brief, that the invited-error doctrine does not apply to claims
of ineffective assistance of counsel. See People v. Villareal, 198 Ill. App. 3d 209, 228 (2001).
Defendant’s initial argument was that the trial court erred by permitting Larson’s lay opinion
testimony. It was not an ineffectiveness claim. Accordingly, it is outside of the scope of the
exception defendant seeks to invoke. However, defendant frames the second argument concerning
the failure to employ the proper precautionary procedures, alternatively, as an ineffectiveness
argument. In any event, as we explain below, such a claim fails for want of prejudice.
¶ 94 Forfeiture notwithstanding, we will address the question of whether this testimony should
have been permitted. We review this issue for an abuse of discretion. People v. Thompson, 2016
IL 118667, ¶ 53. Defendant suggests the de novo standard should apply, citing People v. Sykes,
2012 IL App (4th) 11110, ¶ 30, where the court held, “[W]hether it was proper for the State’s
witness to narrate the contents of a video when he had no personal knowledge of the events
portrayed on the video is a legal issue which does not require an exercise of discretion, fact finding,
or evaluation of credibility.” We find Sykes to be of little guidance here; Larson did not simply
describe what was transpiring (i.e., narrate), he opined as to the identity of the individual in the
video. Whether to allow such an opinion is a matter committed to the trial court’s discretion.
Hence, we will apply the standard of review set forth in Thompson. Therefore, we will reverse
only if no reasonable person could agree with the trial court. Schwartz v. Cortelloni, 177 Ill. 2d
166, 176 (1997); see also People v. Gharrett, 2016 IL App (4th) 140315, ¶ 65 (“A trial court's
decision to admit lay opinion identification testimony is reviewed for an abuse of discretion.”).
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2021 IL App (2d) 180874-U¶ 95 Illinois Rule of Evidence 701 (eff. Jan. 1, 2011) governs the admissibility of opinion
testimony given by lay witnesses. Ill. R. Evid. 701 (eff. Jan. 1, 2011). It provides as follows:
“If the witness is not testifying as an expert, the 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.” Id.Our supreme court addressed this rule in the context of a police officer giving lay opinion
identification testimony in Thompson, 2016 IL 118667.
¶ 96 In that case, the court reiterated the requirements of Rule 701: “[W]e now hold that opinion
identification testimony is admissible under Rule of Evidence 701 if (a) the testimony is rationally
based on the perception of the witness and (b) the testimony is helpful to a clear understanding of
the witness’s testimony or a determination of a fact in issue.” Thompson, 2016 IL 118667, ¶ 50.
It then expanded upon when such testimony would be “helpful” within the meaning of the rule,
“Lay opinion identification testimony is helpful where there is some basis for concluding the
witness is more likely to correctly identify the defendant from the surveillance recording than the
jury.” Id. It clarified, “A showing of sustained contact, intimate familiarity, or special knowledge
of the defendant is not required.” Id. It further explained, “[T]he 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. Whether to admit such an opinion is to be assessed with regard
to the totality of the circumstances. Id. ¶ 51.
¶ 97 Defendant does not challenge the first prong of Rule 701—that the testimony was rationally
based on Larson’s observations. Rather, he argues that the trial court erred in concluding that it
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2021 IL App (2d) 180874-Uwas helpful. He asserts that “no basis existed to conclude Larson was uniquely positioned to
identify the shooter.” He points out that Larson had no personal knowledge of the crime.
Moreover, Larson never testified to the details of his prior interactions with defendant, simply
testifying that he had “seen defendant on a number of occasions” and had spent “[a] few hours”
with him. Defendant argues that pursuant to Thompson, this simply is not enough familiarity to
establish that Larson’s opinion would be helpful to the jury. However, the witness (Sandusky)
who gave similar testimony in Thompson, 2016 IL 118667, ¶ 72, did not have extensive familiarity
with the defendant in that case:
“There is no evidence Sandusky was generally familiar with defendant. However, we find
that Sandusky gained a familiarity with defendant a short time after the recording was made
based on his interview with defendant. While the interview may have been short, Sandusky
interacted with defendant in a more natural setting and this interaction gave him a
perspective the jury would not acquire in its limited exposure to defendant in the
courtroom. Thus, there is some basis to conclude Sandusky was more likely to correctly
identify defendant than the jury.”
While Larson did not explain the details of his interactions with defendant, seeing defendant on “a
number of occasions” and spending a “few hours” with him would compare favorably to the
witness in Thompson, who only saw that defendant during a short interview. Surely, this gave
Larson a perspective that the jury did not have based on its limited exposure to defendant during
the trial. At the very least a reasonable person could come to these conclusions, and, as the abuse
of discretion standard applies here, we are compelled to reject defendant’s argument on this issue.
