People v. Jackson , 2018 IL App (5th) 150274 ( 2019 )

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Appellate Court Date: 2019.02.19
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People v. Jackson, 2018 IL App (5th) 150274
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption AARON JACKSON, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-15-0274
Filed September 11, 2018
Decision Under Appeal from the Circuit Court of St. Clair County, No. 10-CF-425; the
Review Hon. John Baricevic, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Susan M. Wilham, of
Appeal State Appellate Defender’s Office, of Springfield, for appellant.
Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
David J. Robinson, and Chelsea E. Kasten, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CHAPMAN delivered the judgment of the court, with
opinion.
Presiding Justice Barberis and Justice Goldenhersh concurred in the
judgment and opinion.
OPINION
¶1 The defendant, Aaron Jackson, appeals his conviction for first degree murder. He argues
that the evidence was insufficient to prove him guilty beyond a reasonable doubt due to
credibility problems with two State witnesses and weaknesses in the forensic evidence. The
defendant also argues that he was prejudiced by the admission of portions of a letter written by
one of the witnesses to the court and by remarks during closing arguments in which the
prosecutor overstated the strength of the forensic evidence. He contends that he was denied a
fair trial by the cumulative effect of these claimed errors. Finally, the defendant argues that the
court erred by allowing the State to present an argument at a preliminary inquiry into claims of
ineffective assistance of counsel he raised in a posttrial letter and that the court abused its
discretion in declining to appoint a new attorney to help him present these claims. We affirm.
¶2 BACKGROUND
¶3 During the early morning hours of April 1, 2010, Washington Park Mayor John Thornton
was shot to death in his vehicle. Witnesses told police that they heard gunshots, saw Mayor
Thornton’s car crash into a tree in a vacant lot, and then saw the defendant get out of
Thornton’s vehicle. Witnesses reported seeing the defendant limp from Mayor Thornton’s car
to a different car and drive away. The mayor was found in the driver’s seat of his car. Both
airbags had deployed. The defendant was arrested and charged with Thornton’s murder.
¶4 The First Trial
¶5 The matter first came for trial in October 2011; however, the first trial ended in a mistrial.
We need only discuss the testimony of two witnesses from that trial—Nortisha Ball and
Laqueshia Jackson. Ball’s testimony is relevant to this appeal because the defendant points to
inconsistencies between her testimony at the two trials in arguing that the evidence was
insufficient to prove him guilty beyond a reasonable doubt. Jackson’s testimony is relevant
because the defendant argues that counsel was ineffective for failing to call her as a witness in
his second trial.
¶6 Ball was in jail awaiting trial on charges of residential burglary and theft when she testified
in the defendant’s first trial. She testified that she heard two gunshots and then saw a white car
crash into a tree. She gave inconsistent testimony concerning what she witnessed after that. At
one point, she said that she saw someone get out of the driver’s side just before the car hit the
tree, but she was not sure who it was. At another point, she acknowledged telling police that
she saw the defendant get out of the car, but she did not remember which side of the vehicle he
exited. At another point, she testified that she could not remember anything that happened on
the morning of the shooting because she was high.
¶7 Ball remembered giving a statement to police but could not remember what she told them.
She first stated that when she was interviewed by Illinois State Police Special Agent Joseph
Bates on the morning of the shooting, she told him the truth. She later testified, however, that
what she told him “might not have been true because [she] was under the influence.” She
testified that she told Special Agent Bates that morning that she thought she saw “Chill” get out
of the car. She explained that “Chill” was the defendant. She also testified that she picked the
defendant’s picture out of a photo array several days later. However, she claimed that she did
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so because Bates asked her if she knew any of the people pictured, and the defendant was the
only person pictured whom she knew.
¶8 Laqueshia Jackson testified that she was in her car when the crash occurred. She explained
that she was spending the night at her mother’s house when she received an alert, notifying her
that the burglar alarm had gone off at her house. When she got there, she was afraid to enter the
house because the police were not there, so she decided to drive back to her mother’s house. As
she sat parked in her driveway making this decision, she heard gunshots. She did not recall
how many shots she heard, but she knew it was more than one. As she drove to her mother’s
house, she saw a white car hit a tree. She then saw a man she knew as Chill get out of the
passenger side. Jackson did not know Chill’s real name, but she was able to recognize the
defendant as Chill.
¶9 Jackson testified that she saw Chill limp from the white car to a white Suburban driven by
her ex-boyfriend, David Taylor. Once Chill was in Taylor’s vehicle, Taylor drove off. On
cross-examination, however, Jackson testified that after learning from one of the investigating
officers that police were looking for a red Impala, she told the officer that she saw Chill drive
off in a red Impala.
¶ 10 Jackson was asked about one of the investigating officers, Washington Park Detective Kim
McAfee. McAfee was later indicted on federal charges unrelated to this case, and other officers
involved in the investigation acknowledged at trial that they no longer considered him
trustworthy as a result. Jackson testified that McAfee was present at the scene, but she did not
speak with him. We note that according to Special Agent Bates, she did tell him that she spoke
with McAfee.
¶ 11 Later during the trial, one of the prosecutors told the court about an anonymous call
received by the state’s attorney’s office. The caller stated that if Laqueshia Jackson was
recalled to the stand, she should be asked if a police officer offered her a bribe to testify that he
was not at the crime scene. The court, prosecutors, defense counsel, and the defendant
discussed the matter, and all agreed that Jackson should be questioned out of the presence of
the jury to determine whether the caller was telling the truth. The trial proceeded while the
state’s attorney’s office attempted to locate Jackson.
¶ 12 Once Jackson was located, she was questioned outside the jury’s presence by the court,
prosecutors, and defense counsel. She stated that she did not want to testify further in the case
because she had been receiving threatening phone calls. She explained that the caller knew
where she lived, where she worked, and what time her children got on the school bus. Jackson
denied that she was offered a bribe. Initially, she reiterated that she did not talk to Detective
McAfee about the case. However, she later testified that McAfee was present when she spoke
to another investigating officer, but she “never said anything directly to McAfee.”
¶ 13 Defense counsel indicated that, although he believed further cross-examination of Jackson
in front of the jury would be useful for purposes of impeaching her testimony, he was
concerned about the potential for prejudice if jurors were allowed to see Jackson sobbing on
the witness stand. After consulting with the defendant, however, counsel decided to
cross-examine Jackson in front of the jury.
¶ 14 On the stand in front of the jury, Jackson acknowledged that she previously testified that
she never spoke with Detective McAfee in this case. She could not remember whether she ever
told other officers that she did talk to him. Counsel then tried to ask Jackson why she testified
that she never spoke to McAfee, but she did not respond. The court and attorneys for both
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parties later stated for the record that the jury was removed from the courtroom after Laqueshia
Jackson went into what they described as a “stupor.” Jackson suffered a seizure after the jury
was removed.
¶ 15 The following morning, Deputy Court Clerk Mary Ponder testified out of the presence of
the jury about a phone call she received from Laqueshia Jackson’s sister, Angela Dodd. Dodd
informed Ponder that Jackson suffered another seizure that morning. Dodd told Ponder that
Jackson was admitted to the hospital because her blood pressure was dangerously high and the
paramedics were concerned that she might suffer a stroke. Ponder further testified, “She also
told me that she was a witness when [Detective] McAfee told Laqueshia Jackson that if she
kept her mouth shut, he would pay her off.” The state’s attorney then told the court about a
phone conversation he had with Jackson the previous day while he was attempting to locate
her. He stated that Jackson acknowledged to him that McAfee offered her money “if she would
just keep his name out of it and say that he was not in the area at that time.” However, he noted
that she also told him that her testimony about what she saw the morning of the shooting was
accurate.
¶ 16 The defendant moved for a mistrial, and the State did not object. The court granted the
motion.
