People v. Donegan , 974 N.E.2d 352 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Donegan, 2012 IL App (1st) 102325Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LAMONT DONEGAN, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-10-2325
Filed June 26, 2012
Rehearing denied July 25, 2012
Held Defendant’s conviction for first degree murder arising from a gang-
(Note: This syllabus related shooting was upheld where defense counsel’s failure to object to
constitutes no part of inadmissible testimony, including hearsay and prior inconsistent
the opinion of the court statements, did not amount to ineffective assistance of counsel,
but has been prepared defendant’s involvement in a shooting a few days prior to the murder was
by the Reporter of properly admitted to prove his motive, and defendant forfeited his claim
Decisions for the that the trial court violated Supreme Court Rule 431(b) and did not show
convenience of the that the alleged violation was plain error.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-13128; the
Review Hon. James B. Linn, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Shawn O’Toole, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles
J. Keleher, and Sheilah O’Grady-Krajniak, Assistant State’s Attorneys,
of counsel), for the People.
Panel PRESIDING JUSTICE QUINN delivered the judgment of the court, with
opinion.
Justices Cunningham and Harris concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Lamont Donegan, was convicted of first degree murder
in the shooting death of Lorne Moseley and subsequently sentenced by the trial court to 27
years in prison. On appeal, defendant contends that: (1) he was denied effective assistance
of trial counsel where counsel failed to object to inadmissible testimony; (2) the trial court
erred in permitting the State to present evidence of defendant’s prior crime; and (3) the trial
court violated Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)) in
questioning potential jurors. For the reasons set forth below, we affirm.
¶2 I. BACKGROUND
¶3 On June 10, 2008, defendant and Keith Pikes were arrested for the August 21, 2006,
murder of Lorne Moseley. They were later charged with first degree murder, attempted
murder, aggravated battery with a firearm, and aggravated discharge of a firearm. The State’s
theory of the case was that the shooting was part of an ongoing war between two street gangs,
the Four Corner Hustlers and the Gangster Disciples. Specifically, the State contended that
defendant was a Four Corner Hustler and that the day before Moseley’s murder, defendant
shot at Quentez Robinson, a Gangster Disciple, who had ridden a motor scooter into Four
Corner’s territory. Defendant was then hit by a car driven by Gangster Disciples who had
been following Robinson. The State posited that two days later, defendant retaliated by
driving into a Gangster Disciple neighborhood with codefendant Pikes, and a third man,
Golden Richardson, and shot at a group of people, killing Moseley.
¶4 The case proceeded to separate simultaneous jury trials in December 2010. Prior to trial,
the State filed a motion in limine to introduce evidence that defendant was a gang member
and that he had shot at Robinson a few days before killing Moseley, in order to establish
motive. The trial court allowed the evidence over defense counsel’s objection. The State also
sought to introduce statements made by defendant and Pikes to two witnesses before the
shooting as reported in the witnesses’ handwritten statements and grand jury testimony, also
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to establish motive. The defense objected on the grounds that there was insufficient
foundation for those statements, but the trial court found them to be admissible under the
coconspirator’s exception to the hearsay rule. Lastly, the trial court granted the State’s
request to introduce statements made by defendant and Pikes describing the shooting to their
friends.
¶5 At trial, Quentez Robinson testified that he was a Gangster Disciple and that he knew
defendant to be a member of a rival gang, the Four Corner Hustlers. On August 18, 2006,
Robinson was riding a scooter and being followed in a car by his friends “Cairo,” Herbert
Lemon, and Brandon Merkson. When Robinson rode into Four Corner territory he saw
defendant run out of an alley and start shooting at him. Robinson stated that two days later,
on August 20, 2006, he, Moseley, and several other friends were standing in front of a
friend’s house at 104th Street and Corliss Avenue when a silver, boxy car rode by with the
back window down. Robinson saw a hand come out of the rear window and start shooting.
Robinson heard 12 to 15 shots that sounded like they were coming from two guns, but he
was unable to identify the shooter.
¶6 Next, Herbert Lemon testified that he was a Gangster Disciple and was with Robinson
on the night he rode a scooter into Four Corner territory. Lemon was riding in the car that
was following Robinson and saw defendant shoot at Robinson. He said the car then hit
defendant. On the night of the Moseley murder, Lemon was with Moseley and several other
people standing in front of a house on 104th Street and Corliss Avenue when a gray, box-like
car drove by and shots were fired from it. Lemon said he heard eight or nine shots, looked
inside the car, and recognized defendant in the passenger seat and Pikes in the driver’s seat
and saw both of them shooting. On December 22, 2007, Lemon identified defendant and
Pikes in a photo lineup as the shooters.
¶7 The State then presented three witnesses, Vernard Crowder, Brandon Merkson, and
DeAngelo Coleman, who had given handwritten statements and grand jury testimony before
trial but denied some or all of those prior statements at trial. First, Crowder testified that he
knew defendant and Pikes and that they were not members of any gang. Crowder said that
he could not recall seeing defendant or Pikes on the night Moseley was killed and that he did
not hear any gunshots. Crowder acknowledged that he met with Assistant States Attorney
(ASA) Aidan O’Connor on January 8, 2008, regarding the Moseley murder, but said that she
told him what to say and threatened to charge him if he refused to do so. Crowder also
acknowledged that he testified before the grand jury on April 16, 2009, but claimed that he
was told that his pending domestic battery case would not be dropped unless he did. The
State confronted Crowder with portions of his grand jury testimony and he denied giving the
answers in the transcript. Defense counsel objected to the State’s request to introduce the
transcripts, arguing that they were inadmissible. The trial court reserved ruling on the issue.
¶8 Later in the trial, the State called two witnesses to prove up Crowder’s prior statements.
First, ASA Krista Peterson was called to testify as to Crowder’s grand jury testimony.
Defense counsel objected on the grounds that parts of Crowder’s grand jury testimony
included his interpretation of statements made by defendant and Pikes before and after the
shooting. The trial court overruled the objection, noting that Crowder had testified and that
“[Crowder’s] own present sense impressions were some of the things he was talking about,
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and he was available for cross-examination.”
¶9 The transcript of Crowder’s grand jury testimony was admitted into evidence and ASA
Peterson read the transcript stating, in part, that Crowder testified that he, Pikes, and
defendant were Four Corner Hustlers and that in August 2006, their gang was at war with the
Gangster Disciples. On the evening of August 20, 2006, Crowder was walking home when
he saw defendant and Pikes standing near an older model, four-door, grayish-black Toyota
car. Crowder said that defendant was cleaning out the car and that Pikes called him over and
asked him if he wanted to go with them to go “handle some business” on Corliss. Crowder
said he took this to mean that they were going to harm someone since that was the block
where they had previously fought with Gangster Disciples. Crowder told Pikes he did not
want to go with them because he was on probation. Crowder then went to his godmother’s
house and was sitting on the front porch when he heard several gunshots coming from the
direction of 105th and Corliss Avenue.
¶ 10 During his grand jury testimony, Crowder further stated that a few days before the
Moseley shooting, defendant was hit by a car driven by Gangster Disciples and was angry
about it. Two days after the Moseley shooting, Crowder was with defendant and DeAngelo
Coleman in a gangway at 107th and Champlain. Defendant had a .45-caliber High Point gun
with orange sights and told Crowder that he “can’t get caught with a gun because it had a
body on Corliss,” which Crowder took to mean the Moseley shooting. While they were in
the gangway, the police approached and everyone ran. Crowder said that defendant fell and
the clip fell out of the gun. Defendant then threw the gun away. When Crowder next saw
Pikes in the fall of 2007, Pikes was angry about being shot at “in the behind and said ‘Why
ain’t nobody keeping going over there, finishing what he had left off with?’ ” Crowder took
that to mean the Moseley shooting.
