People v. Williams , 2023 IL App (1st) 192463 ( 2023 )

2023 IL App (1st) 192463SECOND DIVISION
December 19, 2023
No. 1-19-2463
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 11565(01)
)
SHANNON WILLIAMS, ) Honorable
) Lawrence E. Flood,
Defendant-Appellant. ) Judge, presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Howse and Justice Cobbs concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Shannon Williams was found guilty of first degree
murder and armed robbery in connection with the 2014 shooting death of the victim, Trovolus
Pickett. Defendant was sentenced to consecutive prison terms of 30 years’ for first degree murder
with a 25-year firearm enhancement, and 6 years for armed robbery, with a 15-year firearm
enhancement, for a total prison term of 76 years. In this appeal, defendant contends (1) that the
trial court erred in granting the State’s pretrial request for an extension of the speedy trial term, (2)
that the court improperly allowed hearsay evidence and evidence of other crimes pursuant to the
No. 19-2463
course of investigation exception, and (3) that the prosecutor improperly relied on that evidence in
closing as substantive evidence of defendant’s guilt.
¶2 The record shows that defendant was arrested on May 30, 2014. He was indicted on
July 2, 2014, and arraigned on July 11, 2014. At that point, defendant, through counsel, began
agreeing to continuances. The case was continued multiple times by agreement, until it was
eventually set for trial on July 23, 2018. On that date, the State answered, “not ready,” explaining
that it was “missing an essential witness.” The defense answered “ready” and filed a speedy trial
demand. Over the next 2½ months, the case was continued several times on the State’s motion. On
October 2, 2018, with seven days remaining in the speedy trial term, the State advised the court
that it intended to file a motion for an extension of the term.
¶3 The next day, October 3, 2018, the State filed a written motion to extend the speedy
trial term, contending that, despite their best efforts, it had been unable to personally serve Mark
Hall, the sole remaining eyewitness to the murder of the victim. The State explained that Hall had
previously cooperated with the investigation, identifying defendant in a photo array and providing
a video statement and grand jury testimony regarding the incident. The State, however, had since
unsuccessfully attempted to locate and serve Hall. The State further stated that Hall had been
arrested by the Cicero police on September 12, 2018, and that he had an October 9, 2018, court
date in the Maywood courthouse, at which the State’s investigators would be present to serve him.
The State further asserted that it intended to request a warrant and enlist additional fugitive units
to assist in Hall’s apprehension if he failed to appear in court. Attached to the motion were reports
from Investigator Joe Thomas, detailing his efforts to locate and serve Hall and outlining his
contacts with Hall’s friends, family, and associates and his surveillance of Hall’s associates and
the residences associated with Hall.
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¶4 That same day, the parties appeared before the court. The prosecutor explained that
“[o]ur office has outlined and attached exhibits and has been tracking Mr. Hall for a
period of months. Attached are a number of reports from my investigator Joe Thomas
outlining extensive contacts that he has made with Mr. Hall’s family, friends, and
associates. He has repeatedly set up surveillance on addresses known by Mark Hall to
frequent.
Mark Hall has a child with an underaged girl. He has set up surveillance on
that residence, as well as spoke with the mother of Mark Hall’s—the mother of the
mother of Mark Hall’s child. However, he is hardly the father of the year. He has abated
attempts to be served at any of the residences known to him.
On September 12th he was arrested in Cicero in the case in which he was a
passenger in a vehicle, which cannabis was admitted [sic]. He fled the traffic stop but
was placed in custody after a struggle with the Cicero police officers, and narcotics
were found in his sock. He is charged with possession of a controlled substance with
intent.
However, before my investigators could get to him he bonded out as he got
a $1000 bond, posted [$]100, and cleared bond court before my investigators could get
to county jail.
He gave a different address than he had in the past in those police reports,
different from his driver’s license. However, when I provided that address to my
investigators because I got the police reports faster than they did, they were already
aware of it and indicated that was his father’s address, and they had already been to
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No. 19-2463
that house, and it wasn’t really clear that he ever laid his head on any regular basis at
that residence.
We have also provided pictures of Mark Hall, as well as copies of our
subpoenas to tactical teams that operate on the west side to no avail.
On his narcotics case Mark Hall will be in court in Maywood on Tuesday.
That will be outside our term. However, it’s highly likely that he will either appear and
be served on this case or alternatively a warrant will be issued. If a warrant is issued
then it will be enforced by any law enforcement agencies, and I have a number of
fugitive teams prepared to go and already basically planning to go after Mark Hall at
that time.
We believe we have been diligent. He is certainly a material witness, and as
such we believe we are entitled to a 60-day extension of the term in this matter and that
the likelihood that we will obtain service of Mr. Hall is great.
What we’re contemplating is that we would ask the Court leave to serve
Mark Hall for October 12th for a trial date but not a trial date to see if he in fact did
appear. If he appeared and received service in Maywood on the 9th and he appeared
here on the 12th then we would know he would be advised to come to court. We were
talking about the 16th, the following week for trial, or alternatively this Court would
issue a warrant for his arrest, and we would send the fugitive teams out to obtain him
by the next week.”
¶5 Defense counsel responded that “due diligence [wa]s really the issue here.” Counsel
argued that the reports attached to the State’s motion did not show any efforts to serve Hall with a
subpoena before the July 23, 2018, initial trial date. The court interjected that July 23, 2018, was
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No. 19-2463
the first date that the demand was filed, and counsel agreed, “aside of course from the very
beginning of the case.” Counsel further argued that while the reports indicated that the investigator
conducted surveillance at two purported residences of Hall, the report did not detail how long the
investigator remained at the locations or what efforts were made to make contact. Defense counsel
also noted that it was “significant” that Hall was in custody for the Cicero case and that there was
nothing that “flagged” or “indicated that Mr. Hall was somebody that [the Cook County State’s
Attorney] w[as] interested in talking to.” Defense counsel argued that he “d[id]n’t think this rises
to the level of due diligence. So we would object to any extension being granted on this matter at
this point.”
¶6 The State replied that the reports were
“only summaries of the [investigator’s] efforts. This remains with the investigator since
it was assigned. He goes out and goes in regularly, checks on the addresses, checks on
the databases, and follows his associates. Some things are soft pedaled in the reports,
including the information he is receiving from the grandmother of his child as far as
efforts to serve Mr. Hall.
[The investigator] has been out to [Hall’s] father’s residence, which is the
address in the last arrest report to no avail. He conducted surveillance over the last two
weekends to no avail, including surveilling the associates as he indicated in his reports
that he was arrested with and speaking with them.
He also kept that car under surveillance for two separate occasions.
However, we did not have a great expectation that Mr. Hall would return to that car.
He was arrested in the car as a passenger. He didn’t own it. We had planned to have
the car under surveillance. If it was a car that he owned I guess it would have to be
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No. 19-2463
unimpounded from Cicero. However, he wasn’t the owner or the driver. So that was
also a dead-end.
The efforts have been constant and ongoing since, as well as notifying the
districts and the tact teams with pictures. I personally provided copies of subpoenas of
Mr. Hall to tactical teams. And third more we did have a stop order out that would have
allowed our investigators to be aware in the city of Chicago if he was placed in custody,
but we did not have one that would have tripped him in Cicero where we would be
notified of his arrest.”
¶7 Following the above argument, the court granted the State’s motion, finding:
“I believe that the State has made a prima facie case for due diligence in this regard.
In addition to the exhibits tendered on the motion and representations made
by the State regarding their efforts in that regard to locate him, I believe that considering
the case law in this particular area that there is sufficient due diligence then to—for that
particular factor in granting the motion.
The second issue is as to good cause shown, which includes the diligent
standard, and taking all of that into consideration I think the State has established good
cause particularly in light of the fact that as represented to the Court and indicated in
the exhibits this person, this witness was arrested, and there is a good possibility that
he can be served on the next court date, which is my understanding is October 9th in
Room 213 in Maywood.
That would be beyond the demand date, but I believe that there is a great
likelihood based upon the representations of the State that he could be served at that
particular time.
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No. 19-2463
So in considering the other arguments made by the State and considering
the fact that there is a particular date in which he is to appear in court and can be served
by the State, I believe they’ve established good cause. So I’m going to grant the motion
for the extension of 60 days.”
¶8 On October 9, 2018, the State served Hall at his court date with a subpoena to appear
in this matter on October 12, 2018. Hall failed to appear on October 12, 2018, and the trial court
issued a warrant for his arrest and set a status date of October 16, 2018. On that date, the State
informed the court that Hall had not yet been arrested. Defendant moved to dismiss the case, and
the trial court denied the motion.
¶9 At the next status date, on October 29, 2018, the State informed the court that Hall had
been arrested. The court scheduled the case for trial on November 13, 2018, which was then
continued three more times—twice on motion of the State and once by agreement—to December
4, 2018.
¶ 10 The trial began on December 4, 2018. Before the start of evidence, the court heard
argument on motions in limine. In particular, the defense explained that it had been tendered
reports in discovery indicating that, on April 24, 2014, police responded to a “shots fired” call and
engaged in a car chase that ended with the car crashing into school property. The police
apprehended three occupants who fled the car—Navi Ray, Andre Clifton, and Lonnie
Hutcherson—and retrieved a firearm from the car that was similar to the one used in the offense.
The defense requested that the court prohibit the prosecution from entering the dash-cam video
and the substance of the call received by the police. Additionally, if the occupants of the car did
not testify at trial, the defense asked that the court also prohibit any evidence or inference that the
occupants had told police that defendant was present in the car on April 24, 2014, that defendant
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No. 19-2463
possessed the weapon that was found therein, or that defendant was involved in the armed robbery
and murder of the victim.
¶ 11 The court initially agreed with the defense that the fact that police were responding to
a “shots fired” call was “obviously” irrelevant. The State then explained that it wanted to introduce
that police were responding to a call of “shots fired” to explain the high-speed pursuit recorded on
the dash-cam. The prosecutor explained:
“It’s actually a very intense car chase that would only be justified by that type of event.
If the officers have to remain silent on that—we’re talking cars doing figure 8s, driving
over medians. It ends actually in a car unable to navigate a turn and c[r]ash into a school
sign. They go through two school zones. If the jury were led to believe that this could
be a ticket or a traffic ticket *** [i]t would actually put the officers at a serious
disadvantage in the climate environment we are. [sic]”
¶ 12 The court then addressed the prosecutor:
“THE COURT: This is brought in for purposes really of indicating to the
jury the course of the investigation—
PROSECUTOR: Correct. *** Why these officers did what they did.”
¶ 13 The prosecutor suggested that the defense’s motion was “best handled simply by a
limiting instruction that tells [the jury] how to consider that.”