¶ 17 The Second Trial
¶ 18 The defendant’s second trial took place in April 2012. Nortisha Ball, who was by then
serving a four-year sentence for burglary, again testified for the State. She testified that she was
outside “just hanging out” when she witnessed the car crash. She also testified that she was
“intoxicated, under the influence” at the time. Ball testified that she saw the person who was
sitting in the passenger seat get out of the car, but she could not see his face. She admitted that
she told police that she saw Chill get out of the car, but she then said that she did not know if it
was him. Asked what she told police about Chill, Ball initially said she could not remember.
She then acknowledged that she told police that he got out of the car, limped to another car, and
drove away with another individual.
¶ 19 Ball testified that after the crash, she was approached by a police officer she knew,
Sergeant Wendell Wilson. She stated that they talked, but not about the crash. We note that
Sergeant Wilson testified that Ball approached him. Ball testified that she spoke to both
Special Agent Bates and Detective McAfee that morning. The prosecutor asked Ball about the
photo array. She acknowledged that she was shown photographs and asked if she recognized
“anyone that got out of that car.” She further acknowledged that she circled the defendant’s
picture. However, she testified that she did so because Detective McAfee told her to pick the
defendant. She admitted that she did not inform Special Agent Bates of this. When asked why,
she said he did not ask.
¶ 20 At this point, the court granted the State’s request to declare Ball a hostile witness over the
defendant’s objection. After being declared a hostile witness, Ball admitted that she lied to
Special Agent Bates. She admitted that she saw someone get out of the car and that she told
Bates it was Chill, but she claimed that she did not actually know who the person was.
¶ 21 On cross-examination, Ball testified that Detective McAfee transported her to the police
station. She testified that during the ride, McAfee told her that she would be arrested.
According to Ball, he told her that he already knew from another witness that the defendant
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was the person who got out of the mayor’s car. Asked by defense counsel if McAfee told her to
tell officers that it was the defendant, Ball said, “Yes.”
¶ 22 Defense counsel then asked Ball if she had been “threatened by anybody about this case.”
Ball stated that she had not been threatened or pressured either by law enforcement officers or
by anybody “in the street.” She testified, however, that she was scared because her cousin told
her that her name was in the newspaper, which meant that people knew she was involved with
the case.
¶ 23 On redirect, Ball was asked why she previously gave testimony under oath that was
different from the testimony she was giving now. Ball stated that she “didn’t understand what
was going on” the first time she testified. Asked why she never mentioned McAfee’s threat any
of the other times she discussed this case, Ball said she was never asked. The prosecutor asked
her to acknowledge that she was specifically asked by Special Agent Bates whether anyone
threatened her or promised her anything to get her to make a statement. Ball replied, “I wasn’t
paying attention.”
¶ 24 Over defense counsel’s objection, the State was allowed to question Ball about a letter she
sent to the court after the first trial ended. The following exchange occurred:
“Q. Did you write the letter that said, ‘To Judge Wharton, from Nortisha, I’m so
scared.’ Do you remember writing that?
A. Yes.
Q. And that you asked him to put you in protective custody at the jail because you
were scared, do you remember that?
A. Yes.
Q. And did you say in the letter, ‘Please help me. I’m admitting to everything that
happened. It was Jackson that killed the mayor.’ Did you put that in your letter?
A. Yes.”
Ball acknowledged that McAfee did not tell her to write the letter. Asked if she wrote the letter
because she believed she was being threatened, Ball replied, “No, I was just in the paper and I
was scared.” She claimed that she did not write everything in the letter, but she acknowledged
writing, “I’m being threatened.” When asked if that was “another lie,” she said, “Yes.” Asked
why she lied in the letter, Ball said that she did not know.
¶ 25 Later during the trial, a recording of Ball’s interview with Special Agent Bates was played
for the jury. In it, Ball told Bates and another officer that she saw Chill get into a white car. She
did not know the driver’s name, but she knew that Chill’s real name was Aaron. She told the
officers that Chill was not limping before he got into the car. She told them that she then heard
two gunshots followed by a screeching sound. She then saw the car run into a tree. She stated,
“Chill got out of the car and limped away.” She told the officers that someone walked up to
Chill and that Chill and the other individual got into another car together and drove away. She
told them that Chill drove the second car. Ball did not know the other individual; however, she
described the clothing both men were wearing. Asked how she got to the police station, Ball
said she was driven there by “Kim.” Asked if she was under the influence of any drugs or
alcohol, she said, “No.” Ball was asked if she saw the defendant with a gun. She said, “He
probably had it in his pocket.”
¶ 26 Gilda Lott also testified for the State about the events at issue. Lott was first interviewed by
police in March 2012, nearly two years after the murder. Prior to that time, she never contacted
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police to tell them that she had information about the murder. She was in jail awaiting trial on a
charge of reckless driving when she first spoke to police about this case, and there were
criminal charges pending against her when she testified at trial a month later.
¶ 27 Lott testified that she was standing outside, talking to friends, on the morning of the
shooting, when she saw a car strike a tree. Asked what happened after the car struck the tree,
Lott first testified, “I just see Chill get out the car and run, and jump in a car with somebody
else.” She later testified that Chill limped to the other car and that she did not see anyone else in
the other car. According to Lott, she saw Chill get out of the driver’s side of the car that
crashed.
¶ 28 On cross-examination, defense counsel attempted to ask Lott about a meeting she had with
him and his investigator, Mike Boyne. Lott acknowledged that she met with them, but she
insisted that she could not remember what she told them. She testified that she had memory
problems because she had recently been hit in the head with a baseball bat. Asked how she
could remember what happened on the morning of the murder, two years before trial, if she
was unable to remember a conversation that took place three days earlier, Lott replied,
“Because when I got hit in my head, before I could remember very well.”
¶ 29 Mike Boyne, defense counsel’s investigator, testified for the defense about the
conversation he and counsel had with Gilda Lott. Boyne testified that Lott was reluctant to talk
to them because she was afraid that they would arrest her. However, she told them that she did
not see anything the morning of the murder. According to Boyne, when Lott was asked why
she made statements about the murder, she said that she thought it would help her get out of jail
in her pending criminal case. Boyne further testified that when he asked Lott to give a written
statement, she told him that she could not do so at that time because she had to take her children
somewhere, but she said she would be willing to give a statement later. However, she never
did.
¶ 30 Special Agent Joseph Bates was the lead investigator in the case. He interviewed the
defendant and Nortisha Ball on the morning of the murder, and he showed Ball a photo array
six days later. Both of the interviews were video-recorded. Bates testified that he did not know
who killed Mayor Thornton until Ball told him that she saw the defendant get out of
Thornton’s car. He stated that from that point on, the defendant was the focus of the
investigation. He acknowledged that police made no efforts to find out if the mayor had any
enemies or to obtain call logs from the cell phone that was found in his car.
¶ 31 The defendant’s video-recorded interview with Special Agent Bates was played for the
jury. In it, the defendant told Bates that in the early morning hours of April 1, 2010, he was
walking down the street in the vicinity of where Mayor Thornton’s car crashed. He stated that
he heard gunshots and then his leg started to hurt. The defendant stated that he “got out of
there” and went to his girlfriend’s apartment. However, he did not remember how he got home.
In the video, the defendant can be seen limping.
¶ 32 The defendant’s girlfriend, Cynthia Hooker, testified that the defendant borrowed her
vehicle, a red Impala, on the night of March 31, 2010. After giving him permission to use the
car, she went to sleep. She testified that the defendant had returned to her apartment by the time
she awoke shortly before 7 the next morning. He told her that he was out gambling all night
and was not cheating on her. Hooker testified that she and the defendant heard about the
murder of John Thornton while watching the news on television. She stated that as they were
watching the news, police arrived in front of her apartment building, put her red Impala on a
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tow truck, and then came to the door. According to Hooker, the defendant seemed just as
surprised as she was that police officers were there. However, she testified that he told her
before the officers came to the door that they must have been looking for him.
