People v. Morgan , 2024 IL App (1st) 200095-U ( 2024 )

2024 IL App (1st) 200095-UNo. 1-20-0095
Order filed June 5, 2024
THIRD DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, ) No. 16 CR 8715 (01)
)
v. ) Honorable
) Thaddeus L. Wilson
COREY MORGAN, ) Judge, Presiding
)
Defendant-Appellant. )
JUSTICE D.B. WALKER delivered the judgment of the court.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: The evidence upon which defendant was convicted was sufficient to convict him
under an accountability theory beyond a reasonable doubt and defendant’s two
additional arguments are forfeited.
¶2 Defendant Corey Morgan appeals his conviction and sentence for first-degree murder.
Defendant was charged, along with co-defendants Dwright Doty and Kevin Edwards, with
first-degree murder for the November 2, 2015 murder of nine-year-old Tyshawn Lee.
Defendant was charged under a theory of accountability based on the allegation that Doty
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was the one who shot the victim. Edwards pleaded guilty and defendant and Doty proceeded
to joint, but severed, trials. Following his jury trial, defendant was found guilty and sentenced
to 65 years’ imprisonment. On appeal, defendant argues (1) that the State failed to prove
facts sufficient to uphold a conviction for first-degree murder on a theory of accountability,
(2) that the circuit court erred by failing to properly question the jury during voir dire, and (3)
that the circuit court erred by considering inappropriate factors during sentencing. We affirm
the circuit court’s decision and sentence.
¶3 I. BACKGROUND
¶4 On November 2, 2015, nine-year-old Tyshawn Lee was shot to death in an alley adjacent
to Dawes Park, near the intersection of S. Damen Avenue and W. 80th Place. The State
alleged that Doty was the shooter, but that defendant assisted Doty and was therefore guilty
under a theory of accountability.
¶5 A. Pretrial
¶6 During voir dire, the circuit court questioned prospective jurors on their understanding
and acceptance of relevant tenets of law, including as follows:
COURT: “Please listen carefully. I need to be able to see you and you need to see
me. I need to see everybody is answering. If you disagree with any of the questions,
please raise your hand.
***
The defendant does not have to present any evidence at all and may rely upon the
presumption of innocence. Do each of you understand this principle of law?
Everyone.
Do each of you accept this principle of law?
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Everyone.
The defendant does not have to testify at trial. Do each of you understand this
principle of law?
Everyone.
Do each of you accept this principle of law?
Everyone.
If the defendant does not testify at trial, would any of you hold that fact against
him? Anyone? I need to hear you. If you disagree, raise your hand.
No one.”
¶7 B. Trial Testimony
¶8 The State sought and was granted leave to present gang evidence to contextualize their
case against defendant. Officer Matthew Kennedy, an expert on the gangs of the southwest
side of Chicago, testified that at the time of the shooting, there was an ongoing feud between
the Killa Ward (KW) gang, which was a faction of the Gangster Disciples, and the Terror
Dome/Bang Bang Gang (TD/BBG), which was a faction of the Black P Stones. On October
13, 2015, Tracey Morgan and his mother were shot. Tracey was a well-known member of
TD/BBG and was defendant’s brother. Tracey died and his mother was injured. Two
members of KW were charged with his murder. Officer Kennedy explained that one of the
common rules among gangs in the area was that “violence shouldn’t be brought upon
innocent victims of family members.”
¶9 Officer Kennedy expected TD/BBG would retaliate because Morgan’s mother’s shooting
broke that rule. Officer Kennedy requested that the FBI conduct an investigation of the social
media posts of both TD/BBG and KW. Among the photos Officer Kennedy received from
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this investigation were photos of defendant and his co-defendant Doty displaying the gang
sign of TD/BBG. Also among the photos were images of Pierre Stokes, who is the father of
the victim, displaying the gang sign of KW alongside two men who were charged with
Tracey Morgan’s shooting sometime after the victim’s shooting.
¶ 10 Multiple witnesses established that the victim, Tyshawn Lee, lived near Dawes Park and
that he was in the park just before the shooting. Three men in their twenties, who were
notably older than the high-schoolers present in the park that afternoon, were seen in the
park. One of the men, who a witness identified as Doty, was described as an African
American man no more than six feet tall with a little bit of facial hair, wearing a red and blue
striped jacket and Rock Revival brand jeans. Other witnesses, who knew Doty, stated that
Doty wore Rock Revival jeans every day. Another of the men, who was identified as
defendant, was described as having dreadlocks and wearing a gray Nike outfit. Two
witnesses who were at the park just before the shooting identified defendant in photo arrays
as one of the three men present. The third man was identified as Edwards by two witnesses as
well.