¶ 98 Defendant asserts that the jury was capable of drawing its own conclusions about the
recording. He cites People v. Latimer, 403 Ill. App. 3d 595, 599 (2010), for the proposition that
-36-
2021 IL App (2d) 180874-Uthe “trier of fact is ‘perfectly capable’ of comparing images and the testifying police officer did
not have ‘any special expertise in comparing images’ for identification purposes.” Latimer is
distinguishable in that here, it was not an abuse of discretion for the trial court to conclude, in
accordance with Thompson, that Larson’s contact with defendant provided him with a basis to
render an opinion that would be helpful to the jury, unlike the witness in Latimer who lacked
“special expertise.” Sykes, 2012 IL App (4th) 11110, ¶ 42, upon which defendant also relies is
distinguishable on a similar basis: “[The witness] was in no better position, based on the video
admitted into evidence and published to the jury, to determine whether defendant removed money
from the register, and, thus, his opinion testimony invaded the province of the jury.”
¶ 99 Having concluded that the trial court did not err in admitting this evidence, no plain error
occurred (People v. Smith, 372 Ill. App. 3d 179, 181 (2007)) and counsels’ failure to preserve this
issue cannot amount to ineffective assistance (People v. Peeples, 205 Ill. 2d 480, 514 (2002)).
¶ 100 Defendant also complains that no protective procedures were employed before this opinion
was permitted into evidence. In Thompson, 2016 IL 118667, ¶ 59, the supreme court held as
follows:
“We hold, therefore, that when the State seeks to introduce lay opinion identification
testimony from a law enforcement officer, the circuit court should afford the defendant an
opportunity to examine the officer outside the presence of the jury. This will provide the
defendant with an opportunity to explore the level of the witness’s familiarity as well as
any bias or prejudice. Moreover, it will allow the circuit court to render a more informed
decision as to whether the probative value of the testimony is substantially outweighed by
the danger of unfair prejudice. Although a witness may identify himself as a law
enforcement officer, his testimony involving his acquaintance with the defendant should
-37-
2021 IL App (2d) 180874-Uconsist only of how long he knew the defendant and how frequently he saw him or her.
Moreover, to lessen any concerns regarding invading the province of the jury or usurping
its function, the circuit court should properly instruct the jury, before the testimony and in
the final charge to the jury, that it need not give any weight at all to such testimony and
also that the jury is not to draw any adverse inference from the fact the witness is a law
enforcement officer if that fact is disclosed.”
The State questions the applicability of these safeguards in the current context. That is, it asserts
it did not really “seek to elicit that testimony in the first instance.” Rather, the State simply
responded after defendant introduced the issue in his examination of Larson. While this may have
rendered it impossible to allow defendant an opportunity to examine Larson outside the presence
of the jury (and, of course, defendant chose to pursue this course without such an opportunity), it
would have still been possible to instruct the jury as contemplated in Thompson, if not before
Larson testified, at least belatedly. Thus, we will assume that this was error.
¶ 101 We fail to see how this omission resulted in substantial prejudice to defendant. First, we
note that while the jury was not given the instructions set forth in Thompson, it was properly
instructed that:
“Only you are the judges of the believability of the witnesses and of the weight to be given
to the testimony of each of them. In considering the testimony of any witness, you may
take into account his ability and opportunity to observe, his memory, his manner while
testifying, any interest, bias, or prejudice he may have, and the reasonableness of his
testimony considered in the light of all the evidence in the case.”
Instructing the jury that it need not credit Larson’s lay opinion or that it must not draw an inference
from the fact that Larson is a law enforcement officer would provide only incrementally greater
-38-
2021 IL App (2d) 180874-Uprotection. In his reply, defendant points out that the Thompson court found that such an additional
instruction was necessary despite indications that the jury in that case had been instructed similarly
to the jury in this case (see Thompson, 2016 IL 118667, ¶ 29). We agree that this would not cure
the error at issue; however, it is certainly relevant to the amount of prejudice defendant suffered.
Moreover, we note that Larson was effectively cross-examined by defense counsel regarding his
opinion. Defense counsel got Larson to admit that his identification was based on “this little piece
of face” that appears in the recording. In light of these two considerations, it is clear that any actual
unfair prejudice accruing to defendant was minimal.
¶ 102 Given that defendant suffered only minimal prejudice at most, defendant’s assertions that
it amounts to plain error or ineffective assistance of counsel must fail. Regarding the latter, there
is no reasonable probability that the trial would have come to a different result (Cherry, 2016 IL
118728, ¶ 24) had the jury received the additional instructions required by Thompson. To succeed
on a plain-error argument, defendant would have to show either that the evidence was closely
balanced, without regard to its seriousness or that the error is serious, regardless of the evidence
being closely balanced. People v. Herron, 215 Ill. 2d 167, 186-87 (2005). Given the limited
prejudice accruing to defendant, this was not a serious error.