¶ 11 ASA Aidan O’Connor was called to testify as to Crowder’s handwritten statement, which
she took on January 8, 2008. That statement, which was entered into evidence and published
to the jury, was nearly identical in substance to Crowder’s grand jury testimony
¶ 12 Next, the State called Brandon Merkson, who testified that in August 2006, he was a
member of the Gangster Disciples and that defendant was a member of the Four Corner
Hustlers. On the evening of August 19, 2006, Merkson was in a car with Herbert Lemon and
a friend called Cairo, and they were following Robinson, who was riding a scooter in the
vicinity of 107th and Champlain, which was Four Corner Hustlers territory. Merkson said
that he saw a person run into the street and shoot at Robinson four times but could not
identify the shooter. Merkson said that the car ran into the shooter, knocking him down, and
that they then drove away.
¶ 13 Merskon testified that on December 22, 2007, he was brought to Area 2 police
headquarters and gave a handwritten statement to ASA O’Connor, wherein he identified
defendant as the man who shot at Robinson. Defense counsel objected when the State began
reading from the statement on the grounds of improper impeachment, and the trial court
overruled the objection. When asked whether he had told ASA O’Connor that defendant had
shot at Robinson, Merkson testified that he told her that he was not sure who the shooter was,
but that she had written in his statement that he identified defendant. Merkson also testified
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that he appeared before the grand jury on June 17, 2008, and identified defendant as the man
who shot at Robinson and Moseley. Defense counsel objected to the State’s questions about
Merkson’s grand jury testimony on the grounds of improper impeachment but was again
overruled.
¶ 14 At trial, Merkson also testified that on August 20, 2006, he was at 104th and Corliss with
Moseley, Robinson, and other friends when a small gray box-like car approached from 103rd
Street. The car slowed down, and Merkson saw flashes from guns coming from inside the
car. Merkson said that he recognized defendant in the backseat as one of the shooters but
could not identify the driver. On cross-examination, Merkson acknowledged that in his
handwritten statement he said that he could not identify the shooters but knew that two guns
were being fired. He also stated that the information he gave in his handwritten statement
was what the police told him to say and that he was threatened by the police with enhanced
charges or more jail time if he did not testify before the grand jury.
¶ 15 Later in the trial, ASA Patrick Keane testified that he presented Merkson to the grand
jury on June 17, 2008, and the transcript of that testimony was admitted into evidence and
published to the jury. According to that testimony, on August 20, 2006, at about midnight,
Merkson was at 10411 South Corliss with Moseley and some other friends when he saw a
small, boxy Toyota approach from 103rd Street. The car slowed down and the people inside
started shooting in Merkson’s direction. Merkson recognized defendant as one of the three
people in the car. Two days before the Moseley shooting, Merkson was in a car driven by his
friend Cairo that was following Robinson on a scooter. Merkson saw defendant shoot at
Robinson and then Cairo hit defendant with the car.
¶ 16 ASA O’Connor testified that she took a handwritten statement from Merkson on
December 22, 2007. In that statement, which was admitted into evidence and published to
the jury, Merkson identified defendant as a passenger in the car from which the shots were
fired.
¶ 17 DeAngelo Coleman testified that he knew defendant and Pikes from the neighborhood
and denied that he or defendant was a gang member. Coleman stated that on the day Moseley
was killed, he did not speak with defendant or Pikes. Coleman testified that on August 27,
2006, he was “snatched” by the police, who “tried to put something on him” and told him
what to say about the Moseley murder. He spoke to an ASA in January 2008, but denied the
substance of his handwritten statement and asserted that he only repeated what detectives
told him to say. Coleman acknowledged that he testified before the grand jury on April 10,
2008, but said that he did so because he was told that charges against him in a pending case
would be dropped. Coleman asserted that the ASA and detectives told him what to say and
had him memorize his handwritten statement before going into the grand jury room.
¶ 18 Later in the trial, ASA Jose Villareal testified that he presented Coleman to the grand jury
on April 10, 2008. Coleman’s grand jury testimony was admitted into evidence and
published to the jury. According to that testimony, in August 2006, Coleman was a member
of the Four Corner Hustlers, who were at war with the Gangster Disciples. On August 19,
2006, Coleman was standing across from a liquor store at 107th Street when he heard
gunshots. Coleman went to see what happened and saw defendant, also a Four Corner
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Hustler, lying in the street. Defendant told him that he was hit by a car because he was
shooting at Quentez Robinson, a Gangster Disciple. Coleman said that defendant was very
upset and said he wanted retaliation, which Coleman took to mean that he wanted to kill a
Gangster Disciple but not Robinson specifically.
¶ 19 The next day Coleman saw defendant talking to Pikes about stealing a car to go on a
mission. Defendant had a “jiggler” key that would fit any older model Toyota. Later that
evening, Coleman was at a store at 107th and Champlain when he saw Pikes pull up in a
Toyota Camry. Pikes and defendant cleaned out the car and then defendant went into a
gangway to a house where the gang kept guns. Defendant returned with a .45-caliber High
Point, which was his own gun, and a .40-caliber “nation gun,” which is a gun available for
gang members to use. A third man, Golden Richardson, arrived and Coleman saw them drive
off, with Pikes driving, defendant in the front passenger seat, and Richardson in the back.
Coleman heard defendant say “It’s time,” which he took to mean time to go kill.
¶ 20 Coleman saw defendant and Pikes together a few days after the Moseley shooting.
Defendant said “it was about time we got one.” Coleman testified that defendant described
the shooting, stating that the three men drove to 105th and Corliss and saw a group of
Gangster Disciples. They were going to chase them down on foot, but instead, they slowed
down and he and Richardson shot at the crowd from the car. A few days later, Coleman was
in a gangway with defendant and others when the police pulled up and everyone fled.
Coleman saw defendant fall down and his gun fall out. Later, defendant told Coleman that
he threw the gun and that the police found it.
¶ 21 ASA O’Connor testified that she took a handwritten statement from Coleman on January
9, 2008 at Area 2 police headquarters. Coleman’s handwritten statement was admitted into
evidence and published. In that statement, which was nearly identical to his grand jury
testimony, Coleman also said that on the morning of the Moseley shooting defendant told
him that someone had to pay, that he was going to kill a Gangster Disciple, and that
defendant and Pikes had been talking all day about going over to 104th and Corliss and
getting payback.
¶ 22 The jury also heard testimony from several witnesses who investigated the Moseley
murder. Chicago police officer Mark Reno testified that on August 22, 2006, he was assigned
to a gang investigations unit and was looking for witnesses in the Moseley homicide. At
about midnight, he drove into an alley between Champlain Avenue and Cottage Grove
Avenue and saw a group of six to ten men running away from his car toward Cottage Grove.
Reno stopped the car and chased the men to a residence at 10747 South Cottage Grove,
where they were detained. Reno returned to the alley where he first saw the men and found
a .45-caliber semiautomatic High Point pistol with orange sights. Reno was unable to
determine whose gun it was. When he returned to the police station, he inventoried the gun
and sent it to the Illinois State Police lab.
¶ 23 Dr. Valerie Arangelovich, a medical examiner for Cook County, testified that she
performed the autopsy on Lorne Moseley and recovered a bullet from the back of Moseley’s
head, which she gave to the Chicago police department. Forensic investigator Joseph
Dunigan testified that he processed the scene of Moseley’s murder and recovered cartridge
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cases, bullet fragments, and .40- and .45-caliber bullets. William Demuth, a forensic scientist
at the Illinois State Police crime lab, testified that the .45-caliber bullets and bullet fragments
recovered from the crime scene and the medical examiner’s office matched a test bullet fired
from the .45-caliber semiautomatic gun that Officer Reno recovered.