¶ 11 Lashaunda Higgins testified that the three men arrived in a black SUV and walked to a
bench, where they sat and talked with one another. When the victim got off the swing he had
been occupying, the man that another witness would later identify as Doty stayed in the park
while the other two men stood up and returned to the SUV. Doty approached the victim, who
had set down a basketball to play on a climbing apparatus. Doty picked up and dribbled the
ball while speaking to the victim. Doty then walked out of the park, with the victim, to a
nearby alley. Higgins saw the same black SUV that the three men had arrived in stopped at
the nearby streetcorner. When Doty and the victim entered the alley, so did the SUV. Higgins
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heard multiple gunshots from the alley and saw the black SUV drive away from the scene of
the shooting. Higgins viewed photo arrays and lineups on multiple occasions, but made no
identifications.
¶ 12 Jaylen Anderson spoke with police canvassing the neighborhood the day after the
shooting and subsequently identified defendant, Doty, and Edwards in photo arrays. He
failed to appear when subpoenaed and testified while in custody. Anderson testified that he
was not a gang member at the time of the shooting, but had since become a member of the
Gangster Disciples. Anderson testified that he was at Dawes Park at the time of the shooting
and saw three men, whom he described in a way that matched Higgins’ descriptions. He
noted that defendant was carrying a handgun in the front pocket of his gray Nike outfit. After
being present in the park for 10-15 minutes, the three men left in a black SUV, but returned
and parked in the same spot again shortly thereafter. Defendant and Edwards went to the
basketball court and Anderson lost track of Doty’s location. Anderson confirmed that there
was a playground in the park, but he could not see it from his position near the field house.
Around five to seven minutes later, defendant and Edwards returned to the black SUV and
drove toward 80th Place. Five to ten minutes later, Anderson heard gunshots from the
direction of 80th Place. Anderson left the park after hearing the gunshots.
¶ 13 Other witnesses also identified defendant as present at the park around the time of the
victim’s shooting. Ariana Cross identified defendant because she recognized his “eyes and
dreads.” Trinity Richardson identified defendant in a lineup and identified the black SUV in
a photograph. Heavyn Taylor did not identify defendant, but did identify Edwards as the
driver of the black SUV she saw emerging from the alley where the victim was shot and
driving north near the park immediately after she heard gunshots.
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¶ 14 Two other witnesses, Devontay Gary and Moesha Walker, were both siblings of co-
defendant Edwards and lived with him during a period of time including October and
November 2015. Both testified that defendant and his co-defendants were close friends and
would frequently be present in the house. Walker further testified that on October 14, 2015,
during the conversation with defendant and Edwards in which she learned that Tracey had
been killed and his mother shot, defendant said “n***s tweak. Everybody must die,
grandmamas, kids, and all,” which Walker understood to mean that he intended retaliation.
Defendant and Edwards agreed that KW was responsible for the shooting.
¶ 15 Both Gary and Walker testified that Edwards began driving a black SUV a month or so
before the shooting and that he ceased driving it shortly after the shooting. The black SUV
matched the description of the vehicle seen fleeing the scene of the shooting. Additional
testimony established that a black SUV with a license plate matching the SUV driven by
Edwards had been missing from the lot of the rental company that owned it during the time
Edwards was driving it; that the vehicle was driven from the home of the defendant’s
girlfriend to the scene of the shooting and was present in the area at the time of the shooting,
after which it was driven back to defendant’s girlfriend’s home; and that the vehicle was
abandoned in Dolton, Illinois after the shooting.
¶ 16 Antwan Davis, who lived with defendant’s girlfriend at the time of the shooting, testified
as to defendant and his co-defendants being present in the home on the morning of the
shooting, leaving before lunch, and returning around dusk. Davis described the three as
wearing clothes that day that matched other witnesses’ descriptions of the individuals in the
park. Davis recognized the recovered black SUV as the one that was driven by Edwards
during the time Davis was living with defendant’s girlfriend.
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¶ 17 Collected DNA samples returned results showing mixed DNA, but strongly indicated that
Doty contributed to the profile collected from the front driver’s door, steering wheel, gear
shift, and rear passenger overhead assist handle of the black Ford Edge SUV. The collected
samples also strongly and very strongly indicated that he contributed to a sample from the
basketball recovered from the site of the shooting. Per the expert witness, Dr. John
Buckleton, the DNA evidence collected was one trillion times more likely to have been left
behind in a scenario where Doty had contributed his DNA to the sample than in a scenario in
which he had not. Defendant was excluded from all of the DNA samples except the one on
the overhead assist handle. In that case, the result was inconclusive.
¶ 18 Detective Jeff Rodenberg testified that on November 16, 2015, an anonymous tip
prompted him to set up surveillance on the Hilton Hotel in Oak Lawn. Detective Rodenberg
observed defendant leaving the hotel with Doty. Defendant was carrying a duffel bag.