¶ 33 The State also presented testimony explaining forensic evidence. Forensic scientist Ellen
Chapman tested swabs taken from both of the defendant’s hands shortly after he was arrested.
She found particles consistent with gunpowder residue in the swab taken from his left hand but
not in the swab taken from his right hand. She testified that gunpowder residue can easily be
transferred from surface to surface.
¶ 34 Trace particles expert Robert Berk examined the defendant’s clothing in November 2011,
after a mistrial was declared in the defendant’s first trial. Berk found small amounts of particles
consistent with gunpowder residue on the defendant’s jeans and T-shirt but found none on his
sweatshirt. Berk explained that the presence of gunpowder residue does not necessarily mean
that the individual fired a weapon. It could mean that the individual has “handled, fired, or been
in close proximity when a weapon was discharged.” Berk also tested the defendant’s clothing
and the swabs from his hands for evidence of particles consistent with the air bags in John
Thornton’s car; however, he found no evidence of these particles.1
¶ 35 Fingerprint examiner Melissa Gamboe testified that of the 57 fingerprints lifted from
Thornton’s car, only 26 were suitable for comparison. Of those, one matched the defendant’s
fingerprint. That print was found on the exterior of the vehicle on the front portion of the rear
passenger side door. Gamboe testified that there was no way to determine the age of a
fingerprint. She explained, however, that environmental conditions can cause a print to
deteriorate. For example, heat might cause the print, which is mostly comprised of moisture, to
evaporate, and rain might wash it away. She also noted that dust might distort a print.
¶ 36 DNA analyst Jay Winters tested a small bloodstain found on the defendant’s jeans. He was
only able to obtain a partial DNA profile from the blood. He compared that partial profile to
DNA profiles of both the defendant and John Thornton. Winters was able to exclude the
defendant but was not able to exclude Thornton. He testified that although he could not call the
sample a “match,” he could conclude with a reasonable degree of scientific certainty that the
blood on the defendant’s jeans “likely” came from Thornton. Winters explained that the partial
profile found in the bloodstain is found in only 1 in 46,000 unrelated African-American
individuals, 1 in 73,000 unrelated white individuals, and 1 in 17,000 Hispanic individuals.
¶ 37 The jury returned a verdict of guilty. The court subsequently sentenced the defendant to 35
years in prison. On September 7, 2012, the court denied the defendant’s posttrial motion after a
hearing. The defendant filed an appeal that same day.
¶ 38 Posttrial Claims of Ineffective Assistance of Counsel
¶ 39 On September 12, 2012, the defendant sent the court a letter in which he argued that the
evidence was insufficient to prove his guilt and alleged that he was not fairly represented by
1
We note that the State presented extensive testimony about the types of physical evidence that
might demonstrate that a passenger was in John Thornton’s vehicle when the air bags deployed. For
purposes of this appeal, it is sufficient to state that forensic scientists found no such evidence but that
witnesses explained that this does not necessarily mean that he was not in the car when it crashed. It is
worth noting, however, that there was evidence that the sample tested from the interior of one of the air
bags contained a “high concentration” of bromine particles.
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counsel. In particular, he asserted that counsel should have called Laqueshia Jackson to testify
in his second trial. He also alleged that Nortisha Ball falsely claimed that she was threatened by
members of the defendant’s family and that Detective McAfee planted physical evidence
against him.
¶ 40 This court subsequently dismissed the defendant’s then-pending appeal, finding it to be
premature. We remanded the cause to the trial court with directions to conduct a preliminary
inquiry into the defendant’s claims of ineffective assistance of counsel as required under
People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny.
¶ 41 The court held a preliminary Krankel inquiry on May 28, 2015. By that time, Judge
Wharton, who presided over the defendant’s trial, had retired. The matter was therefore
assigned to Judge Baricevic. The court asked the defendant to elaborate on his claims of
ineffective assistance of counsel and allowed defense counsel to respond to each of the
defendant’s claims.
¶ 42 The defendant first addressed counsel’s decision not to call Laqueshia Jackson as a witness
in his second trial. He told the court that Jackson recanted her earlier statement and said that
she saw Detective McAfee at the scene of the crime. The defendant told the court that he asked
counsel multiple times to call her as a witness, but he did not do so. Counsel explained,
however, that he and the defendant made a joint decision not to call Laqueshia Jackson as a
witness. Even though she did give counsel a statement recanting her previous testimony, she
later contacted prosecutors and indicated “an eagerness and willingness to testify on behalf of
the State.” Counsel explained that he and the defendant agreed that it would be best not to call
her due to uncertainty over what she might say on the stand. The defendant denied that these
discussions ever took place.
¶ 43 The defendant next told the court that counsel was ineffective for failing to call Laqueshia
Jackson’s sister, Angela Dodd, in his second trial. The defendant claimed that he asked counsel
to call Dodd as a witness because she had informed counsel that she heard McAfee offer her
sister a bribe, but counsel did not do so. Counsel told the court that his only recollection of
Dodd was speaking with her when he was trying to locate Jackson after she suffered a seizure
during the first trial.
¶ 44 The defendant next complained that counsel failed to introduce evidence to show that DNA
testing of the bloodstain on his jeans was unreliable because it was based on a partial DNA
profile. Counsel explained that he made a strategic decision to argue that the evidence did not
prove the defendant was ever inside Thornton’s vehicle because the tiny bloodstain could have
been picked up from blood that was found on the exterior of the car rather than “getting into a
fight about whether it’s his or not.”
¶ 45 The defendant next addressed the closing arguments he challenges in this appeal—the
prosecutor’s reference to a “fresh print” matching the defendant’s fingerprint and his
arguments that the DNA profile in the bloodstain on the defendant’s jeans “matched”
Thornton’s DNA and the blood was Thornton’s blood. Counsel told the court, “If I thought
anything was improper, I would have objected.”
¶ 46 Finally, the defendant complained of counsel’s failure to call two alibi witnesses. He told
the court that he gave defense counsel both names, but counsel did not call the witnesses.
According to counsel, he was unable to locate one of the witnesses, and he decided not to call
the second witness because he learned that the witness was drunk at the time of the murder and
unable to recall any information that could have been helpful to the defendant at trial.
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¶ 47 After the defendant presented his claims, the court asked the prosecutor if he wished to
comment. The prosecutor reminded the court that most of the defendant’s claims related to the
sufficiency of the evidence. He then noted that the only claim of ineffective assistance raised in
the defendant’s letter to Judge Wharton was his claim that counsel should have called
Laqueshia Jackson in the second trial. He noted that defense counsel had already testified “that
he made a trial strategy decision.” The prosecutor then told the court, “I think if the Court
reviews the transcripts of both trials, *** the Court will find that Mr. Keefe was a tenacious
opponent, to say the least.” He concluded by asking the court to find that there was no need to
appoint another attorney to present the defendant’s claims of ineffective assistance. He told the
court, “I think Mr. Keefe’s testimony as well as that of the defendant indicates this was trial
strategy on the two main points of ineffectiveness that he raised and the rest are evidentiary
issues.” The court took the matter under advisement so that Judge Baricevic could review the
record.
¶ 48 On June 1, 2015, the court entered a detailed written order addressing the defendant’s
claims of ineffective assistance of counsel. The court first stated that it reviewed the record,
including the transcripts from both trials. The court then noted that most of the defendant’s
arguments concerned the weight of the evidence or the credibility of witnesses. The court
found that counsel addressed each of these issues at trial, explaining that counsel pointed out
the weaknesses in the State’s case in both his opening statement and his closing argument, and
he “aggressively cross-examined” the State’s witnesses on the issues raised by the defendant.
