People v. Garcia , 971 N.E.2d 1150 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Garcia, 2012 IL App (2d) 100656
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ELPIDIO GARCIA, Defendant-Appellant.
District & No. Second District
Docket No. 2-10-0656
Filed June 20, 2012
Held In a prosecution for unlawful possession of a controlled substance and
(Note: This syllabus cannabis with intent to deliver, the trial court properly excluded the
constitutes no part of guilty-plea-based conviction of codefendant where codefendant’s
the opinion of the court conviction was not relevant to defendant’s claim of innocence,
but has been prepared codefendant pled guilty to a reduced weight of cocaine, his plea did not
by the Reporter of exclude joint possession, the State’s theory was that possession was joint,
Decisions for the codefendant’s admission was hearsay, and the defendant failed to
convenience of the establish the evidence was admissible under any exception to the hearsay
reader.)
rule.
Decision Under Appeal from the Circuit Court of Lake County, No. 09-CF-3241; the
Review Hon. Daniel B. Shanes, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas A. Lilien and R. Christopher White, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Michael J. Waller, State’s Attorney, of Waukegan (Stephen E. Norris and
Timothy J. Ting, both of State’s Attorneys Appellate Prosecutor’s Office,
of counsel), for the People.
Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justice Burke concurred in the judgment and opinion.
Justice McLaren dissented, with opinion.
OPINION
¶1 Defendant, Elpidio Garcia, appeals from his convictions of unlawful possession with
intent to deliver 1 or more but less than 15 grams of a substance containing cocaine (720
ILCS 570/401(c)(2) (West 2008)) and unlawful possession with intent to deliver more than
2,000 but not more than 5,000 grams of cannabis (720 ILCS 550/5(f) (West 2008)). He
asserts that the court erred when it did not admit into evidence the guilty-plea-based
conviction of his codefendant, Salvador Diaz. Because the conviction was not relevant to
defendant’s culpability, we hold that the court did not err in refusing to admit the conviction,
and we therefore affirm defendant’s convictions.
¶2 I. BACKGROUND
¶3 Defendant and Diaz were charged by indictment with the same two offenses of which
defendant was eventually convicted. Diaz pled guilty to possession of less than one gram of
a substance containing cocaine. Defendant filed a motion in limine seeking to admit “the
proceeding” of Diaz’s guilty plea as exculpatory evidence.
¶4 Evidence given at a hearing on a motion to suppress provides context for the motion in
limine. On August 13, 2009, defendant was driving a crew-cab pickup truck when he passed
an unmarked State Police squad car–one with window and grille lights, but not roof lights.
The truck caught the attention of the State Trooper, Kenneth Benson, because it had tinted
windows. Benson started following it. He saw the truck change lanes without signaling and
decided to make a traffic stop. The truck pulled over.
¶5 Benson went to the passenger-side window, and that window opened. The passenger was
drinking beer from a bottle. Benson asked defendant if he had been drinking too, and
defendant said that he had. Benson told defendant to get out of the truck. After defendant
complied, Benson asked for permission to look for alcohol. Defendant told him that he could
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look. In the center cup holder–part of the console between the two front seats–Benson saw
a white substance that looked like cocaine. This was a double cup holder, and the white
substance was in the section closer to the driver. He also identified the smell of raw cannabis.
On “the floorboard behind the center console in between the driver and passenger seat,” the
trooper found “a brick of cannabis.”
¶6 At the hearing on the motion in limine, defense counsel took the position that admitting
evidence of Diaz’s guilty plea would bolster defendant’s credibility:
“The State would certainly always argue in a case like this [‘]how convenient to point the
finger to the other person who happens to be in the car.[’] But *** this isn’t simply
pointing the finger.
Now we know, in fact, the seven grams of cocaine that are attributed to Mr. Garcia
are now we have someone who has accepted guilt, admission against penal interest for
that. It is highly probative ***.”
In response, the State pointed out that Diaz had agreed to plead guilty to possession of a
reduced weight of cocaine. It also argued that Diaz’s admission of possession did not exclude
joint possession with defendant. The State said that its theory was that the possession was
joint.
