People v. McLaurin , 2015 IL App (1st) 131362 ( 2015 )

Illinois Official Reports
Appellate Court
People v. McLaurin, 2015 IL App (1st) 131362
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARKELL McLAURIN, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-13-1362
Filed May 4, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-15116; the
Review Hon. Michael Brown, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Thomas A. Lilien, and Jessica Wynne Arizo, all
Appeal of State Appellate Defender’s Office, of Elgin, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Kathleen Warnick, and Yvette Loizon, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Delort and Justice Harris concurred in the judgment
and opinion.
OPINION
¶1 Following a second jury trial in the circuit court of Cook County, defendant Markell
McLaurin was convicted of first-degree murder. Subsequently, at a hearing on the defendant’s
posttrial motion for a new trial, the trial court denied the defendant’s pro se claims of
ineffective assistance of counsel and sentenced him to 60 years of imprisonment. On first
direct appeal, the defendant raised four issues by arguing that: (1) defense counsel was
ineffective because he failed to secure the testimony of eyewitness Timothy Williams through
section 3 of the Uniform Act to Secure the Attendance of Witnesses from Within or Without a
State in Criminal Proceedings (Witness Attendance Act) (725 ILCS 220/3 (West 2008)); (2)
defense counsel was ineffective for failing to object to the admission of, and failing to request
the redaction of, inadmissible statements in State witness Marlon Williams’ prior written
statement and grand jury testimony; (3) the trial court abused its discretion when it allowed the
jury to receive and review a portion of witness Marlon Williams’ prior written statement that
contained other-crimes evidence disclosing that the defendant “carries different types of
guns”; and (4) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff.
May 1, 2007) because it did not “provide each juror an opportunity to respond” to specific
questions regarding the Zehr principles (People v. Zehr, 103 Ill. 2d 472 (1984)). This court
remanded the case to the trial court for the limited purpose of conducting a more complete
inquiry so as to allow the court to evaluate the defendant’s claims for ineffective assistance of
counsel, but did not address the defendant’s remaining issues on first appeal. See People v.
McLaurin, 2012 IL App (1st) 102943. On remand, the trial court conducted another hearing,
found the defendant’s pro se ineffective assistance of counsel claim to be without merit, and
again denied the defendant’s pro se motion for a new trial. In the instant second appeal, the
defendant raises the same issues that he raised in his first appeal. For the following reasons, we
affirm the judgment of the circuit court of Cook County.
¶2 BACKGROUND
¶3 The relevant underlying facts of this case were set forth in this court’s December 10, 2012
opinion on the defendant’s first appeal (McLaurin, 2012 IL App (1st) 102943), which we
reproduce as follows. On January 9, 2008, Demarlon Jernigan (victim), who was shot in the
area of Pulaski Road and Division Street in Chicago, and died of multiple gunshot wounds.
After an investigation, the police arrested the defendant, who was charged with six counts of
first-degree murder related to the shooting. On February 1, 2010, before the defendant’s trial
was set to commence, defense counsel sought a continuance stating that he was unable to
locate defense witness Timothy Williams (Timothy). The State, also interested in Timothy,
informed the trial court that it desired to subpoena him, but had been unsuccessful in serving
him at his last known address. Defense counsel stated that he had not subpoenaed Timothy and
told the trial court that he had “no excuse other than schedule and workload” for not serving
Timothy with a subpoena prior to the trial date. Defense counsel made a proffer that Timothy
would testify that neither the defendant nor State witness Bruce Jackson (Jackson) was at the
scene of the shooting. Defense counsel also stated that Timothy was unable to identify the
actual shooter. The trial court granted the continuance until March 8, 2010, stating that the
defendant deserved to have a lawyer who would investigate his case, and further commented
that defense counsel’s efforts to locate Timothy up to that time were “not due diligence.”
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¶4 On March 8, 2010, the defendant’s first jury trial commenced. On March 10, 2010, after
the State rested its case-in-chief, the trial court questioned defense counsel about whether
Timothy would testify. Defense counsel informed the court that Timothy had contacted him
the prior morning stating that he was in Chicago and that he would testify, but he then later left
a message indicating that he needed a ride to court. Defense counsel received Timothy’s
message when the trial broke for lunch and he attempted to return Timothy’s call multiple
times that day. Defense counsel told the court that Timothy did not answer the telephone.
Timothy ultimately did not appear in court that day or at any time during the trial. When the
trial court asked defense counsel if he had subpoenaed Timothy, defense counsel responded,
“he did not tell me where he was, and I did not have time to secure an investigator to locate him
in Iowa, I believe he stated [sic] he was living.” The following day, defense counsel confirmed
that Timothy would not be present in court. The case then proceeded to closing argument. On
March 12, 2010, the trial court declared a mistrial after the jury was hung and could not reach a
verdict.
¶5 On June 7, 2010, the defendant’s second jury trial began. Both sides agreed to adopt the
trial court’s ruling on the motions in limine from the first jury trial, in which the court ruled that
evidence of the victim’s gang membership was inadmissible. There was no discussion in the
second trial concerning whether Timothy would appear as a defense witness. Defense counsel
indicated there would be no change to his witness list from the previous trial, and the trial court
informed the venire that Timothy was a potential witness in the case.
¶6 During voir dire, the trial court instructed the venire on the four Zehr principles and asked
whether they “had any problems” with the first three principles. The court also asked, “[i]f the
defendant decides not to testify, is there anyone here who believes that regardless of what I
have just said, you would hold that decision against the defendant?” None of the members of
the venire answered in the affirmative.
¶7 State witness Jackee Suttle (Suttle) testified that she was the victim’s girlfriend. At about 9
p.m. on January 9, 2008, she and the victim intended to go to a restaurant together near Pulaski
and Division. They also had plans to meet their friend, Jackson, who was going to prison the
next morning. While conversing with friends near the restaurant, the victim became involved
in a verbal altercation with a “big heavy guy.” The victim and the “big heavy guy” headed to a
nearby park and engaged in a fistfight. After the fight, the victim left the park in a vehicle
driven by his friend, Timothy, but returned to the Pulaski and Division area at 10 p.m. From
inside the restaurant, Suttle observed the victim walking toward a liquor store across the street
from the restaurant. She then heard “five or six” shots fired. Suttle walked outside and
observed the victim running away on Division. She saw the victim “taking bullets” and
“getting shot,” but did not observe the shooter. She testified that she did not observe Timothy
or the “big heavy guy” at the crime scene, even though she had testified during the first trial
that both were present at the scene of the shooting. Suttle also testified that she did not observe
Jackson at the crime scene that night, but could not say for sure that Jackson was not there,
because her attention was focused on her wounded boyfriend. After the victim was shot, she
went over to his wounded body, which was near the bus stop at Pulaski and Division. His body
was covered by a brown jacket, but he had been wearing a red jacket when she was with him
earlier in the day. Although she accompanied the police to the police station, she did not speak
to the police that night because she was upset. She returned to the police station a week and a
half later.