¶ 103 Defendant, however, contends that the evidence was closely balanced. We disagree. In
assessing whether evidence is closely balanced, “ a reviewing court must evaluate the totality of
the evidence and conduct a qualitative, commonsense assessment of it within the context of the
case.” People v. Sebby, 2017 IL 119445, ¶ 53 (citing People v. Belknap, 2014 IL 117094, ¶¶ 52-
53). For example, evidence is closely balanced “when witnesses for the State and witnesses for
the defense [give] plausible opposing versions of the events, neither of which was corroborated by
extrinsic evidence.” People v. Olla, 2018 IL App (2d) 169118, ¶ 34 (citing People v. Daniel, 2018
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2021 IL App (2d) 180874-UIL App (2d) 160018, ¶ 31). Further, where one side’s version of events is corroborated and the
other’s is not, the evidence is not closely balanced. Olla, 2018 IL App (2d) 169118, ¶ 38.
Similarly, the fact that a witness has no motivation to lie adds weight to that witness’s testimony.
Id. ¶ 39. A review of the evidence in this case indicates that it is not closely balanced.
¶ 104 As noted previously, though there were issues with both Davis and Bardlett, their testimony
was largely consistent and corroborated by other evidence, particularly the video recordings, but
also the cell phone tracking data and defendant’s statements to the police at the time he was
arrested. The cell-phone evidence also undermines defendant’s purported alibi, which was
provided by his sister and, to an extent, his mother. We note that like the testimony of Bardlett
and Davis, the testimony of defendant’s mother and sister can be questioned as well, in their case,
due to their close familial relationship. See People v. Gonzalez, 407 Ill. App. 3d 1026, 1038-39
(2011) (“As such, both attorneys agreed that the best defense was to focus on the weakness of the
State’s case and to avoid offering a weak alibi. Moreover, because of [the witness’s] relationship
with the defendant, she likely would not have been considered credible.”); People v. Deloney, 341
Ill. App. 3d 621, 635 (2003) (“[W]e note that the alibi witnesses were defendant’s cousins and, as
such, their credibility may have carried little weight.”). Conversely, as explained above,
Bardlett—though he may have had a motive to cooperate with the state—had no apparent motive
to identify the wrong person as the shooter. In short, while the evidence against defendant may
not have been overwhelming, it cannot fairly be characterized as closely balanced.
¶ 105 Therefore, we find defendant’s arguments concerning the admission of Larson’s lay
opinion unpersuasive.
¶ 106 D. INEFFECTIVE ASSISTANCE OF COUNSEL
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2021 IL App (2d) 180874-U¶ 107 Defendant contends that his counsel was ineffective due to the cumulative effect of a
number of additional errors. First, he contends counsel was ineffective for failing to strike a juror
who stated a prejudice against gangs and rap music. Second, he faults trial counsel for stipulating
to the admission of the Sam’s Tobacco surveillance video without investigating Ahmad Saghir,
who defendant asserts is the only person who could provide a foundation. Third, he complains of
his attorney’s failure to object to several purported instances of prosecutorial misconduct. He also
argues that Krankel counsel was ineffective for failing to preserve these issues. We will address
these arguments seriatim.
¶ 108 The standards governing an ineffectiveness claim are set forth above. Supra ¶ 67. Also
pertinent here, in assessing prejudice, multiple instances of ineffectiveness may be considered
cumulatively. People v. Bell, 152 Ill. App. 3d 107, 1019 (1987). Claims of ineffectiveness not
raised in the trial court are subject to de novo review. People v. Bates, 2018 IL App (4th) 160255,
¶ 46; People v. Lofton, 2015 IL App (2d) 130135, ¶ 24. Of course, any factual determinations
made by the trial court relevant to such a claim are entitled to the deferential application of the
manifest-weight standard. People v. Berrier, 362 Ill. App. 3d 1153, 1166-67 (2006). With these
standards in mind, we now turn to defendant’s arguments.
¶ 109 1. Failure to Strike a Juror
¶ 110 Defendant first asserts that the trial court was ineffective for failing to strike juror No. 250.
Defendant states, “During voir dire, [trial counsel] failed to object to a juror who bluntly admitted
that his prejudices could impact his decision making.” Juror 250 stated that he was a labor law
attorney. He stated that he watches Fox news and disapproves of rap music. When asked how he
would be affected if evidence about rap music was presented, the prospective juror replied: “I’ll
follow the instructions the judge gives. But if you’re asking how I would perceive the witness,
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2021 IL App (2d) 180874-Uhe’s a member of a gang. He’s, you know, portrayed in a certain way or lives his life in a certain
way. I would have to take that into consideration.” He agreed that this would only be a factor if
such evidence were presented. He later stated that if a witness were a gang-member, he “would
question that person in a way [he] wouldn’t question another person.”