¶7 The court asked defense counsel what evidence he would be “seeking to offer.” Counsel
responded by suggesting that the court could take judicial notice that Diaz entered a plea of
guilty. The court then asked if counsel was planning to call Diaz and counsel stated, “[n]o,
we weren’t.” The court also inquired if either party was offering any forensic testing “on the
drugs outside of maybe drugs but fingerprints?” The answer was no. In commenting on what
was being offered, the court stated:
“What is not being asked is to admit testimony of the statement made by Mr. Diaz at any
time other than his plea which is a different type of statement than the statement to when
[sic] I refer. No statements by Mr. Diaz before the offense, no statements by Mr. Diaz
during the offense, no statements by Mr. Diaz after the offense in a custodial-type
situation, anything like that.”
The court went on to point out that “[w]hat else is not being offered are any forensics
showing, for example, that Mr. Diaz’s fingerprints were on these items ***. No prints, DNA,
no type of identifying forensics.” In denying the defense motion, the court made clear that
“the defense is certainly free to argue Mr. Diaz’s presence and all the reasonable inferences
and conclusions that flow therefrom.”
¶8 The court looked to both Illinois and Supreme Court precedent to support its decision:
“I had the opportunity to consider Holmes v. South Carolina, 547 U.S. 319 [(2006)]
***. And it certainly addresses in some ways these issues. I have also considered People
v. Bohn, *** 362 Ill. App. 3d 485 [(2005)]. To be sure a 2005 opinion, pre-dates Holmes.
***
*** I note, of course, the admissibility of evidence is something that is within the trial
Court’s discretion in constitutional parameters. And I examined this issue under that
analysis. And [Bohn] affirmed [the] conclusion that whether another person was charged
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with possession of those items does not make the question of the defendant’s guilt more
or less probable. In fact, the Second District noted as did [the State] that possession can
be joint. Not to mention the State could theoretically be proceeding on accountability
rather than as a principal. And there are all sorts of ways possession can be–actual,
constructive, and, of course, joint possession being the most relevant.
*** Here we have a plea and a conviction which brings us to Holmes. Holmes held
that it was a constitutional violation for the State to prevent a defendant from introducing
the evidence in that case that could show someone else committed this offense, the
offense of Holmes. ***
Because our case here today the evidence that Mr. Diaz pled guilty to possessing this
cocaine, I will just assume that is what it is for the sake of argument now, does not
necessarily preclude a finding that this defendant possessed the cocaine because
possession can be joint. Never mind theories of accountability. In addition, it doesn’t rise
to the type of evidence that was at issue in Holmes.
The bottom line is Holmes does not control. ***
Here both Mr. Diaz and Mr. Garcia can be found criminally liable for possessing the
same object as opposed to who committed the rape and murder in Holmes. So for those
reasons, your motion is denied.”
¶9 Defendant had a jury trial in March 2010. Benson gave testimony largely consistent with
his testimony at the suppression hearing. He further described the cocaine as “packaged in
a plastic baggie” with “five individually wrapped in plastic bags inside that bag.” He
described the cannabis as “three Ziplock freezer bags, large freezer bags filled with green
leafy substance which was suspect cannabis and one large brick of cannabis as well.”
¶ 10 Matthew Goze of the Lake County Metropolitan Enforcement Group testified to assisting
at the stop and seeing the cannabis as described by Benson. The parties stipulated to lab
results showing that the items seized from the truck were cannabis and a substance
containing cocaine and to an opinion that the packaging and quantities involved indicated
an intent to distribute.
¶ 11 The State rested, and defendant testified. He said that he had a construction business and
had hired Diaz, who lived in McHenry, because Diaz knew how to build retaining walls. He
picked him up at 5:30 a.m. to work on a job. They went to the jobsite to work on a wall. Diaz
went to lunch with another person who picked him up. They finished work for the day, and
defendant drove with Diaz back to McHenry. They went to defendant’s shop–apparently, a
garage space he rented for his equipment–and when they got done there, Diaz asked for a ride
to Wauconda. Defendant agreed to take him because it was on defendant’s way. They were
driving with the windows down because it was a pleasant day. Diaz bought a beer and
opened it in the truck.