¶ 24 Sergeant Milton Owens testified that on September 2, 2006, he pulled defendant over for
failing to stop at a stop sign and took defendant into custody. Owens testified that when he
pulled defendant over, he noticed a “jiggler” key in the car’s ignition, which Owens said is
like a master key that can be used to operate the door locks and ignition in older model
Toyota cars.
¶ 25 Detective Brian Forberg testified that he was assigned to investigate the Moseley murder
and that he spoke with Coleman, Lemon, Robinson, Merkson, and Crowder about the
shooting. Forberg testified that Lemon identified defendant and Pikes in a photo array as the
shooters and Merkson identified defendant. Forberg said that defendant and Pikes were
arrested on June 10, 2008 in connection with Moseley’s murder.
¶ 26 The State rested, and the defense presented no witnesses. The jury convicted defendant
of first degree murder but found that the State had not proven that defendant personally
discharged a firearm. Defendant filed a motion for a new trial, arguing, in part, that the trial
court erred in admitting other crimes evidence that defendant shot at Robinson prior to the
Moseley shooting; allowing hearsay statements made by Pikes implicating defendant in
violation of Bruton; allowing the State to read entire grand jury transcripts to the jury, even
where the transcripts were nonimpeaching, irrelevant, and prejudicial, and where they
included prior consistent statements, in violation of section 115-10.1 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-10.1(c) (West 2006)) (Code). The trial court denied the
motion for a new trial and subsequently sentenced defendant to 27 years in prison. This
appeal followed.
¶ 27 II. ANALYSIS
¶ 28 On appeal, defendant raises three main arguments: (1) he was denied effective assistance
of counsel when his trial attorney failed to object to the State’s introduction of inadmissible
evidence; (2) the trial court erred in permitting the State to present allegations that defendant
had shot at Quentez Robinson a few days before Moseley was killed; and (3) the trial court
violated Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)), by failing to
explain to the jury that defendant did not have to present any evidence and failing to
determine whether the jurors understood the four principles contained in the Rule.
¶ 29 A. Ineffective Assistance of Counsel
¶ 30 Defendant identifies six instances where the trial court allowed the State to present
inadmissible evidence and argues that he was denied effective assistance of counsel when
his attorney failed to properly object. In determining whether a defendant was denied
effective assistance of counsel, we apply the familiar two-prong test set forth in Strickland
v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court in People v.
Albanese, 104 Ill. 2d 504 (1984). Under Strickland, a defendant must demonstrate that
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counsel’s performance was deficient and that such deficient performance substantially
prejudiced him. Strickland, 466 U.S. at 687. To demonstrate performance deficiency, a
defendant must establish that counsel’s performance fell below an objective standard of
reasonableness. People v. Edwards, 195 Ill. 2d 142, 162 (2001). A defendant must overcome
the presumption that counsel’s action or inaction was the result of sound trial strategy, which
typically does not support a claim of ineffective representation. People v. Simmons, 342 Ill.
App. 3d 185, 191 (2003). In evaluating sufficient prejudice, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. A defendant must satisfy
both prongs of the Strickland test before he can prevail on a claim of ineffective assistance
of counsel. People v. Gillespie, 407 Ill. App. 3d 113, 132 (2010). However, if the ineffective
assistance claim can be disposed of on the ground that the defendant did not suffer prejudice,
a court need not determine whether counsel’s performance was constitutionally deficient.
People v. Mahaffey, 194 Ill. 2d 154, 175 (2000).
¶ 31 Defendant argues that his trial counsel failed to object to inadmissible evidence and failed
to raise the issue in the posttrial motion and that because the evidence was so incriminating,
this could not have been part of a reasonable trial strategy. The State asserts that trial counsel
did object to the admission of the allegedly improper evidence and that even if counsel’s
performance was deficient, defendant was not prejudiced. We will first address the
admissibility of the challenged evidence and, if the evidence was inadmissible, determine
whether counsel properly objected and whether defendant was prejudiced by its admission.
¶ 32 1. Hearsay Statements Regarding Events
Witness Did Not Personally Witness
¶ 33 Defendant first argues that the State improperly introduced the handwritten statements
of Vernard Crowder and DeAngelo Coleman, claiming that defendant admitted to shooting
at Robinson and killing Moseley, even though neither Crowder nor Coleman personally
witnessed those events. 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. (Internal
quotation marks omitted.) People v. Gonzalez, 379 Ill. App. 3d 941, 954 (2008). There is an
exception for prior inconsistent statements of a testifying witness, which may be admitted
to impeach the witness’s credibility. People v. McCarter, 385 Ill. App. 3d 919, 932 (2008).
Section 115-10.1(c) of the Code provides, in relevant part, that a prior inconsistent statement
may be offered not just for purposes of impeachment, but as substantive evidence, so long
as the witness 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
(A) the statement is proved to have been written or signed by the witness[.]” 725
ILCS 5/115-10.1(c) (West 2006).
¶ 34 For the “personal knowledge” requirement of the exception to be satisfied, “ ‘the witness
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whose prior inconsistent statement is being offered into evidence must actually have seen the
events which are the subject of that statement.’ [Citations.]” People v. McCarter, 385 Ill.
App. 3d 919, 930 (2008) (quoting People v. Cooper, 188 Ill. App. 3d 971, 973 (1989)).
Hence, “ ‘[e]xcluded from this definition are statements made to the witness by a third party,
where the witness has no firsthand knowledge of the event that is the subject of the
statements made by the third party.’ ” People v. McCarter, 358 Ill. App. 3d 919, 930 (2008)
(quoting People v. Morgason, 311 Ill. App. 3d 1005, 1011 (2000)). That is, the witness must
have observed the events being spoken of, rather than hearing about them afterwards.
Morgason, 311 Ill. App. 3d at 1011.
¶ 35 Here, defendant asserts that Coleman’s and Crowder’s handwritten statements that
defendant admitted to and described the Robinson and Moseley shootings were inadmissible
under section 115-10.1(c)(2) because they contained hearsay and neither witness had
“personal knowledge” of those shootings. The State concedes that those portions of
Crowder’s and Coleman’s handwritten statements referring to events outside their personal
knowledge were not admissible as substantive evidence but contend that they were
admissible for impeachment purposes, pursuant to section 115-10.1, which provides, in part,
that “Nothing in this Section shall render a prior inconsistent statement inadmissible for
purposes of impeachment because such statement *** fails to meet the criteria set forth
herein.” 725 ILCS 5/115-10.1 (West 2006). The State argues that the statements at issue were
admissible as a means of impeaching Coleman’s and Crowder’s trial testimony and, hence,
that any error in admitting them as substantive evidence was harmless. See People v.
Morales, 281 Ill. App. 3d 695, 701 (1996) (finding that trial court improperly allowed a
witness’s handwritten statement as substantive evidence but held that error was harmless
since statements were admissible to impeach the witness’s credibility). Alternatively, the
State argues that any error from the improper introduction of testimony as substantive
evidence was harmless.
¶ 36 The trial testimony of Coleman and Crowder was inconsistent with their prior statements
that the State introduced at trial and those statements dealt with noncollateral matters, both
of which are prerequisites to the introduction of evidence as a prior inconsistent statement.