The court then considered the defendant’s claims concerning uncalled witnesses. The court
noted that counsel looked for the witnesses the defendant wanted him to call but those
witnesses “could not be found or [were] intoxicated when found.” Significantly, the court
noted that the defendant made no allegation that any witnesses would have provided testimony
that would have changed the outcome of the trial. The court therefore denied the defendant’s
motion without appointing counsel or holding a more formal hearing. This appeal followed.
¶ 49 ANALYSIS
¶ 50 Sufficiency of the Evidence
¶ 51 The defendant first argues that the evidence was insufficient to prove him guilty beyond a
reasonable doubt. We disagree.
¶ 52 When reviewing sufficiency-of-the-evidence claims, we view the evidence in the light
most favorable to the prosecution and determine whether any rational trier of fact could find all
of the elements of the crime beyond a reasonable doubt. People v. Wheeler, 226 Ill. 2d 92, 114
(2007). It is the role of the jury, not the appeals court, to assess the credibility of witnesses and
resolve conflicts in the evidence. People v. Lamon, 346 Ill. App. 3d 1082, 1089 (2004). We
will reverse a defendant’s conviction only if “the evidence is so unreasonable, improbable, or
unsatisfactory” that it raises a reasonable doubt concerning the defendant’s guilt. Wheeler, 226
Ill. 2d at 115.
¶ 53 The defendant argues that the evidence was insufficient to support his conviction for two
reasons. First, he argues that both of the eyewitnesses, Nortisha Ball and Gilda Lott, gave
accounts that were not credible enough to be believed. We note that the accounts at issue are
Ball’s statement to police and Lott’s trial testimony. The defendant points out that both
witnesses gave conflicting statements, Ball acknowledged being under the influence of drugs
at the time of the murder, and Lott admitted to having memory problems. He also points to
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discrepancies in their stories. In particular, he notes that Ball said the defendant exited the
passenger side of Thornton’s car, while Lott testified that he exited the driver side. He also
notes that Lott claimed that she was with a group of people that included Ball when she
witnessed the crash, while Ball told police she was alone at the time and she testified that she
did not know Lott. The defendant also points to inconsistent statements as to where the
witnesses were standing when they observed the car crash. He contends that because of these
discrepancies and the credibility issues with both witnesses, no reasonable trier of fact could
have believed their stories. We are not persuaded.
¶ 54 We reiterate that it is the function of the jury, as trier of fact, to resolve conflicts in the
evidence and to assess the credibility of witnesses. Lamon, 346 Ill. App. 3d at 1089. It is true
that the defendant could not have exited both sides of Thornton’s vehicle, as he points out. It is
also highly unlikely that he would have exited the driver’s side, as Lott testified, because
Thornton’s body was found in the driver’s seat, slumped over the steering wheel. However,
jurors were not required to disregard Lott’s story in its entirety because she did not remember
which side of the car the defendant exited, nor were they required to disregard the witnesses’
accounts due to other minor inconsistencies. See People v. Wesley, 382 Ill. App. 3d 588, 592
(2008). It is also worth noting that jurors had the opportunity to see the video recording of the
statement Ball gave to police on the morning of the murder. That statement was given four
hours after the murder. In it, Ball was not evasive, as both she and Lott were on the stand.
Jurors could reasonably have found her initial statement to be credible.
¶ 55 Moreover, Ball’s statement to police and Lott’s testimony were not the only evidence
linking the defendant to the murder. As discussed earlier, he admitted to police that he was at
the scene, and his girlfriend testified that he was out that night driving her red Impala—the
same type of car Ball saw the defendant use to leave the scene.
¶ 56 There was also physical evidence against the defendant, which brings us to his second
argument concerning the sufficiency of the evidence. The defendant argues that the physical
evidence “was weak and did not place him inside the car.” We disagree.
¶ 57 In support of this argument, the defendant points out that the only fingerprint that matched
the defendant’s was found on the exterior of the vehicle and that the DNA analyst, Jay Winters,
could not definitively say that the blood on the defendant’s jeans came from the mayor. He
acknowledges that gunpowder residue was found on his left hand and on his clothing, but he
emphasizes the testimony of two of the State’s experts, who explained that gunpowder residue
does not necessarily indicate that an individual fired a weapon. He points out that there was no
ballistic evidence linking the defendant to a specific weapon used in the murder. He also
emphasizes that there were no fibers consistent with his clothing found in Thornton’s vehicle,
there were no hairs matching the defendant’s hair found in the vehicle, and there were no
particles consistent with Thornton’s air bags found on his clothing.
¶ 58 The State acknowledged at trial, and acknowledges in this appeal, that no single piece of
evidence, standing alone, was strong enough to support his conviction. However, when
evaluating the sufficiency of the evidence, the question is not whether each individual piece of
evidence is strong enough to support the conviction, but whether any reasonable jury, viewing
all of the evidence in the light most favorable to the State, could have found the defendant
guilty. People v. Collins, 106 Ill. 2d 237, 261 (1985) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). We believe that the evidence, taken together, provided ample support for the
defendant’s conviction. The DNA sample taken from the bloodstain on the defendant’s jeans
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provides strong evidence connecting the defendant to the crime. Although the sample yielded a
partial profile which could not be called a “match,” Winters was able to determine that the
partial profile occurred in only 1 in 46,000 unrelated African-Americans, thereby making it
likely, in his professional opinion, that the blood was John Thornton’s. This evidence,
combined with all the other evidence we have discussed, was sufficient to allow a reasonable
jury to conclude that the defendant shot John Thornton.
¶ 59 Nortisha Ball’s Letter
¶ 60 The defendant next challenges the use of Nortisha Ball’s letter to Judge Wharton to
impeach her credibility. Before addressing his argument, additional background is warranted.
¶ 61 Ball sent a four-page handwritten letter to the court just days after a mistrial was declared
in the first trial. She asked Judge Wharton to place her in protective custody because she had
been threatened by members of the defendant’s family. She wrote, “I talked to my sister. She
said Jackson[’s] cousin came by with a gun and told her when I get out he was gone [sic] kill
whoever’s in the house.” The defendant filed a motion in limine to exclude evidence of any
allegations of threats made to witnesses. The court granted the motion but indicated that if
defense counsel questioned witnesses on their reasons for changing their testimony, this would
open the door for the State to inquire about the alleged threats. As discussed earlier, defense
counsel did ask Ball whether anyone had threatened her. The State was then allowed to ask her
about the contents of the letter. Ball admitted writing in the letter that, contrary to her earlier
testimony, she was being threatened. However, she was not questioned about her sister’s
statement, the defendant’s cousin’s statement, or her allegation that the threats came from
members of the defendant’s family. In addition, the court ruled that the letter itself would not
be sent to the jury.
¶ 62 The defendant argues that use of the letter was improper for two reasons. First, he argues
that the letter contained inadmissible hearsay. This argument is unavailing. Although the letter
did contain hearsay statements attributable to Ball’s sister and the defendant’s cousin, these
statements were not presented to the jury.
¶ 63 Second, the defendant argues that the court allowed the State to use the letter to impeach
Ball on a collateral matter. He points out that the letter was used to impeach her testimony that
she had not been threatened by anyone in connection with the trial. He further argues that the
error was highly prejudicial and requires reversal because Ball’s credibility as a witness was
crucial to the State’s case. We reject this contention.
¶ 64 Prior inconsistent statements are generally admissible because they “are a vital tool to
challenge witness credibility.” People v. White, 2011 IL App (1st) 092852, ¶ 52. However, a
witness may not be impeached on a collateral matter. Collins, 106 Ill. 2d at 269. A matter is
collateral if it could not be introduced for any purpose other than to contradict the witness. Id.