¶ 12 Defendant denied many of the specifics of what Benson had described as occurring at the
stop. He denied, for instance, that he had admitted to having had a drink: he said that he
never drank. He agreed that he had consented to a search of the truck; he said that he did this
because he had no reason to think that he had anything illegal in the truck. He denied that the
drugs were his and said that he had seen them for the first time in the courtroom.
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¶ 13 The jury found defendant guilty of the charged offenses. Defendant then filed a motion
for a new trial in which he argued, among other things, that the court erred in refusing to
admit Diaz’s guilty plea as evidence.
¶ 14 The court rejected the argument and denied the motion:
“Here, the issue was one of constructive or joint possession of drugs. And the Second
District has clearly addressed that. It’s distinguishable from Holmes. It’s a different issue.
The Second District in accord with other districts and courts has held that such
circumstances, when one person possesses an item, it doesn’t prohibit or affect another
person’s ability to possess that item. And that was generally why and how the court ruled
previously. Based upon the cases I cited before, the court adheres to that ruling.”
¶ 15 After the court sentenced defendant, he timely appealed. He now asserts that the court
abused its discretion when it refused to allow Diaz’s guilty plea proceeding into evidence.
¶ 16 II. ANALYSIS
¶ 17 “It is within the trial court’s discretion to determine whether evidence is relevant and
admissible, and the trial court’s decision on the issue will not be reversed absent an abuse
of discretion.” People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 82. “A trial court
abuses its discretion where its decision is arbitrary, fanciful, or unreasonable or where no
reasonable person would take the trial court’s view.” Garcia-Cordova, 2011 IL App (2d)
070550-B, ¶ 82. We hold that no abuse of discretion occurred. Because Diaz and defendant
could have possessed the drugs jointly, Diaz’s guilty plea and associated proceedings were
not relevant.
¶ 18 Possession of contraband can be, and often is, joint. Evidence of a defendant’s possession
of drugs therefore does not rule out possession by another defendant. Bohn, 362 Ill. App. 3d
at 490. For that reason, in circumstances quite similar to those here, more than one court has
held that codefendant guilty pleas are not relevant. In Potts v. State, 458 A.2d 1165, 1169
(Del. 1983), the Supreme Court of Delaware held that, despite authorities permitting
admission of the confession of another, codefendants’ pleas of guilty to drug possession were
irrelevant because they did not establish exclusive possession:
“Defendant did not establish that his companions’ pleas constituted confessions to
exclusive possession of the drugs. Hence, their pleas were not shown to exculpate
defendant. We agree with the Trial Court that any relevance or materiality of the
companions’ guilty pleas is at best ‘tenuous’; and we find no denial of due process
occurred by their exclusion from evidence.” Potts, 458 A.2d at 1169.
Similarly, in Commonwealth v. Fernandes, 568 N.E.2d 604 (Mass. App. Ct. 1991), a
Massachusetts court of appeals concluded that a codefendant’s guilty plea and associated
proceedings were irrelevant because they did not exclude the possibility of joint possession:
“We conclude *** that the trial judge’s decision to exclude the plea colloquy and
guilty plea was correct on the ground of relevancy. *** [T]he codefendant’s plea did not
exonerate the defendant. The codefendant’s plea of guilty was not inconsistent with the
defendant’s guilt, for more than one person may possess the same narcotics.” Fernandes,
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568 N.E.2d at 607.
The same reasoning applies here. Diaz’s guilty plea, which simply admitted possession of
the cocaine, was entirely consistent with joint possession by defendant. The plea and
associated proceedings were therefore irrelevant.
¶ 19 Moreover, the evidence that defendant sought to introduce was Diaz’s hearsay admission
of possession of cocaine. “It is incumbent upon the party offering the declaration to establish
that it meets the requirements of [an] exception.” Flath v. Madison Metal Services, Inc., 212
Ill. App. 3d 367, 377 (1991); see also Tarshes v. Lake Shore Harley Davidson, 171 Ill. App.