Coleman testified that he was unaware of any gang activity in the area, that he did not have
any conversations with defendant on the night of Moseley’s murder, and that the police
“snatched” him and told him what to say, while his handwritten statement described his
conversations with defendant on the night of Moseley’s murder and denied any police
coercion. Similarly, Crowder testified that he did not remember seeing or speaking with
defendant or Pikes on the night of Moseley’s murder and testified that the police forced him
to sign his handwritten statement, while his statement described his conversations with
defendant and rebutted his claim of police coercion. However, there is an additional
prerequisite to the use of impeachment evidence, which the State does not address in its
brief: a party may only impeach its own witness through use of a prior inconsistent statement
when the testimony of that witness does “affirmative damage” to the party’s case. People v.
Cruz, 162 Ill. 2d 314, 361 (1994) (citing People v. Bradford, 106 Ill. 2d 492, 500 (1985)).
The issue of whether the prior inconsistent statements of Coleman and Crowder, as well as
Merkson, did affirmative damage to the State’s case and therefore, could be used for
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impeachment purposes, will be addressed below.
¶ 37 The State also argues that any error from the improper introduction of testimony as
substantive evidence is harmless where the same evidence was properly substantively
introduced through grand jury testimony, since there is no personal knowledge requirement
for grand jury testimony under section 115-10.1(c)(1). For support, the State cites People v.
Morales, 281 Ill. App. 3d 695 (1996), where the appellate court held that a witness’s grand
jury testimony was admissible in a murder prosecution as a prior inconsistent statement made
under oath at trial, hearing, or other such proceeding, where the witness’s trial testimony
differed dramatically from his grand jury testimony and the witness was available for cross-
examination. The court found that “the jury considered virtually the same evidence
substantively with the admission of [the witness’s] grand jury testimony,” and therefore,
there was an “absence of any evidence of prejudice.” Id. at 701. See also People v. Harvey,
366 Ill. App. 3d 910, 921-22 (2006) (holding that improper admission of prior inconsistent
handwritten statements was harmless error “because the jury was permitted to consider
substantively virtually identical evidence contained in the recanting witnesses’ grand jury
testimonies”).
¶ 38 Similarly, in this case, because the same testimony was properly introduced substantively
through Coleman’s and Crowder’s grand jury testimony, any alleged error by the trial court
in permitting the introduction of their handwritten statement was harmless. Therefore,
because defendant cannot show that he was prejudiced by this evidence, we find that he has
failed to establish a claim of ineffective assistance on these grounds.
¶ 39 2. Opinion Testimony of Witnesses
¶ 40 Next, defendant asserts that defense counsel was ineffective for failing to object to
inadmissible opinion testimony in the handwritten statements and grand jury testimony of
Crowder and Coleman. Specifically, defendant contends that after Crowder and Coleman
testified that they did not speak with defendant before or after Moseley’s murder, the State
introduced the handwritten statement and grand jury testimony of Crowder, which stated in
part that Pikes told him that he was going to “do some business,” meaning that he was “going
over there to harm somebody,” or “go do a shooting,” and that several months later, when
Pikes said “why ain’t nobody keeping going over there, finishing what he had left off with,”
he meant Moseley’s murder. Defendant also objects to the introduction of Coleman’s grand
jury testimony and handwritten statement that when Pike said he was going to “get” a car,
he meant “steal” a car to do a shooting on Corliss; that when defendant said he wanted
retaliation he meant that he wanted to kill someone; that when defendant ran through a
gangway, he did so in order to retrieve some guns; and that defendant’s statement that “it’s
time,” meant “to go kill.”
¶ 41 Defendant argues that under Illinois law, “ ‘the testimony of a lay witness must be
confined to statements of fact of which the witness has personal knowledge.’ ” People v.
McCarter, 385 Ill. App. 3d 919, 934 (2008) (quoting People v. Brown, 200 Ill. App. 3d 566,
578 (1990)). Hence, while a lay witness may testify to his observations or sensory
perceptions, he generally may not give his opinions or interpretations of those observations.
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Brown, 200 Ill. App. 3d at 578. For instance, in McCarter, the appellate court found that the
trial court erred in allowing a witness’s videotaped testimony wherein she stated that when
the defendant said “ ‘its’ going down,’ ” he meant that he and his codefendant were going
to rob the victim and kill him if he refused to give up the money. Another witness testified
that he heard the defendant say “ ‘put that up,’ ” and that he believed defendant was referring
to a gun. McCarter, 385 Ill. App. 3d at 933. The court reasoned that the conclusion drawn
by the witness was not an obvious one under the facts, but instead required an inferential step
that took the statements beyond mere sensory perception or observation and into
impermissible opinion testimony by a lay witness. Id. at 934.
¶ 42 Our supreme court has recently adopted the Illinois Rules of Evidence. Rule 701,
“Opinion Testimony by Lay Witnesses,” provides as follows:
“If the witness is not testifying as an expert, the witness’ testimony in the form of
opinions or inferences is limited to those opinions or inferences which are (a) rationally
based on the perception of the witness, and (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Ill. R. Evid. 701
(eff. Jan. 1, 2011).
¶ 43 In this case, the complained-of statements appear to meet Rule 701’s standard for
admissibility as the opinions or inferences testified to were rationally based on the perception
of the witnesses and were helpful to a clear understanding of the witnesses’ testimony or the
determination of a fact in issue. Most of the statements were made by the defendant and Pike
just prior to the shooting of Moseley. When 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. The
basis for admitting Pikes’ statement made several months after the shooting, “why ain’t
nobody keeping going over there, finishing what he had left with,” is arguably less strong.
¶ 44 The State asserts that even if the opinion testimony of Crowder and Coleman was
inadmissible, the record shows that trial counsel objected to those portions of the witnesses’
testimony that constituted “opinion testimony” and that defendant failed to show any
prejudice because the opinion testimony did not go to “a crucial fact question.” People v.
Hooker, 253 Ill. App. 3d 1075, 1090 (1993). Further, the State argues that “[i]mproper
opinion testimony is not necessarily prejudicial where the conclusion or testimony *** is an
obvious one.” People v. Crump, 319 Ill. App. 3d 538, 542 (2001).
¶ 45 The record shows that during Crowder’s direct examination, the State confronted him
with grand jury testimony that when Pikes said he was going on Corliss to “handle some
business” he meant “going over there to harm somebody.” Defense counsel objected to the
admission of that grand jury testimony, stating, “We are going to object to that question,
Judge, as to what he thought.” Prior to the testimony of ASA Krista Peterson during which
Crowder’s grand jury testimony was published, defense counsel again objected on the
grounds that his testimony was “the interpretation of a conversation” and what “Vernard
Crowder thought that–.” The trial court interrupted defense counsel and overruled the
objection stating “And Vernard Crowder was here, and he was subject to cross-examination.
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*** His own present sense impressions were some of the things he was talking about, and
he was available for cross-examination.” Prior to Coleman’s testimony defense counsel
objected to his testifying as to what he thought defendant and Pikes meant when they were
talking. The State argues that these objections by trial counsel show that defense counsel’s
performance was not deficient.
¶ 46 Defendant contends, however, that trial counsel’s objections were not sufficiently
specific enough to insulate her from a claim of insufficient assistance of counsel. “Objections
should be sufficiently specific to inform the court of the ground for the objection, and a
general objection, if overruled, will not preserve the issue for review on appeal.” People v.
Queen, 56 Ill. 2d 560, 564 (1974). “ ‘Objections to evidence should designate the particular
testimony considered objectionable and point out the objectionable features complained of.
Failure to make proper and timely objection to the admission of evidence claimed to be
incompetent or otherwise objectionable *** generally constitutes a waiver of the right to
object and cures the error, if any.’ ” Queen, 56 Ill. 2d at 564 (quoting People v. Trefonas, 9
Ill. 2d 92, 98 (1956)). Defendant asserts that although trial counsel objected, she failed to cite
the rule against lay opinions and, therefore, caused the court to overrule the objection as a
“present sense impression.” Here, defense trial counsel clearly argued that portions of
Crowder’s prior statements constituted Crowder’s interpretation or opinion as to what Pikes
meant. The fact that the trial court overruled defense counsel’s objection is not evidence of
ineffective assistance.