¶ 14 The court then stated, “Here’s what I’m going to do. I’m going to allow the State to
indicate the call, with a limiting instruction to the jury that they’re not to consider it for any other
purpose other than why this chase took place. Is that agreeable then?” The defense noted its
objection, and the court continued:
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No. 19-2463
“COURT: Sure. I understand. But I think that’s appropriate. There is some
probative value to it as the State has indicated. But I don’t want it to be unduly
prejudicial. I think the limiting instruction would deal with that particular aspect of it.
So I would just indicate to the jury that you’re only to consider the fact that this was a
shots fired call in considering what you’re about to see.”
¶ 15 The defense then presented argument about the dash-cam video.
“DEFENSE COUNSEL: There is dash[-]cam video that would show four
people running from the vehicle. Three people are apprehended and one is not
apprehended. A search of the vehicle, according to the police reports, indicates that
some marijuana—which is not really relevant to our situation, at least not to
[defendant’s] situation in the case. It may be relevant to these other folks in the car to
our impeachment of their accounts. But importantly, a gun is found in the car. That gun
is found to have similar tool marks to the weapon that was used in the shooting of Mr.
Pickett.
Conversations were had between the police and the other three people in the
car who were apprehended. What we are seeking to keep out is any content of those
conversations either explicitly or implicitly. *** [N]one of those witnesses, to our
understanding, are going to testify. *** So it’s our position that none of the substance
of their testimony should come in or their statements should come in because the
substance of their statements would tend to implicate [defendant] and we would not be
able to confront that in any way. We could not cross-examine them.
So it’s our position that nothing should come in including who the fourth
person in the car was, that the fourth person in the car was the person who shot Trovolus
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No. 19-2463
Pickett, that the fourth person in the car somehow possessed the firearm, and that
clearly that [defendant] was the fourth person in the car.
Judge, given that that’s our position, I think the logical conclusion is nothing
from this chase should really come in, even the video of the chase. What you have—
THE COURT: The gun is recovered.
***
DEFENSE COUNSEL: The weapon is recovered. But there really is no
admissible nexus between that weapon and [defendant] unless—
THE COURT: No. I understand. Okay.
DEFENSE COUNSEL: Unless someone testifies to it.
THE COURT: Yeah.
***
DEFENSE COUNSEL: I think that given that there is no nexus here
between anyone saying that [defendant]—any competent evidence saying [defendant]
was the one who was in the car, possessed the gun, did the shooting, I don’t believe
that it has any relevance. And certainly what limited probative value it would have
would be outweighed by the prejudice.”
¶ 16 The court then asked the State for its response. The prosecutor replied, “As far as the
substance, we would have no intention of entering the substance of those conversations. We know
where the line is and we have no intention of stepping over it.” The prosecutor continued that “the
course of conduct exception is settled law in Illinois” and that “without going into the substance
of the conversation,” the fact that a witness identified a defendant was a “permissible [and]
reasonable inference for [the jury] to draw. *** Everybody’s been advised to not go into these
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No. 19-2463
substantive conversations. It is going to be, I had a conversation with a person. What did you do
next?”
¶ 17 The court agreed that was “fine,” and defense counsel responded:
“DEFENSE COUNSEL: Judge, given that that’s your ruling, what we
would ask is that it be limited to just that, not that you had a suspect that you were
looking for or that you had information regarding who was in the car.
THE COURT: That would go a little too far.
DEFENSE COUNSEL: That’s what I’m—
THE COURT: Yeah.
DEFENSE COUNSEL: That’s what I’m citing. That would be more than—
THE COURT: Sure. Absolutely. I agree.
DEFENSE COUNSEL:—is appropriate.
THE COURT: I agree with you on that. So it’s limited to what the cases
indicate regarding course of investigation.”
¶ 18 When the trial commenced, Officer Patrick Martino testified that at 11 p.m. on April
18, 2014, he responded to a call of a person shot near 5246 West Congress Parkway. When he
arrived at the scene, Officer Martino saw the unresponsive victim lying in the gangway under a
motion sensor light in a pool of blood with money on the ground around him. Officer Martino
secured the scene and called for additional units and an ambulance.
¶ 19 Officer Ted Jozefczak testified that on April 18, 2014, around 11:15 or 11:30 p.m., he
went to the 5200 block of West Congress Parkway in response to a shots fired call. He spoke to
Terrell Robinson, whom he had met before, and who introduced him to Mark Hall. Officer
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No. 19-2463
Jozefczak provided information about his conversations with Robinson and Hall to officers at the
scene.
¶ 20 Forensic Investigator Brian Smith testified that, in the early morning hours of April 19,
2014, he and a detective did “a walk-through” of the crime scene at 5246 West Congress Parkway,
where they placed markers next to possible evidence, videotaped the scene, then photographed and
recovered the evidence. Investigator Smith identified the video and photographs of the crime
scene, including two cartridge cases that were recovered. Investigator Smith also identified a
photograph of a floodlight on the building at 5246 West Congress Parkway.
¶ 21 Officer Jan Kenar testified that around 4:12 p.m. on April 24, 2014, six days after the
murder, he and his partners were in a marked police vehicle in the area of Marquette Road and
Stony Island Avenue, when they received a “shots fired” dispatch. No limiting instruction, as was
discussed prior to trial, was given. Officer Kenar received a description of a blue Dodge Durango
with license plates L-O-R-A-Y. The officers drove around the area and came across the vehicle.
They attempted to pull over the vehicle by activating the police car’s lights and sirens, which also
activated the dash-cam. The driver of the Dodge did not pull over; instead, it ran a red light on
Marquette Road before turning north onto Stony Island Avenue. The driver then accelerated, ran
a stop sign, and passed cars on the left driving toward oncoming traffic. Eventually, the driver of
the Dodge attempted to turn right, but lost control. At the end of the chase, the vehicle crashed into
a fence. Officer Kenar identified a DVD that contained the dash-cam’s footage of the car chase,
which was published to the jury.
¶ 22 After the crash, Officer Kenar observed who he believed to be the driver exit the vehicle
and flee. Officer Kenar pursued on foot and apprehended a man named Navi Ray. Officer Kenar
later learned that his partners pursued and apprehended two other occupants—Lonnie Hutcherson
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No. 19-2463
and Andre Clifton. The three men were arrested and taken to the Area North station, where they
were interviewed and charged with possession of cannabis. At the station, Officer Kenar reviewed
the dash-cam video and learned that a fourth individual had also exited the Dodge and had not
been apprehended.
¶ 23 Officer Sajit Walter testified that around 4 p.m. on April 24, 2014, he and his partners
were on patrol in the 3rd district when they responded to a call to assist in a pursuit. They saw a
patrol car in pursuit and followed it until they came upon a blue Dodge that had crashed. Officer
Walter helped place Clifton into custody. He and his partner searched the Dodge and recovered
drugs from the front and a Hi-Point 38-caliber, semi-automatic pistol from the rear passenger seat.
¶ 24 Detective Mary Nanninga testified that sometime after midnight on the day of the
offense, she was assigned to investigate the victim’s homicide. 1 Detective Nanninga went to the
crime scene and canvassed the area by knocking on doors in search of witnesses, looking for
security cameras on buildings, and looking for stray bullet damage. She spoke to the officers on
the scene, conferred with forensic investigators, and requested 911 recordings.
¶ 25 About a week later, on April 24, 2014, Detective Nanninga learned that officers had
information about the victim’s murder. She went to the Third District station and learned that Third
District officers had recovered a 380 Hi-Point firearm, which she knew to be the same caliber as
the cartridges recovered from the scene of the victim’s murder.
¶ 26 Detective Nanninga separately spoke to Clifton, Ray, and Hutcherson at the station.
Afterwards, Detective Nanninga returned to Area North and assembled a photo array, which
included a photo of defendant, whom she identified in court.
1
Detective Nanninga testified that she had been promoted from Detective to Sargeant two
years prior to her testimony, after her involvement in the investigation into this offense. We will refer to
the witness by her title at the time of the investigation at issue.
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No. 19-2463
¶ 27 The next evening, on April 25, 2014, Detective Nanninga located Mark Hall near his
residence. Hall agreed to go to the station with Detective Nanninga and stayed there until the early
morning hours of April 26, 2014, when officers drove him home.
¶ 28 Later that day, Detective Nanninga telephoned Hall. Detective Nanninga was looking
for a second witness, Terrell Robinson. Detective Nanninga then returned to the block where Hall
lived and found Hall and Robinson, who both returned to the station with her. At the station,
Detective Nanninga spoke with Robinson alone and then again with Assistant State’s Attorney
(ASA) Patrick Waller.
¶ 29 Mark Hall testified that, at the time of trial, he was 21 years old and lived with his
mother on the west side of Chicago. He testified that he was currently on house arrest for failure
to comply with a subpoena. Hall agreed that he had been served a subpoena, that he did not come
to court, and that he did not want to do so. Hall also testified that he had pending criminal charges
for possession, manufacture, and delivery of a controlled substance and for resisting arrest.
¶ 30 On April 18, 2014, around 11:15 p.m., when Hall was 16 years old, he was on the 5200
block of Congress Parkway near his cousin Terrell Robinson’s home. Hall was with Robinson and
their friend, the victim, Trovolus Pickett. The three walked from Robinson’s home to a gas station
at Jackson Boulevard and Laramie Avenue. As they walked, a black male crossed the street,
walked towards them, took a gun out of his pocket, and told them to go in the nearby gangway.
Hall, Robinson, and the victim went into the gangway.
¶ 31 In the gangway, the man faced the boys, who stood next to each other—the victim in
the middle with Hall to his right, and Robinson to his left. The man said, “give me everything.”
Hall testified that they gave him their money, but Hall could not recall how much money he turned
over. Hall thought the man pointed his gun at the victim the whole time, but could not remember
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No. 19-2463
as it was “many years ago.” Hall testified that after they handed over their money, Hall heard two
shots “back to back” and saw that the victim had been shot in the head. Hall testified that he did
not recall if Pickett said anything before the man shot him.
¶ 32 Hall testified that he ran out the back of the gangway, hopped a gate, and then circled
back to the scene of the shooting. Hall saw the victim on the ground, bleeding from his head, but
still breathing. Hall called 911 and stayed with the victim until the police and ambulance arrived.
Hall saw the ambulance take the victim away and the police putting up crime scene tape. Hall said
that neither he nor Robinson talked to police that night. A few hours later, Hall learned that the
victim had died.
¶ 33 When asked about how well he could see the offender, Hall testified that there were
“lights, but *** you can’t really see because it was dark in the gangway.” He agreed, however,
that there were city lights on the sidewalk and the street, and the house lights on along the way.