Defendant and Doty got in a Chrysler and exited the hotel parking lot. Rodenberg and his
partner stopped and searched the car. Rodenberg found a loaded handgun in the duffel bag.
Defendant and Doty were both taken into custody, but were not yet charged in relation to the
victim’s killing.
¶ 19 Officer Eulalio Rodriguez testified that on the night of April 21, 2017, he and two other
officers came across what appeared to be a music video being recorded in a vacant lot
between 71st St. and 70th St. off Wolcott St. The vacant lot had about 30 to 50 people
gathered in and around it, who scattered upon seeing the unmarked police SUV that Officer
Rodriguez was driving. Officer Hyma, who was also in the car, got out and Officer
Rodriguez lost track of her as he made a three-point turn to go back down the alley in which
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he was driving. After looping around to the Wolcott St. side of the lot, Officer Rodriguez
found Officer Hyma with two individuals whom she had stopped.
¶ 20 Officer Rodriguez searched the vacant lot with other officers and they located five
firearms throughout the lot. Officer Hyma found a black semiautomatic pistol with a serial
number matching a Smith & Wesson .40 caliber handgun which, according to testimony
from an ATF agent, was purchased by an out of state buyer and mailed to Anthony Morgan.
Detective Murphy testified that he authored a report about the recovery of this firearm and
the match between the weapon and the casings found near victim’s body. The serial number
on the firearm recovered from the duffel bag defendant had on his person when he was
stopped by Detective Rodenberg and arrested identified it as another of the weapons sold to
Anthony Morgan by the same buyer.
¶ 21 After deliberation, the jury found defendant guilty of first-degree murder, that it was
proven that during the commission of the murder, defendant, or an individual for whose
conduct he was legally accountable, was armed with a firearm at the time of the offense, and
that the victim was under 12 years of age.
¶ 22 C. Sentencing
¶ 23 The circuit court prefaced its sentencing for defendant and Doty with a lengthy soliloquy:
“The tragic loss of a good friend and brother and the galling injury to your mother
is painful to say the least, but vengeance is not yours, nor will the law tolerate
retaliation and vigilante justice.
Like sands through the hourglass, the days of our lives are like a speck of dust
slipping away in front of us, falling through the fingers of [F]ather [T]ime. The sands
of life run through the hourglass without stopping, letting us know that our end is
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near. Unlike a clock with its endless sweeping cycles, the hourglass of life has a
definite end, and we can ill afford to allow lawless and brazen shootings, murders and
back and forth retaliation to needlessly snuff out a life before our created time to
shuffle off this mortal coil.
We have gun-toting adults and children indiscriminately shooting and taking out
innocent lives in the process. Many couldn’t shoot the side of a barn from two feet
away, yet they have a gun. We see individuals in the name of a gang taking up roles
in furtherance of criminal activity, and no matter their role, they are responsible.”
¶ 24 The circuit court spoke at some length about the theory of accountability, under which
defendant was charged, and the breadth of roles an individual might play and find themselves
accountable for a murder, even if that murder was unplanned. The circuit court then stated:
“During pretrial proceedings I received a large binder detailing shootings and
murders between various gang members and factions in this area of the city. The
ruthless cycle of gang shootings and murders, the tit for tat retaliations covered a
period from May of 2012 through October of 2015 with the murder of Briana Jenkins
and the November 2015 murder of Tyshawn Lee and the March 2016 shooting of
Robin Matthews. It was a disheartening and terrifying reading to say the least.
Our communities have turned into virtual war zones with indiscriminate shootings
and senseless retaliations. Innocent citizens are caught in the crossfire. People can’t
freely walk around and enjoy their neighborhood or play in the park. School kids
need safe passage workers to line the streets just to get home from school. Now
people shut themselves in their homes to avoid the violence outside yet still fall
victim to bullets intended for someone on the street flying through the walls of their
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homes. Our communities are not fair game in the spoils and pillaging and vicissitudes
of gang war.
We constantly hear that someone going about their business, trying to do good,
excel in school, or just make a better life for themselves and their families are struck
down by untargeted violence. Invariably someone says they were in the wrong place
at the wrong time.
No. They were in the right place at the right time, down the right path of life
doing the things they rightly should be doing. They were not in the wrong place and
the wrong time, and if we let that saying continue to prevail, there will be no place
left to retreat.
Already, you can’t retreat into the safety of your home. You can’t leave the
neighborhood and retreat to downtown. You can’t retreat from downtown to the
suburbs. Now we all have to deal with it.