¶ 47 Even if defense counsel’s objections were not specific enough to constitute effective
performance, defendant must also show that he was prejudiced by the admission of the
impermissible opinion testimony. To meet his burden, defendant must show that the
probability that counsel’s errors changed the outcome of the case is “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. It is not necessary for defendant to
prove by a preponderance of the evidence that the outcome would have been different; rather,
defendant need only demonstrate that “ ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Albanese, 104 Ill. 2d at 525 (quoting Strickland, 466 U.S. at 694). In weighing the impact
of counsel’s errors, we consider the totality of the evidence before the finder of fact.
Strickland, 466 U.S. at 695. That is, instead of viewing the improper evidence in isolation,
the court must look to the ramifications the improper evidence might have had on the
factfinder’s overall picture of events. Strickland, 466 U.S. at 695-96.
¶ 48 In this case, taking into account the totality of the evidence that the State presented to the
jury, the errors complained of are not sufficient to undermine confidence in the jury’s verdict.
See Albanese, 104 Ill. 2d at 525 (citing Strickland, 466 U.S. at 694). The State recovered a
.45-caliber High Point gun that was identified by two witnesses as belonging to defendant.
A forensic expert testified that .45-caliber bullets and bullet fragments recovered from the
crime scene and which the medical examiner’s office recovered from the victim’s brain
matched a test bullet fired from the gun recovered by the police. Further, two eyewitnesses
identified defendant as being one of the shooters in the car. Those witnesses also identified
defendant as being in the vicinity at the time of the shooting, even if their testimony
regarding what defendant and Pikes said was excluded. Therefore, because the evidence is
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not closely balanced, defendant was not prejudiced by any alleged error on trial counsel’s
part.
¶ 49 3. State’s Use of Witness’s Prior Consistent Statements
¶ 50 Defendant next argues that his counsel was ineffective for failing to object to the State’s
introduction of Brandon Merkson’s entire handwritten statement and grand jury testimony,
which were nearly identical to his trial testimony and therefore, should not have been
admitted pursuant to the rule against prior consistent statements. During direct examination,
Merkson testified that on August 19, 2006, he was in a car that was following Quentez
Robinson who was riding a scooter and that when they entered Four Corner Hustler territory
someone shot at Robinson. He stated that he could not identify the shooter. Then, over
defense counsel’s objection, Merkson was confronted with his handwritten statement where
he identified defendant as the man who shot at Robinson, but he testified that he told the
ASA that he did not know who shot at Robinson. Merkson also testified that he was present
when Moseley was killed and identified defendant as one of the shooters. On cross-
examination, Merkson stated that the information he gave in his handwritten statement was
what the police told him to say and that he was threatened by the police with enhanced
charges or more jail time if he did not testify before the grand jury. Later, the trial court
permitted the State to publish to the jury Merkson’s entire grand jury testimony, where he
identified defendant as the man who shot at Robinson and at Moseley and his entire
handwritten statement, where he identified defendant in the Robinson shooting but not in the
Moseley shooting.
¶ 51 Defendant argues that the trial court should only have admitted those portions of
Merkson’s grand jury testimony and handwritten statement that were actually inconsistent
with his trial testimony, namely, his statement at trial that he could not identify defendant as
the man who shot at Robinson. Defendant asserts that by admitting Merkson’s entire
handwritten statement and the complete transcript of his grand jury testimony, the State was
allowed to impermissibly bolster Merkson’s testimony.
¶ 52 The general rule is that prior consistent statements of a witness are inadmissible for the
purpose of corroborating the witness’s trial testimony, because they serve to unfairly enhance
the credibility of the witness. People v. Terry, 312 Ill. App. 3d 984, 995 (2000). The reason
behind this rule has been explained as follows: “The danger in prior consistent statements
is that a jury is likely to attach disproportionate significance to them. People tend to believe
that which is repeated most often, regardless of its intrinsic merit, and repetition lends
credibility to testimony that it might not otherwise deserve.” People v. Smith, 139 Ill. App.
3d 21, 33 (1985). There are two distinct exceptions to this rule: (1) where the prior consistent
statement rebuts a charge that a witness is motivated to testify falsely, and (2) where the prior
consistent statement rebuts an allegation of recent fabrication. People v. Richardson, 348 Ill.
App. 3d 796, 802 (2004). Under the first exception, the prior consistent statement is
admissible if it was made before the motive to testify falsely came into existence. Id. Under
the second exception, a prior consistent statement is admissible if it was made prior to the
alleged fabrication. Id. A reviewing court will not reverse a trial court’s evidentiary ruling
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on a prior consistent statement absent an abuse of discretion. Id. at 801.
¶ 53 Here, defendant asserts that Merkson’s trial testimony mirrored his prior statements in
nearly every respect, with the only discrepancy being that at trial, Merkson testified that he
was not sure if defendant was the man who shot at Robinson, which contradicted his prior
statement, in which he identified defendant as the shooter. Therefore, defendant asserts that
only that inconsistent portion of his prior statements should have been admitted into
evidence.
¶ 54 The State contends that Merkson’s entire handwritten statement and his grand jury
testimony were admissible to rebut his testimony that he did not remember telling the police
that defendant shot at Robinson and to rebut the inference that his previous statements were
coerced. Defendant argues that this exception does not apply, because defense counsel did
not argue that Merkson had a motive to falsely implicate defendant in the crime. On cross-
examination, defense counsel questioned Merkson about his ability to observe the shooters
and the possibility of a mistaken identification. However, Merkson himself raised the issue
of lack of memory and coercion. Therefore, the trial court did not err in permitting the State
to present Merkson’s prior statement and grand jury testimony to rebut his own contention
that he could not remember who shot Robinson or that the police told him what to say and
coerced him into appearing before the grand jury.
¶ 55 4. Improper Impeachment of Witnesses
With Prior Inconsistent Statements
¶ 56 Next, defendant argues that his trial counsel was ineffective for failing to object to the
State’s impeachment of Crowder, Coleman, and Merkson with prior inconsistent statements
where none of those witnesses did affirmative damage to the State’s case. Specifically,
defendant contends that after Coleman and Crowder stated on direct examination that they
did not speak with defendant and Pikes shortly before the Moseley shooting, the State should
not have been permitted to confront them with their prior handwritten statements and grand
jury testimony saying that they had because they did no positive damage to the State’s case.
Similarly, defendant asserts that Merkson did no positive damage to the State’s case when
he testified that he was not sure if defendant was the man who had shot at Robinson and that
by impeaching him with his prior testimony identifying defendant as the shooter, the State
was improperly permitted to get those statements before the jury as substantive evidence.
¶ 57 The State may attack the credibility of a witness, even its own witness, by impeaching
the witness with a prior inconsistent statement. People v. Cruz, 162 Ill. 2d 314, 358 (1994).
When the State impeaches its own witness with a prior inconsistent statement the State must
show that the witness’s trial testimony affirmatively damaged its case. Id. (citing People v.
Morgan, 28 Ill. 2d 55, 63 (1963)). The State contends that a witness’s testimony is damaging
when the witness disavows their prior grand jury testimony and claims that it was coerced
in exchange for a deal on charges pending against the witness. For support, the State cites
People v. Martinez, 348 Ill. App. 3d 521 (2004), where this court held that “prior testimony
need not directly contradict testimony given at trial to be considered ‘inconsistent’ [citation]
and is not limited to direct contradictions but also includes evasive answers, silence, or
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changes in position.” Id. at 532.