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¶8 Jackson testified that his relationship with the victim was “something like brothers” and
that they were together every day. On the night of the shooting, he dropped the victim off at
Pulaski and Division “in the evening or something like that” and did not hear from the victim
for about two or three hours. The victim called him because “[h]e had said that he was out there
and some boys was trying to fight him or something like that, he didn’t want to fight them.”
Jackson drove to the Division and Pulaski area to pick up the victim and parked his vehicle on
Pulaski. Jackson approached the victim as he was crossing the street to enter the liquor store.
Jackson “was walking right behind [the victim]” at a distance of a few feet. There were people
by the liquor store, and after Jackson and the victim arrived at the liquor store, Jackson heard
shots and observed everyone running. Jackson then observed a gun, which looked like a
revolver and was “chrome or a silver like” with a black handle. He also observed the shooter’s
face in good light from a “car length” away. In court, Jackson identified the defendant as the
shooter. He testified that though he fled when the shots first rang out, he observed the
defendant shoot the victim. Jackson heard four or five shots, chased the defendant for awhile,
until Jackson ran into police officers who had arrived at the scene. He told the police officers
which way the defendant ran, but the police did not pursue the defendant. Instead, they
attended to the victim. Jackson did not talk to the police about the shooter’s identity on the
night of the shooting because he was upset and mad at the police for not pursuing the shooter
more vigorously. He further testified that the victim later died. On January 10, 2008, the next
morning, he reported to the Illinois Department of Corrections, to serve his sentence on an
unrelated matter. He did not speak to the police until April 1, 2008, after his release in
“mid-March” 2008. Jackson testified that at the police station on April 1, 2008, he identified
the defendant after a discussion with detectives. On July 10, 2008, he identified the defendant
in a lineup.
¶9 Marlon Williams (Marlon) testified that he was currently in the custody of the Stateville
Correctional Center, serving time for a 2009 conviction for aggravated unlawful use of a
weapon. He testified that he was not in the Pulaski and Division area when the victim was shot
in 2008, did not know the victim, and did not observe anyone get shot on January 9, 2008.
Marlon also did not remember giving a written statement to Assistant State’s Attorney Beth
Pfeiffer (ASA Pfeiffer) and Detective Roger Sandoval (Detective Sandoval) on February 22,
2008, about what he saw on the night of the shooting. He claimed the signature on the
statement attributed and presented to him in court was not his. Moreover, he did not remember
signing the document, having it read back to him, or testifying in front of a grand jury.
¶ 10 Emmanuel Bass (Bass) testified that he was in the custody of the Stateville Correctional
Center where he was serving a six-year sentence for delivery of a controlled substance. On
January 9, 2008, he was in the area of Pulaski and Division “selling weed,” when he observed
the victim in a fistfight with a man named “Reesie” in a nearby park. He did not observe who
won the fistfight, but he observed that the victim walked out of the park, left the area, and
returned about 20 minutes later. Bass recalled testifying before the grand jury that the victim
knocked Reesie out. Bass testified that Reesie was drinking after the fight and remained in the
area. He did not observe the defendant walk up to the victim and start shooting. However, at
this second jury trial, the prosecutor asked Bass to read excerpts from his grand jury testimony.
Bass read portions of his grand jury testimony that indicated that he had previously testified
that he did observe the defendant shoot the victim. Bass said he recalled testifying before the
grand jury that he observed the defendant shoot the victim, but testified at the instant second
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trial that he heard about the shooting from people in the neighborhood. When asked at the
second trial about his grand jury testimony, Bass explained that much of it was not true. Bass
further testified that Detective Sandoval promised him that he would be released from jail if
Bass revealed what he had heard from the neighborhood. In his grand jury testimony, Bass
testified that no promises were made to him. However, at the second trial, Bass did not recall
testifying before the grand jury that no promises were made to him. Bass testified that after his
grand jury testimony, he told his defense counsel, who was an assistant public defender, to
contact the State’s Attorney to tell her that Detective Sandoval promised him that he would be
released if he told the grand jury what the police wanted. Bass explained that he did not tell the
State’s Attorney before the grand jury proceeding because he was worried that he would lose
the deal he made with Detective Sandoval, who had told him not to say anything about the
promise. Bass did not receive any help after his grand jury testimony and subsequently was
sent to prison to serve his full six-year term.
¶ 11 ASA Pfeiffer testified that on February 22, 2008, after meeting with detectives, she met
with Marlon to hear what he had to say about the shooting. ASA Pfeiffer did not want Marlon
to be under the impression that their conversation would lead to anything regarding his
pending case. She denied speaking to him about his pending case, and also denied that
Detective Sandoval, who was present at the meeting, spoke to him about his case. She obtained
Marlon’s written statement in which he explained “what he heard said a couple of days after
the murder” of the victim. ASA Pfeiffer further testified that Marlon’s written statement
explained that no threats or promises were made to him in exchange for the statement.
Regarding the night of January 9, 2008, Marlon’s statement explained that about 8 p.m., he
was with the defendant and others when he observed the victim and Reesie in a fight over a
girl. After the fight, the victim left the area but Reesie remained nearby. About 45 minutes
later, Marlon was standing near Pulaski and Division when he observed the victim and friends
walk across the street toward a liquor store. Marlon then heard someone say, “he’s got a banger
on him.” Marlon then heard some gunshots in front of the liquor store and observed the
defendant holding a gun with fire coming out of it. The victim was running away from the
defendant, but the defendant followed him and fired a total of six to eight shots at him. After
the shooting, the defendant placed the gun in his waistband and fled the scene. The written
statement also stated that Marlon had “seen [the defendant] with a gun before. [The defendant]
carries different types of guns, 9 millimeters, automatics and revolvers.” The written statement
also said:
“A day and a half later Marlon saw [the defendant] in the same area Marlon had been
on January 9, 2008, on Keystone and Thomas. Marlon was in a car with [the
defendant], Little Joe, and another guy Marlon did not know. The guy Marlon did not
know told [the defendant], ‘yeah, you stretched buddy’ to [the defendant] and everyone
was laughing. [The defendant] just sat back looking and nodding his head. By saying
‘you stretched buddy,’ that means he killed him. That’s the last time Marlon saw [the
defendant].”
¶ 12 As Marlon’s written statement was admitted into evidence and published to the jury in the
second trial, defense counsel objected to the portion of the statement that described the
defendant carrying other guns, on the grounds that it was inadmissible other-crimes evidence.
The State responded that it had no objection to refraining from reading that portion of the
statement to the jury. However, the trial court ruled that when the written statement was to be
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given to the jury, there would be no alterations because Marlon’s testimony raised the issue of
whether he had actually signed the document. The trial court also rejected defense counsel’s
request to alter the document to exclude the portions regarding other-crimes evidence because
such evidence is admissible for “any other purpose than propensity.” Ultimately, the State did
not read the objectionable portion of the written statement to the jury. However, it was not
redacted from the written statement given to the jury during deliberations.