The testimony at issue was elicited during redirect examination. One of the purposes of
redirect is to allow attorneys to ask witnesses “questions designed to remove unfavorable
inferences or impressions raised by the cross-examination.” People v. Chambers, 179 Ill. App.
3d 565, 577 (1989). However, the scope of redirect is limited to matters that were raised during
cross-examination. Id.
¶ 65 The latitude allowed during cross-examination and redirect is a matter within the discretion
of the trial court. Collins, 106 Ill. 2d at 269. The determination of whether a matter is
“collateral” for purposes of proper impeachment is also a decision left to the discretion of the
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trial court. Id. at 269-70. We will not reverse the court’s decision “unless there has been a clear
abuse of discretion resulting in manifest prejudice to the defendant.” Id. at 269.
¶ 66 We note that Ball’s letter contradicted two aspects of her testimony—her claim that she did
not really know who she saw getting out of John Thornton’s car and her testimony denying that
she had been threatened. Her testimony that she did not know who she saw leaving the car is
clearly not a collateral matter. That testimony goes straight to the heart of the State’s case. As
the State points out, prior inconsistent statements on noncollateral matters are admissible even
if they are consistent with other prior inconsistent statements, such as Ball’s statement to
police. See White, 2011 IL App (1st) 092852, ¶ 53.
¶ 67 The defendant argues, however, that Ball’s testimony that she was not threatened was a
collateral matter. We disagree. It is true, as the defendant contends, that whether Ball received
threats is not a question related to any of the elements of the crime. Nevertheless, it was
relevant to help explain why her testimony was inconsistent with her statement to police, and it
allowed the State to counter the “unfavorable inference” created by her cross-examination
testimony that she had not been threatened. See Chambers, 179 Ill. App. 3d at 577.
¶ 68 Finally, we find that the potential prejudicial effect of the letter was minimized because the
letter was not sent to the jury, Ball was not questioned about the source of the threats, and
although the prosecutor did refer to the letter during closing argument, he did not mention the
threats. We find no clear abuse of discretion in the court’s decision to impeach Ball with
portions of the letter.
¶ 69 Closing Arguments
¶ 70 The defendant next argues that he was denied a fair trial by improper and prejudicial
remarks during the State’s closing argument. He argues that the prosecutor improperly referred
to the fingerprint found on the vehicle as a “fresh print,” even though there was no evidence as
to the age of the print. He also complains that the prosecutor told jurors that the DNA profile
from the bloodstain on the defendant’s jeans “matched” John Thornton’s DNA and that he told
them multiple times that John Thornton’s blood was on the defendant’s jeans. The defendant
argues that these comments misstated the evidence because Jay Winters testified that the
sample could not be called a match and that the blood was “likely” that of Mayor Thornton. He
acknowledges that counsel did not object to any of these comments, but he urges us to consider
them under the plain error doctrine. We are not persuaded.
¶ 71 Prosecutors are afforded considerable latitude in closing arguments. People v. Smith, 141
Ill. 2d 40, 60 (1990). A prosecutor may argue facts in evidence and may draw any reasonable
inferences from that evidence. However, a prosecutor may not misstate the evidence and may
not argue assumptions that are not based on the evidence. People v. Rivera, 277 Ill. App. 3d
811, 821 (1996). In deciding whether challenged remarks are improper, we must consider the
remarks in the context of the closing argument as a whole. Wheeler, 226 Ill. 2d at 122.
Improper remarks do not always require reversal. They require reversal only if the remarks
“result in substantial prejudice to the defendant.” Smith, 141 Ill. 2d at 60. In other words,
reversal is warranted only in cases where it is impossible to know whether or not the improper
comments contributed to the defendant’s conviction. People v. Linscott, 142 Ill. 2d 22, 28
(1991).
¶ 72 We first consider the prosecutor’s comments about the DNA evidence. The prosecutor first
reminded jurors that according to Winters, the bloodstain found on the defendant’s jeans could
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not be his own blood. He then stated, “You heard Jay Winters say it’s likely the victim’s blood,
and he said the profile only occurs in one in 46,000 blacks.” He reminded jurors that the
population of Washington Park is approximately 4200, a fact to which the parties stipulated.
He then argued, “So think about it. Take ten villages the size of Washington Park and put them
side by side, and that profile that matched John Thornton’s is going to come up one time.” He
acknowledged that Winters said that he could not say definitively that the blood was John
Thornton’s blood. He argued, however, that based on the statistical likelihood, jurors could
conclude that the blood was Thornton’s. The prosecutor argued, “So we know that that blood
again is John Thornton’s.” He went on to discuss other evidence but then came back to the
bloodstain, telling jurors, “And we have the mayor’s blood, and I submit to you, using your
common sense, one in 48,000, it’s the mayor’s.”2
¶ 73 The defendant argues that the prosecutor misstated Winters’ testimony about the DNA
evidence in two respects. First, he argues that the statements that the blood was Mayor
Thornton’s were not based on the evidence because Winters only testified that it was “likely”
Thornton’s blood. We disagree. The prosecutor acknowledged that Winters testified that it was
impossible to definitively determine that the blood came from Mayor Thornton. He then gave
jurors a reason to conclude that it was in fact Mayor Thornton’s blood. This argument was
based on the evidence presented, and the conclusion that the blood was John Thornton’s was a
reasonable inference to be drawn from the evidence.
¶ 74 The defendant also challenges the prosecutor’s statement that the DNA profile “matched”
John Thornton’s. A more detailed discussion of Jay Winters’ testimony is helpful to our
resolution of this argument.
¶ 75 As discussed earlier, Winters testified that the sample could not be called a “match.” He
also testified that it is never possible to determine with absolute certainty that DNA found in a
sample comes from a specific individual. He testified, however, that some samples can be
characterized as “matches.” Winters was asked to explain the difference. He explained that a
sample can be deemed to be a “match” when “all the alleles detected in an item of evidence
match the profile from the individual I’m comparing it to.” By contrast, he explained that in “a
situation that the profile is incomplete at some loci,” he can conclude only that an individual
cannot be excluded and he cannot “use the term ‘match.’ ” Winters further explained that when
an individual cannot be excluded, he can then enter the DNA profile from the sample into a
computer database that determines how common that profile is in the general population.
¶ 76 We agree with the defendant that the prosecutor’s use of the term “matched” misstated
Winters’ testimony.3 However, we do not believe this comment was prejudicial enough to
warrant reversal. It was an isolated comment in the middle of a detailed argument in which the
prosecutor accurately explained to jurors what Winters’ analysis of the DNA sample could and
could not tell them about the blood. Reading the State’s argument in its entirety, the prosecutor
2
We note that this is a misstatement of Winters’ testimony that one in 46,000 African-Americans
would have the same partial profile. However, the defendant does not challenge this statement. As
mentioned, the prosecutor used the accurate figure of 46,000 earlier in his argument.
3
We note that it would not be inaccurate to say that the genetic variations, or alleles, found in the
partial profile matched those in John Thornton’s known profile, even though it was impossible to
determine whether the alleles in the missing parts of the profile would also match Thornton’s.
However, use of the term “match” is misleading.
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acknowledged that the blood could not be deemed a “match” but gave jurors rational reasons to
find that the blood was John Thornton’s.
¶ 77 We next consider the prosecutor’s remarks about the fingerprint. During the State’s initial
closing argument, he pointed out that the defendant’s fingerprint was found on John
Thornton’s car. He did not initially refer to the print as a “fresh print.” During the defendant’s
closing argument, counsel argued that the prosecution “tried to get [Gamboe] to commit that it
had to be a recent print *** but she wouldn’t do it.” He reminded jurors that Gamboe testified
that it was impossible to determine the age of a fingerprint. He also reminded jurors that there
were numerous prints lifted from the vehicle that were suitable for comparison, including two
found in the interior. He emphasized that neither of the prints lifted from the interior of the
vehicle matched the defendant’s print and that none of the prints were compared to John
Thornton’s prints or entered into a database to determine whose prints they were. During
rebuttal argument, the prosecutor did not directly address defense counsel’s argument
concerning the age of the print. He emphasized that the print was found on the passenger side
of the car, the side the defendant exited. He then addressed the defendant’s argument that
numerous other prints were found on the car that did not match the defendant’s. He stated,
“You heard from Melissa Gamboe, a fresh print—or [crime scene investigator] Abby Keller,
I’m sure there’s lots of prints.”