Where does this stop? Where does this mind-numbing, debilitating, senseless
violence stop? It stops with grandmas, mamas and innocent children simply trying to
play at a park. Grandmas, mamas, kids all matter. They all matter. Grandmas, mamas,
kids and all are not fair game, and they matter to us. Whether they have been in this
world only eight seconds, eight minutes, or eighty years, they matter.
With respect to both defendants, for purposes of sentencing, the Court has
considered the evidence at trial, the gravity of the offense, the Presentence
Investigation Report, the financial impact of incarceration, all evidence, information
and testimony in aggravation and mitigation, any substance abuse issues and
treatment, the potential for rehabilitation, the possibility of sentencing alternatives,
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and with respect to Mr. Doty, the fact that he was under the age of 25 at the time of
the offense, the victim impact panel statements and all hearsay presented and deemed
relevant and reliable.”
¶ 25 The circuit court sentenced defendant to 65 years in the Illinois Department of
Corrections, plus three years of mandatory supervised release. Defendant filed a timely
notice of appeal and this appeal follows.
¶ 26 II. ANALYSIS
¶ 27 Defendant makes three arguments on appeal. First, defendant argues that the evidence
presented by the State was insufficient to support his conviction for first-degree murder
under a theory of accountability. Second, defendant argues that the circuit court erred in the
process of questioning the jurors as to their understanding of the principles of law governing
their role as jurors and thereby failed to meet the requirements of Rule 431(b). Third,
defendant argues that the circuit court erred by considering unrelated crimes when sentencing
him.
¶ 28 A. Sufficiency of the Evidence
¶ 29 Defendant argues that the evidence presented by the State was insufficient to establish his
guilt under an accountability theory. Specifically, defendant asserts that the State failed to
show that defendant possessed the requisite intent or that he shared a common criminal
design with the shooter.
¶ 30 “In reviewing a sufficiency of the evidence claim, a reviewing court must determine
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” (Emphasis in original and internal quotation marks omitted.) People v. De Filippo,
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235 Ill. 2d 377, 384-85 (2009). “All reasonable inferences from the evidence must be drawn
in favor of the prosecution.” People v. Newton, 2018 IL 122958, ¶ 24. “In weighing
evidence, the trier of fact is not required to disregard inferences which flow normally from
the evidence before it, nor need it search out all possible explanations consistent with
innocence and raise them to a level of reasonable doubt.” People v. Hardman, 2017 IL
121453, ¶ 37.
¶ 31 “When considering a challenge to the sufficiency of the evidence, it is not the function of
the reviewing court to retry the defendant.” People v. Siguenza-Brito, 235 Ill. 2d 213, 228
(2009). “The testimony of a single witness, if positive and credible, is sufficient to convict,
even though it is contradicted by the defendant.” Id. “A reviewing court will not reverse a
conviction simply because the evidence is contradictory or because the defendant claims a
witness was not credible.” Id. A reviewing court “will not reverse a criminal conviction
unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a
reasonable doubt of the defendant’s guilt.” Id. (quoting People v. Campbell, 146 Ill. 2d 363,
375 (1992)).
¶ 32 To convict defendant of first-degree murder under an accountability theory, the State was
required to prove the essential elements of the crime beyond a reasonable doubt. In this case,
defendant does not contest that the relevant murder was proven, only that the requisite
elements to demonstrate his accountability for that murder were proven. To establish
defendant’s accountability, the State was required to show either (1) that defendant, either
before or during the offense, and with the intent to promote or facilitate the offense, solicited,
aided, abetted, agreed to aid or attempted to aid Doty in killing Lee, or else that (2) defendant
engaged in a common criminal design or agreement with Doty to kill Lee. 720 ILCS 5/5-2(c)
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(West 2014). “Mere presence at the scene of a crime does not render a person accountable for
an offense; a person’s presence at the scene of a crime, however, may be considered with
other circumstances by the trier of fact when determining accountability.” Id. “A person
intends, or acts intentionally or with intent, to accomplish a result or engage in conduct
described by the statute defining the offense, when his conscious objective or purpose is to
accomplish that result or engage in that conduct.” 720 ILCS 5/4-4 (West 2014).
¶ 33 “Under the common-design rule, if two or more persons engage in a common criminal
design or agreement, any acts in furtherance of that common design committed by one party
are considered to be the acts of all parties to the design or agreement and all are equally
responsible for the consequences of the further acts.” (Internal quotation marks omitted.)