¶ 111 However, during questioning by the trial court, he affirmed that he could be fair to both
sides and “render a decision that’s free from any sympathy, bias, or prejudice of any kind.” He
further agreed that he could “keep an open mind and wait until [he had] heard all the evidence
before [he would] reach a decision in this case.” He also affirmed that any decision he would
make would “only come from the evidence that [he heard] inside this courtroom.” He added, “I
would make a decision based on the evidence.” When asked whether he could give a gang-member
a fair trial, he stated, “I think I could give him a fair trial, I do.” He replied negatively when asked
whether he had any hesitation that he could provide defendant with a fair trial. Juror No. 250
stated that he would judge a person’s character based on their listening to rap music.
¶ 112 As noted, matters of trial strategy generally will not support a claim of ineffective
assistance. Walton, 378 Ill. App. 3d at 589. This court has previously held, “In general, counsel’s
actions during jury selection are considered a matter of trial strategy, and counsel’s strategic
choices are virtually unchallengeable.” People v. Jones, 2012 IL App (2d) 110346, ¶ 71. Only
where an attorney’s strategy is so unsound that “no reasonably effective defense attorney,
confronted with the circumstances of the defendant’s trial, would engage in similar conduct” can
it support an ineffectiveness claim. People v. Watson, 2012 IL App (2d) 091328, ¶ 24. We do not
believe that this is the case here.
¶ 113 It is true that Juror No. 250 expressed a strong bias against rap music and gangs. However,
he also repeatedly reaffirmed that he could decide the case on the evidence and give defendant a
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2021 IL App (2d) 180874-Ufair trial. Moreover, defense counsel could have concluded that as an attorney, in fact, a litigator,
Juror No. 250 would be more able to understand and follow his role in the trial than a lay person
would.
¶ 114 In sum, we cannot say that defense counsel’s chosen course here was so unreasonable as
to remove it from the realm of trial strategy.
¶ 115 2. Stipulating to the Admissibility of the Sam’s Tobacco Recordings
¶ 116 Defendant next contends that trial counsel was ineffective because he stipulated to the
foundation of the Sam’s Tobacco surveillance recording. Whether to enter into a stipulation is
generally a matter of trial strategy. People v. Morris, 2014 IL App (1st) 130512, ¶ 40. Essentially,
he stipulated that Ahmad Saghir would provide an adequate foundation for the recording. Trial
counsel understood this to mean that, as a result, the State would not be calling Ahmad as a witness
and “that he would not be in court to testify to any other aspects of the case.” Trial counsel then
explained the basis for his decision to enter into the stipulation:
“I actually thought it was a boon. And the reason is that I did not want Mr. Saghir to appear
in court before the jury. There were a myriad of reasons for that, but, primarily, this is a
murder case. And these folks are going to hear about a man being shot in cold blood by
someone. And I did not want the decedent’s brother to be in court, number one, to arouse
the passions of the jury. I didn’t see how he could add anything to our case at that point. It
would only do harm.”
Defendant asserts that trial counsel had no basis for these beliefs because he conducted no
investigation of Ahmad or otherwise contacted him. However, trial counsel’s inferences were
reasonable based on the facts that Ahmad was Hussein’s brother and also was a witness to an act
of extreme violence. Whether to keep such a witness away from the trial appears to us to fall
-43-
2021 IL App (2d) 180874-Usquarely within the scope of trial strategy. Cf. People v. Enis, 194 Ill. 2d 361. 378 (2000) (“Guiding
our review of defendant’s claim is the principle that decisions concerning whether
to call certain witnesses on a defendant’s behalf are matters of trial strategy, reserved to the
discretion of trial counsel.”).
¶ 117 Moreover, defendant’s naked assertion that Ahmad was the only person who could have
established a foundation for this evidence is insufficient to establish prejudice. As the State points
out:
“Several police officers and first responders appear on the video footage from both inside
and outside Sam’s Tobacco following the shooting. Testimony from those officers
establishing that the videos truly and accurately depicted the events once they arrived on
scene, along with testimony regarding the retrieval of the video footage from the store’s
surveillance system, the integrity of the videos, and the timestamps which are apparent on
the video footage that run continuously before, during, and after officers arrived on scene
would have, for example, established a sufficient foundation for admission of the video
footage.”
Defendant replies that the officers and first responders could not have authenticated the portions
of the recording during which the shooting took place.
¶ 118 However, it is possible that the State could have established a foundation for the recording
using a silent-witness theory. In People v. Mister, 2016 IL App (4th) 130180-B, ¶ 46, the court
explained, “Under the silent witness theory, a surveillance video may be admissible as substantive
evidence in the absence of authentication by an eyewitness with personal knowledge of the content
if there is adequate proof of the reliability of the process that produced the recording.” It continued,
“Under this theory, it is not necessary for a witness to testify to the accuracy of the images depicted
-44-
2021 IL App (2d) 180874-Uin the video so long as the accuracy of the process used to produce the evidence is established with
an accurate foundation.” In People v. Taylor, 2011 IL 110067, ¶ 35, the supreme court set forth
the following non-exclusive list of factors to consider in determining whether to allow the
admission of such evidence: “(1) the device's capability for recording and general reliability; (2)
competency of the operator; (3) proper operation of the device; (4) showing the manner in which
the recording was preserved (chain of custody); (5) identification of the persons, locale, or objects
depicted; and (6) explanation of any copying or duplication process.”