¶ 78 We agree with the defendant that this remark misstated the evidence. The State argues that
the prosecutor could properly infer from Gamboe’s testimony that the print was a fresh print.
This is because she testified that weather conditions such as heat or rain can cause a print to
deteriorate. Although we agree that this is a reasonable inference, the prosecutor told jurors
that they heard from Gamboe that it was a fresh print. That is not accurate. However, we do not
believe this isolated remark played any role in the jury’s verdict. The prosecutor made several
references to the fingerprint and only referred to it once as a “fresh print.” The emphasis of his
argument was on the location of the print, not its age. We do not believe either of the two
comments we have found to be inaccurate would have been prejudicial enough to warrant
reversal even if counsel had objected, and they certainly did not rise to the level of plain error.
¶ 79 Cumulative Error
¶ 80 The defendant next argues that the cumulative effect of these asserted errors deprived him
of a fair trial. We have already found that the court properly permitted the State to question
Nortisha Ball about her letter to Judge Wharton, that some of the prosecutor’s challenged
remarks were proper, and that the improper remarks were not prejudicial enough to warrant
reversal. We therefore reject the defendant’s claim that cumulative error denied him a fair trial.
¶ 81 Krankel Inquiry and Harmless Error
¶ 82 The defendant raises two issues concerning the court’s inquiry into the claims of
ineffective assistance of counsel he raised in his letter to Judge Wharton. First, he contends that
the court erred in allowing the State to participate in the preliminary inquiry. Second, he
contends that the court erred in declining to appoint counsel to help the defendant present those
claims because he showed that counsel may have neglected his case. We reject both
contentions.
¶ 83 When a defendant raises a pro se claim of ineffective assistance of counsel, the court “must
inquire adequately into the claim and, under certain circumstances, must appoint new counsel
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to argue the claim.” People v. Skillom, 2017 IL App (2d) 150681, ¶ 25 (citing Krankel, 102 Ill.
2d at 187-89). However, the court is not always required to appoint new counsel or hold a full
evidentiary hearing on a defendant’s claims. People v. Moore, 207 Ill. 2d 68, 77 (2003); People
v. Crutchfield, 2015 IL App (5th) 120371, ¶ 24. The court should first conduct a preliminary
inquiry into the factual basis of the defendant’s claims. Moore, 207 Ill. 2d at 77-78;
Crutchfield, 2015 IL App (5th) 120371, ¶ 24. If, after conducting this inquiry, the court
determines that the defendant’s claims lack merit or relate solely to matters of trial strategy, the
court may deny the defendant’s pro se motion without appointing new counsel or holding
further proceedings. If, however, the court finds that the defendant has shown possible neglect
of his case by counsel, the court should appoint a new attorney to represent the defendant at a
hearing on those claims. Moore, 207 Ill. 2d at 78; Crutchfield, 2015 IL App (5th) 120371, ¶ 25.
¶ 84 The procedure to be followed at a preliminary Krankel inquiry “is somewhat flexible.”
People v. Fields, 2013 IL App (2d) 120945, ¶ 40. It is appropriate for the court to consider its
own knowledge of counsel’s performance during the trial. It is also appropriate—and in most
cases necessary—for the court to discuss the allegations with the defendant and to ask
questions of trial counsel. Id. ¶ 39. However, the State should not be “an active participant
during the preliminary inquiry.” Id. ¶ 40. Ordinarily, “virtually no opportunity for State
participation is offered during” this stage. Id. Our supreme court has held that “it is critical that
the State’s participation at that proceeding, if any, be de minimis.” People v. Jolly, 2014 IL
117142, ¶ 38.
¶ 85 The State’s participation in preliminary Krankel proceedings is limited by the nature of
those proceedings. As our supreme court explained in Jolly, the purpose of the preliminary
inquiry is to enable the court to create “an objective record for review” of the defendant’s
claims “and thus potentially limit issues on appeal.” Id. ¶¶ 38-39. The goal of creating an
objective record for review is thwarted if the State is permitted “to bias the record against a
pro se defendant” by subjecting the evidence or information gleaned at the preliminary inquiry
to “one-sided adversarial testing.” Id. ¶ 39. In addition, State participation in a preliminary
inquiry creates a risk that the inquiry “will be turned into an adversarial proceeding, with both
the State and trial counsel opposing the defendant,” which is problematic because it forces a
defendant to act pro se in an adversarial proceeding even if he has not waived the right to
counsel. Fields, 2013 IL App (2d) 120945, ¶¶ 40-41.
¶ 86 We will not overturn the court’s determination that a defendant’s claims do not require the
appointment of new counsel unless that determination is manifestly erroneous. Crutchfield,
2015 IL App (5th) 120371, ¶ 20. However, we review de novo questions concerning the
manner in which the inquiry was conducted. Skillom, 2017 IL App (2d) 150681, ¶ 25.
¶ 87 The defendant argues that the State’s participation at the preliminary inquiry in this case
was adversarial and “more than de minimis.” This is so, he contends, because the State was
permitted to make direct arguments against his claims of ineffective assistance of counsel. The
State argues that its participation was de minimis at most. The State notes that prior to the end
of the hearing, when the court asked if the prosecutor had any comments, the State “sat quietly
at its counsel table and listened.” The State surmises that the court only asked the prosecutor to
comment because the judge hearing the inquiry was new to the case and “was trying to gain an
on-the-record framing and context before reviewing the record.”
¶ 88 We are not convinced by the State’s characterization of its participation. Contrary to the
State’s assertion, the prosecutor did more than frame the issue and provide context; he
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presented an argument in opposition to the defendant’s claim of ineffective assistance of
counsel. For the reasons that follow, we cannot find that this argument amounted to de minimis
participation, but we find the error to be harmless under the facts and circumstances of this
case.
¶ 89 Although the State’s participation in this matter was fairly minimal in comparison to some
of the cases we will discuss, this does not necessarily make its participation de minimis. We
find the First District’s decision in People v. Flemming, 2015 IL App (1st) 111925-B,
instructive. There, the defendant made an oral motion for new trial based on allegations of
ineffective assistance of counsel. Id. ¶ 45. The trial court asked the defendant to elaborate on
his claims and then asked the prosecutor to question defense counsel. Id. ¶¶ 45-46. The
prosecutor asked counsel a total of seven questions. Id. ¶ 46. The trial court denied the
defendant’s motion, and the defendant appealed. Id. ¶ 47.
¶ 90 On appeal, the First District initially found the State’s participation to be de minimis. Id.
¶ 88. However, the court reversed this decision after being directed by the supreme court to
reconsider its ruling in light of Jolly. Id. ¶ 89. The court acknowledged that “the State’s
participation was minimal.” Id. ¶ 90. However, the court also noted that the State’s questions
to defense counsel elicited testimony that refuted the defendant’s claims. Id. Because this type
of adversarial advocacy was “ ‘contrary to the intent of a preliminary Krankel inquiry,’ ” the
court concluded that it was more than de minimis participation. Id. (quoting Jolly, 2014 IL
117142, ¶ 40).