¶ 13 Assistant State’s Attorney Mary Anna Planey (ASA Planey) testified that on March 10,
2008, she spoke to Bass about the events of January 9, 2008. ASA Planey read parts of Bass’s
grand jury testimony. The portions she read were the same as the portions about which Bass
was questioned in his earlier testimony. Specifically, ASA Planey read parts of Bass’s grand
jury testimony that stated that Bass never told ASA Planey that he did not actually witness the
events recounted in his grand jury testimony and that Bass was not told what to say before the
grand jury. ASA Planey testified that she did not know what the detectives had talked to Bass
about before she met with him. ASA Planey also testified that she met with Marlon on April
11, 2008, before Marlon testified before the grand jury and that Marlon never mentioned
anything about a promise from a detective. He told her things that “he’d actually seen.” ASA
Planey then read parts of Marlon’s grand jury testimony, which was substantially similar to the
written statement mentioned in ASA Pfeiffer’s testimony, except that Marlon’s grand jury
testimony did not recount the defendant’s nodding after the unknown individual stated that the
defendant had “stretched buddy.”
¶ 14 Dr. James Filkins (Dr. Filkins) testified that he performed the autopsy on the victim’s body
on January 10, 2008, and opined that the victim died of multiple gunshot wounds.
¶ 15 Officer Michael Edens (Officer Edens) testified that he worked in the gang enforcement
unit. On January 30, 2008, he arrested Marlon after executing a search warrant of his residence
and recovering 22 grams of crack cocaine, along with drug paraphernalia. At the police station,
Marlon told police officers that he had information about a homicide that occurred earlier that
month near Pulaski and Division, prompting Officer Edens to contact detectives. Officer
Edens had no further conversation with Marlon about the homicide. Officer Edens did not
promise Marlon anything for information about the homicide and told Marlon that, regardless
of what information he gave, the charges against him would stand. Marlon had not asked
Officer Edens if he could do anything about his pending charges, and Officer Edens had not
known Marlon before the arrest. Officer Edens did not tell Marlon that he would charge him
with home invasion if he did not provide information about the shooting.
¶ 16 Officer Jerry Pentimone (Officer Pentimone) testified that he arrested Bass for a narcotics
offense on February 13, 2008. Officer Pentimone asked Bass about his knowledge of criminal
activity, and Bass told him that he had information about the shooting and a home invasion
near the same location. Officer Pentimone did not promise Bass any leniency for this
information, but Officer Pentimone admitted that Bass might have requested leniency.
¶ 17 Detective Sandoval testified that he and Detective Carlos Cortez (Detective Cortez)
interviewed Marlon on January 30, 2008. Marlon told the detectives that he witnessed a
shooting at Pulaski and Division on January 9, 2008, and did not request any leniency in
exchange for the information. Detective Sandoval did not threaten to charge Marlon with home
invasion, did not promise him anything in exchange for information, and had no contact with
Marlon prior to the January 30, 2008 interview. Detective Sandoval was present when ASA
Pfeiffer obtained Marlon’s written statement, and he observed Marlon sign the statement.
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Detectives Sandoval and Cortez also interviewed Bass on February 13, 2008. Detective
Sandoval did not promise Bass anything and had no contact with Bass prior to the interview.
He neither told Bass what to say to the grand jury nor told him that he had to be a witness at the
grand jury proceedings. Bass gave the detectives information about the shooting and stated that
he witnessed the shooting.
¶ 18 Detective Cortez testified that he attempted to interview Suttle on January 9, 2008, but she
was too distraught. He eventually interviewed her on January 17, 2008. Suttle told him that she
heard from other people that the defendant was the shooter. On January 30, 2008, Detective
Cortez interviewed Marlon, who told him that the person who shot the victim was named
“Kell.” Detective Cortez then searched a database using that name and found a picture
matching the information that Marlon had provided. He showed the photograph to Marlon
during the interview and Marlon identified the person as “Kell,” the person who shot the
victim. “Kell” is the defendant’s nickname. Detective Cortez testified that he did not have any
contact with Marlon prior to the interview, did not promise him anything in exchange for the
information, and did not promise Marlon that he would make Marlon’s case disappear if he
provided information. Detective Cortez further testified that he interviewed Jackson at the
police station on April 1, 2008. Jackson told the detective that he witnessed the shooting but
did not know the name of the shooter. Jackson identified the defendant as the shooter in a
photographic array. On June 9, 2008, Detective Cortez arrested the defendant in a park near
Pulaski and Division. On July 10, 2008, Jackson identified the defendant as the shooter from
an in-person lineup.
¶ 19 After the conclusion of Detective Cortez’s testimony, the State then rested its case in the
second jury trial. The defense proceeded by way of stipulation that Suttle had testified at a
prior proceeding in which she identified “Reesie” as the “big heavy guy” who was present at
the shooting. The defendant did not testify on his own behalf.
¶ 20 After closing arguments, the parties discussed which exhibits would go to the jury. Defense
counsel objected to the jury receiving Marlon’s complete handwritten statement and the
transcripts of Marlon’s and Bass’s grand jury proceedings. The trial court ruled that Marlon’s
written statement would go to the jury in its entirety so that the jury would be able to determine
whether Marlon actually made the statement. The trial court ruled that the grand jury
transcripts would be provided only if requested by the jurors. After jury deliberations began,
the jury requested and received the grand jury transcripts of Marlon’s and Bass’s testimony.
¶ 21 On June 11, 2010, the jury found the defendant guilty of first-degree murder and found that
he personally discharged a firearm that proximately caused the victim’s death.
¶ 22 On July 6, 2010, defense counsel filed a posttrial motion for a new trial. At the hearing on
the motion for a new trial, the defendant requested a new attorney for his posttrial motions and
raised pro se claims of ineffective assistance of counsel. The trial court explained that it would
hear the defendant’s claims, and if his claims were sufficient, it would appoint other counsel to
represent him in a proceeding for ineffective assistance of counsel. The following colloquy
then ensued:
“THE DEFENDANT: Well, I feel that Mr. Miraglia didn’t properly investigate the
case and he stated himself during the proceedings, that he didn’t know what anyone
would testify to and so forth. You yourself, Your Honor, stated that he was ineffective.
THE COURT: When did I say that?
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THE DEFENDANT: I can’t recall the exact date in which you stated this, Your
Honor, but you yourself asked him, was you going to report himself [sic]?
MR. MIRAGLIA [defense counsel]: There was a date judge, that the State
answered ready and I asked for a date because I hadn’t subpoenaed a witness and we
had a conversation.
THE COURT: All right. I recall that.
***
THE COURT: Now, when we were talking about failing to subpoena a witness,
who was that witness?
THE DEFENDANT: Timothy Williams.
THE COURT: Timothy Williams. And tell me what Mr. Williams would have
testified to.
***
THE DEFENDANT: He would have testified that he was there, he was with [the
victim] during the time that [the victim] was shot. He never saw me there and he never
saw [Jackson] there.
THE COURT: And how do you know that he would have testified to that?
THE DEFENDANT: Mr. Miraglia.
MR. MIRAGLIA: It was in the police reports, and I talked to him and he did inform
me that he would come after the case was continued because Mr. Williams was not
under subpoena. I was able to locate him out of state. I never served him but I did talk to
him by phone. He guaranteed me that he would be in court during the trial and he never
came.