3d 143, 153 (1988). Defendant failed to establish the necessary facts for the exception for
statements against penal interest.
¶ 20 A statement against penal interest may be admitted as an exception to the rule against the
admission of hearsay if it satisfies the following:
“A statement which was at the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against another, that a
reasonable person in the declarant’s position would not have made the statement unless
believing it to be true. A statement tending to expose the declarant to criminal liability
and offered in a criminal case is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.” Ill. R. Evid. 804(b)(3) (eff. Jan. 1,
2011).
This hearsay exception is, however, available only when the declarant is unavailable as
defined in the rule–specifically, when the declarant:
“(1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarant’s statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant’s
statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing
physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to
procure the declarant’s attendance (or in the case of a hearsay exception under
subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or
other reasonable means.” Ill. R. Evid. 804(a) (eff. Jan. 1, 2011).
Defendant failed completely to show that any of these bases for deeming a witness
unavailable applied to Diaz.
¶ 21 Defendant implies that, under the rule in Holmes, the court ought to have permitted him
to introduce the otherwise inadmissible statement because it was a necessary part of his right
to put on a defense. We disagree; Holmes does not require the admission of irrelevant
evidence.
¶ 22 In Holmes, the Supreme Court held that, although states and courts have considerable
latitude to create rules of evidence, those rules cannot arbitrarily interfere with a defendant’s
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right to put on a complete defense. Holmes, 547 U.S. at 324-25. “[T]he Constitution permits
judges ‘to exclude evidence that is “repetitive ..., only marginally relevant” or poses an undue
risk of “harassment, prejudice, [or] confusion of the issues.” ’ ” Holmes, 547 U.S. at 326-27
(quoting Crane v. Kentucky, 476 U.S. 683, 689-90 (1986), quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)). However, any rule that limits introduction of “important defense
evidence” must serve a “legitimate interest.” Holmes, 547 U.S. at 325. The Holmes court
made clear that the bar was on arbitrary rules. The rule against the admission of irrelevant
evidence is, of course, the opposite of arbitrary and the type of rule that Holmes explicitly
permitted. Holmes is inapplicable here.
¶ 23 The dissent argues that the “majority gratuitously finds that the plea should not have been
admitted for foundational problems” and that it is inappropriate for us to do so, as the State
did not object on this ground, and therefore the argument is forfeited (infra ¶ 35 (McLaren,
J., dissenting)). Such is not the case. On appeal, we “review the trial court’s judgment, not
its rationale,” and we “can affirm for any reason the record supports.” People v. Reed, 361
Ill. App. 3d 995, 1000 (2005). Thus, regardless of the reasoning employed by the trial court,
the ultimate issue is whether it was an abuse of discretion to exclude evidence of Diaz’s
guilty plea. For the reasons stated, we hold that the trial court did not abuse its discretion in
excluding Diaz’s guilty plea.
¶ 24 III. CONCLUSION
¶ 25 Because the evidence was not relevant and did not conform to the rules for admitting
hearsay statements, the court did not abuse its discretion in ruling inadmissable the evidence
of Diaz’s guilty plea. As that is the only claim of error raised by defendant, we therefore
affirm his convictions.
¶ 26 Affirmed.
¶ 27 JUSTICE McLAREN, dissenting.
¶ 28 I dissent because I disagree with the analysis of the majority. The majority states: “We
hold that no abuse of discretion occurred. Because Diaz and defendant could have possessed
the drugs jointly, Diaz’s guilty plea and associated proceedings were not relevant.” Supra
¶ 17. I disagree. I believe that the guilty plea and associated proceedings were relevant rather
than conclusive or dispositive on the issue of possession. The majority does not recognize
the necessary link between the trial court’s misinterpretation of Bohn and the consequent
abuse of discretion. The majority fails to assign error to the trial court’s nonrealization that,
depending upon the circumstances, statements made by others against their penal interests
may be relevant to whether the defendant possessed the same contraband. By determining
that the evidence was not relevant, the majority continues the fiction the trial court
incorrectly utilized in excluding the plea of guilty. The majority determines in the opening
paragraph that “[b]ecause the conviction was not relevant to defendant’s culpability, we hold
that the court did not err in refusing to admit the conviction.” Supra ¶ 1. The problem with
this statement is that the majority confuses the difference between relevance and proof. The
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majority adopts the faulty reasoning of the trial court and concludes that such evidence will
never be relevant and, thus, should never be admitted. This determination by the majority is
an indirect attack on a trial court’s authority to make the determination of relevance. The
majority inappropriately reviews the exercise of discretion through de novo review.