Hall also thought there was a light in the gangway that lit them up “a little bit.” Hall described the
offender as black, about 22 or 23 years old, with “caramel,” “lighter,” skin, short dreads hanging
on his forehead, and wearing a black hoodie. Hall identified a sensor light in a photo of the
gangway that was illuminated during the offense. Hall did not recall if the light was on before he
went into the gangway, but he “kn[e]w it was on when he was in there.” Hall said that the man
shot the victim beneath the sensor light.
¶ 34 Hall further testified that about a week later, on April 25, 2014, Hall was drinking on
his grandmother’s porch when homicide detectives arrived. They handcuffed and arrested Hall,
then took him to the station. Hall testified that the detectives did not tell him why they wanted to
see him and that, for a few hours, they put him in a room at the station, where he fell asleep.
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No. 19-2463
¶ 35 Hall testified that, later, two or three detectives returned to speak with him, and they
told him that there were witnesses who identified Hall and Robinson as the perpetrators of the
victim’s murder. Hall told them that was not true. The detectives then showed him a group of five
black and white photos. Hall testified that when the officers laid out the photo array, an officer
touched one of the photos and said “I ain’t going to tell you who it is.” Hall identified defendant
in-court as the person whose photo the officer touched. Hall chose defendant’s photo out of the
array by touching it.
¶ 36 In court, he identified a photo as the one of defendant he identified at the station. At
first, Hall claimed that he only touched the photo and that he did not know who wrote the time or
circled defendant’s face on it. Hall later testified that he signed and circled the photo and said that
he forgot that he signed it. Hall claimed that the officers did not ask him anything before they
showed him the array. He agreed that his signature appeared on a photo advisory form, but testified
that he signed it after he viewed the photo array. The form stated that Hall understood that the
suspect may or may not be in the photo lineup, that he did not have to make an identification, and
that he should not assume that the person administering the lineup knows which person is the
suspect.
¶ 37 Hall also testified that the officers showed him a second set of five photos, from which
he did not identify anyone. The officers took Hall home a few hours later.
¶ 38 Hall further testified that later that day, officers came to Hall’s mother’s house and took
him and Robinson to the station. Hall said that he agreed to return because he “had no other
choice.” Hall spoke to officers at the station about the victim’s murder, and they told him he had
to “do a video.” Hall testified that one or two people were in the room when he gave a videotaped
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No. 19-2463
statement. Hall stated that the officers again laid down photos, told him to choose the same photo,
and told him to say, “something like nobody made [him] do it.”
¶ 39 Hall testified that, in his statement, he must have said that the gangway light came on
when he walked in because he knew it was on once he was in there, and agreed that he said that
the shooter was “real close, [he] could touch him.” When asked whether he told the detective and
the ASA that the victim said to the offender “on BD you got everything, you got all our stuff,”
before the offender shot him, Hall agreed that “[i]f it’s on paper, then [he] told him that.” Hall
explained that “BD” meant Black Disciples gang, and that the victim was essentially swearing “on
his BD credential” that he gave the offender everything. Hall also agreed that he told the ASA and
the detective that the offender shot the victim in the face immediately after the victim said that.
¶ 40 Hall further testified that he told the ASA that the police called him, and that Hall
agreed to go to the station to look at photos to see if he could identify the offender. Hall also told
the ASA that he signed a photo advisory form before viewing the photo array, and, after viewing
the photo array, he identified defendant as the person who robbed him and shot the victim by
circling and signing the photo. Hall also told the ASA that the offender took $280 from him. Hall
testified that officers drove him home after he made his statement.
¶ 41 Hall testified that the above videotaped testimony was not truthful. He stated that he
was only 16 years old and he was “threatened” and “coerced” into making the statement.
¶ 42 Hall further testified that on June 12, 2014, he was standing on a corner when “two
homicide cops jump[ed] out,” “grabbed [him],” and put him in the “back of the car.” The officers
brought him in front of the grand jury, where they asked him questions “about what happened that
night.”
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No. 19-2463
¶ 43 Hall told the grand jury that he, Robinson, and the victim were walking on the 5200
block of West Congress Parkway when a man with short dreadlocks and a gray hoodie crossed the
street, pulled a gun, and said, “get in the gangway.” He told the grand jury that the man’s hood
was halfway over his head, but Hall saw the man’s face because there were “a lot of lights outside
and it [was] light in the gangway.” Hall also told the grand jury that he “[c]ould see real good. The
light was bright,” and the light was even better in the gangway than on the sidewalk. Hall told the
grand jury that the offender was “real close” to him, he “could touch him.” Hall thought he
remembered identifying a photo of defendant as the man who shot the victim. He could not recall
if he signed the photo in the presence of the grand jury, but he thought he did because his name
was on it. Hall also acknowledged that he told the grand jury that he gave $280 to the shooter, and
that the victim said “on BD I gave you everything” after turning over his money.
¶ 44 Hall also testified that he told the grand jury that on April 25, 2014, he agreed to go to
the station, answer questions, and look at photos. Hall further told the grand jury that officers gave
him, and he signed, an advisory form before seeing the photo array.
¶ 45 At trial, Hall identified the advisory form he signed before he viewed the photos, and
which he viewed during his videotaped statement with the ASA and during his grand jury
testimony. Hall agreed that his signature appeared on the form three times: he signed it before he
viewed the photo array, during his conversation with the ASA, and before the grand jury. Hall did
not recall telling the grand jury that he signed the form before he viewed the photo lineup. He
agreed, however, that he testified that he looked at the photos after signing the advisory form and
telling the detective that he understood it. Hall also testified that, during his grand jury testimony,
he identified defendant’s photo from the photo array as the man who shot the victim and that he
signed and circled the photo.
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No. 19-2463
¶ 46 Hall testified that he told the grand jury he agreed to meet with, and answer questions
from, ASA Waller on April 26, 2014. ASA Waller asked him how he wanted to memorialize his
statement, and he chose video, which he understood to mean that he would answer the questions
he had just been asked while being recorded. Hall acknowledged telling the grand jury that he gave
his videotaped statement “freely and voluntarily,” that no one made threats of promises in return
for his cooperation, and that he was treated well by the police and ASAs he met with.
¶ 47 Finally, Hall testified that he was under the influence of alcohol when he initially spoke
to officers in the early morning hours of April 26, 2014. He later clarified that he “was just
drinking,” but was not “drunk drunk, like *** can’t function drunk.” Hall stated, however, that he
was sober during both his videotaped statement and his grand jury testimony.
¶ 48 Kellen Hunter testified that in 2014, he was the firearm examiner who compared the
firearm that was submitted in this case to the fired bullet and two cartridge cases submitted in this
case. Hunter determined that the bullet and cartridges were fired from the firearm.
¶ 49 The parties then stipulated that Dr. Kristin Escobar Alvarenga would testify as an
expert in forensic pathology and that, on April 19, 2014, she performed an autopsy on the victim,
who had suffered two gunshot wounds—one to the left parietal scalp and one to the rear of his
neck. Dr. Alvarenga recovered one bullet during the autopsy. Based on her examination, Dr.
Alvarenga concluded that the cause of death was multiple gunshot wounds and the manner of death
was homicide.
¶ 50 The parties also stipulated that on April 19, 2014, Officer Victor Rivera received a fired
bullet in a sealed medical examiner’s envelope from Dr. Alvarenga, after she performed the
victim’s autopsy and that the officer inventoried the bullet. The bullet was sent to the Illinois State
Police Crime Lab for further testing and analysis.
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No. 19-2463
¶ 51 Finally, the parties stipulated that Hutcherson and Robinson were deceased.
¶ 52 Lawrence Amos testified that around 11:15 or 11:30 p.m. on April 18, 2014, he was at
home in the 5200 block of Congress Parkway when he heard two or three gunshots. About 20 to
30 seconds later, Amos looked out his window and saw a dead body in the gangway, across the
street, about two houses down. He also saw a black male in a gray or black hoodie in the gangway
of the house next to his.
¶ 53 Detective Michael Kennedy 2 testified that, in April 2014, he was assigned to assist in
the investigation of a murder that occurred at 5246 West Congress Parkway. Detective Kennedy
processed the murder scene and canvassed the surrounding neighborhood. Pursuant to that
investigation, Detective Kennedy identified Hall and Robinson as potential witnesses. On April
25, 2014, around 10:30 p.m., Detective Kennedy and his partner, Detective Nanninga, went to
Hall’s street, hoping to find Hall and Robinson. They located Hall, who agreed to accompany the
detectives to the station to assist in the investigation. Detective Kennedy testified that they did not
draw their guns, arrest, or handcuff Hall.
¶ 54 Detective Kennedy spoke to Hall at the station around 11 p.m., and Hall agreed to view
a photo array to see if he could identify the shooter. Detective Kennedy gave Hall a photo advisory
form and went through the content of the form with Hall. Detective Kennedy asked Hall if he had
any questions, and Hall said that he did not. Hall signed the form indicating his understanding.
¶ 55 Detective Kennedy then showed Hall the photo array, which included defendant’s
picture as well as other pictures that had been assembled by searching the police database for
people with similar “demographics, complexions, [and] weight” as defendant. Detective Kennedy
2
Detective Kennedy also testified that he had been promoted from Detective to Sargeant
following his involvement in the investigation into this offense. Again, we will refer to the witness by his
title at the time of the investigation at issue.
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No. 19-2463
put five photos on a table, and Hall pointed to the photo of defendant and said, “there he is,” and
“that was the guy that shot my buddy.” Hall signed, dated, and circled defendant’s photo. Detective
Kennedy denied placing a finger on defendant’s photo or indicating in any way which photo Hall
should identify.
¶ 56 After Hall identified defendant’s photo, Hall spoke to ASA Denise Tomzak at the
station. Hall signed a second photo advisory form and viewed an array of six photos that included
photos of Ray, Hutcherson, and Clifton. Detective Kennedy explained that the purpose of this
photo array was to either identify or eliminate others who may have been involved in the murder.
Hall did not identify any photos in the second photo array.
¶ 57 Around 3 a.m., Detective Kennedy asked if Hall would help locate Robinson. Hall
agreed and told the detective that he and Robinson were friends, they “h[u]ng out all the time” and
Hall knew where he lived. Detective Kennedy and his partner took Hall home. Detective Kennedy
testified that Hall was never handcuffed at the station and that neither he nor his partner told Hall
that he and Robinson had been identified as the perpetrators. Detective Kennedy and his partner
did not tell Hall that he would be charged with the victim’s murder if he did not cooperate.
Detective Kennedy described Hall as “very cooperative” and “eager to help.” Hall’s answers were
clear, responsive, and appropriate, and Detective Kennedy saw no indication that Hall was under
the influence of drugs or alcohol.