***
THE COURT: All right. Mr. McLaurin, there are two aspects to a charge of
ineffective assistance of counsel. The first is whether or not the lawyer’s performance
fell below an objective standard, not that you didn’t like the result but would a
reasonably competent lawyer have behaved in a different way such that Mr. Miraglia’s
conduct fell below that standard. In other words, good lawyers don’t do this. And the
second part of ineffective assistance of counsel is that you’re prejudiced as a result of
that deficient performance. And so with that view and understanding that lawyers have
the ability to make certain choices, they have to have the ability to make certain
representations, they have to have the ability to set a strategy, that’s what they’re
allowed to do. ***
With that in mind let’s take those issues. When you say that Mr. Miraglia didn’t
properly investigate the case because he didn’t subpoena this witness, the power of the
Court to subpoena a witness is within the Court’s jurisdiction, that is the State of
Illinois. The State nor no one else can require an out-of-state person to be served with a
subpoena, and come in. There may be some mechanism to do that, but if the person is
outside of the State of Illinois, they can’t be served with a subpoena, and that was the
case of Mr. Williams.
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Mr. Williams was outside of the state. Your lawyer was in contact with him. He
was aware of what Mr. Williams could have testified to and Mr. Williams told him that
he would come in. However, he didn’t come in. ***
I don’t think that your lawyer failed to investigate your case just because he
couldn’t get in a witness who wasn’t coming in from out of state. He told Mr. Miraglia
one thing and it didn’t happen. This trial took several days and he didn’t come in.
You’ve got to remember this is a retrial. He had an opportunity to come in the first
time. He had an opportunity to come in the second time from out of state. He didn’t.
***
As a result based on everything that I’ve heard you say, I don’t think that we need to
go any farther on your pro se motion for ineffective assistance of counsel. I’m not
going to appoint another lawyer because you haven’t made a showing at this point.”
¶ 23 Defense counsel then argued the motion for a new trial, emphasizing Marlon’s and Bass’s
lack of credibility. He also argued that the State had not laid the proper foundations to admit
the entirety of Marlon’s and Bass’s prior statements into evidence. On September 17, 2010, the
trial court denied the motion for a new trial, and sentenced the defendant to 60 years in prison.
The defendant then filed his first direct appeal before this court, raising the four issues
outlined.
¶ 24 On December 10, 2012, this court remanded the case to the trial court for the limited
purpose of conducting a more complete inquiry, pursuant to People v. Krankel, 102 Ill. 2d 181
(1984), into the efforts taken by defense counsel to investigate Timothy as a witness and to
secure his testimony for the second trial. See McLaurin, 2012 IL App (1st) 102943, ¶ 53.
Specifically, this court found that the inquiry conducted by the trial court at the posttrial
hearing was inadequate, noting that the information discussed during the trial court’s inquiry
was already known to the court because it pertained only to defense counsel’s efforts to locate
Timothy before the first trial, and that the trial court failed to inquire about defense counsel’s
efforts to locate Timothy for the defendant’s second trial. Id. ¶ 52. Moreover, this court found
that the trial court’s comments at the posttrial hearing suggested that the court was unaware of
the Witness Attendance Act (725 ILCS 220/3 (West 2008)), by which an out-of-state witness
may be made to appear in an Illinois court. McLaurin, 2012 IL App (1st) 102943, ¶ 47. In light
of our ruling, this court did not reach the merits of the remaining issues on the first appeal.
¶ 25 On remand, the trial court conducted a Krankel inquiry on April 16, 2013, found that the
defendant’s pro se claim of ineffective assistance of counsel was without merit, and again
denied the defendant’s motion for a new trial.
¶ 26 On April 16, 2013, the defendant filed a timely notice of appeal. Accordingly, this court
has jurisdiction.
¶ 27 ANALYSIS
¶ 28 In this instant second appeal, the defendant raises the same issues that he originally raised
in his first appeal. We determine the following issues: (1) whether defense counsel was
ineffective for failing to present Timothy’s testimony at the second trial; (2) whether defense
counsel was ineffective for failing to object to the admission of, and request a redaction of,
opinion testimony contained in Marlon’s prior written statement and grand jury testimony; (3)
whether the trial court erroneously admitted other-crimes evidence at trial when it allowed the
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jury to receive and review a portion of Marlon’s prior written statement disclosing that the
defendant “carries different types of guns”; and (4) whether the trial court failed to comply
with the requirements of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007).
¶ 29 We first determine whether defense counsel was ineffective for failing to present
Timothy’s testimony at the second trial.
¶ 30 The defendant argues that defense counsel was ineffective because he failed to present
Timothy’s testimony at the second trial. The defendant claims that Timothy would have
testified that Timothy was present during the shooting but that he did not see either the
defendant or Jackson at the crime scene. The defendant contends that Timothy’s testimony
would have provided crucial support for his defense and refuted the testimony of Jackson. In
the alternative, the defendant argues that this court should remand the case for a third inquiry
for defense counsel to explain what his efforts were in securing Timothy’s presence and
testimony prior to the second trial.
¶ 31 The State counters that the defendant cannot show that defense counsel’s performance was
deficient or that he suffered prejudice. The State contends that the defendant’s alternative
argument for another remand should be rejected, where the trial court’s Krankel inquiry on
remand was sufficient and a second remand for the same purpose is unnecessary.
¶ 32 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1)
counsel’s performance was deficient and (2) counsel’s actions resulted in prejudice to the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Evans, 209 Ill. 2d
194, 220 (2004). Under the first prong, a defendant must demonstrate that his attorney’s
performance fell below an objective standard of reasonableness. Evans, 209 Ill. 2d at 220.
Under the second prong, prejudice is shown where there is a reasonable probability that the
result would have been different but for counsel’s alleged deficiency. Id. Failure to satisfy
either prong of the Strickland test precludes a finding of ineffective assistance of counsel.
Strickland, 466 U.S. at 697.
¶ 33 In the case at bar, on remand from this court’s December 10, 2012 ruling that the trial
court’s initial inquiry into the defendant’s pro se ineffective assistance of counsel claim was
inadequate, the trial court conducted a Krankel hearing on April 16, 2013. At the April 16,
2013 hearing, the trial court acknowledged the reasoning behind this court’s remandment and
questioned defense counsel about his attempts to contact Timothy for “this trial.” Defense
counsel informed the court that he obtained Timothy’s mobile number and had “several”
conversations with Timothy, but that Timothy never disclosed his location to defense counsel.
The State also informed the court that the State’s investigator was unsuccessful in locating
Timothy and that the State had absolutely no information as to Timothy’s whereabouts. The
trial court then questioned defense counsel as to whether he had developed any information
from any source as to Timothy’s whereabouts, to which defense counsel answered in the
negative. Defense counsel stated that Timothy had indicated that he was located outside of
Illinois, that he would come to Chicago on “the day of trial,” that he would be available to
testify for the defense, but that he never came to Chicago “on the date of trial.” Defense
counsel further noted that he spoke with Timothy on the morning of trial, that counsel called
Timothy when Timothy failed to arrive in court, but that Timothy did not answer the telephone
at that point. In making its ruling, the trial court noted that it was mindful of the Witness
Attendance Act, but that the statute’s requirements could not be complied with where neither
the State nor defense counsel knew of Timothy’s whereabouts. As such, the trial court found
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defense counsel diligent in his efforts “to arrange for the attendance of [Timothy],” rejected the
defendant’s pro se claim of ineffective assistance of counsel as “without merit,” and again
denied the defendant’s motion for a new trial.