¶ 119 Defendant counters, “The State asserts that the testimony about the retrieval of the video
footage could have been used to establish the foundation, but there was no such testimony here.”
He adds, “Whether the officers [who retrieved the recording] could have testified about the actual
retrieval process is unknown.” Defendant acknowledges, “[P]erhaps some other employee of
Sam’s Tobacco, could have testified about the accuracy and reliability of the recording system.”
The reason, of course, that there was no evidence concerning the reliability of the recording system
is that defendant stipulated to the admission of the recording. Had defendant not entered into the
stipulation, it is possible that the State could have established a foundation for the recording
through testimony of witnesses at the scene, the silent-witness theory, or a combination of both.
It is also possible that they could have secured the testimony of Ahmad. In any event, allowing
defendant to succeed here by assuming the State could not present evidence that defendant agreed
it was not required to present would amount to allowing defendant to show prejudice by mere
speculation. That is, defendant’s assertion that such evidence could not be produced is conjecture.
A defendant may not establish prejudice by speculation. Bew, 228 Ill. 2d at 135-36.
¶ 120 This claim fails both because counsel’s decision to enter into the stipulation was a matter
of trial strategy and defendant failed to show prejudice.
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2021 IL App (2d) 180874-U¶ 121 3. Prosecutorial Misconduct
¶ 122 Defendant next contends that trial counsel was ineffective in failing to object to multiple
instances of alleged prosecutorial misconduct. Defendant identifies four categories of misconduct:
(1) arguing facts not in evidence; (2) misrepresenting evidence; (3) vouching for witnesses; and
(4) inserting personal opinion. It is well-established that the State is entitled to wide latitude in
closing argument. People v. Smith, 2017 IL App (1st) 143728, ¶ 75. There are, however,
boundaries that the State may not cross. See People v. Glasper, 234 Ill. 2d 173, 204 (2009); Smith,
2017 IL App (1st) 143728, ¶ 75. For example, a prosecutor “may not argue assumptions or facts
not contained in the record.” Glasper, 234 Ill. 2d at 204. Further, “A prosecutor may comment
on, but may not enhance, the credibility of the State witnesses.” People v. Montgomery, 254 Ill.
App. 3d 782, 794 (1993). It is also improper for the State to interject a personal opinion “unless
he states, or it is apparent, that the opinion is based solely on the evidence.” People v. Dail, 139
Ill. App. 3d 941, 944 (1985). However, “Even if a prosecutor’s closing remarks are improper, they
do not constitute reversible error unless they result in substantial prejudice to the defendant such
that absent those remarks the verdict would have been different.” People v. Hudson, 157 Ill. 2d
401, 441 (1993). That is, they must be a material factor in the conviction. People v. Marzonie,
2018 IL App (4th) 160107, ¶ 48.
¶ 123 We note a split in authority regarding whether the abuse-of-discretion standard of review
or the de novo standard of review applies. People v. Burman, 2013 IL App (2d) 110807, ¶ 26.
This court has previously held that where “we would reach the same result under either standard
in this case, we [will] refrain from discussing the applicable standard until our supreme court
resolves the conflict.” Id. Such is the case here.
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2021 IL App (2d) 180874-U¶ 124 We first address defendant’s assertion that the State argued facts not in evidence.
Defendant correctly points out that “[s]uch argument constitutes unsworn testimony by a witness
who is not subject to cross-examination, and it is not compatible with a fair criminal justice
system.” People v. Watson, 94 Ill. App. 3d 550, 557 (1981). Defendant first complains of the
State making reference, on five occasions, to there being gang members in the court room audience
as an explanation for Bardlett’s change in testimony. The State also made such a claim in an
attempt to bolster Davis’s credibility. The trial court instructed the State to desist from such claims
and instructed the jury as follows:
“Ladies and gentlemen of the jury, there is no evidence in the record that any of Tremayne
Davis’s or Kenneth Bardlett’s friends were in the audience during the course of this trial,
so please disregard that—those lines of argument.”
Generally, such an instruction will cure any unfair prejudice. People v. Wheatley, 183 Ill. App. 3d
590, 603 (1989). Moreover, the inference defendant finds problematic, that Bardlett changed his
testimony due to fear of reprisal from his gang, was expressly found relevant by the trial court.