People v. Fernandez, 2014 IL 115527, ¶ 13. “Evidence that a defendant voluntarily attached
himself to a group bent on illegal acts with knowledge of its design supports an inference that
he shared the common purpose and will sustain his conviction for an offense committed by
another.” Id.¶ 34 In this case, the necessary elements of the crime were sufficiently established by the
testimony at trial. Defendant devotes considerable attention to assertions that the evidence
presented against him could be interpreted in other ways and does not necessarily oblige an
observer to arrive at the conclusion that he was guilty. Defendant is correct in these
assertions, but they are irrelevant to our standard of review. We are to draw all inferences in
favor of the prosecution and ask, when viewing the evidence in that light, whether any
reasonable trier of fact could have found the requisite elements to have been proven beyond a
reasonable doubt. De Filippo, 235 Ill. 2d at 384-85. Although the specific wording of
Moesha Walker’s testimony may have changed between her statements to police, her
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testimony before the grand jury, and her testimony at trial, the essential elements necessary to
infer an intent to engage in a revenge killing were present throughout; specific mention of
killing a child is unnecessary to maintain such an inference. It is not our role to second-guess
the credibility determinations of the trier of fact unless they are “so unreasonable,
improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.”
Siguenza-Brito, 235 Ill. 2d at 228. Here, the variances in Walker’s testimony do not rise to
such a level.
¶ 35 Defendant argues that this case is similar to People v. Taylor, 186 Ill. 2d 439 (1999). We
disagree. In that case, the defendant was charged with aggravated discharge of a firearm
under a theory of accountability. Id. at 444. The defendant had been driving a vehicle with a
friend in the passenger seat when the friend became angry with the occupants of another
vehicle and told defendant to stop the car. Id at 443. Defendant did so and the friend exited
the vehicle, exchanged words with the occupants of the other vehicle, produced a gun, and
fired two shots in the air in the general direction of the other vehicle. Id. Defendant was
aware that his friend had a gun in his possession when he stopped the car. Id. Defendant’s
friend reentered the vehicle and defendant drove them away from the scene of the offense. Id.Our supreme court reversed the defendant’s conviction because he had not aided or abetted
the offender in the commission of the offense. Id. at 448. The court relied heavily on a
previous decision in which it determined that assisting an offender in leaving the scene of a
crime was insufficient to hold a defendant accountable for the crime where the defendant was
not aware of the offender’s intent to commit the crime. Id at 446-49. (citing People v. Dennis,
181 Ill. 2d 87 (1998) (in which our supreme court determined that a getaway driver who had
no knowledge of the planned crime before it occurred was not accountable for the offense)).
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¶ 36 Taking the testimony of the witnesses who were in Dawes Park just prior to the shooting
in the light most favorable to the State, it was established that defendant arrived at Dawes
Park with Doty, spoke with Doty on a bench in the park, spent time in the park immediately
prior to the shooting, then went back to the vehicle and was inside it as it waited near the site
of the shooting and as it fled the scene of the shooting with Doty on board immediately
following Lee’s killing. One could reasonably infer from these facts that defendant was
assisting Doty in a plan to kill Lee. This conclusion is not precluded by Taylor or Dennis, as
even if one were to infer that defendant’s only role was to aid Doty in his escape, the witness
testimony supported a reasonable inference that defendant and Edwards’ movements and
positioning of the vehicle prior to the shooting indicated an awareness that the shooting was
going to occur.
¶ 37 It is not our role to instruct the trier of fact on which inferences to make, only to
determine whether they could reasonably be made. One could reasonably infer from these
facts that defendant was helping to locate Lee, to determine the best course of action in
killing Lee, and to escape the scene of the crime. This evidence, in combination with
Walker’s testimony, was sufficient to support both a finding that defendant intentionally
aided Doty in killing Lee and that defendant engaged in a common criminal design with Doty
to kill Lee. Accordingly, defendant’s sufficiency of the evidence claim fails, and we must
affirm defendant’s conviction.
¶ 38 B. Rule 431(b) Compliance
¶ 39 Defendant argues that he was deprived of his right to a fair and impartial jury because the
circuit court failed to comply with Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. July 1, 2012))
during voir dire, when questioning jurors on their acceptance and understanding of the fact
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that defendant did not have to testify on his own behalf and that, if he chose to refrain from
testifying, that choice was not to be held against him.
¶ 40 Rule 431(b) states:
“The court shall ask each potential juror, individually or in a group, whether that juror
understands and accepts the following principles: (1) that the defendant is presumed
innocent of the charge(s) against him or her; (2) that before a defendant can be
convicted the State must prove the defendant guilty beyond a reasonable doubt; (3)
that the defendant is not required to offer any evidence on his or her own behalf; and
(4) that if a defendant does not testify it cannot be held against him or her; however,
no inquiry of a prospective juror shall be made into the defendant's decision not to
testify when the defendant objects.” Id.¶ 41 Defendant acknowledges that this alleged error was not preserved at trial and asks that we
review the error as plain error. “To preserve a claim of error for review, a defendant must
both object at trial and include the alleged error in a written posttrial motion.” People v.