¶ 58 Later that day, Detective Kennedy’s partner called Hall to ask if it was “a good time”
for the officers to return to Hall’s residence and if Robinson was available to speak to them. The
officers returned to Hall’s home, where both Hall and Robinson agreed to come to the station.
After they arrived, Detective Kennedy’s partner spoke to Robinson, and Detective Kennedy spoke
to Hall. ASA Waller came to the station and spoke to Hall at around 10 p.m. ASA Waller gave
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No. 19-2463
Hall the option of having a conversation with ASA Waller, giving a written statement, or giving a
video statement that memorialized their conversation. Hall chose to make a video statement.
Detective Kennedy was present for the video statement, which the detective found to be consistent
with Hall’s prior statements to Detective Kennedy.
¶ 59 Detective Kennedy was then asked if Robinson also gave a videotaped statement. The
defense objected and asked for a side bar. Defense counsel objected that the prosecutor was
“going to imply that the—they took a statement from Mr. Robinson because Mr.
Robinson somehow incriminated [defendant]. We don’t have any opportunity to cross-
examine that. We don’t have any opportunity to rebut that. It’s unfortunate that Mr.
Robinson has passed away. But I don’t believe that that enables them to imply what
Mr. Robinson said regarding the effects of this case.”
¶ 60 The prosecutor responded that it was “part of the investigation.” The court ruled, “The
objection is overruled. He can ask the one question. Go no further.”
¶ 61 The prosecutor then asked, again, whether Robinson also provided a videotaped
statement, and Detective Kennedy responded affirmatively.
¶ 62 After the videotaped statements were complete, the officers took Hall and Robinson
home, then issued an investigative alert to other law enforcement agencies that they were searching
for defendant and Clifton and that they should be taken into custody if encountered.
¶ 63 On cross examination, Detective Kennedy acknowledged that the photo array Hall
viewed was comprised of black and white photographs and that Hall never viewed color
photographs or a live lineup.
¶ 64 ASA Jamie Santini testified that on June 12, 2014, he discussed the victim’s murder
with Hall in the ASA’s office in the courthouse. Hall was cooperative and his answers to ASA
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No. 19-2463
Santini’s questions were responsive and appropriate. After their conversation, ASA Santini
brought Hall in front of the grand jury. Before he testified, Hall raised his right hand and swore to
tell the truth. Hall told the grand jury that he saw the face of the shooter clearly and identified the
photo he had signed of defendant as the shooter. Hall further testified that he signed an advisory
form before he viewed the photo array and that no one told him which photo to identify. ASA
Santini also testified that Hall was asked if he was under the influence of drugs or alcohol when
he spoke to the detectives and the ASA at the station, and he responded that he was not.
¶ 65 ASA Patrick Waller testified that on April 26, 2014, he went to Area North to assist in
investigating the victim’s murder. ASA Waller met with Detective Kennedy and his partner, then
spoke to Robinson and Hall separately. ASA Waller asked both men if they would be willing to
make video recordings of their statements. Hall agreed and made a video recording at about 11:10
p.m., with ASA Waller and Detective Kennedy present. ASA Waller took a second video statement
after he took Hall’s. When asked whose statement was recorded second, the defense objected, and
the court sustained the objection.
¶ 66 ASA Waller identified a video recording of Hall’s statement, which was admitted into
evidence and published to the jury. The ASA also identified an exhibit that included the signed
photo array advisory form and the photo array from which Hall identified defendant. ASA Waller
testified that Hall again signed the photo of defendant during the video recorded statement. ASA
Waller further testified that he had an opportunity to speak with Hall alone and that Hall never
advised ASA Waller that officers had threatened to charge him with the victim’s murder.
¶ 67 The State rested, and the court denied defendant’s motion for a directed finding. The
defense rested without presenting any evidence.
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No. 19-2463
¶ 68 During closing arguments, the State argued that Hall’s 2014 accounts were more
reliable than his trial testimony.
¶ 69 Defense counsel argued that there was no physical evidence tying defendant to the
shooting and that the evidence against him amounted to “a single witness who is unreliable who
saw a black and white photo array four years ago, never saw a lineup, [and] whose testimony is
unsupported by any physical evidence.”
¶ 70 In rebuttal, the ASA explained that the “law allows you take what a witness says when
they are in an event it’s electronically recorded as if they say it from this witness stand” and that
the legislature “recognizes that people like [Hall] are going to return to the west side. *** He went
home there last night. He will be there today.” The prosecutor added, “What [Hall] said during the
trial, that’s not for your benefit. That’s for the benefit of the people out there and the people out
on the west side.” The court overruled the defense’s objection. The State continued, “That [Hall]
isn’t an informant. That he is not a snitch. That he is not weak.” Again, the court overruled the
defense objection.
¶ 71 The ASA then argued:
“ASA: You saw there is an instructions [sic] about reasonable inferences
that you can draw from the evidence. You are a smart jury. *** On the 24th of April in
2014 this gun was in a car speeding away from the police. We know that later the
officers realize there weren’t just three people in that car. There were four people in the
car and I submit to you the fourth person—-
DEFENSE COUNSEL: Objection.
ASA:—was the defendant.
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No. 19-2463
COURT: It’s argument. The jury has heard the evidence. They will only
consider the evidence and the reasonable inferences to be drawn from it.
ASA: The three that got caught[,] they ran. But who had the motivation to
run fastest and make sure he got away? The person who knew that this gun could be
linked to him.”
¶ 72 The ASA then stated that some witnesses in murder trials are “strangers who have no
commitment, don’t really know the victim, don’t care, [and] don’t want to step up.” He continued:
“The other kind of people you have in murder trials are associates of the defendant.
People who are loyal to the defendant. We [sic] don’t want to testify either. *** In this
case you learned that the day the gun was recovered there were three other people in
that car. Navi Ray, Lonnie Hutcherson, and Andre Clifton *** The officer didn’t see
the fourth guy until they watched that video. They don’t see the fourth guy slip out.
What do we know happened. We know that after they realize there is a fourth guy they
talk to those guys. And after they talk to those guys, the three of them they notify
detectives from the north side of the City of Chicago.”
¶ 73 Defense counsel objected and requested a sidebar. Defense counsel argued that the
State was “going beyond just course of his investigation” and “commenting on content and
substance of what the witnesses who did not testify said in their statements to the police.” The trial
court ruled that the State could not “comment about the conversations or anything like that okay.
Just specifically what you did during the course of the evidence.” The State then continued: “And
then what do the detectives do? They put [defendant] into a photo array. There is an expression
about word on the street. You know what they say about the word on the street. It’s usually true.”
The trial court overruled defense counsel’s objection and the ASA continued to argue:
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No. 19-2463
“[Y]ou are aware that often law enforcement ask for anonymous tips, murders, serious
violent crimes. Call in. There may even be an award for an anonymous tip. We will
keep your identity secret.
So you got [sic] to ask yourself how valuable is that. Because an anonymous
tip wouldn’t get you into this courthouse. Anonymous tipsters can’t testify. They are
not of any evidentiary value.
What it is it’s an investigatory tool. It helps police get the case started.
The next day after they put these photo arrays together they ask [Hall] to
come in and look. And he immediately picks him out. The person who robbed him and
shot [the victim].
***
Mark Hall didn’t want to be here. But his testimony was extremely reliable
in 2014 when you think about it. He had a quick opportunity to make an identification.
He had a great opportunity due to lighting conditions and distance. He made that
identification. He identified this defendant. This gun turned out to be the murder
weapon.
There is a reasonable inference to be drawn between that recovery and his
placement in a photo array.
***
Now it’s ‘I don’t remember. I don’t know. I don’t care. The police told me
what to do.’ The law says you can take his statement from 2014 to the Grand Jury, his
statement to the Assistant State’s Attorney that was electronically recorded as if he gave
it in here. And you know that that statement was reliable. It’s borne out by this excellent
26
No. 19-2463
opportunity to identify and assess his appearance and to be able to recognize and
identify him less than a week later and to be certain of his identification of this
defendant.”
¶ 74 The jury found defendant guilty of the first degree murder of the victim and guilty of
the armed robbery of the victim. In addition, the jury found that defendant personally discharged
a firearm during the course of the murder.
¶ 75 The defense filed a motion for a new trial on July 12, 2019. Defendant argued that the
court erred by granting the State’s motion to extend the speedy trial term where the State did not
show the necessary due diligence. Defendant also argued that the court should not have admitted
the substance of the “shots fired” 911 call, the dash-cam footage of the ensuing car chase, or that
the conversations with Ray, Clifton, and Hutcherson led to police including defendant in the photo
array.
¶ 76 The motion also argued that the prosecutor erred by improperly using the substance of
this evidence in closing, rather than only using it to explain the course of the investigation. Defense
counsel challenged the State’s arguments that defendant was the fourth person in the car, that the
police looked for defendant after speaking with the three men in the car and put him in a photo
array, and that the “word on the street” is “usually true.” Counsel further challenged the discussion
of anonymous tips. Defendant also asserted that the prosecutor erred by suggesting that Hall
changed his testimony due to threats or other influence on the west side without evidence.
¶ 77 The court heard arguments and denied the motion on September 5, 2019.
¶ 78 At sentencing, the court merged the two counts of armed robbery and imposed
consecutive sentences of 6 years for armed robbery, plus a 21-year firearm enhancement, and 30
27
No. 19-2463
years for first degree murder, with a 25-year enhancement for personally discharging the firearm,
for a total 82-year term.
¶ 79 Defendant filed a motion to reconsider the sentence on September 26, 2019. At the
hearing on the motion, the parties agreed that the maximum firearm enhancement for armed
robbery was 15 years. The court then reduced the 21-year firearm enhancement for armed robbery
to 15 years, resentencing defendant to a total 76-year term. Defendant filed a timely notice of
appeal.
¶ 80 In this court, defendant contends that the trial court abused its discretion in granting an
extension of the speedy trial term, that the trial court allowed “excessive and unnecessary ‘course
of investigation’ evidence,” and that the prosecution improperly argued the substance of such
evidence in closing arguments as evidence of guilt. Finally, defendant contends that the prosecutor
made additional improper remarks that were not based on the evidence during closing arguments—
specifically, defendant challenges the prosecutor’s remark that Hall’s recantation was for “the
benefit of the people *** out on the west side,” implying that Hall recanted due to fear or threats,
and the reference to “anonymous tips,” which defendant contends “plant[ed] in the jurors’ minds
the notion that other people provided evidence of [defendant]’s guilt.”