The trial court ruled that Bardlett’s membership in the OTA gang was relevant to his potential bias
(that is, the most damaging inference was deemed relevant). Any additional prejudice from the
State implying that gang members were actually present at the trial would have been incremental,
and, again, cured by the trial court’s instruction. Nevertheless, we caution the State against
engaging in such argument in the future.
¶ 125 Defendant next charges that the State mischaracterized the evidence when it argued that
defendant’s statement to the police upon being arrested that “I knew hanging out with those guys
would get me into trouble” was, in fact, a confession. Mischaracterizing evidence would be
improper. People v. Amaya, 255 Ill. App. 3d 967, 974 (1994). Defendant asserts that a confession
-47-
2021 IL App (2d) 180874-Uis “a voluntary acknowledgement of guilt during a judicial proceeding.” People v. Watson, 2012
IL App (2d) 091328, ¶ 36. Obviously, when defendant was first arrested, a judicial proceeding
was not transpiring. Clearly, the State was using the term “confession” in a more colloquial sense.
In ordinary parlance, the term means, inter alia, “a statement of guilt or obligation in a matter
pertaining to oneself.” Webster’s Third New International Dictionary 475 (2002). The State’s
assertion that defendant’s statement to the police amounted to a confession in the ordinary sense
of the word is a fair inference drawn from the evidence. Cf. People v. Smith, 154 Ill. App. 3d 837,
849 (1987) (“It is clear from the record that the prosecutor based his characterization on the facts
surrounding defendant’s allegedly exculpatory statement. The prosecutor was arguing to the jury
that the statement was a confession of sorts, a subconscious confession. He was not restating the
evidence, but applying the label of a confession as an inference to be drawn from the manner in
which the statement was made.”). The State argued the inference was valid; it was for the jury to
determine whether it in fact was. In short, we perceive no mischaracterization of the evidence
here.
¶ 126 Defendant further contends that the State impermissibly vouched for the credibility of
certain witnesses. First, he complains that the State, on three occasions, told the jury that the police
knew what they are doing. While this may have been technically improper (see, e.g., People v.
Effinger, 2016 IL App (3d) 140203, ¶ 24 (“A prosecutor may express an opinion based on the
record, and may draw reasonable inferences from the evidence presented; however, a prosecutor
may not vouch for the credibility of a government witness or use the credibility of the State’s
Attorney’s office to bolster a witness’s testimony.”)), defendant makes no real attempt to establish
that trial counsel’s failure to object to it was such a deviation from standards of reasonable
professional conduct as to constitute ineffective assistance. Attorneys sometime refrain from
-48-
2021 IL App (2d) 180874-Uinterposing an objection for fear of highlighting something to the jury. In People v. Wright, 2013
IL App (1st) 103232, ¶ 76, the court held:
“We find that defendant’s trial counsel did not object as part of his trial strategy. Sergeant
Tate’s testimony about his conversation with Andrews did not mention defendant. Defense
counsel may not have wanted to call attention to the testimony about the prior shooting
when none of the State witnesses had placed defendant at the location at the time.”
Here, defendant does not explain why “no reasonably effective defense attorney, confronted with
the circumstances of the defendant’s trial, would engage in similar conduct.” Watson, 2012 IL
App (2d) 091328, ¶ 24. As such, he has not rebutted the presumption that this was trial strategy
and incapable of supporting an ineffectiveness claim. See People v. Giles, 209 Ill. App. 3d 265,
269 (1991) (“[A] defendant must also overcome the presumption that the challenged conduct might
be considered sound trial strategy under the circumstances.”).
¶ 127 The same can be said regarding the next point raised by defendant. Defendant asserts that
trial counsel should have objected when the State implied that the trial judge had approved of the
plea deal Davis entered into with the State. The trial judge recognized that this could imply that
the judge had already determined that Davis was not the shooter. The judge offered to instruct the
jury that his approval of the agreement did “not indicate any opinion as to the facts produced at
this trial or what your verdict should be.” Defense counsel declined, stating, “I do see what you’re
saying, and then the other part of me says it just draws attention to it.” Defense counsel added,
“So unless Your Honor has a specific preference based on the law, I would like to leave it as is.”
Clearly, this was a reasoned decision made by defense counsel after weighing the risks of
instructing the jury against the danger of highlighting the issue. As above, defendant makes no
attempt to establish that this decision was so outside the bounds of professional conduct that “no
-49-
2021 IL App (2d) 180874-Ureasonably effective defense attorney, confronted with the circumstances of the defendant’s trial,
would engage in similar conduct.” (Watson, 2012 IL App (2d) 091328, ¶ 24). Hence, this
argument must fail.
¶ 128 Finally, we address defendant’s claim that the prosecutor impermissibly interjected his
personal opinions into his closing argument. It is axiomatic that this would be improper. Dail,
139 Ill. App. 3d at 944. An opinion based solely on the evidence, however, is permissible. Id.Moreover, “The prosecutor’s statement should not be taken out of context but should be read in its
entirety to determine whether it is a statement of personal belief or is based on the evidence
presented at trial.” Id. Further, the use of terms like “I” or “we” is not per se error (People v.