¶ 29 The decision to admit a piece of evidence rests in the sound discretion of the court.
People v. Tenney, 205 Ill. 2d 411, 436 (2002). “[A] trial court must exercise its discretion [on
the admission of evidence] within the bounds of the law. Where a trial court’s exercise of
discretion has been frustrated by an erroneous rule of law, appellate review is required to
permit the exercise of discretion consistent with the law.” People v. Williams, 188 Ill. 2d 365,
369 (1999).
¶ 30 “Relevant evidence is evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable than it would be
without the evidence.” People v. Harvey, 211 Ill. 2d 368, 392 (2004). “A trial court may
reject offered evidence on grounds of irrelevancy if it has little probative value due to its
remoteness, uncertainty, or possibly unfair prejudicial nature.” Harvey, 211 Ill. 2d at 392.
The law sometimes treats whole classes of evidence as per se “irrelevant” (often for sound
policy reasons, as with “rape shield” laws). Those are among the classes of rules that Holmes
said are impermissible if they are arbitrary. Otherwise, a relevancy determination has to rest
on the particular facts–it is sui generis. I suggest that, because the court’s decision was the
result of a significant misapprehension of the law, it was erroneous and an abuse of
discretion.
¶ 31 In support of the denial, the State pointed out that Diaz had agreed to plead guilty to
possession of a reduced weight. It also argued that Diaz’s admission of possession did not
exclude joint possession with defendant. The State said that its theory was that the possession
was joint. In excluding the plea of guilty, the trial court reasoned as follows:
“I had the opportunity to consider Holmes v. South Carolina ***. And it certainly
addresses in some ways these issues. I have also considered People v. Bohn ***. To be
sure a 2005 opinion, pre-dates Holmes. But the case in Holmes is a drug and weapons
possessor charge. There the defendant sought to introduce evidence that another
individual, I assume a co-defendant, had also been charged with the same offense to
show that his possession was more or less probable; in other words, relevant.
The Second District went through the analysis as to these issues. I note, of course, the
admissibility of evidence is something that is within the trial Court’s discretion in
constitutional parameters. And I examined this issue under that analysis. And [Bohn]
affirmed [the] conclusion that whether another person was charged with possession of
those items does not make the question of the defendant’s guilt more or less probable.
In fact, the Second District noted as did [the State] that possession can be joint. Not
to mention the State could theoretically be proceeding on accountability rather than as
a principal. And there are all sorts of ways possession can be–actual, constructive, and,
of course, joint possession being the most relevant.
This case is a little bit different than Bohn because there the question was the
charges. Here we have a plea and a conviction which brings us to Holmes. Holmes held
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that it was a constitutional violation for the State to prevent a defendant from introducing
the evidence in that case that could show someone else committed this offense, the
offense of Holmes. That case involves, as I recall, forensic testing and other matters, and
so the question becomes whether Holmes essentially overrules Bohn.
I don’t think that it does. At least not as applies to this case. Because our case here
today the evidence that Mr. Diaz pled guilty to possessing this cocaine, I will just assume
that is what it is for the sake of argument now, does not necessarily preclude a finding
that this defendant possessed the cocaine because possession can be joint. Never mind
theories of accountability.
In addition, it doesn’t rise to the type of evidence that was at issue in Holmes. The
bottom line is Holmes does not control. Certainly good law, certainly accurate statement
of the law as understood by the Supreme Court, but doesn’t reach this issue because it
is not evidence that someone else committed this offense to the exclusion the defendant
did which was the issue in Holmes. It was a sex case. Here both Mr. Diaz and Mr. Garcia
can be found criminally liable for possessing the same object as opposed to who
committed the rape and murder in Holmes. So for those reasons, your motion is denied.”