¶ 34 We find that the trial court did not err in concluding that the defendant’s claim of
ineffective assistance was without merit. The defendant argues that the trial court’s Krankel
inquiry on remand was again insufficient, by insisting that defense counsel gave no
explanation as to his efforts in locating Timothy prior to the second trial, but rather provided
the “same excuse” for failing to locate him and present his testimony for the first trial. We
reject this contention. Our review of the hearing transcript shows that the trial court’s questions
and defense counsel’s answers pertained specifically to counsel’s efforts to locate Timothy
prior to the second trial. The trial court stated on the record that it was aware of the reasoning
behind this court’s remandment and posed questions to defense counsel about his attempts to
contact Timothy for “this trial.” While the term “second trial” was not expressly used and
though there are similarities between the unfolding of events in counsel’s attempts to secure
Timothy’s presence for the first and second trials, it is clear from defense counsel’s responses
that they described his efforts to locate Timothy to testify at the second trial. As discussed, the
record shows that at the first trial, defense counsel told the court that Timothy had contacted
defense counsel on the day of trial after he had traveled to Chicago, Timothy had told counsel
he needed a ride to court, but that Timothy had neither returned counsel’s subsequent calls nor
appeared in court. In contrast, at the April 16, 2013 hearing, defense counsel stated that he had
“several” conversations with Timothy, but that Timothy never disclosed his location to him;
that Timothy never came from out of state to Chicago “on the date of trial”; that Timothy failed
to come to court despite saying he was available to testify; and that Timothy did not answer
counsel’s telephone calls. Based on our review of the record, it can be inferred from defense
counsel’s responses at the April 16, 2013 hearing that counsel was specifically recalling his
efforts to locate Timothy for the second trial. Nothing in the record suggests otherwise. See
People v. Gaultney, 174 Ill. 2d 410, 420 (1996) (a reviewing court “ordinarily presume[s] that
the trial judge knows and follows the law unless the record indicates otherwise”).
¶ 35 Because Timothy’s whereabouts were unknown and he could not be located, the
requirements of section 3 of the Witness Attendance Act, which allows for an out-of-state
witness to be summoned to testify in an Illinois court, could not be complied with to secure
Timothy’s presence at the second trial. See 725 ILCS 220/3 (West 2008). It is important to note
that the State also informed the court at the remandment hearing that its investigator could not
locate Timothy and that the State had no information as to his whereabouts. Thus, where
Timothy could not be located and he was unwilling to disclose his location, defense counsel
could not have been deficient in failing to secure his presence or testimony at the second trial.
See People v. Williams, 147 Ill. 2d 173, 247 (1991) (defense counsel cannot be faulted for
failing to pursue a witness who could not be located or induced to testify, even though counsel
was aware of the witness’ existence); People v. Lewis, 97 Ill. App. 3d 982, 992 (1981)
(counsel’s failure to subpoena witness was not deficient, where the whereabouts of witness
was unknown).
¶ 36 Notwithstanding the foregoing, the defendant primarily relies on People v. Truly, 230 Ill.
App. 3d 948 (1992), and People v. Morris, 335 Ill. App. 3d 70 (2002), in arguing that defense
counsel’s performance was deficient. We find these cases to be inapposite. In Truly, the court
found defense counsel to be “derelict in his duties” because he never made a reasonable
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attempt to locate or subpoena four potential witnesses, whose names and addresses were
provided by the defendant. Truly, 230 Ill. App. 3d at 950, 954-55. Unlike Truly, in the case at
bar, no address for Timothy was available to defense counsel and his location could not be
ascertained based on both defense counsel’s and the State’s efforts to find him. Compare
People v. Brooks, 345 Ill. App. 3d 945 (2004) (defense counsel’s failure to invoke the Uniform
Rendition of Prisoners as Witnesses in Criminal Proceedings Act (725 ILCS 235/6 (West
2000)) for securing alibi witness at trial was not deficient performance, where defense counsel
obtained telephone numbers of alibi witness but lost contact after numbers were disconnected;
alibi witness was incarcerated out of state on day of defendant’s trial; and counsel’s motion for
a continuance was denied). The defendant further relies on Morris. In Morris, in reversing the
second-stage dismissal of the defendant’s postconviction ineffective assistance of counsel
claim and remanding for a third-stage evidentiary hearing, this court found that the defendant’s
petition contained unrebutted allegations that defense counsel failed to investigate or interview
the alibi witnesses before trial; failed to disclose any witnesses in compliance with discovery
before trial; and failed to subpoena or secure any witnesses to testify on behalf of defendant at
trial. Morris, 335 Ill. App. 3d at 75, 83. Unlike Morris, the case at bar is on direct appeal and,
thus, is in a different procedural posture than Morris, which involved a postconviction
proceeding. We note that the defendant may wish to later file an ineffective assistance of
counsel claim in a postconviction petition, should there actually be matters outside of the
record that might support his claim regarding counsel’s failure to present Timothy’s testimony
at the second trial. See People v. Patrick, 2011 IL 111666, ¶ 39 (a Krankel motion is not a
substitute for a postconviction petition); see People v. Phillips, 383 Ill. App. 3d 521, 544
(2008) (claim of ineffective assistance of counsel requiring consideration of matters outside of
the record is best resolved in a postconviction proceeding). The defendant cannot satisfy the
first prong of the Strickland test and his ineffective assistance of counsel claim on this basis
must fail.
¶ 37 We further reject the defendant’s alternative arguments that the case should be remanded
for the appointment of new counsel to undertake an independent investigation of this claim or
for a third hearing to be held. We find the April 16, 2013 hearing to be complete and sufficient
under Krankel, and the trial court did not err in concluding that the defendant’s ineffective
assistance claim was without merit and in declining to appoint new counsel to further
investigate the defendant’s claim. See Patrick, 2011 IL 111666, ¶ 32 (new counsel is not
automatically required to be appointed in every case when a defendant presents a pro se
posttrial motion alleging ineffective assistance of counsel); People v. Moore, 207 Ill. 2d 68,
77-78 (2003) (“when a defendant presents a pro se posttrial claim of ineffective assistance of
counsel, the trial court should first examine the factual basis of the defendant’s claim. If the
trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then
the court need not appoint new counsel and may deny the pro se motion. However, if the
allegations show possible neglect of the case, new counsel should be appointed.”).
Accordingly, we reject the defendant’s alternative arguments.
¶ 38 We next determine whether defense counsel was ineffective for failing to object to the
admission of, and request a redaction of, opinion testimony contained in Marlon’s prior written
statement and grand jury testimony.