Thompson, 238 Ill. 2d 598, 611 (2010). However, a “narrow and limited exception” exists
where an appellant can demonstrate plain error. People v. Hillier, 237 Ill. 2d 539, 545 (2010).
The first step of establishing plain error is to “show that a clear or obvious error occurred.”
Id.¶ 42 There is no question that the circuit court failed to comply with Rule 431 and therefore
erred. Our supreme court’s opinion in People v. Belknap, 2014 IL 117094, is instructive in
this matter and factually similar to this case. In Belknap, after presenting each principle of
law to the jury, the circuit court inquired of the jurors: “Is there anyone who doesn’t agree
with this principle?” Id. ¶ 42. Where the circuit court varied from this exact wording, it was
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only to a small degree. Id. Our supreme court found: “As we noted in Wilmington, it may be
arguable that asking jurors whether they disagreed with the Rule 431(b) principles is
tantamount to asking them whether they accepted those principles. However, the trial court’s
failure to ask whether the jurors understood the principles constitutes error alone.” Id. ¶ 46
(citing People v. Wilmington, 2013 IL 112938, ¶ 32).
¶ 43 Our supreme court has further held that Rule 431(b) “mandates a specific question and
response process.” Thompson, 238 Ill. 2d at 607. “The trial court must ask each potential
juror whether he or she understands and accepts each of the principles in the rule.” Id. “The
questioning may be performed either individually or in a group, but the rule requires an
opportunity for a response from each prospective juror on their understanding and acceptance
of those principles.” Id. As this is a matter of law, our review is de novo. Belknap, 2014 IL
117094, ¶ 41.
¶ 44 In this case, the circuit court erred in questioning the jury regarding the fourth principle
listed in Rule 431, “that if a defendant does not testify it cannot be held against him or her.”
Ill. S. Ct. R. 431 (eff. July 1, 2012). The circuit court’s questioning leading up to and
regarding that principle consisted of the following:
“[COURT:] The defendant does not have to testify at trial. Do each of you understand
this principle of law?
Everyone.
Do each of you accept this principle of law?
Everyone.
If the defendant does not testify at trial, would any of you hold that fact against
him? Anyone? I need to hear you. If you disagree, raise your hand.
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No one.”
¶ 45 Just as in Belknap, even if we accept that the circuit court’s question regarding
disagreement with the principle is equivalent to a question as to whether the jurors accepted
the principle, there is no reasonable argument that the circuit court questioned the jurors as to
their understanding of the principle. The State cites appellate cases that have asserted that a
strict question-and-answer format is not necessary. People v. Lilly, 2018 IL App (3d) 150855,
People v. Walker, 2021 IL App (4th) 190073. However, the issue here is not whether the
question-and-answer format was adequate, but whether one of the necessary questions was
asked at all. In Lilly, the circuit court did not ask each question individually, but rather listed
multiple principles after beginning the question with: “Do you understand and accept the
following?” Lilly, 2018 IL App (3d) 150855, ¶ 4. Thus, in Lilly, the question was asked,
merely in a less back-and-forth format. Similarly, in Walker, the court began: “The question
that I am asking you is, ‘Do you understand and accept these principles of law,’ and then I’m
gonna read you the principles of law and ask you individually if you understand and accept
these principles of law.” Walker, 2021 IL App (4th) 190073, ¶ 55. Again, in Walker, the
question was asked, but in a different form. Here, the question was not asked in any form,
therefore the circuit court erred. We note that following closing argument, the circuit court
admonished the jury that “[t]he fact that the defendant did not testify must not be considered
by you in any way in arriving at your verdict.” While this admonishment may have been
sufficient to remedy any confusion instilled in the jury by the initial error, the court
nonetheless erred.
¶ 46 The second prong of the plain error doctrine allows for review of unpreserved errors in
two scenarios:
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“[W]hen (1) a clear or obvious error occurs and the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurs and
that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process.” People v. Piatkowski, 225 Ill. 2d 551,
565 (2007).
¶ 47 Defendant explicitly disclaims any argument regarding the second prong and focuses his
argument on the first. To satisfy the first prong, defendant must “show that the error was
prejudicial—in other words, he must show that the quantum of evidence presented by the
State against the defendant rendered the evidence ‘closely balanced.’ ” Id. at 566 (citing
People v. Herron, 215 Ill. 2d 167, 193 (2005)). “[A] reviewing court must undertake a
commonsense analysis of all the evidence in context when reviewing a claim under the first
prong of the plain error doctrine.” Belknap, 2014 IL 117094, ¶ 50. “Where a case does not
involve competing witnesses and the jurors are not asked to determine ‘relative credibility,’
the factfinder’s responsibility to assess witness credibility does not automatically make the
evidence closely balanced.” People v. Scott, 2020 IL App (1st) 180200, ¶ 51 (citing People v.