¶ 81 We first address defendant’s speedy trial argument. “The right to a speedy trial is
fundamental and guaranteed to a defendant under both the sixth amendment and the due process
clause of the federal constitution [citations], and by article I, section 8, of our state constitution
[citation].” People v. Mayfield, 2023 IL 128092, ¶ 18. The Illinois legislature conferred additional
rights in section 103-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5
(West 2018)), commonly known as the speedy-trial statute. In this case, defendant claims only a
statutory violation of his speedy trial right under the Code.
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No. 19-2463
¶ 82 The Code provides that every person taken into custody for an alleged offense shall be
tried within 120 days of the date he or she was taken into custody, unless the defendant occasioned
a delay. Id. § 103-5(a); Mayfield, 2023 IL 128092, ¶ 19. The 120-day period is tolled during any
time when the defendant causes, contributes to, or otherwise agrees to a delay. Mayfield, 2023 IL
128092, ¶ 20. A trial court may, in its discretion, continue the case up to an additional 60 days if
it finds that “the State has exercised without success due diligence to obtain evidence material to
the case and that there are reasonable grounds to believe that such evidence may be obtained at a
later day.” 725 ILCS 5/103-5(c) (West 2018). Here, the defendant does not challenge whether the
court appropriately determined that reasonable grounds existed to believe that such evidence may
be obtained at a later date, arguing only that the trial court erred in finding due diligence.
¶ 83 “ ‘[T]he test of due diligence is whether the State began efforts to locate its witness in
sufficient time to secure [his or] her presence before the speedy trial term expired.’ ” People v.
Ealy, 2019 IL App (1st) 161575, ¶ 44 (quoting People v. Exson, 384 Ill. App. 3d 794, 799 (2008)).
The State bears the burden of showing due diligence. People v. Spears, 395 Ill. App. 3d 889, 893
(2009); People v. Battles, 311 Ill. App. 3d 991, 997-98 (2000). Whether the State exercised due
diligence is decided on a case-by-case basis, after a careful review of the specific circumstances
of the case. People v. Swanson, 322 Ill. App. 3d 339, 342 (2001). A circuit court’s ruling on due
diligence will not be overturned unless it amounts to a clear abuse of discretion. Id. To determine
whether a trial court properly exercised its discretion, a reviewing court shall “ ‘examine the entire
record as it existed at the time the trial court considered the motion for continuance.’ ” People v.
Connors, 2017 IL App (1st) 162440, ¶ 16 (quoting People v. Terry, 312 Ill. App. 3d 984, 990
(2000)). “A trial court abuses its discretion where its decision is arbitrary, fanciful, or
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No. 19-2463
unreasonable, or where no reasonable person would take the court’s view.” People v. Curry, 2020
IL App (2d) 180148, ¶ 39.
¶ 84 In this case, defendant was arrested on May 30, 2014, and remained in custody
throughout the proceedings. When a defendant remains in custody, the 120-day statutory period
begins to run automatically from the date of arrest. People v. Mayo, 198 Ill. 2d 530, 536 (2002).
Defendant was arraigned on July 11, 2014, at which point he was appointed counsel. Thereafter,
defendant, through counsel, agreed to multiple continuances until the initial trial date, scheduled
for July 23, 2018. At that point, the State answered “not ready,” and defendant filed his speedy
trial demand. The time from arrest to the first agreed continuance at arraignment used 42 days of
the 120-day statutory term. See People v. Ladd, 185 Ill. 2d 602, 607-08 (1999) (computing the
speedy trial term involves excluding the first day and including the last). Subsequently, defendant
agreed to all continuances until July 23, 2018, and there remained 78 days in the speedy trial term
as of the date defendant filed his speedy trial demand. See Mayfield, 2023 IL 128092, ¶ 20 (“A
pretrial delay caused or contributed to by the defendant or otherwise agreed to by him is excluded
from the computation of the 120-day period in which a trial must commence under section 103-
5(a).”).
¶ 85 As an initial matter, the parties dispute when the State’s efforts to locate Hall started.
Defendant contends that the search “did not even begin for more than a week after trial was
supposed to start on July 23, 2018,” pointing to the August 1, 2018, first entry on the investigator’s
reports. The State, however, contends that the record shows that it began its “efforts to locate Hall
months prior to [the] July 23, 2018,” initial trial date. In support, the State points to the prosecutor’s
statements to the court that the State had “been tracking Mr. Hall for a period of months.” That
statement, however, was made on October 3, 2018, at the hearing on the State’s motion to extend
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No. 19-2463
the speedy trial term, and it appears that the prosecutor was asserting that the State had been
searching for Hall “for months” prior to the October 2018 hearing, and not the July 2018 initial
trial date.
¶ 86 Nevertheless, even if the State’s efforts began only on August 1, 2018, as the defendant
contends, there were 69 days remaining in the speedy trial term at that point. This court has
explained that “section 103-5(c) requires diligence in obtaining evidence within the 120-day term,
rather than diligence in obtaining evidence before a scheduled trial date.” People v. Smith, 268 Ill.
App. 3d 1008, 1013-14 (1994) (“even assuming that the State acted less than diligently in securing
[the two witnesses’] presence for the scheduled *** trial date, we cannot say that it acted less than
diligently in securing their presence within the 120-day term”).
¶ 87 This court finds Smith instructive. In Smith, 268 Ill. App. 3d at 1012-13, this court
considered the defendant’s argument that the trial court had abused its discretion in granting an
extension of the trial term, arguing that the State failed to exercise due diligence in attempting to
locate two witnesses where it did not begin to search for them until one week after the scheduled
trial date. The record showed, however, that the State discovered that the two witnesses no longer
resided at their last known residences after the initial trial date, but with 53 days before the
expiration of the original 120-day term. Id. at 1014-15. Thereafter, the State “took substantial steps
to locate them.” Id. at 1014. Specifically, it “checked with the Illinois Department of Public Aid,
the Illinois Secretary of State, and the United States Postal Service and it also checked arrest
records. After approximately one month of searching, it located [one witness’] son in Plymouth,
Indiana.” Id. This court concluded, “Given these efforts, which were begun 53 days before the
original 120-day term would have expired, we cannot say that the trial court abused its discretion
in granting the State’s motion for a continuance under section 103-5(c).” Id. This court also
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No. 19-2463
observed that “nothing in the record indicate[d] that the State should have known that such
searching for [the witnesses] would have been necessary.” Id. Both witnesses had cooperated with
the police and prosecution, and both witnesses resided in or near Chicago. “Given their earlier
cooperation and that they both resided in or near Chicago, it was reasonable for the State to delay
contacting them until the defendant’s case clearly was in a trial posture.” Id. Accordingly, the trial
court found no abuse of discretion in the trial court’s granting of a 60-day extension under the Act.
¶ 88 Similarly here, the record appears to indicate that the State did not begin its search for
Hall until after the scheduled trial date. However, even more time remained in the speedy trial
term—69 days—when the State began its efforts here, rather than the 53 days which remained in
Smith. And we find that the efforts shown here were even more extensive than the ones found to
be “substantial” in Smith. Here, the investigator’s reports established that the investigator
conducted research to identify various associates and residences associated with Hall, including
following Hall on social media. The investigator contacted some of those associates and surveilled
residences associated with Hall. In particular, the investigator went to one residence, where he
spoke to the maternal grandmother of Hall’s child, who then contacted the mother of Hall’s child.
The mother agreed to speak with the investigator, but then failed to make their planned call, and
the investigator then contacted the maternal grandmother again. The record also showed that when
Hall was arrested in Cicero, the address he gave was his father’s residence, which had already been
under surveillance, unsuccessfully, by the investigator. Finally, also like in Smith, Hall had
previously cooperated in the investigation and resided in Chicago, making it reasonable for the
State to have believed that securing his presence at trial would not have been difficult.
¶ 89 Defendant, however, contends that the investigator’s reports show that he spent “a
week waiting for a phone call here, a week waiting to be reappointed there” and that the State
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No. 19-2463
“gave up with a week to go in the speedy trial term, preferring to wait for Hall to show up in court
in Cicero rather than actively—diligently—search for him.” Defendant asserts that Battles, 311 Ill.
App. 3d at 998, instructs that this court should find no due diligence where the State failed to show
that the delay was unavoidable.
¶ 90 We find Battles distinguishable from the case as bar. In Battles, the court considered,
as a matter of first impression, “what it means to exercise due diligence in the DNA-testing
context.” Battles, 311 Ill. App. 3d at 997. The court noted that most cases up until that time related
to “missing witnesses and the State’s effort to find them,” and determined that those cases were
not “particularly helpful.” Id. The court explained that the State did not decide to have DNA testing
done until day 103 of the 120-day period, and then did not even attempt to conduct the testing in
the remaining time available. Id. at 1004. The court found that the State could not use section 103-
5(c) to “to cure the time problem created by its lack of effort. The State could not complete DNA
testing within the 120-day speedy trial term because the State never attempted to test.” (Emphasis
in original.)
¶ 91 This case, however, does not concern DNA-testing, and we likewise find its analysis
not “particularly helpful” here. And, unlike in Battles, where the State had not even decided to
conduct DNA testing until 13 days left on the speedy trial term and it took no steps to do so within
the term, the State here had at least 69 days remaining in the term when it began searching for
Hall, and the record established extensive efforts to locate and serve Hall before the term expired.
¶ 92 Accordingly, we find the trial court did not abuse its discretion by granting an extension
of the speedy-trial term.
¶ 93 Defendant’s next arguments essentially challenge several pieces evidence that were
admitted pursuant to the “course of investigation” hearsay exception. Defendant contends that the
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No. 19-2463
evidence admitted was “excessive and unnecessary,” that it introduced evidence of “other crimes,”
and that the prosecutor improperly relied on and argued that evidence substantively as proof of
defendant’s guilt. Defendant’s challenges generally concern the admissibility of evidence, and we
review the trial court’s evidentiary rulings for an abuse of discretion. People v. Ochoa, 2017 IL
App (1st) 140204, ¶ 39.
¶ 94 “A defendant is guaranteed the right to confront the witnesses against him by the
confrontation clauses of both the United States and Illinois Constitutions.” People v. Jura, 352 Ill.
App. 3d 1080, 1084-85 (2004). “Hearsay is an out-of-court statement offered to prove the truth of
the matter asserted.” Id. at 1085. “The fundamental reason for excluding hearsay is the lack of an
opportunity to cross-examine the declarant.” Id. “[U]nless it falls within an exception to the
hearsay rule, this type of evidence is generally inadmissible due to its lack of reliability and the
inability of the opposing party to confront the declarant.” (Internal quotation marks omitted.)
People v. Munoz, 398 Ill. App. 3d 455, 479 (2010).