¶ 58 In this case, as in Martinez, the testimony of Crowder and Coleman stating that defendant
was not a gang member and that they did not talk to defendant or Pikes around the time that
Moseley was killed, and Merkson’s testimony that he could not identify defendant as the man
who shot at Robinson were changes in position that caused affirmative harm to the
prosecution’s case. In addition, that harm was exacerbated by the fact that each of those
witness’s testified at trial that their prior statements were dictated to them by the State or
were coerced by the threat of prosecution. Therefore, under the standards set forth in Cruz
and Martinez, the State had a legitimate need to impeach the witnesses’ credibility, and thus
their prior inconsistent statements were admissible for that purpose. Cruz, 162 Ill. 2d at 362.
As a result, defendant’s claim that his trial counsel’s failure to properly object constituted
ineffective assistance of counsel has no merit. See People v. Evans, 209 Ill. 2d 194, 222
(2004) (holding that where the admission of testimony was not error, “counsel was not
deficient for failing to object”).
¶ 59 5. Improper Bolstering With Grand Jury
Testimony and Handwritten Statement
¶ 60 Next, defendant contends that the trial court erred in allowing the State to introduce both
the grand jury testimony and handwritten statements of Coleman, Crowder, and Merkson,
and that his counsel was ineffective for failing to object to the “needless repetition” of the
witnesses’ prior statements. Defendant asserts that although the prohibition against bolstering
a witness’s credibility with consistent statements generally arises in the context of statements
that are consistent with a witness’s trial testimony, the rationale behind the prohibition
applies equally when a prior statement is consistent with another pretrial statement.
Therefore, defendant argues, the evidentiary rule prohibiting the substantive use of prior
consistent statements should apply equally to the substantive use of any prior inconsistent
statement that is consistent with a witness’s previously admitted prior inconsistent statement.
As defendant acknowledges, this court had rejected the same argument in several previous
cases. People v. Johnson, 385 Ill. App. 3d 585, 608 (2008); People v. Maldonado, 398 Ill.
App. 3d 401, 423 (2010); People v. Perry, 2011 IL App (1st) 081228; People v. White, 2011
IL App (1st) 092852. Defendant argues, however, that these cases are poorly reasoned,
because they ignore the bolstering effect that the repetition of prior inconsistent statements
can have on each other and therefore, should not be followed by this court.
¶ 61 This same argument was made in White and rejected by this court. In that case, the court
acknowledged the “inherent tension” between the admission of multiple prior inconsistent
statements as substantive evidence under section 115-10.1 and the rule barring admission of
prior statements that bolster trial testimony but rejected the argument that the rule barring
prior consistent statements or its “ ‘underlying rationale’ ” can easily be “grafted” onto the
rules allowing for admission of prior consistent statements. White, 2011 IL App (1st) 092852,
¶ 51. The court addressed the distinction between prior consistent and inconsistent
statements, stating as follows:
“Courts have long recognized a bar against prior consistent statements, with limited
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exceptions, because these statements serve no purpose other than to bolster trial
testimony. [Citation.] Even under the limited exceptions when prior consistent statements
are admissible, they cannot be considered as substantive evidence. [Citations.] Prior
inconsistent statements stand on very different evidentiary ground.
Prior inconsistent statements are a vital tool to challenge witness credibility by
contradicting and discrediting trial testimony. [Citation.] More important to this analysis,
if a prior inconsistent statement meets basic requirements of reliability under section 115-
10.1, either party in a criminal case may introduce the prior inconsistent statement as
substantive evidence. [Citation.] Section 115-10.1 is meant to advance the legislature’s
goal of ‘prevent[ing] a “turncoat witness” from merely denying an earlier statement when
that statement was made under circumstances indicating it was likely to be true.’
[Citation.]
Thus, while courts have found little value in a prior consistent statement apart from
the impermissible bolstering of trial testimony, the legislature has recognized that a prior
inconsistent statement not only serves to discredit trial testimony, but may serve as
substantive evidence if it meets the requirements of section 115-10.1. While a blanket
prohibition (with limited exceptions) makes sense for prior consistent statements,
applying that same general bar to inconsistent statements that are consistent with each
other would frustrate the legislature’s goal of discouraging recanting witnesses.
[Citation.] A witness could be questioned as to prior inconsistent statements, but after
one is admitted as substantive evidence, the witness would be free to deny other prior
statements without a risk that those statements would be admitted as substantive
evidence. We conclude that the underlying rationale for the rule against prior consistent
statements does not justify obstructing the operation of section 115-10.1.” [Citation.]
White, 2011 IL App (1st) 092852, ¶¶ 51-53.
¶ 62 The White court also noted, as have other opinions addressing the issue, that “just
because a jury can consider a witness’s prior inconsistent statements as substantive evidence
under section 115-10.1, this does not mean that the door is flung open to admit prior
inconsistent statements “without limit,” as defendants suggest. The trial judge may “exercise
discretion to limit the number of such statements that may be introduced.” (Internal quotation
marks omitted.) White, 2011 IL App (1st) 092852, ¶ 54.
¶ 63 Defendant has raised no new argument in this case. Therefore, based on the holdings in
White and the prior cases that have addressed the admission of multiple prior inconsistent
statements, we find that the trial court did not err in allowing the State to introduce both the
grand jury testimony and handwritten statement of Coleman, Crowder, and Merkson, and
that counsel was not deficient for failing to object to its admission. See Evans, 209 Ill. 2d at
222 (where admission of testimony was not error, “counsel was not deficient for failing to
object”).
¶ 64 6. Coconspirator’s Incriminating Hearsay
¶ 65 Defendant next argues that his counsel was ineffective for failing to object when the trial
court allowed the State to admit into evidence a statement by Keith Pikes to DeAngelo
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Coleman after the shooting, describing how he drove the car and defendant shot at a crowd
of Gangster Disciples and a statement by Pikes to Vernard Crowder complaining that nobody
finished the “business he left.” Defendant asserts that the trial court erred in finding that
those statements were admissible under the coconsiprator exception to the hearsay rule and
further, that allowing Pikes’ statements to be used against him violated his due process rights
and the confrontation clause, which prohibits the introduction of testimony that a
nontestifying codefendant implicated the defendant in a crime. See Bruton v. United States,
391 U.S. 123, 136 (1968).
¶ 66 First, with regard to Pikes’ statement to Crowder, it does not mention defendant or
implicate him in the crime, and therefore, it does not constitute a Bruton violation. As for
Pikes’ statement to Coleman, the trial court admitted it on the grounds that it fell under the
coconspirator exception to the hearsay rule. Pursuant to that exception, any declaration by
one coconspirator is admissible against all coconspirators where the declaration was made
during the course of and in furtherance of the conspiracy. People v. Kliner, 185 Ill. 2d 81,
140-41 (1998). Statements made in furtherance of a conspiracy include those that have the
effect of advising, encouraging, aiding or abetting its perpetration. Id. at 141. Statements that
are made after the crime, in an effort to conceal the conspiracy may also fall under the
exception. Id. at 142.
¶ 67 In this case, the statements Pike made to Coleman after the Moseley murder should not
have been admitted under the coconspirator’s exception to the hearsay rule because they were
made after the crime occurred and therefore were not in furtherance of a conspiracy and were
not made in an effort to conceal the crime since they were, in fact, a recitation of the crime.
However, another exception to the hearsay rule permits the introduction of otherwise
inadmissible hearsay if it constitutes an admission by a defendant, either express or tacit. See
People v. Soto, 342 Ill. App. 3d 1005, 1013 (2003). The necessary elements for admissibility
under the tacit admission rule are (1) that defendant heard the incriminating statement, (2)
that defendant had an opportunity to reply and remained silent, and (3) that the incriminating
statement was such that the natural reaction of an innocent person would be to deny it. Id.(citing People v. Goswami, 237 Ill. App. 3d 532, 536 (1992)), which relied upon People v.