Hammonds, 409 Ill. App. 3d 838, 861-62 (2011)).
¶ 48 Defendant asserts that “[a] case is closely balanced when ‘it can hardly be said that
reasonable jurors could only draw from the evidence a conclusion of guilt,’ ” with citation to
People v. Nelson, 193 Ill. 2d 216, 223 (2000). This is an inaccurate reading of Nelson. In
Nelson, our supreme court did use that language in the process of articulating its conclusion
that the evidence was “very closely balanced,” but it is abundantly clear in context that the
language was in no way a definition of what it means for the evidence to be closely balanced.
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Id. As aforementioned, our task is to undertake a “commonsense analysis.” Belknap, 2014 IL
117094, ¶ 50.
¶ 49 We find that the evidence was not closely balanced in this case. Multiple unconnected
witnesses placed defendant at the park and subsequently identified him in lineups or photo
arrays. Multiple witnesses attested that the vehicle in which he was seen arriving at the park,
which lingered near the scene of the shooting prior to the shooting, and in which it would be
reasonable to conclude Doty escaped after the shooting, was driven by co-defendant Edwards
around the time of the shooting, with one witness identifying Edwards as the person driving
the vehicle as it sped away from the scene of the crime. Navigation data showed the vehicle
traveling from the home of Robin Mathews, who was defendant’s girlfriend at the time and
who was also known as Millie, to Dawes Park before the shooting and returning from Dawes
Park to Millie’s home after the shooting. Defendant and his co-defendants’ movements in
and around the park prior to the shooting could very reasonably be interpreted as
coordination of efforts around a planned offense. Co-defendant Edwards’ sister testified that
in the wake of the shooting death of defendant’s brother, defendant said to Edwards: “n***s
tweak. Everybody must die, grandmamas, kids, and all.” The shooting death of defendant’s
brother was within the context of a larger conflict between his gang and the gang to which
allegiance was owed by those who were ultimately arrested for defendant’s brother’s murder.
Further, the gun used to kill Lee was purchased by defendant’s brother from the same seller
who sold that brother the gun that was in defendant’s possession at the time of his arrest.
¶ 50 There was no evidence presented that suggested a viable alternative shooter or that gave
an alternative explanation for defendant’s presence in the park. As there were no opposing
witnesses presenting an alternative course of events or explanation, there was no contest of
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credibility. Defendant’s case was based solely in pointing out weaknesses and deficiencies in
the State’s case. Although the evidence presented did not mandate a finding of guilt, we
cannot say the evidence was close in this case. Accordingly, defendant’s argument regarding
the circuit court’s failure to abide by Rule 431(b) is forfeited.
¶ 51 C. Sentencing
¶ 52 Defendant argues that the circuit court abused its discretion by rendering defendant’s
sentence “after commenting at length about the history of violence in Chicago” where those
comments, “in large part, concerned unrelated crimes and unintended victims of gang
violence or those hit by stray bullets” and where the circuit court “relied on documentation
presented by the State in its motion to admit gang evidence that included details of numerous
crimes starting in 2012 and ending in 2016” that were attributed to the conflict between
TD/BBG and KW. Defendant again acknowledges that this alleged error was not preserved at
trial and asks that we review the error as plain error.
¶ 53 “It has long been established that the trial court has broad discretionary powers in
choosing the appropriate sentence a defendant should receive.” People v. Jones, 168 Ill. 2d
367, 373 (1995). “Where the sentence chosen by the trial court is within the statutory range
permissible for the pertinent criminal offense for which the defendant has been tried and
charged, a reviewing court has the power to disturb the sentence only if the trial court abused
its discretion in the sentence it imposed.” Id. at 373-74. “In rendering a sentence, a trial judge
is presumed to have relied upon only competent and reliable evidence. Additionally, it is
defendant’s burden to overcome this presumption.” People v. Griffith, 158 Ill. 2d 476, 497
(1994).
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¶ 54 Defendant cites to People v. Dameron, 196 Ill. 2d 156, 171-72 (2001), in which our
supreme court opined: “A determination made by the trial judge based upon a private
investigation by the court or based upon private knowledge of the court, untested by cross-
examination, or any of the rules of evidence constitutes a denial of due process of law.” The
judge in Dameron “spoke at length about social science statistics and vague generalizations
about crime he uncovered through his own investigation” and “[a]n excerpt from the ***
book recited by the judge also conflict[ed] with evidence in the case.” Id. at 176. There is no
evidence that the circuit court conducted any such private investigation in the case at bar, so
Dameron is factually inapposite.
¶ 55 Defendant’s additional citations in support of the proposition that a judge cannot consider
private knowledge similarly present scenarios that are inapplicable to this case. In People v.