¶ 95 The “course of investigation” exception to the hearsay rule allows the admission of
statements that explain the progress of a police investigation under the rationale that such evidence
is not offered for its truth. People v. Sample, 326 Ill. App. 3d 914, 920 (2001). Such statements are
“offered for the limited purpose of showing the course of a police investigation” (Jura, 352 Ill.
App. 3d at 1085), and law enforcement officers “may recount the steps taken in the investigation
of a crime, and may describe the events leading up to the defendant’s arrest, where such testimony
is necessary and important to fully explain the State’s case to the trier of fact” (People v. Simms,
143 Ill. 2d 154, 174 (1991)). A law enforcement officer may also testify about “conversations with
others, such as victims or witnesses, when such testimony is not offered to prove the truth of the
matter asserted by the other, but is used to show the investigative steps taken by the officer.” Id.;
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No. 19-2463
Jura, 352 Ill. App. 3d at 1085. “ ‘[O]ut-of-court statements that explain a course of conduct should
be admitted only to the extent necessary to provide that explanation and should not be admitted if
they reveal unnecessary and prejudicial information.’ ” People v. Boling, 2014 IL App (4th)
120634, ¶ 107 (quoting People v. O’Toole, 226 Ill. App. 3d 974, 988 (1992)); In re Jovan A., 2014
IL App (1st) 103835, ¶ 35 (“an officer may not testify to information beyond what is necessary to
explain his or her actions”).
¶ 96 Illinois courts have repeatedly held that the State may not use the limited investigatory
procedure exception to place into evidence the substance of any out-of-court statement that the
officer hears during his investigation, but may only elicit such evidence to establish the police
investigative process. See People v. Gacho, 122 Ill. 2d 221, 248 (1988); People v. Jones, 153 Ill.
2d 155, 160 (1992); People v. Hunley, 313 Ill. App. 3d 16, 33-34 (2000); Jura, 352 Ill. App. 3d at
1085; People v. Johnson, 202 Ill. App. 3d 417, 421-22 (1990).
¶ 97 This court has recognized the importance of evidence explaining the course of police
conduct, but also the danger of misuse of such statements. Specifically:
“In criminal cases, an arresting or investigating officer should not be put
in the false position of seeming just to have happened upon the scene; he should be
allowed some explanation of his presence and conduct. His testimony that he acted
‘upon information received,’ or words to that effect, should be sufficient.
Nevertheless, cases abound in which the officer is allowed to relate historical aspects
of the case, replete with hearsay statements in the form of complaints and reports, on
the ground that he was entitled to give the information upon which he acted. The need
for the evidence is slight, the likelihood of misuse great.” Boling, 2014 IL App (4th)
120634, ¶ 108.
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¶ 98 Moreover, it is improper for the prosecution to rely on such hearsay beyond the limited
purpose of the exception in arguments to the jury. See Jura, 352 Ill. App. 3d at 1091 (“The error
in repetition of the hearsay by the police witnesses was exacerbated by the State’s use of the
hearsay in opening statement and closing argument.”); People v. Singletary, 273 Ill. App. 3d 1076,
1085 (1995) (prosecutor’s remarks during opening statement and closing argument “went beyond
what was necessary to explain investigatory procedures and were used to establish defendant’s
guilt”).
¶ 99 Defendant specifically challenges several pieces of evidence that came in at trial,
including that police were responding to a “shots fired” call a week after the offense, which led to
a high-speed chase of a car in which the murder weapon was found, and that the three occupants
implicated defendant in the murder and as the fourth occupant in the vehicle, tying him to the
murder weapon. Defendant also challenges evidence that another robbery victim, Robinson, who
was deceased at the time of trial, gave a videotaped statement, and the inference that the statement
also implicated defendant.
¶ 100 At trial, Officer Kenar testified that on April 24, 2014, he and his partners received a
“shots fired” dispatch, along with a description of the vehicle. They located the vehicle where they
recovered what turned out to be the murder weapon and apprehended three passengers—Clifton,
Ray, and Hutcherson. Detective Nanninga testified that she spoke to the three men at the station,
and, thereafter, assembled a photo array, which included a photograph of defendant.
¶ 101 The above testimony would normally be entirely consistent with, and admissible under,
the course of investigation exception to explain the police procedure. Although Officer Kenar’s
testimony included a statement from a nontestifying witness—the “shots fired” call—it was
admissible, not for the truth of the matter, but to show how police recovered the murder weapon
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No. 19-2463
and ultimately included defendant in a photo array. See Jura, 352 Ill. App. 3d at 1085. And
Detective Nanninga’s testimony did not include any information as to the content of Clifton, Ray,
and Hutcherson’s statements. She expressed only that that she spoke to the three men and,
thereafter, included defendant’s photo in a photo array shown to Hall. The problem arose in this
case, however, because the State then used that testimony beyond its intended purpose—to show
that defendant was the fourth passenger in the vehicle, that he possessed the murder weapon, and
that the other passengers had implicated him in the charged offense.
¶ 102 Initially, we note that there was no evidence introduced at trial that defendant was
present in the car during the April 24, 2014, high-speed car chase that resulted from the “shots
fired” call or that tied him to the firearm found in the vehicle. The State acknowledges the lack of
evidence, but contends that these are “reasonable and logical inferences from the trial testimony.”
(Emphasis in original.) Such inferences, however, are improper as they could only arise from trial
testimony that was admitted for the limited purpose of explaining the police’s course of
investigation. The evidence was not admitted to suggest the substance of the three men’s
statements, and the only way such evidence could come in substantively is if Clifton or Ray had
been called to testify. 3 The State, however, attempted to use the trial testimony that police spoke
to Clifton, Ray, and Hutcherson and then began searching for defendant, to create the inference
that the three men had informed police that defendant was present in the vehicle during the chase,
that he possessed the firearm, and that he was involved in the offense. This goes beyond the
parameters of the investigatory procedure exception. See, e.g., Boling, 2014 IL App (4th) 120634,
¶ 107 (“ ‘[O]ut-of-court statements that explain a course of conduct should be admitted only to the
extent necessary to provide that explanation and should not be admitted if they reveal unnecessary
3
The record indicates that Hutcherson died before trial.
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No. 19-2463
and prejudicial information.’ ” (quoting O’Toole, 226 Ill. App. 3d at 988)); In re Jovan A., 2014
IL App (1st) 103835, ¶ 35.
¶ 103 Indeed, the prosecutor made this very argument in closing, specifically telling the jury:
“There were four people in the car and I submit to you the fourth person *** was the
defendant. *** The three that got caught they ran. But who had the motivation to run
fastest and make sure he got away? The person who knew that this gun could be linked
to him.”
¶ 104 The defense objected, and the trial court overruled the objection, finding that it was
“argument” and the jury “has heard the evidence. They will only consider the evidence and the
reasonable inferences to be drawn from it.”
¶ 105 The prosecutor also improperly implied the substance of statements to police by Ray,
Hutcherson, and Clifton by arguing in closing that there was “a reasonable inference to be drawn
between that recovery [of the murder weapon] and [defendant]’s placement in a photo array.” The
prosecutor further asserted that the three men did not testify because they were “associates of” and
“loyal to defendant,” but “[y]ou know what they say about the word on the street. It’s usually true.”
In so arguing, the prosecutor asked the jury to infer that the men had identified defendant as being
involved in the offense and present in the vehicle where the murder weapon was found and that
those out-of-court statements—“the word on the street”—was true.
¶ 106 By arguing in this manner, the State disregarded the limited purpose for which the
evidence had been admitted, using the evidence substantively to establish defendant’s guilt rather
than to explain the officers’ investigatory procedure. See Jura, 352 Ill. App. 3d at 1091; Singletary,
273 Ill. App. 3d at 1085 (prosecutor’s comments during opening and closing statements “went
beyond what was necessary to explain investigatory procedures and were used to establish
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No. 19-2463
defendant’s guilt rather than explain police conduct”); People v. Williams, 289 Ill. App. 3d 24, 34
(1997) (finding that the prosecutor’s remarks were “an example of the *** recognized practice of
prosecutors taking improper advantage of the admissibility of testimony by a police officer to
explain his investigatory procedure, only to use that testimony, once it is admitted, to
impermissibly use it in closing argument” (internal quotation marks omitted)).
¶ 107 In so holding, we find this case analogous to Jura, 352 Ill. App. 3d 1080, Singletary,
273 Ill. App. 3d 1076, and People v. Shorty, 408 Ill. App. 3d 504 (2011). In these cases, the court
found that the evidence admitted, and the arguments made by the prosecution, went beyond the
course of investigation exception.
¶ 108 In Jura, the defendant appealed his conviction for unlawful use of a weapon by a felon.
At trial, three police officers testified that they responded to a radio call of a “ ‘person with a gun’ ”
in an alley. Jura, 352 Ill. App. 3d at 1082-83. The radio call also described the suspect as a “male
White” and included information about height and a face tattoo. Id. After receiving the radio call,
the officers went to the alley, saw the defendant discard a gun in a garbage can, and arrested him
for possession of a gun. Id. at 1082. On appeal, the court acknowledged that officers may testify
to statements made out of court where the statements are used to show the officers’ investigative
steps and not for the truth of the matter asserted but cautioned that the statements must be
“necessary and important to fully explain the State’s case.” (Internal quotation marks omitted.) Id.
at 1085. The appellate court determined that the officers’ testimony went beyond what was
necessary to explain their investigatory procedures. Id. at 1086. The court rejected the State’s
argument that the testimony was admissible as course of investigation evidence because “[t]here
was no issue regarding the reason why the officers proceeded to the alley.” Id. The State “merely
needed to demonstrate that the officer was on duty, received a radio call, and as a result of that call
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No. 19-2463
proceeded to the alley.” Id. The court also explained that the State improperly “relied on the
substance of these statements in both opening statement and closing argument to prove that
defendant matched the hearsay description of the man with a gun.” Id. at 1088. Accordingly, the
court concluded that the evidence was not used merely to explain the police investigation, but
rather “as substantive evidence to prove defendant guilty.” Id. at 1089.
¶ 109 Next, in Singletary, the defendant was found guilty of possession with intent to deliver
a controlled substance. Singletary, 273 Ill. App. 3d at 1078. At trial, a police officer testified that
he had received a tip from a confidential informant that the defendant was planning to pick up a
package of cocaine. Id. Specifically, the officer testified that the informant provided him with the
defendant’s first name, “ ‘a brief description of [the defendant], type of auto that he would be
riding in, and that he was going to go to [the address] and pick up a package of cocaine.’ ” Id. at
1082. Police surveilled the address and witnessed the defendant arrive as a passenger in a vehicle,
exit the vehicle, go into the building, and return minutes later. Id. at 1079. Police then stopped the
vehicle after it left the location, and a drug dog alerted officers to narcotics under the seat in which
the defendant was riding. Id. During closing argument, the prosecutor reiterated to the jury that an
informant told the officer that a person with the defendant’s name and physical description would
be arriving at a specific address at a particular time in a particular type of automobile to pick up a
package of cocaine. Id. at 1085.