Baker, 195 Ill. App. 3d 785, 788 (1997) (overruled on other grounds by People v. Love, 177 Ill.
2d 550, 560 (1997)).
¶ 129 Defendant sets forth several long block quotations of argument by the State and asserts that
the argument was improper, without identifying the precise matter he relies on here. This
complicates our review, as portions of the quoted material are plainly proper. For example,
defendant sets forth the following:
“Now, with respect to the deal – and, again, you know what I think? [Defense counsel]
brought up in the beginning that it’s all about the deal, and I think he said it was a net loss,
this is the deal with Bardlett that it’s a net loss, well, no way, it couldn’t be further from
the truth. You know, when we put witnesses on the stand we expect them to tell the truth,
but when you’re dealing with a gang member of the defendant, you’ve got to expect that
they’re going to pull the garbage that Bardlett did, and that’s exactly what he did do. Do
you think it was just happenstance that we had all those video clips at the ready to impeach
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2021 IL App (2d) 180874-Uthis guy? Not just because he’s a liar when he got on the stand and did all that nonsense,
but that’s substantive evidence.”
Here, the State’s use of “I think” is followed by comments based on evidence, so it is not an attempt
to interject a personal opinion. Much of the rest is fair comment on the evidence. The State could
legitimately argue the Bardlett’s testimony in court was not truthful. People v. Hudson, 157 Ill.
2d 401, 444 (1993) (“Moreover, challenging the credibility of a defendant and his theory of defense
is proper in closing argument when there is evidence justifying the challenge.”). Most problematic,
perhaps, is the statement to the effect that “we expect witnesses to tell the truth” but “we also
expect gang members to lie.” This can be interpreted as the State invoking its experience in dealing
with gang members and telling the jury that they lack credibility based on its past experiences.
Such argument has been held improper. People v. Williams, 2015 IL App (1st) 122745, ¶ 13 (“[I]t
would be problematic if the Government ‘vouched’ for [the witness] by putting the state’s stamp
of approval on his testimony, or by putting the credibility of the State’s Attorney’s office behind
his testimony.”). However, as above, defendant makes no real attempt to establish that failing to
object here fell below a reasonable level of professional conduct. Moreover, isolated comments
such as this cannot carry defendant’s burden of establishing substantial prejudice. See People v.
Davis, 97 Ill. 2d 1, 25 (1983).
¶ 130 The second passage is as follows:
“We started talking about what’s going to happen with that deal. You know what, I’m not
a State’s Attorney, I don’t get to make that final decision, but I can all but guarantee you
that the deal is done and Bardlett is going to be facing first-degree murder charges and he’s
going to be sitting in that chair soon enough. So what if we get – we get all the evidence
– the substantive evidence, the truth of what Bardlett was saying back a couple years ago
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2021 IL App (2d) 180874-Uto absolutely show that he is the murderer, we get that substantive evidence and we get
Bardlett as a murderer, that’s called checkmate to the OTA.”
It is unclear to us what defendant believes is objectionable in this passage. Defendant has expressly
argued that the fact that Bardlett changed his testimony despite the fact that it exposed him to
substantial criminal liability enhanced his credibility. Hence, even if this were improper, we fail
to see how it is prejudicial.
¶ 131 The third such passage identified by defendant is this one:
“Well, there was something interesting Davis said. He said, you know what, I saw him
running around. I got into the driver’s seat by instinct. What do you mean by instinct?
And I think he tried to explain, but I think that instinct that Tremayne Davis has is a lot
different than maybe a lot of people in this courtroom, and that is because it is a different
world. He does grow up in a different neighborhood. There are different things that go on
in his neighborhood that don’t happen here in Wheaton for instance, all right. So when he
says he’s got instinct on it, that instinct is I don’t want to know what happened. I think you
know what I mean.”
Davis did, in fact, testify, that he got in the driver’s seat out of “instinct,” as there is “a lot of danger
where [he was] from.” Thus, that portion of the prosecutor’s argument was based on the evidence
(the same can be said of the State’s comment regarding having “broke” Davis’s alibi). The final
intimation, “I think you know what I mean,” if improper, clearly did not result in substantial
prejudice. Davis, 97 Ill. 2d at 25.
¶ 132 In short, most of defendant’s assertions that the State interjected personal opinion into the
trial are unfounded and, to the extent they were not, they did not result in substantial prejudice to
defendant.
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2021 IL App (2d) 180874-U¶ 133 Defendant’s final contention is that trial counsel’s many failings, cumulatively, resulted in
sufficient prejudice to support a claim of ineffectiveness. Of course, in determining whether a
defendant was prejudiced, multiple instances of ineffectiveness may be considered cumulatively.