(Paragraph breaks modified and italicization of case names added for readability.
Emphases added.)
¶ 32 At trial defendant testified that the drugs weren’t his. A jury convicted him of possession
of both the cocaine and the marijuana. He then filed a motion for a new trial in which he
argued, among other things, that the court erred in refusing to admit Diaz’s guilty plea as
evidence. The court rejected the argument:
“The issue regarding the co-defendant pleading guilty as it’s set forth in paragraph
four in South Carolina versus Holmes, this court obviously is bound by, and adheres to,
precedent from the Illinois Appellate Court, particularly from the Second District.
Holmes, if memory serves, was a case here the U.S. Supreme Court on due process
grounds addressed a sex assault charge where there was affirmative, scientific evidence
of an exculpatory nature showing that somebody else actually committed the rape or
whatever it was in that case. Here, the issue was one of constructive or joint possession
of drugs. And the Second District has clearly addressed that. It’s distinguishable from
Holmes. It’s a different issue. The Second District in accord with other districts and
courts has held that such circumstances, when one person possesses an item, it doesn’t
prohibit or affect another person’s ability to possess that item. And that was generally
why and how the court ruled previously. Based upon the cases I cited before, the court
adheres to that ruling.” (Italics added.)
¶ 33 I authored Bohn; it did not consider admissions against penal interest so much as whether
the fact that the witness was arrested after testifying could be submitted to the jury as
evidence that the State deemed the witness’s testimony credible. We held that what the State
was “thinking” when it charged the witness after he testified was irrelevant. We noted that,
although a defendant has a right to present a defense, a trial court has broad discretion to
decide whether evidence is relevant. Bohn, 362 Ill. App. 3d at 490. “In assessing a trial
court’s exercise of such discretion, this court must determine whether the proffered testimony
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would have made the question of the defendant’s guilt of the charged offense more or less
probable.” Bohn, 362 Ill. App. 3d at 490. Bohn was concerned with whether the fact that
other parties are charged with possession is relevant, and we found in the negative. Further,
evidence of arrest does not contain the indicia of reliability for admissibility. Bohn, 362 Ill.
App. 3d at 490-91.
¶ 34 I submit that the trial court misunderstood Bohn as creating a rule that, in its words,
“when one person possesses an item, it doesn’t *** affect another person’s ability to possess
that item and thus is irrelevant.” The majority has recast this as saying that one person’s
possession of an item is per se irrelevant as to whether another also possessed it. Because
possession can be joint, another’s possession is rarely dispositive. Still, there’s a great deal
of latitude between “not dispositive” and “irrelevant.”
¶ 35 The relevance of another’s possession very much depends on the circumstances. Bohn
did not say otherwise. If it had created a general rule that would give a court unbridled
discretion to exclude plainly relevant evidence of guilt, such a rule probably would be
arbitrary and so contrary to Holmes.
¶ 36 The trial court’s exercise of discretion was frustrated by its application of an erroneous
rule of law. It failed to make the proper circumstance-based determination of relevance, so
that its determination became arbitrary in violation of Holmes. Here, Diaz’s guilty plea was
relevant. It would have bolstered defendant’s credibility when he said that the drugs were
Diaz’s in that it would have taken much of the sting out of the idea that defendant was just
looking for the most convenient person to blame. Furthermore, it weighs heavily against the
simplest theory of events: defendant’s truck, defendant’s drugs, Diaz’s bad luck. This is very
much a credibility-driven case. I submit that the inclusion of the evidence that Diaz pled
guilty to possession would have required the jury to actually consider the issue of joint
possession and could have materially affected the verdict. That would not have been unduly
prejudicial to the State, because it claimed that the possession was joint.
¶ 37 Additionally, the majority gratuitously finds that the plea should not have been admitted
for foundational problems. This is inappropriate as the State did not object to admissibility
on this ground. Therefore, the majority’s additional reason for affirmance is inappropriate
as it was forfeited and procedurally defaulted by the State.
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