McCain, 29 Ill. 2d 132 (1963). For an excellent discussion of the tacit admission rule, see
Robert J. Steigmann & Lori A. Nicholson, Illinois Evidence Manual § 11:36 (4th ed. 2006).
¶ 68 Here, in his handwritten statement Coleman said that he saw defendant and Pikes
together the day after the Moseley shooting and that Pikes said that he “drove slowly down
the block and that they shot at the group and that [defendant] began to fire the minute they
saw the GDs and they were quote ‘blasting.’ ” Coleman further stated that “[defendant] also
talked about the shooting saying, quote ‘We got one last night. About time we got one.’ He
states that [defendant] also said that they rode around in the car and saw a big pack of GDs
wearing white T-shirts and that Keith drove slow to keep on target with the group of GDs
who were scattering. He states that [defendant] say he was quote ‘all out the window’
shooting at the GDs.” Therefore, it is clear that Pikes’ statement to Coleman describing
defendant’s role in the shooting satisfies the requirements of the tacit admission rule: (1)
defendant was present during the conversation, (2) the accusation, that defendant shot at a
crowd, was such that the natural reaction of an innocent person would be to deny, and (3)
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defendant not only remained silent but confirmed Pikes’ description of the shooting.
Therefore, the trial court did not err in admitting Pikes’ statement to Coleman into evidence.
¶ 69 Further, even if the trial court had erred in admitting Pikes’ statement, the error was
harmless. In People v. Wilson, 302 Ill. App. 3d 499 (1998), the trial court erroneously
allowed evidence of a codefendant’s confessions that implicated the defendant. The appellate
court held that the error was harmless and reversal was not warranted because the same
evidence was otherwise admissible through grand jury testimony or for impeachment
purposes and the evidence only constituted a small portion of the evidence against the
defendant. Id. at 511-12. Similarly, in this case because statements by defendant that he shot
at a group of Gangster Disciples was otherwise properly admissible through grand jury
testimony, the trial court’s error in admitting Pikes’ statement to Coleman was harmless.
¶ 70 B. Evidence of Defendant’s Prior Crime
¶ 71 Defendant’s next contention is that the trial court erred in allowing evidence at trial as
to defendant’s prior crime, namely, his shooting at Quentez Robinson a few days before the
Moseley murder. The State contends that this evidence was admissible to show defendant’s
motive for shooting at a crowd that included Robinson and other Gangster Disciples.
Defendant argues that “because the motive was established by other evidence, and because
the shooting was a violent crime similar to the charged offense that portrayed defendant as
an evil person, the evidence was more prejudicial than probative, and therefore
inadmissible.”
¶ 72 Generally, evidence of other crimes committed by a defendant is not admissible if its
relevancy is limited merely to establishing a propensity to commit crime. People v. Kliner,
185 Ill. 2d 81, 146 (1998). This is because “[s]uch evidence overpersuades the jury, which
might convict the defendant only because it feels he or she is a bad person deserving
punishment.” People v. Lindgren, 79 Ill. 2d 129, 137 (1980). Such evidence is admissible
if it is “relevant to prove any material question other than the defendant’s propensity to
commit crime, including modus operandi, intent, identity, motive, or absence of mistake.”
Kliner, 185 Ill. 2d at 146. When evidence of other crimes is offered, even if relevant for a
permissible purpose, it may be excluded if its prejudicial effect substantially outweighs its
probative value. People v. Heard, 187 Ill. 2d 36, 58 (1999). A trial court should exclude
other crimes evidence when the prejudicial effect substantially outweighs the probative
value. People v. Illgen, 145 Ill. 2d 353, 365 (1991). The admissibility of other crimes
evidence rests within the sound discretion of the trial court and will not be disturbed absent
an abuse of discretion. Where it is relevant and admissible, it must not become a focal point
of the trial. People v. Thigpen, 306 Ill. App. 3d 29, 37 (1995). The trial court should prevent
a “mini-trial” of a collateral offense. People v. Nunley, 271 Ill. App. 3d 427, 432 (1995). This
can be accomplished by the careful limitation of the details of the other crimes to what is
necessary to “illuminate the issue for which the other crime was introduced.” Id. at 432.
¶ 73 Here, defendant asserts that evidence regarding the Robinson shooting was inadmissible
because, contrary to the State’s assertion, it was not offered to establish motive. The
purported motive for shooting at Moseley was the long-standing gang war and the fact that
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defendant was angry about being hit by a car driven by Gangster Disciples a few days earlier.
Defendant asserts that it is illogical and untenable to argue that defendant’s motive for
shooting Moseley was that defendant had previously shot at Robinson. Therefore, defendant
argues, the trial court erred in finding that the probative value of this evidence outweighed
its prejudicial effect. We disagree. While it is true that defendant was seeking revenge for
being hit by a car driven by Gangster Disciples, that incident was of a piece with the
Robinson shooting and the ongoing war between the two gangs. The incident as a whole was
relevant to establish defendant’s motive for doing a drive-by shooting in a Gangster Disciple
neighborhood, which resulted in Moseley’s death.
¶ 74 Further, Robinson was standing with Moseley when defendant shot and killed Moseley.
Clearly, defendant could have been shooting at Robinson, just as he had done two days
previously. The fact that 10 to 15 shots were fired at the group of people including Moseley
and Robinson also supports the inference that defendant was not merely shooting at Moseley.
Robinson’s presence as a potential target also supports the admission of defendant’s prior
shooting at Robinson as it goes to the identification of defendant as the shooter of Moseley.
Therefore, we find that the trial court did not abuse its discretion in allowing the testimony
as to defendant’s prior crime.
¶ 75 Alternatively, defendant contends that even if evidence about the Robinson shooting was
admissible for a proper purpose, the way in which it was presented warranted reversal.
Defendant relies on People v. Bedoya, 325 Ill. App. 3d 926 (2001). In Bedoya, defendant was
charged with the shooting death of a bouncer during a struggle outside of a bar in Chicago.
The State introduced other crimes evidence showing that defendant fired gunshots at three
buildings from a car earlier in the evening. The appellate court held that, even if the evidence
had a proper purpose, the manner in which the State presented it warranted a reversal. The
court noted that the State presented the evidence in “excruciating detail,” introducing 7
witnesses and 27 exhibits to support its claim that defendant fired a gun from a car at three
buildings as evidence of the defendant’s mental state at the time he shot the bouncer. The
court also noted that Bedoya had been found not guilty of the prior shootings. In essence, the
court found, the State “was allowed to ‘put on a trial within a trial,’ a practice warned against
[by our supreme court].” Id. at 940. “The detail and repetition presented to the jury had
nothing to do with the purported purpose of the evidence–proof of Bedoya’s intent and the
absence of accident.” Id. at 940-41. Further, the court held that the trial court erred in failing
to instruct the jury on the limited purpose of the testimony regarding the earlier shootings at
the time it was presented. Id. at 940.
¶ 76 Similarly, defendant argues, in this case the State presented eight witnesses who testified
about defendant’s involvement in the Robinson shooting and in essence, created a mini-trial
on that issue, that resulted in a shift of the jury’s focus to the other crime, increasing the odds
of conviction based on something other than proof of his involvement in the Moseley
murder. Therefore, defendant asserts, this court should find that the prejudicial manner in
which the State focused the jury’s attention on the prior shooting deprived defendant of a fair
trial.