¶ 39 The defendant argues that defense counsel was ineffective for failing to object to the
admission of, and request a redaction of, inadmissible opinion testimony in Marlon’s prior
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written statement and grand jury testimony. Specifically, he argues that the phrase “you
stretched buddy,” which was contained therein as something that was spoken by an unknown
individual to the defendant a day and a half after the shooting, was interpreted by Marlon to
mean that the defendant had killed the victim. The defendant argues that such opinion
testimony was inadmissible and defense counsel failed to file a motion in limine to prevent the
statements from coming into evidence at the second trial and he failed to object when those
statements were presented to the jury.
¶ 40 The State counters that defense counsel was not ineffective for not objecting to the
admission of Marlon’s testimony in his prior written statement and grand jury testimony
regarding the meaning of the phrase “you stretched buddy,” which constituted proper lay
opinion testimony related to an adoptive admission made by the defendant. The State argues
that because the evidence was properly admitted at trial, any objections raised by defense
counsel would have been futile. The State further maintains that the defendant could not
establish that the testimony complained of prejudiced him so as to satisfy the Strickland test.
¶ 41 As discussed, at the second trial, Marlon denied being in the Pulaski and Division area
when the victim was shot in 2008, denied knowing the victim, and denied observing anyone
get shot on the night of the shooting. He also did not recall giving a prior written statement to
ASA Pfeiffer or testifying before a grand jury. However, ASA Pfeiffer testified to obtaining
Marlon’s prior written statement in February 2008. Marlon’s prior written statement, which
was admitted into evidence and published to the jury in the second trial, stated that he observed
the defendant firing a gun at the victim near the liquor store on January 9, 2008; that a day and
a half after the shooting, Marlon was in a car with the defendant, Little Joe and an unknown
individual; that the unknown individual told the defendant “yeah, you stretched buddy,” which
meant the defendant killed the victim; and that everyone laughed and the defendant nodded his
head. Marlon’s grand jury testimony, which was also introduced into evidence at the second
trial, was substantially similar to the written statement mentioned in ASA Pfeiffer’s testimony,
except that the grand jury testimony did not recount the defendant’s nodding after the unknown
individual stated that the defendant had “stretched buddy.”
¶ 42 The general rule is that hearsay, defined as “ ‘an out of court statement *** offered to
establish the truth of the matter asserted,’ ” is inadmissible at trial. People v. Donegan, 2012 IL
App (1st) 102325, ¶ 33 (quoting People v. Gonzalez, 379 Ill. App. 3d 941, 954 (2008)).
However, an exception exists to allow prior inconsistent statements of a testifying witness to
be admitted to impeach the witness’ credibility. Donegan, 2012 IL App (1st) 102325, ¶ 33.
Section 115-10.1 of the Code of Criminal Procedure of 1963 (the Code) also allows for the
admission as substantive evidence of a prior inconsistent statement made by a witness as long
as he is subject to cross-examination and the statement (1) was made under oath at a trial,
hearing or other proceeding, or (2) narrates, describes, or explains an event or condition of
which the witness had personal knowledge, and the statement is proved to have been written or
signed by the witness or the witness acknowledged under oath the making of the statement at a
trial, hearing, or other proceeding. 725 ILCS 5/115-10.1 (West 2008). For the “personal
knowledge” requirement to be satisfied, “the witness whose prior inconsistent statement is
being offered into evidence must actually have seen the events which are the subject of that
statement.” (Internal quotation marks omitted.) Donegan, 2012 IL App (1st) 102325, ¶ 34.
¶ 43 Illinois Rule of Evidence 701 governs opinion testimony by lay witnesses: “If the witness
is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is
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limited to those opinions or inferences which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination
of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011).
¶ 44 The defendant argues that the portions of Marlon’s prior written statement and grand jury
testimony regarding the meaning of the phrase “you stretched buddy,” was inadmissible
opinion testimony and should not have been allowed into evidence under section 115-10.1 of
the Code. We disagree. First, we find that Marlon’s prior inconsistent statements contained in
his written statement and grand jury testimony were properly admitted as substantive evidence
under section 115-10.1 of the Code. The prior written statement, which was signed by Marlon,
described and explained the events relating to the shooting of which Marlon had personal
knowledge because he was an eyewitness to the shooting. Marlon’s grand jury testimony was
also made under oath at the grand jury proceeding.
¶ 45 Second, the complained-of statements regarding the meaning of “you stretched buddy”
contained in Marlon’s prior written statement and grand jury testimony satisfied the
requirements of Rule 701, where the opinions and inferences testified to were rationally based
on Marlon’s perception, were helpful to a clear understanding of Marlon’s testimony or the
determination of a fact in issue, and were not based on any scientific, technical, or other
specialized knowledge. In Donegan, the State presented as substantive evidence the prior
handwritten statement and grand jury testimony of two testifying witnesses, Crowder and
Coleman. Donegan, 2012 IL App (1st) 102325, ¶ 40. In the prior statements, Crowder stated
that codefendant Pikes told him that Pikes was going to “ ‘do some business,’ ” which Crowder
interpreted to mean Pikes was “ ‘going over there to harm somebody’ ” or “ ‘go do a
shooting.’ ” Id. Crowder also stated that several months later, Pikes said “ ‘why ain’t nobody
keeping going over there, finishing what he had left off with,’ ” which meant Moseley’s
murder. Coleman’s prior statements also revealed that when Pikes said he was going to
“ ‘get’ ” a car, he meant “ ‘steal’ ” a car to do a shooting; that when the defendant said he
wanted retaliation he meant that he wanted to kill someone; that when the defendant ran
through a gangway, he did so in order to retrieve some guns; and that the defendant’s statement
that “ ‘it’s time,’ ” meant “ ‘to go kill.’ ” Id. The defendant in Donegan, like the defendant
here, argued that the witnesses’ prior statements constituted inadmissible opinion testimony to
which defense counsel was ineffective for failing to object at trial. Id. The Donegan court
rejected the defendant’s claim, finding the prior statements to be admissible opinion testimony
under Rule 701. Id. ¶ 43. The Donegan court specifically found the statements to be rationally
based on the perception of the witnesses, and helpful to a clear understanding of their
testimony or the determination of a fact in issue. Id. The Donegan court further noted that
“[w]hen considering whether a witness’s opinion as to what a declarant meant by a statement is
admissible under Rule 701, circuit courts should consider the facts, circumstances, and context
under which the statement was made.” Id. We find Donegan to be instructive. Like Donegan,
here, Marlon’s prior statements that the phrase “you stretched buddy” meant the defendant
killed the victim, satisfied the criteria set forth under Rule 701. The statement “you stretched
buddy” was made by an unidentified declarant to the defendant in the presence of Marlon only
a day and a half after the shooting, during a conversation in which the unidentified declarant
“brung [sic] up the incident.” Like Donegan, Marlon’s opinion testimony regarding the
meaning of the statement “you stretched buddy” was properly admitted, where it was
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rationally based on Marlon’s perception and own understanding of the phrase, rather than
speculation about defendant’s understanding of the phrase, and where it was helpful to a clear
understanding of Marlon’s testimony and not based on any scientific, technical, or other
specialized knowledge. See People v. Holveck, 141 Ill. 2d 84 (1990) (proper for babysitter of
alleged victim of sexual offense to explain the meaning of the phrase “stranger danger” used by
the child victim, where testimony was based on her personal knowledge of the particular
program being conducted by police department to make children aware of dangers posed by
strangers); People v. Lewis, 147 Ill. App. 3d 249 (1986) (testimony by mother stating that
“cootch” meant vagina, “bootie” meant buttocks, and “his thing” meant defendant’s penis, was
admissible after mother testified that her daughter had told her that defendant had rubbed his
penis on daughter’s “bootie” and “cootch” and had made daughter suck “his thing,” where
mother had personal knowledge of meanings she had taught daughter to associate with those
words).