¶ 110 On appeal, the defendant argued that he was deprived of his constitutional right to
confront witnesses against him where hearsay statements of the informant were admitted as
evidence against him. Id. at 1078. The appellate court initially discussed the history and theory
regarding the admission of out-of-court statements to explain a course of police conduct “and the
danger of misuse of such statements.” Id. at 1082-83. The court noted that where officers testify
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No. 19-2463
to information beyond what is necessary to explain police conduct, “ ‘these references would likely
be understood by the jury as pertaining to necessary elements of the crime for which defendant
was being tried.’ ” Id. at 1082 (quoting People v. Cameron, 189 Ill. App. 3d 998, 1005 (1989)).
¶ 111 In reversing the defendant’s conviction, this court concluded that the officer’s
testimony regarding his conversation with the informant “went beyond what was necessary to
explain the officer’s conduct and presented the substance of his conversation with the informant”
and that the prosecutor’s remarks in closing “also went beyond what was necessary to explain
investigatory procedures and were used to establish defendant’s guilt rather than explain police
conduct.” Id. at 1084-85.
¶ 112 Finally, in Shorty, 408 Ill. App. 3d at 504-05, the defendant was convicted by a jury of
unlawful possession and possession with intent to deliver heroin. In opening statements, the
prosecutor informed the jury that they would hear testimony from a police officer that a
confidential informant told him that the defendant was going to be going to Chicago later that
evening to buy heroin and that he would be going in a certain vehicle. Id. at 505. Then, at trial, a
police officer testified that he “ ‘received information from an individual that [the] defendant was
supposed to be making a trip to Chicago that evening to pick up a large quantity of heroin.’ ” Id.
at 506. The informant told the officer that the defendant was at a particular hotel and the type of
vehicle that would be used. The informant later told the officer that the defendant “did ‘in fact
have the heroin’ ” and that he would be returning to the hotel in the previously described vehicle.
Id. During this testimony, the trial court instructed the jury that “ ‘the information the officer is
testifying to that he received is allowed for the purpose of explaining the actions of the officer and
not for the truth of the matter that might have been told to the officer, but to explain the officer’s
actions then.” Id. The officer then went on to testify that he set up surveillance at the hotel and
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No. 19-2463
witnessed the described vehicle. The officer testified that defendant was arrested thereafter and
identified the informant as another passenger in the vehicle. Id.
¶ 113 On appeal, the defendant claimed that it was reversible error to allow the prosecutor to
inform the jury that the police received information indicating that the defendant planned a trip to
Chicago to buy heroin and that the error was compounded by the officer’s later testimony. Id. at
507.
¶ 114 The Third District Appellate Court noted that the alleged improper statements went
“directly to the matter in controversy: whether [the] defendant possessed the heroin found in the
vehicle.” Id. at 510. And while the prosecutor improperly relied on the substance of the hearsay
testimony, the State had not called the informant to testify. The court explained:
“It strains our credulity to accept that this was anything more than a prosecutor’s
successful attempt to put on the not-so-confidential informant’s testimony as to
defendant’s guilt without subjecting the witness to cross-examination and
impeachment. *** One would not have to be a cynic to conclude that the State did not
call the witness because it did not want the witness exposed to cross-examination.” Id.
¶ 115 Additionally, the court noted that the testimony elicited from the officer was not
necessary to establish the police procedure. The court posited that the prosecution
“could have elicited testimony from [the officer] that explained his investigatory
procedures without disclosing the substance of the conversations had between the
officer and the informant and without hearsay as to defendant’s guilt. By way of
explanation, the prosecutor could have simply elicited testimony from the officer that
a confidential informant (CI) provided information that at the time and place in
question, [the vehicle] would appear with three occupants and the vehicle would
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No. 19-2463
contain drugs. This would explain why the officers were at the *** hotel and why they
stopped defendant’s vehicle. There was no need to go beyond that if the only goal was
to explain police conduct.” Id.
¶ 116 The court further found that the “trial court’s limiting instruction to the jury did not
cure the error,” explaining that “ ‘[h]earsay testimony identifying the defendant as the one who
committed the crime cannot be explained away as “police procedure,” even where the trial judge
limits the evidence to a nonhearsay purpose.’ ” Id. at 511 (quoting People v. Rivera, 277 Ill. App.
3d 811, 820 (1996)).
¶ 117 Like in Jura, Singletary, and Shorty, the prosecutor in this case used the challenged
evidence as substantive evidence of defendant’s guilt, and that evidence went directly to the matter
in controversy. In closing, the prosecutor suggested that the jury could infer that defendant was
present during the April 24, 2014, car chase, that he possessed the murder weapon, and that he ran
from the vehicle because he “knew that this gun could be linked to him.” These remarks—like
those at issue in Jura, Singletary, and Shorty—went well beyond what was necessary to explain
the investigatory actions leading to defendant’s arrest and, instead, suggested that the hearsay
statements were substantive evidence of defendant’s guilt of the charges for which he was on trial.
¶ 118 Defendant also challenges the admission of the “shots fired” call and the dash-cam
video of the high-speed chase. Defendant notes that Officer Kenar was permitted to testify that he
received a dispatch of “shots fired,” got a description of a car, found the car, and activated his
squad car lights. The car did not pull over but ran through a red light and stop sign, drove into
oncoming traffic, and eventually crashed. A dash-cam video recording of the chase was played for
the jury, which, as the prosecutor described, shows the car “doing figure 8s, driving over medians,
*** [and] c[r]ash[ing] into a school sign” before the occupants fled the vehicle.
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No. 19-2463
¶ 119 The State responds that the “shots fired” call and the dash-cam video were “relevant as
course of investigation evidence that explained the officers’ conduct and how defendant came to
be arrested.” The State further asserts that “[w]ithout this evidence, the jurors would have been
left to wonder why officers engaged in a high-speed chase with the Dodge, arrested its occupants,
and searched it after only seeing the driver commit a traffic violation.” Defendant, however,
contends that the evidence was irrelevant, that any limited relevance was outweighed by its
prejudicial effect (Ill. R. Evid. 403 (eff. Jan 1. 2011)), and that the introduction unnecessarily
injected “other crimes” evidence into the trial.
¶ 120 Evidence of crimes for which a defendant is not on trial is inadmissible if relevant
merely to establish the defendant’s disposition or propensity to commit crime. People v. Thingvold,
145 Ill. 2d 441, 452 (1991); People v. Illgen, 145 Ill. 2d 353, 364 (1991). However, evidence of
the commission of other crimes committed by the defendant is admissible when such evidence is
relevant to establish any material question other than the defendant’s propensity to commit a crime.
Thingvold, 145 Ill. 2d at 452. When evidence of other crimes is offered, the trial judge must weigh
its probative value against its prejudicial effect and may exclude the evidence if its prejudicial
effect substantially outweighs its probative value. Illgen, 145 Ill. 2d at 365. “The erroneous
admission of evidence of other crimes carries a high risk of prejudice and ordinarily calls for
reversal.” People v. Lindgren, 79 Ill. 2d 129, 140 (1980). “[E]vidence of other crimes is not
admissible merely to show how the investigation unfolded unless such evidence is also relevant to
specifically connect the defendant with the crimes for which he is being tried.” (Emphasis in
original.) People v. Lewis, 165 Ill. 2d 305, 346 (1995). “The limitation applies to prevent the risk
of prejudice to a defendant even in the face of the State’s legitimate need to present evidence of
the steps in its investigation.” Id. at 347.
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No. 19-2463
¶ 121 In the circumstances here, we conclude that the evidence showing that police were
responding to a “shots fired” call was admissible to explain how the police became involved in the
traffic stop from which the murder weapon was recovered. As set forth above, a police officer
“should not be put in the false position of seeming just to have happened upon the scene; he should
be allowed some explanation of his presence and conduct.” (Internal quotation marks omitted.)
Boling, 2014 IL App (4th) 120634, ¶ 108.
¶ 122 Although that testimony was admissible as course of investigation evidence, the court
did not issue a limiting instruction when the evidence was presented. When investigative procedure
evidence is admitted at trial, the court “must instruct the jury that the testimony was introduced for
the limited purpose of explaining what caused the police to act and that [the jurors] were not to
accept the statement as true.” People v. Trotter, 254 Ill. App. 3d 514, 527 (1993). Absent a limiting
instruction, it cannot be presumed that the jury’s use of hearsay evidence was limited to a non-
hearsay purpose. Id. at 527-28; Jura, 352 Ill. App. 3d at 1093.
¶ 123 In this case, at the pretrial hearing on the defense’s motion in limine, the court said that
it would issue a limiting instruction informing the jury that the “shots fired” call could only be
considered to explain the chase. In so holding, the court recognized the risk that such evidence
could be “unduly prejudicial,” but determined that issuing a limiting instruction would mitigate
that risk. At trial, however, the court did not issue a limiting instruction, and the State then invited
the jury to make improper inferences from the entry of that evidence, including that defendant was
present in the vehicle and that he possessed the murder weapon. That was error.
¶ 124 Although we find that the “shots fired” call would have been admissible—had the court
given the intended limiting instruction—the dash-cam video of the high-speed chase was not
likewise “necessary and important” to explain the course of investigation. While the State is
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No. 19-2463
permitted to explain to the jury how the murder weapon was recovered and how defendant came
to be involved in the investigation, it did not need to display a dash-cam video of an intense car
chase to do so. Instead, the State could have adequately explained the investigation by establishing
that police received a call of “shots fired” and effectuated a traffic stop in response. Police then
detained three occupants, while a fourth occupant fled, and recovered a firearm from the vehicle.
Police spoke to those occupants and, thereafter put defendant’s photograph into the photo array
shown to Hall.
¶ 125 We reiterate, however, that by concluding that the testimony that police were
responding to a “shots fired” call was admissible as course of investigation evidence, we are not
countenancing the State’s use of that evidence to suggest that defendant was involved in the car
chase, that he possessed the murder weapon, or that he fled from the vehicle due to his
consciousness of guilt. By introducing evidence that police were responding to a report of a
shooting, presenting a video of the resulting high-speed chase and insinuating—and later explicitly
arguing—that defendant participated in that chase, the State improperly suggested that defendant
was involved in crimes other than the one for which he was on trial. Without introducing testimony
from a witness that defendant was present on April 24, 2014, the State cannot suggest to the jury
that defendant was the fourth passenger or that he possessed the weapon. See Boling, 2014 IL App
(4th) 120634, ¶ 107 (“Testimony about the steps of an investigation may not include the substance
of a conversation with a nontestifying witness.” (Emphasis in original.)).