¶ 91 Here, too, the State’s participation included adversarial advocacy. As noted, the State
argued that the defendant’s claims should be denied without further proceedings and the
appointment of a new attorney. That argument went on, uninterrupted, for nearly two pages in
the transcript. See People v. Gore, 2018 IL App (3d) 150627, ¶ 38 (rejecting the State’s
argument that its participation was de minimis where the prosecutor “spent nearly two
uninterrupted pages of record arguing vociferously against [the] defendant’s claims”). The fact
that this argument took place at the end of a hearing during which the State previously “sat
quietly at its counsel table and listened” does not transform the State’s argument into
de minimis participation. See People v. Robinson, 2015 IL App (1st) 130837, ¶ 80 (rejecting
the State’s argument that its participation was de minimis where the prosecutor presented
arguments at the end of the preliminary inquiry rather than addressing each of the defendant’s
claims as he made them).
¶ 92 We also note that the State’s participation in this matter was markedly different than the
type of participation that courts have found to be de minimis. In Fields, the Second District
suggested that de minimis participation might occur in “a situation where the State may be
asked to offer concrete and easily verifiable facts at the hearing.” (Emphasis in original.)
Fields, 2013 IL App (2d) 120945, ¶ 40. In People v. Peters, 2018 IL App (2d) 150650, ¶ 26,
the trial judge and the prosecutor discussed a pending pro se motion alleging ineffective
assistance of counsel one week before the court held a Krankel inquiry. The prosecutor told the
judge that he could make his own independent assessment of defense counsel’s performance,
but he noted that the motion included matters related to trial strategy, and he stated, “ ‘I believe
that he did receive adequate representation.’ ” Id. The trial court conducted a hearing the
following week without input from the State. Id. ¶ 27. On appeal, the Second District found
that these comments “rose only to the level of de minimis.” Id. ¶ 31. Here, the State’s
participation consisted of more than the few passing comments involved in Peters and was not
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limited to providing concrete verifiable facts as contemplated by the Fields court. We cannot
find the State’s participation in this matter to be de minimis. The next question is whether
reversal is required.
¶ 93 Our supreme court considered this very question in Jolly. During the Krankel inquiry in
that case, the trial court allowed the defendant to explain each of his claims of ineffective
assistance of counsel but “repeatedly stopped [the] defendant from making any argument on
his claims.” Jolly, 2014 IL 117142, ¶ 18. The court explained to the defendant that the purpose
of the hearing was to ascertain what his claims were, not to argue the merits of those claims. Id.
The court then allowed the State to question defense counsel as a witness but did not allow the
defendant to cross-examine him. Id. ¶ 19. The court finally permitted both parties to present
arguments on whether a full evidentiary hearing was necessary. Id. ¶ 21.
¶ 94 Before ruling, the court told the parties that it would consider the court file, its own
observations of defense counsel’s performance during the trial, and the statements of both the
defendant and his attorney at the preliminary Krankel hearing. Id. ¶ 22. As noted, the
statements of defense counsel were elicited through questioning by the State. Id. ¶ 20. The
court also indicated that it would consider the judge’s personal knowledge of defense counsel’s
work over the years as a criminal defense attorney in previous unrelated cases. Id. ¶ 22. The
court denied the defendant’s pro se motion, and the defendant appealed. Id.
¶ 95 Obviously, what occurred in Jolly was far more egregious than what occurred in this case.
Indeed, the State conceded on appeal in Jolly that the trial court erred. Id. ¶ 27. The State
argued, however, that the errors were harmless because the inquiry created an adequate record
for appellate review and because the defendant’s underlying claims of ineffective assistance
lacked merit. Id. The Fourth District agreed, finding that the court “thoroughly examined the
factual matters and questioned both [the] defendant and his trial counsel in a fair and impartial
manner” and that two of the defendant’s underlying claims lacked merit. Id. ¶ 37.
¶ 96 The supreme court reversed that decision, holding that in light of “the rationale of Krankel
and its progeny,” it could not “conclude that the circuit court’s error in [that] case was harmless
beyond a reasonable doubt.” Id. ¶ 40. As stated previously, the primary purpose of a
preliminary inquiry is to create “an objective record for review” of the defendant’s claims. Id.
¶ 39. The supreme court explained, however, that the State’s active participation in the inquiry
in that case allowed it “to bias the record against a pro se defendant.” Id. The court went on to
explain that the record produced at a hearing “with one-sided adversarial testing cannot reveal,
in an objective and neutral fashion, whether the circuit court properly decided that a defendant
is not entitled to new counsel.” Id. The court therefore concluded that the appropriate remedy
in that case would be to remand the matter for a proper preliminary Krankel inquiry in front of
a different judge. Id. ¶ 46.
¶ 97 The Jolly court did not specifically hold that allowing the State to participate in more than
a de minimis role could never amount to harmless error. See Skillom, 2017 IL App (2d)
150681, ¶ 28. Two courts have considered this question after Jolly and reached different
results. See Gore, 2018 IL App (3d) 150627, ¶ 39; Skillom, 2017 IL App (2d) 150681, ¶ 28.
¶ 98 In Skillom, the trial court did not ask the defendant about his claims at the Krankel inquiry.
Instead, the court asked defense counsel to call the defendant as a witness and question him.
The court then allowed the State to cross-examine the defendant and directed both parties to
present arguments. Skillom, 2017 IL App (2d) 150681, ¶ 27. On appeal, the Second District
found that there was “no question that the trial court erred” in conducting the preliminary
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inquiry in this manner. Id. The State, however, argued that the error was harmless. Id. ¶ 28.
Before considering whether the error was harmless, the court had to decide whether harmless
error analysis was appropriate after Jolly. In addressing that question, the court first noted that
the Jolly court did not explicitly hold that errors in how preliminary Krankel inquiries are
conducted can never constitute harmless error. Id. The court then noted that the Jolly court
“specifically declined to hold that the error in that case constituted structural error.” Id. (citing
Jolly, 2014 IL 117142, ¶ 45). The Skillom court explained that errors that are not structural
may be found to be harmless. Id. (citing Neder v. United States, 527 U.S. 1, 7-8 (1999)). The
court then found that the error in the case before it was harmless beyond a reasonable doubt
because the objective record rebutted the defendant’s claims of ineffective assistance of
counsel. Id. ¶ 30.
¶ 99 In Gore, the Third District reached the opposite conclusion. There, the defendant raised
several claims of ineffective assistance of counsel, including failure to subject the State’s case
to adequate adversarial testing, failure to provide the defendant with discovery materials, and
the fact that counsel was apparently sick during the trial and may not have been fully alert. See
Gore, 2018 IL App (3d) 150627, ¶¶ 12-15. At the preliminary Krankel hearing on these claims,
the State participated in a “long discussion” about the defendant’s allegations. Id. ¶ 13. After
discussing all of the defendant’s claims, the court asked the State for its input. The State
responded with an argument “which spans nearly two uninterrupted pages of the report of
proceedings.” Id. ¶ 14. In denying the defendant’s motion, the court referenced specific points
made in the prosecutor’s argument. Id. ¶¶ 15, 38.
¶ 100 On appeal, the Third District first rejected the State’s contention that its participation in the
inquiry was de minimis. Id. ¶ 38. The court then addressed the State’s contention that any error
was harmless because the trial court “ultimately relied upon its own observations in denying
[the] defendant’s claims.” Id. ¶ 39. Rather than consider whether the error was harmless on the
record before it, the Gore court found that the State’s argument was “foreclosed by the
decision in Jolly, in which our supreme court rejected the notion that a Krankel inquiry
conducted in adversarial fashion could be considered harmless error.” Id.
¶ 101 We find the Skillom court’s careful analysis of the question to be persuasive. We will
therefore consider whether the error in this case was harmless.
¶ 102 In this case, the State participated in the inquiry by presenting an argument, but it did not
question the defendant or defense counsel. The defendant’s claims of ineffective assistance of
counsel can be reviewed by looking at the record of the two trials and the statements of defense
counsel during the Krankel inquiry, which, as noted, were not elicited by the State. As such,
there is an objective record for us to review to determine whether the court correctly declined
to appoint a new attorney and hold further hearings. As we have explained, this was the chief
concern of the supreme court in Jolly.