Bell, 152 Ill. App. 3d at 1019. We reiterate here, despite defendant’s insistence to the contrary,
the evidence in this case was not closely balanced. To assess the sum total of prejudice accruing
to defendant, we must review the many instances of asserted ineffective assistance.
¶ 134 First, defendant argued that he was prejudiced by trial counsel’s failure to present evidence
that Ahmad failed to identify defendant in a photographic lineup and that he was never given an
opportunity to identify Davis. We noted the trial court’s finding (which we found not to be
manifestly erroneous) that in light of all of this evidence, the fact that Ahmad was unable to identify
defendant in a single line up along with the fact that he was never given an opportunity to identify
Davis did not create a reasonable probability that the outcome of the trial would have been
different. Further, we noted that whether any prejudice actually accrued to defendant was
speculative, as it was unknown why Ahmad failed to identify defendant or whether he would have
been unable to identify Davis. Hence, we cannot conclude that defendant suffered substantial
prejudice as a result of this purported error. Defendant’s second argument did not implicate trial
counsel’s performance.
¶ 135 Defendant’s third argument included a claim that trial counsel was ineffective for failing
to object to the lack of protective procedures required by Thompson, 2016 IL 118667, ¶ 59, when
Larson was permitted to offer a lay opinion on the identification of the shooter in the Sam’s
Tobacco recording. We concluded that this resulted in minimal unfair prejudice to defendant given
how the jury was instructed and the fact that defendant effectively cross-examined Larson on this
issue.
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2021 IL App (2d) 180874-U¶ 136 We found the trial court’s instruction regarding the State’s assertion that gang members
were present in the court room sufficient to substantially mitigate any potential unfair prejudice.
We rejected defendant’s claim that the State mischaracterized evidence. We found that defendant
failed to rebut the presumption that trial counsel’s failure to object to the State vouching for a
witness and the trial court sanctioning Davis’s plea deal constituted trial strategy. We observed
that several of defendant’s complaints that the prosecutor interjected his personal opinion during
closing argument were ill founded, and to the extent they were well founded, they did not result in
substantial prejudice.
¶ 137 Thus, we held that defendant’s first argument involved a speculative claim of error and the
balance either did not constitute ineffective assistance of counsel or resulted in only minimal
prejudice. Therefore, even considered cumulatively, we cannot say that defendant suffered
prejudice sufficient to render trial counsel’s performance constitutionally deficient.
¶ 138 E. DE FACTO LIFE SENTENCE
¶ 139 Defendant’s final argument is that his 50-year prison sentence violates the proportionate
penalties clause of the Illinois Constitution (see Ill. Const. art. 1, § 11). He asserts that as he was
20 years old at the time he murdered Hussein Saghir, his brain was not yet fully developed and the
case should be remanded for a new sentencing hearing to ascertain whether he “is among the rare
group of young offenders eligible for a life sentence.” It is true, as defendant points out, that the
supreme court has held a sentence exceeding 40 years is a de facto life sentence for a juvenile.
People v. Buffer, 2019 IL 122327, ¶ 40 (“In determining when a juvenile defendant’s prison term
is long enough to be considered de facto life without parole, we choose to draw a line at 40 years.”).
¶ 140 The State initially counters that defendant forfeited this issue by failing to raise it before
the trial court. We agree with the State. Under similar circumstances, this court recently found an
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2021 IL App (2d) 180874-Uas-applied challenge based on evolving science raised for the first time on appeal was forfeited.
See People v. Kulpin, 2021 IL App (2d) 180696, ¶ 64; see also People v. Thompson, 2015 IL
118151, ¶ 38 (“Nor does the record contain any factual development on the issue of whether the
rationale of Miller should be extended beyond minors under the age of 18. Undoubtedly, the trial
court is the most appropriate tribunal for the type of factual development necessary to adequately
address defendant’s as-applied challenge in this case.”).
¶ 141 Moreover, we note that the supreme court has recently “forcefully, reaffirmed 18 as the
age cutoff for juvenile sentencing protections in the eighth amendment context.” People v.
Johnson, 2020 IL App (1st) 171362, ¶ 14 (citing People v. Harris, 2018 IL 121932, ¶ 54-61).
However, it also left open the possibility that such a claim was cognizable under the Illinois
Constitution and held that under circumstances similar to this case, the claim was better brought
in a post-conviction petition (725 ILCS 5/122-1 et seq. (West 2020)) or a petition for relief from
judgment (735 ILCS 5/2-1401 (West 2020)) given the undeveloped nature of the record. Id. ¶ 48.
We come to the same result here.
¶ 142 IV. CONCLUSION
¶ 143 In light of the foregoing, the judgment of the circuit court of Du Page County is affirmed.
Given our resolution of these issues, defendant’s claims concerning Krankel counsel being
ineffective for failing to preserve them are moot.
¶ 144 Affirmed.
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