¶ 46 Third, because we find Marlon’s opinion testimony regarding the meaning of “you
stretched buddy” to be properly admitted, the defendant’s nod in response to the declarant’s
“you stretched buddy” statement, as detailed in Marlon’s written statement, could constitute a
tacit admission. See People v. Campbell, 332 Ill. App. 3d 721, 734 (2002) (a tacit admission
“may be admissible as an exception to the hearsay rule if sufficient evidence supports a finding
that, in light of the totality of the circumstances, a defendant remained silent when faced with
an incriminating statement, which, if untrue, would normally call for a denial”).
¶ 47 Because Marlon’s prior written statement and grand jury testimony were properly admitted
under section 115-10.1 of the Code, and his opinions therein as to the meaning of “you
stretched buddy” were properly admitted as lay opinion testimony under Rule 701, we find that
defense counsel was not deficient for failing to object and request a redaction of the
complained-of statements. See People v. Mercado, 397 Ill. App. 3d 622, 634 (2009) (defense
counsel is not required to make losing motions or objections in order to provide effective legal
assistance). Moreover, in light of our ruling that the prior inconsistent statements were
properly admitted, we necessarily reject the defendant’s arguments regarding “double
hearsay” where those arguments are based on the presumption that Marlon’s prior statements
were inadmissible.
¶ 48 Further, defendant’s ineffective assistance of counsel claim fails where he cannot establish
the prejudice prong required by Strickland. Therefore, we hold that the defendant’s ineffective
assistance of counsel claim on this basis must fail.
¶ 49 We next determine whether the trial court erroneously admitted other-crimes evidence at
trial when it allowed the jury to receive and review a portion of Marlon’s prior written
statement disclosing that the defendant “carries different types of guns.” We review this issue
under an abuse of discretion standard. See People v. Hale, 2012 IL App (1st) 103537, ¶ 10.
¶ 50 The defendant argues that the trial court abused its discretion in allowing the jury to receive
improper and highly prejudicial other-crimes evidence by refusing to redact the portion of
Marlon’s prior written statement in which he alluded to the defendant’s carrying of guns. He
argues that the complained-of statements constituted other-crimes evidence, which had no
bearing on the jury’s determination in this case. He further argues that the trial court abused its
discretion in failing to provide the jury with a limiting instruction regarding the other-crimes
evidence. He contends that the improper admission of such evidence was not harmless error.
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¶ 51 The State argues that the complained-of statements did not constitute other-crimes
evidence. The State contends that even if they were considered other-crimes evidence, such
evidence was properly admitted because it was relevant for a purpose other than showing the
defendant’s propensity to commit crimes. The State further argues that the defendant’s
argument regarding the trial court’s failure to instruct the jury regarding the purported
other-crimes evidence is forfeited for review on appeal, where the defendant never sought a
limiting instruction at trial and failed to raise this claim of error in a posttrial motion. Even if it
was error to admit the complained-of statements, the State argues that it was harmless error.
¶ 52 At the second trial, Marlon testified that he did not recall giving a prior written statement
about his observations of the shooting to ASA Pfeiffer; he denied that the signature on the prior
written statement belonged to him; and he testified that he did not recall signing the statement,
having it read back to him, or testifying in front of the grand jury. As noted, Marlon’s prior
written statement was presented to the jury during the second trial. As Marlon’s prior written
statement was admitted into evidence and published to the jury in the second trial, defense
counsel objected to the portion of the statement that described the defendant as carrying other
guns, on the grounds that it was inadmissible other-crimes evidence. The State responded that
it had no objection to refraining from reading that portion of the statement to the jury.
Ultimately, the State did not have the objectionable portion of the prior written statement read
to the jury. However, the trial court ruled that when the written statement was to be given to the
jury for deliberations, there would be no alterations because Marlon’s testimony at the second
trial raised the issue of whether he had actually signed the document. The trial court also
rejected defense counsel’s request to alter the document to exclude the portions regarding the
other-crimes evidence because according to the court, such evidence is admissible for “any
other purpose than propensity.” After closing arguments, the parties discussed which exhibits
would go to the jury. Defense counsel objected to the jury receiving Marlon’s unredacted prior
written statement. The trial court ruled that Marlon’s written statement would go to the jury in
its entirety so that the jury would be able to determine whether Marlon actually made the
statement.
¶ 53 “The term ‘other-crimes evidence’ encompasses misconduct or criminal acts that occurred
either before or after the allegedly criminal conduct for which the defendant is standing trial.”
People v. Spyres, 359 Ill. App. 3d 1108, 1112 (2005). The complained-of statements in
Marlon’s prior written statement read as follows: Marlon had “seen [the defendant] with a gun
before. [The defendant] carries different types of guns, 9 millimeters, automatics and
revolvers.” As noted, although the complained-of statements were not read to the jury during
ASA Pfeiffer’s testimony, they were not redacted from Marlon’s prior written statement that
was ultimately given to the jury for deliberations. We cannot conclude that the complained-of
statements constituted other-crimes evidence, as the defendant claims. Those statements did
not describe any misconduct or criminal acts committed by the defendant, but rather only
Marlon’s observations that he had seen the defendant in possession of certain guns at some
unknown time. The defendant argues in his reply brief that the defendant’s alleged possession
of the guns was a crime because it was illegal to possess handguns in Chicago at the time of
Marlon’s prior written statement in 2008, and points out that his prior felony conviction
prohibited him from being in possession of any weapons under Illinois law. However, the
complained-of statements provided no additional relevant information regarding where and
when Marlon had previously seen the defendant in possession of these weapons, and it could
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not be presumed that the alleged possession occurred in Chicago or that it occurred after the
defendant had already been convicted of his prior felony offense. Further, no evidence of the
defendant’s prior felony conviction was ever presented at the second trial and, thus, it cannot
be said that the jury would have been aware of any misconduct or criminal acts by the
defendant that occurred either before or after the shooting for which the defendant was tried in
the instant case. Thus, it requires many assumptions to determine that the complained-of
statements were other-crimes evidence. We decline to make those assumptions and thus hold
that the statements did not constitute other-crimes evidence.
¶ 54 Moreover, even assuming, arguendo, that the trial court should have allowed redaction of
the contested portion of Marlon’s prior written statement before giving it to the jury, or should
have instructed the jury on the limited usage of other-crimes evidence (despite defense
counsel’s failure to request such instruction at trial), we find the error, if any, to be harmless.
Strong evidence presented at the second trial established that both Jackson and Bass were
eyewitnesses to the shooting and observed the defendant shoot the victim. See People v.