Rivers, 410 Ill. 410, 415-16 (1951), the court similarly generally decried violence in the area
before rendering its sentence. However, the Rivers court stated that “[t]he courts must put an
end to these vicious killings by imposing suitable punishment upon these youngsters for their
crimes” and cited statistics, which were not in the record, about the number of unregistered
guns in the city. Id. at 415-18. In the case at bar, the record does not reflect that the circuit
court relied on any such private knowledge in rendering its decision. Though the case at bar
did not concern a stray bullet or the larger issue of fear of gang violence, the circuit court’s
commentary made use of nothing more than evidence in the record and general knowledge of
which any resident of Chicago would be aware. Additionally, it is permissible to comment on
the problems caused by the sort of crime committed by the defendant in order help the
defendant “understand why they are subject to the penalties provided by law and why they
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No. 1-20-0095
have received their particular sentences.” People v. McCain, 248 Ill. App. 3d 844, 852
(1993).
¶ 56 Although the circuit court did mention the so-called “large binder detailing shootings and
murders between various gang members and factions,” it did not state that its sentence was in
any way based on those crimes. In fact none of the language referred to by defendant was
framed by the circuit court as the reasoning behind its sentence, but rather appears to have
been a soliloquy designed to make a statement about a larger issue, especially considering
that the case garnered significant press attention and was, as one attorney called it on the
record, “the most sensational murder trial that this county [had] seen in 10 years.” The circuit
court concluded its soliloquy by asking where this larger issue of gang violence stops and by
referring to the specific language from the case at bar in his answer: “It stops with grandmas,
mamas and innocent children simply trying to play at a park.” By laying out the larger issue
of gang violence and then making reference to the particular language in this case, the circuit
court emphasized the particular depravity of the intentional killing of a 9-year-old child,
which was explicitly a relevant factor in the possibility of delivering an extended-term
sentence. 730 ILCS 5/5-5-3.2(b)(3)(i) (West 2018) (allowing courts to impose an extended-
term sentence where a felony is committed against a person under 12 years of age).
¶ 57 Immediately after the circuit court’s soliloquy, it stated the factors that it considered,
which included the relevant and required statutory considerations, 730 ILCS 5/5-4-1(a) (West
2018), with the addition only of “the seriousness of the offense,” which our supreme court
has noted as a relevant factor to be weighed. People v. Coleman, 166 Ill. 2d 247, 261 (1995).
“Personal comments or observations are generally of no consequence where the record shows
the court otherwise considered proper sentencing factors.” (Internal quotation marks
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omitted.) People v. Walker, 2012 IL App (1st) 083655, ¶ 33. The sentence defendant
received was below the midpoint of the applicable sentence range when the possibility of an
extended sentence is considered, which, as aforementioned, was justified by the age of the
victim alone. Under Section 5-4.5-20(a) of the Unified Code of Corrections, a sentence for
first degree murder is to be not less than 20 years and not more than 60 years, but an
extended sentence is to be not less than 60 years and not more than 100 years. 730 ILCS 5/5-
4.5-20(a) (West 2018). Under Section 5/5-8-1(a)(1)(d)(iii) of the Unified Code of
Corrections, where, as here, it is found that “if the person [or the person for whose conduct
the defendant is legally responsible] committed the offense while armed with a firearm, 15
years shall be added to the term of imprisonment imposed by the court.” 730 ILCS
5/5-8-1(a)(1)(d)(i) (West 2018). Accordingly, the permissible range was 35-115 years.
¶ 58 Even where a court may rely on an improper aggravating factor in sentencing, “where it
can be determined from the record that the weight placed on the improperly considered
aggravating factor was so insignificant that it did not lead to a greater sentence, remandment
is not required.” People v. Bourke, 96 Ill. 2d 327 (1983). Defendant’s sentence was not
within the range applicable to an extended sentence with a firearm enhancement, despite the
age of the victim, but was instead near the top of the 35-75 year range for a standard sentence
with the firearm enhancement. There is no indication in the record that the decision to impose
this sentence was the result of a general distaste for gang violence rather than the fact that the
victim was a 9-year-old child. The circuit court’s focus on “grandmas, mamas, and innocent
children” indicates the importance the circuit court was placing on the age of the victim. In
that context, even if we accept that an improper factor was considered, we cannot say that a
sentence of 65 years was significantly affected by such consideration where the sentencing
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No. 1-20-0095
range available to the court was 35-115 years. Accordingly, because we find no clear or
obvious error to support a claim of plain error, we need proceed no further in the plain error
analysis, and we find that the issue is forfeited on appeal. We affirm the sentence of the
circuit court.
¶ 59 III. CONCLUSION
¶ 60 For the foregoing reasons, we affirm defendant’s conviction and sentence.
¶ 61 Affirmed.
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