¶ 126 Finally, defendant asserts that the trial court erroneously admitted testimony under the
“course of investigation” exception that Terrell Robinson had also provided a videotaped
statement, which led to the police searching for defendant. We agree.
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No. 19-2463
¶ 127 The record shows that the State introduced evidence that Hall identified defendant as
the shooter to the police in a photo array on April 25, 2014, and in a videotaped statement on April
26, 2014. Detective Kennedy testified about Hall’s identifications as well. The State was then
allowed to further elicit from Detective Kennedy, over the defense’s objection, that he also
obtained a videotaped statement from Terrell Robinson on April 26, 2014, and then issued an
investigative alert, which meant that they were “looking for” defendant. ASA Waller also testified
that he met with both Hall and Robinson on the night of April 26, 2014, that he took a videotaped
statement from Hall, and that he then took a second videotaped statement. When asked whose
statement, the court then sustained the defense objection.
¶ 128 Once the State elicited evidence that Hall identified defendant, the State did not need
to provide further information to explain why the police sought to arrest defendant. See Simms,
143 Ill. 2d at 174 (“a police officer may recount the steps taken in the investigation of a crime, and
may describe the events leading up to the defendant’s arrest, where such testimony is necessary
and important to fully explain the State’s case to the trier of fact”). In these circumstances,
Robinson’s statement had no probative value to explain the police procedure; instead, it is apparent
that the evidence was introduced to suggest that Robinson, who was deceased at the time of trial,
also identified defendant, corroborating Hall’s identification.
¶ 129 The conclusion that all of evidence we have discussed above was improperly admitted,
and that the prosecutor improperly relied on that evidence during closing argument, does not end
our inquiry. Inadmissible hearsay does not require reversal where the record clearly shows that the
error was harmless—i.e., where there is no reasonable probability the jury would have found the
defendant not guilty had the hearsay been excluded. Jura, 352 Ill. App. 3d at 1089; see In re Jovan
A., 2014 IL App (1st) 103835, ¶ 37. And, in the context of a prosecutor’s arguments, a reviewing
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No. 19-2463
court will find reversible error “if the defendant demonstrates that the remarks were improper and
that they were so prejudicial that real justice was denied or the verdict resulted from the error.”
People v. Jackson, 2020 IL 124112, ¶ 83. “If the jury could have reached a contrary verdict had
the improper remarks not been made, or the reviewing court cannot say that the prosecutor’s
improper remarks did not contribute to the defendant’s conviction, a new trial should be granted.”
People v. Wheeler, 226 Ill. 2d 92, 123 (2007).
¶ 130 When deciding if an error is harmless beyond a reasonable doubt, courts may “(1) focus
on the error to determine whether it might have contributed to the conviction; (2) examine the
other properly admitted evidence to determine whether it overwhelmingly supports the conviction;
or (3) determine whether the improperly admitted evidence is merely cumulative or duplicates
properly admitted evidence.” In re Rolandis G., 232 Ill. 2d 13, 43 (2008).
¶ 131 Although Hall’s prior identification of defendant was sufficient to support his
conviction, we do not find the evidence presented below to be overwhelming. Hall was the only
witness to identify defendant as the perpetrator, and he recanted that identification at trial. And the
improperly entered evidence was not merely cumulative of properly admitted evidence. As
discussed above, there was no evidence properly admitted at trial that linked defendant to the April
24, 2014, car chase or to the murder weapon that was found in that vehicle. Despite the lack of
evidence, the jury was invited to infer that defendant engaged in crimes other than those charged,
that he was present during the car chase, that he possessed the murder weapon, and that he fled
from the vehicle due to his consciousness of guilt. In the circumstances here, we find the errors so
serious that there is a reasonable probability that, had the improper evidence and argument been
excluded, the jury could have found defendant not guilty. See id. (error is not harmless where it
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No. 19-2463
“might have contributed to the conviction”). Accordingly, defendant’s convictions must be
reversed.
¶ 132 Although we have concluded that the case must be reversed for the reasons set forth
above, we will continue to address defendant’s remaining challenges to the prosecutor’s closing
arguments, as these issues may be relevant in a future retrial.
¶ 133 Defendant first challenges the prosecutor’s argument that Hall’s recantation was “for
the benefit of the people *** out on the west side” to show that Hall “isn’t an informant. That he
is not a snitch. That he is not weak.” Defendant asserts that such argument was improper as it
suggested, without any evidentiary basis, that Hall’s recantation was due to fear or threats.
¶ 134 A prosecutor may argue facts and legitimate inferences drawn from the evidence.
(People v. Turner, 128 Ill. 2d 540, 560 (1989)), but it is improper for the prosecutor to argue
assumptions or facts not based upon the evidence in the record (People v. Johnson, 208 Ill. 2d 53,
115 (2003)). It is also improper for the prosecutor to do or say anything in argument “the only
effect of which will be to inflame the passion or arouse the prejudice of the jury against the
defendant, without throwing any light on the question for decision.” People v. Smith, 141 Ill. 2d
40, 60 (1990). Specifically, a prosecutor may not “suggest that a witness was afraid to testify
because the defendant threatened or intimidated him when that argument is not based on evidence
produced at trial.” People v. Cox, 377 Ill. App. 3d 690, 707 (2007); People v. Mullen, 141 Ill. 2d
394, 405 (1990) (“[p]rosecutorial comments which suggest that witnesses were afraid to testify
because defendant had threatened or intimidated them, when not based upon any evidence in the
record *** are highly prejudicial and inflammatory” (internal quotation marks omitted)).
¶ 135 In support of defendant’s claim that the above comments were improper, defendant
relies on Rivera, 277 Ill. App. 3d at 821, and People v. Brown, 113 Ill. App. 3d 625 (1983), which
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both concerned a prosecutor’s closing arguments that either explicitly stated or clearly implied that
a witness feared retaliation by the defendant or his associates, without any evidentiary support.
Here, however, the prosecutor’s more generalized statements did not attribute Hall’s fear to any
intimidation by, or fear of, defendant or his associates. And the prosecutor’s comments were based
on the evidence showing that Hall still lived in the area where the offense occurred and that he was
reluctant to testify in this case—Hall testified that he did not want to be testifying in court, that he
did not comply after being served with a subpoena, and that he was currently on house arrest for
his failure to do so. Because the State’s comments were supported by evidence in the record and
did not link his fear to any threats or intimidation by defendant, we find no error based on this
argument.
¶ 136 Finally, defendant contends that the following remarks by the prosecutor in closing
were improper:
“When you have in your own life experience you are aware that often law
enforcement ask [sic] for anonymous tips, murders, serious violent crimes. Call in.
There may even be an award for an anonymous tip. We will keep your identity secret.
So you got [sic] to ask yourself how valuable is that. Because an anonymous
tip wouldn’t get you into this courthouse. Anonymous tipsters can’t testify. They are
not of any evidentiary value.
What it is it’s an investigatory tool. It helps police get the case started.”
¶ 137 Defendant asserts that the prosecutor’s “strange references” to anonymous tips were
not based on any evidence introduced at trial, and they “did nothing but plant in the jurors’ minds
the notion that other people provided evidence of [defendant]’s guilt that ‘help[ed] the police get
the case started.’ ” The State responds that the prosecutor’s comments did not suggest that the
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No. 19-2463
police actually received any anonymous tips, but “instead argue[d] the inference that Det[ective]
Nanninga included defendant in the photo array based on information she gleaned during her
conversations with Ray, Hutcherson and Clifton.” It is unclear to this court, however, how the
remarks at issue could be referencing Ray, Hutcherson, and Clifton, as their identities were known
to police and the jury, and their conversations with police could not be characterized as
“anonymous tips.”
¶ 138 Defendant cites People v. Shief, 312 Ill. App. 3d 673 (2000), to support his argument
that the prosecutor’s comments in this case were improper. In Shief, the prosecutor told the jury,
“ ‘Let’s talk about police reports. Guess how many police reports you’re going to get
with you when you go back to that jury room?
***
You’re not getting any. You know why[?]
***
They’re not evidence. You see if I had my way, I would hand you all these
police reports and say you go back in there and say he’s guilty[.]’ ” Id. at 677-78.
¶ 139 The court in Shief found that the above statements erroneously suggested that there
were arrest reports that would have established the defendant’s guilt, explaining that “[a]
prosecutor exceeds the bounds of permissible argument where he comments on facts that are
inadmissible or where he suggests that evidence of guilt existed but that, because of its
inadmissibility, cannot be heard by the jury.” Id. at 679; see People v. Ray, 126 Ill. App. 3d 656,
661-62 (1984) (finding prosecutor committed error where he told the jury in closing that “ ‘I wish
I could give you my file as you sit there to go back in there, but I’m not allowed to because that is
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No. 19-2463
the law’ ” because the comments suggested the prosecutor was referring to evidence that was
unpresented).
¶ 140 We agree with defendant that the prosecutor’s comments in this case were similar to
the improper comments made in Shief. Here, the prosecutor referenced the existence of anonymous
sources who give “tips,” but who could not testify, because such evidence is not admissible. This
argument improperly insinuated that additional inculpatory evidence existed that the jury did not
hear due to evidentiary rules.
¶ 141 In closing, because we have determined that a new trial is necessary, we provide the
following directions to guide that retrial. If the court grants a request to use course of investigation
evidence, a limiting instruction should be given and the evidence should be introduced as set forth
above, so as to not suggest the content of conversations or introduce unnecessary and prejudicial
information. The limiting instruction should explain that the evidence showing a “shots fired” call
is being introduced solely to explain the course of investigation and should not be considered for
any purpose other than how the investigation progressed. If, as in the previous trial, the State does
not introduce substantive evidence through the testimony of Clifton or Ray regarding the
circumstances of their presence in the vehicle, the dash-cam video should not be introduced and
the prosecutor may not invite the jury to conclude that defendant was a passenger in the vehicle,
that he possessed the gun, or that he fled. Finally, the prosecutor must refrain from suggesting that
any course of investigation evidence may be considered as substantive evidence of guilt or that
there exists additional evidence that was not heard by the jury.
¶ 142 For the foregoing reasons, we reverse defendant’s convictions and remand for a new
trial.
¶ 143 Reversed and remanded.
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No. 19-2463
People v. Williams, 2023 IL App (1st) 192463Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-CR-
11565(01); the Hon. Lawrence E. Flood, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and David T. Harris, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Joseph Alexander, Brian K. Hodes, and Susan
Appellee: Wobbekind, Assistant State’s Attorneys, of counsel), for the
People.
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