Nieves, 193 Ill. 2d 513, 530 (2000) (improper introduction of other-crimes evidence is
harmless error when a defendant is neither prejudiced nor denied a fair trial based upon its
admission); see also People v. Petermon, 2014 IL App (1st) 113536, ¶ 30 (where the
identification of defendant constitutes the central question in a criminal prosecution, the
testimony of even a single witness is sufficient to convict where the witness is credible and
viewed the accused under conditions permitting a positive identification to be made).
Accordingly, we hold that the defendant is not entitled to relief on this basis.
¶ 55 We next determine whether the trial court failed to comply with the requirements of Illinois
Supreme Court Rule 431(b) (eff. May 1, 2007) during voir dire.
¶ 56 The defendant argues that a new trial–a third trial–is warranted where the trial court failed
to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during voir dire.
Specifically, he contends that the trial court recited the four Zehr principles to the venire as a
group, but only asked the potential jurors whether they “had any problems” with the first three
principles, and only asked if anyone would hold the defendant’s decision not to testify against
him. He maintains that these questions pertained only to the potential jurors’ willingness to
accept the law, but did not pertain to their ability to understand it. The defendant concedes that
this issue was not properly preserved for appeal, but argues that the plain error doctrine applied
to circumvent forfeiture.
¶ 57 The State argues that the defendant’s claim of Rule 431(b) error is forfeited for review on
appeal, does not amount to plain error, and is not a basis for reversal. The State maintains that
no error occurred because the trial court properly admonished the potential jurors under Rule
431(b). The State argues that even if an error occurred, it did not rise to the level of plain error
because the evidence in this case was not closely balanced.
¶ 58 We agree that the defendant has forfeited this issue for review on appeal. See People v.
Herron, 215 Ill. 2d 167, 175 (2005) (a defendant who fails to make a timely trial objection and
include the issue in a posttrial motion forfeits the review of the issue). However, the plain error
doctrine allows a reviewing court to consider unpreserved issues when either: (1) the evidence
is close, regardless of the seriousness of the error; or (2) the error is so serious, regardless of the
closeness of the evidence. Id. at 178-79; People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The
first step in a plain error analysis is to determine whether an error occurred at all. People v.
Hudson, 228 Ill. 2d 181, 191 (2008).
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¶ 59 Rule 431(b) is a codification of our supreme court’s holding in Zehr, 103 Ill. 2d 472, and
states as follows:
“The court shall ask each potential juror, individually or in a group, whether that juror
understands and accepts the following principles: (1) that the defendant is presumed
innocent of the charge(s) against him or her; (2) that before a defendant can be
convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that
the defendant is not required to offer any evidence on his or her own behalf; and (4) that
the defendant’s failure to testify cannot be held against him or her; however, no inquiry
of a prospective juror shall be made into the defendant’s failure to testify when the
defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to respond to
specific questions concerning the principles set out in this section.” Ill. S. Ct. R. 431(b)
(eff. May 1, 2007).
¶ 60 A review of the record shows that during voir dire, the trial court instructed the venire
about the defendant’s presumption of innocence; the burden of proof placed on the State; and
that the defendant was not required to prove his innocence. The trial court then asked the venire
whether they “had any problems” with these first three principles. The court next informed the
venire that the defendant was not required to testify, and asked “[i]f the defendant decides not
to testify, is there anyone here who believes that regardless of what I have just said, you would
hold that decision against the defendant?” None of the members of the venire answered in the
affirmative.
¶ 61 In People v. Thompson, 238 Ill. 2d 598 (2010), our supreme court held that the trial court
failed to comply with Rule 431(b) because it admonished members of the venire regarding
only three of the four Zehr principles, asked the prospective jurors whether they “understood”
two of the principles, but failed to ask if they “accepted” all four principles. The Thompson
court stated that Rule 431(b) required “questioning on whether the potential jurors both
understand and accept each of the enumerated principles.” Id. at 607. Nevertheless, the
Thompson court found that this error did not warrant an automatic reversal of the defendant’s
conviction, nor did it rise to the level of plain error because the defendant had not presented
any evidence that the Rule 431(b) violation resulted in a biased jury. Id. at 611.
¶ 62 In the instant case, the defendant does not dispute that the trial court addressed each of the
four Zehr principles with the venire. Rather, he takes issue with the phraseology used by the
trial court in questioning the prospective jurors. The defendant contends that the court’s
questions pertained only to the potential jurors’ willingness to accept the law, but did not
pertain to their ability to understand it. We find this court’s holding in People v. Lampley, 2011
IL App (1st) 090661-B, to be highly instructive.
¶ 63 In Lampley, this court found that the trial court erred when it informed jurors of the four
Rule 431(b) principles and then engaged in questioning that conflated the principles.
Specifically, the trial court inquired about the first three principles as follows: “ ‘[T]he
defendant is presumed innocent and does not have to offer any evidence on his own behalf but
must be proven guilty beyond a reasonable doubt by the State. Does anyone here have any
problems with those concepts?’ ” Id. ¶ 5. The court then inquired about the fourth principle,
asking: “ ‘As I have also previously stated, the defendant does not have to testify on his own
behalf. If the defendant decides not to testify, you must not hold that decision against the
defendant. If the defendant decides not to testify, is there anyone here who believes that,
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regardless of what I have just said, you would hold that decision against the defendant?’ ” Id.
The Lampley court found that the trial court’s inquiry was insufficient pursuant to Thompson,
explaining that the court “should have followed a straightforward questioning of the Zehr
principles as outlined by Rule 431(b) and, as a result, committed error.” Id. ¶ 35. However, in
ruling that reversal was not warranted, the Lampley court went on to find that the error did not
rise to the level of plain error where the evidence against the defendant was overwhelming and
the error was not so serious as to overcome the overwhelming evidence. Id. ¶ 36.
¶ 64 We find the facts in the case at bar to be almost identical to those in Lampley. Like
Lampley, the trial court here admonished the potential jurors on all four Zehr principles, in the
same manner as the trial court in Lampley. Thus, following the sound reasoning in Lampley,
we conclude that the trial court in the instant case did not sufficiently comply with Rule 431(b)
and therefore erred. Having found that an error occurred, we examine whether the error rises to
the level of plain error. Because the defendant only argues plain error under the
closely-balanced-evidence prong of the plain error doctrine, we limit our analysis to the first
prong of the plain error test. See Herron, 215 Ill. 2d at 178 (reviewing court may consider
unpreserved issues under the closely-balanced-evidence prong of the plain error doctrine if
“the evidence in a case is so closely balanced that the jury’s guilty verdict may have resulted
from the error and not the evidence”). Like Lampley, we find that the evidence in this case was
not closely balanced. In fact it was overwhelming. The jury was presented evidence by three
eyewitnesses who had independently identified the defendant as the shooter. Thus, we cannot
say that the guilty verdict may have resulted from the error committed by the court during voir
dire, and not the overwhelming evidence. Therefore, the plain error doctrine does not apply to
reach this forfeited issue.
¶ 65 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 66 Affirmed.
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