¶ 77 The facts in this case are inapposite from those in Bedoya and, therefore, do not support
defendant’s argument. Here, unlike in Bedoya, the defendant’s prior crime did not involve
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a random shooting unrelated to the subsequent crime. Defendant initially shot at Robinson
because he was a Four Corner Hustler who had ridden into Gangster Disciple territory.
Defendant was then hit by a car driven by other Four Corner Hustlers. Two days later,
defendant participated in a drive-by shooting at a group of people that included members of
the rival gang, including Robinson and two of the men who were in the car that hit defendant.
All of this evidence was necessary to establish the ongoing gang war and the defendant’s
motive for the shooting that resulted in Moseley’s death. Further, in Bedoya, the witnesses
who had testified to the prior shootings did not witness and were unable to testify as to the
crime defendant was charged with. Conversely, in this case, five of the witnesses who
testified about the Robinson shooting were also present at and able to testify about the
Moseley shooting. The Bedoya court concluded that “the State was unable to bridge the
‘threshold of similarity’ required for admissibility of other offense evidence.” Bedoya, 325
Ill. App. 3d at 940. Here, given that the witnesses were able to testify as to both crimes, the
State was able to bridge that threshold. In addition, unlike in Bedoya, the evidence about the
Robinson shooting was not presented in “excruciating detail” but was merely presented to
give the jury a picture of the events that led up to the drive-by shooting. Therefore, we find
that the trial court did not abuse its discretion in allowing the testimony as to the Robinson
shooting.
¶ 78 C. Rule 431(b)
¶ 79 Lastly, defendant contends that the trial court violated Illinois Supreme Court Rule
431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)), by failing to properly explain to potential
jurors during voir dire that defendant did not have to present any evidence and failing to
determine whether the jurors understood the principles set forth in People v. Zehr, 103 Ill.
2d 472 (1984). Where an issue concerns compliance with a supreme court rule, review is de
novo. People v. Ware, 407 Ill. App. 3d 315, 353 (2011).
¶ 80 Effective May 1, 2007, the supreme court amended Rule 431(b), deleting the language
“[i]f requested by the defendant,” and leaving the remainder unchanged. Rule 431(b) now
reads:
“(b) 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).
¶ 81 Thus, Rule 431(b) imposes a sua sponte duty on the circuit court to question each
potential juror as to whether he or she understands and accepts the Zehr principles. Such
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questioning of the potential jurors is no longer dependent upon a request by defense counsel.
¶ 82 Defendant contends that the circuit court violated Rule 431(b) by failing to determine
whether potential jurors understood and accepted the principle that he did not have to present
any evidence on his own behalf and failing to determine if the venire understood the
remaining three principles and instead asking whether they “had any problem” with them.
Defendant concedes that he did not object to the circuit court’s alleged failure to comply with
Rule 431(b) but asserts that this court should review the issue under the plain-error doctrine
because he was prejudiced in light of the closely balanced evidence in the case.
¶ 83 Our supreme court recently addressed these issues in People v. Thompson, 238 Ill. 2d 598(2010). In Thompson, the defendant, Angelo Thompson, was convicted of aggravated
unlawful use of a weapon and sentenced to one year in prison. Id. at 601. On appeal,
Thompson argued his conviction should be reversed because the trial court failed to comply
with Rule 431(b). Id. at 605. Specifically, the trial court did not question whether any of the
prospective jurors understood and accepted that Thompson was not required to produce any
evidence on his own behalf. Id. at 607. Further, the trial court did not ask the prospective
jurors whether they accepted the presumption of innocence. Id. Thompson did not object to
the alleged Rule 431(b) violation or include it in his posttrial motion, but the appellate court
found the alleged error was subject to plain-error review. Id. at 605. The appellate court held
that the trial court committed reversible error by failing to comply with Rule 431(b) and so
reversed Thompson’s conviction and remanded for a new trial. Id.¶ 84 The supreme court reversed the appellate court. Thompson did not argue plain error
under the first prong, but only argued under the second prong that the Rule 431(b) violation
infringed his right to an impartial jury and thereby affected the fairness of his trial and the
integrity of the judicial process. Id. at 613. The supreme court disagreed, noting it had
equated the second prong of plain-error review with structural error. Id. at 613-14 (quoting
People v. Glasper, 234 Ill. 2d 173, 197-98 (2009)). The supreme court held:
“A finding that defendant was tried by a biased jury would certainly satisfy the
second prong of plain-error review because it would affect his right to a fair trial and
challenge the integrity of the judicial process. Critically, however, defendant has not
presented any evidence that the jury was biased in this case. Defendant has the burden
of persuasion on this issue. We cannot presume the jury was biased simply because the
trial court erred in conducting the Rule 431(b) questioning.
***
Our amendment to Rule 431(b) does not indicate that compliance with the rule is
now indispensable to a fair trial. As we have explained, the failure to conduct Rule
431(b) questioning does not necessarily result in a biased jury, regardless of whether that
questioning is mandatory or permissive under our rule. Although the amendment to the
rule serves to promote the selection of an impartial jury by making questioning
mandatory, Rule 431(b) questioning is only one method of helping to ensure the selection
of an impartial jury. [Citation.] It is not the only means of achieving that objective. A
violation of Rule 431(b) does not implicate a fundamental right or constitutional
protection, but only involves a violation of this court’s rules. [Citation.] Despite our
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amendment to the rule, we cannot conclude that Rule 431(b) questioning is indispensable
to the selection of an impartial jury.” Id. at 614-15.
¶ 85 The supreme court noted, in the case before it, the prospective jurors had received some,
but not all, of the required Rule 431(b) questioning and had been admonished and instructed
on Rule 431(b) principles. Id. at 615. The supreme court concluded that Thompson had not
established that the trial court’s violation of Rule 431(b) resulted in a biased jury and,
therefore, he failed to meet his burden of showing the error affected the fairness of his trial
and the integrity of the judicial process. Id. Finally, the supreme court declined Thompson’s
request to adopt a bright-line rule of reversal for any violation of Rule 431(b) to ensure that
the trial courts will comply with the rule. Id. at 615-16.
¶ 86 In the present case, as in Thompson, defendant’s failure to object at trial constituted a
forfeiture of the circuit court’s alleged error in its Rule 431(b) questioning. As in Thompson,
defendant has failed to establish that the forfeiture rule should be relaxed under the Sprinkle
doctrine (People v. Sprinkle, 27 Ill. 2d 398, 400-03 (1963)), as there is no indication the trial
court would have ignored an objection nor is there any evidence the trial court overstepped
its authority in the presence of the jury. Further, defendant has failed to establish plain error.
Contrary to defendant’s assertion, the case was not closely balanced. Two eyewitnesses,
Herbert Lemon and Brandon Merkson, identified defendant in a photo array during the police
investigation and at trial as one of the men who was in the car firing into a crowd on the
night Moseley was killed. William Demuth, a forensic scientist, testified that the bullet
recovered from Moseley’s body and bullets recovered from the crime scene were fired from
a .45-caliber High Point semiautomatic with orange sights that the police recovered. Crowder
and Coleman testified that the .45-caliber High Point was defendant’s personal gun and that
it was in defendant’s possession immediately before it was recovered by the police.
Therefore, the alleged error is not reversible under the first prong. Nor is the alleged error
reversible under the second prong. Defendant has presented no evidence the jury was biased
in this case. Defendant bears the burden of persuasion on this issue, and we “cannot presume
the jury was biased.” Thompson, 238 Ill. 2d at 614. In the absence of any evidence of jury
bias, defendant has failed to meet his burden of showing that the alleged Rule 431(b)
violation constituted plain error.
¶ 87 III. CONCLUSION
¶ 88 For the foregoing reason, we affirm the circuit court.
¶ 89 Affirmed.
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