¶ 103 This is not to minimize the fact that the State was permitted to argue against the
defendant’s position in a hearing where he appeared pro se without having waived the right to
counsel. We find the error to be harmless under the circumstances of this case for two reasons.
First, as just discussed, there is an objective record for this court to review. As we will discuss
shortly, our review of that objective record leads us to conclude that the court ruled correctly.
¶ 104 Second, the record shows that the State’s argument likely had little or no influence on the
court’s decision. Unlike what happened in Gore, the State did not offer any specific arguments
in favor of defense counsel’s performance that were not offered by counsel himself. Although
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the prosecutor argued that most of the arguments raised in the letter had to do with the strength
of the evidence, rather than counsel’s performance, the record indicates that the court was well
aware of this fact before hearing this argument. At times during the hearing, the defendant
attempted to point out inconsistencies in the witness testimony and other weaknesses he saw in
the State’s evidence. Each time he did so, the court advised him that the sole purpose of the
hearing was to evaluate his claims of ineffective assistance of counsel. Likewise, the court did
not merely reiterate the prosecutor’s assertion that defense counsel was a “tenacious
opponent”; the court gave specific examples of counsel’s performance that it could only have
gleaned from conducting its own thorough review of the record. Thus, under the facts before
us, we do not believe there is any possibility that the State’s argument led the court to rule
differently than it might have ruled had the prosecution not been given an opportunity to
present it.
¶ 105 In summary, the State’s participation in the preliminary inquiry, while inappropriate, did
not prevent the court from creating an objective record for us to review and did not tip the
balance against the defendant. Moreover, because our review of the objective record leads us
to conclude that the court made the correct decision, it would make little sense to reverse this
case and remand for further hearings at which the court would necessarily reach the same
conclusion. For these reasons, we find that the error in this case was harmless beyond a
reasonable doubt.
¶ 106 Krankel Inquiry and Ineffective Assistance of Counsel
¶ 107 The defendant’s final contention is that the court erred in deciding not to appoint a new
attorney and hold further hearings on his claims. Additional hearings and the appointment of a
new attorney are not warranted unless the defendant’s allegations are “sufficiently detailed”
and challenge more than trial counsel’s strategic decisions. Fields, 2013 IL App (2d) 120945,
¶ 21. However, if it appears that counsel may have neglected the defendant’s case, the court
should appoint new counsel and hold further hearings. People v. Nitz, 143 Ill. 2d 82, 134-35
(1991). As stated previously, we will reverse the court’s determination only if we find it to be
manifestly erroneous. Crutchfield, 2015 IL App (5th) 120371, ¶ 20.
¶ 108 To support a claim of ineffective assistance of counsel, a defendant must demonstrate both
that counsel’s performance was deficient and that the defendant suffered prejudice as a result.
People v. Edwards, 195 Ill. 2d 142, 162 (2001) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish that counsel’s performance was deficient, a defendant must show
that it fell below an objective standard of reasonable representation. People v. Makiel, 358 Ill.
App. 3d 102, 105 (2005) (citing Edwards, 195 Ill. 2d at 162-63). To establish prejudice, a
defendant must show that but for counsel’s deficient performance, there is a reasonable
probability that the outcome of the trial would have been different. Id. at 105-06 (citing
Strickland, 466 U.S. at 694). Counsel’s performance enjoys a strong presumption that it was
based on sound trial strategy. Id. at 106 (citing Strickland, 466 U.S. at 689).
¶ 109 Here, the defendant argued that counsel was ineffective for (1) failing to call Laqueshia
Jackson and Angela Dodd as witnesses at his second trial, (2) failing to call two alibi
witnesses, (3) failing to object to misstatements during the State’s closing argument, and
(4) failing to present evidence concerning the unreliability of the State’s DNA evidence. We
may quickly dispose of the defendant’s claim that counsel was ineffective for failing to object
during closing arguments. We have already concluded that only two of the challenged remarks
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were improper and that those two isolated comments were not prejudicial enough to warrant
reversal because they did not contribute to the jury’s verdict. In light of this conclusion, the
defendant cannot meet his burden of demonstrating that it was reasonably probable that he
would have been acquitted had counsel objected. As such, his claim of ineffective assistance of
counsel based on those remarks must fail. The defendant’s remaining claims merit further
discussion, and we address them in turn.
¶ 110 We first consider the defendant’s claim that counsel was ineffective for failing to call
Laqueshia Jackson in his second trial. At the Krankel inquiry, counsel told the court that he
made a strategic decision not to call Jackson because she had indicated a willingness to testify
for the State and he was uncertain as to what she would testify if called to the stand. The record
of the defendant’s first trial shows that this decision constituted sound trial strategy. As we
discussed earlier, Jackson testified at the defendant’s first trial that she saw the defendant get
out of the mayor’s vehicle, limp to another vehicle, and drive away. This was consistent with
her statement to police, although she gave police conflicting statements about the second
vehicle. Later, when Jackson was questioned outside the presence of the jury about the
allegation that Detective McAfee offered her a bribe, she was visibly shaken and sobbed on the
stand. Because of this, defense counsel had grave concerns about cross-examining her further
in front of the jury. The same concerns would have been present had Jackson testified at the
second trial. Thus, calling her as a witness would have been risky, even if counsel could have
been certain that she would have given testimony helpful to the defendant.
¶ 111 Moreover, as discussed, counsel had reason to believe that Jackson would have again given
testimony implicating the defendant. And even if she did change her testimony and claim that
she did not see the defendant get out of the car, the State would have been able to use both her
prior inconsistent statement to police and her inculpatory testimony from the first trial as
substantive evidence against the defendant. See 725 ILCS 5/115-10.1 (West 2010). Thus, the
decision not to call Jackson as a witness in the second trial constituted sound trial strategy.
¶ 112 The defendant also asserted that counsel was ineffective for failing to call Jackson’s sister,
Angela Dodd, as a witness in his second trial. During the defendant’s first trial, Dodd called the
court and claimed that she had witnessed McAfee offering Jackson a bribe. We acknowledge
that defense counsel stated at the Krankel inquiry, more than three years later, that he only
remembered talking to Dodd about Jackson’s whereabouts. However, we have already found
that counsel’s decision not to call Jackson constituted sound trial strategy, and without
Jackson’s testimony, Dodd’s testimony was not relevant to any issue in the case.
¶ 113 The court also rejected the defendant’s claim that counsel was ineffective for failing to call
two alibi witnesses. As discussed previously, counsel explained that he was unable to locate
one witness and found that the second witness had no helpful information because he was
intoxicated at the relevant time. We note that, in rejecting this claim, the court incorrectly
stated that the second witness was intoxicated when counsel spoke to him. The court also
emphasized, however, that the defendant did not allege that any uncalled witness would have
offered testimony likely to have changed the outcome of the trial. See Fields, 2013 IL App (2d)
120945, ¶ 21 (noting that a trial court should reject an allegation of ineffective assistance of
counsel if it is not sufficiently detailed). It is also worth reiterating that the defendant admitted
to police in a recorded interview that he was at the scene of the crime. The defendant failed to
show that calling any additional witnesses would have been reasonably likely to change the
outcome of his trial.
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¶ 114 The defendant’s final claim of ineffective assistance of counsel relates to the DNA
evidence. In determining whether the trial court correctly rejected this claim, we must consider
counsel’s handling of this evidence in its entirety. People v. Watson, 2012 IL App (2d) 091328,
¶ 32.
¶ 115 During cross-examination, defense counsel got Jay Winters to acknowledge that the partial
profile obtained from the bloodstain on the defendant’s jeans was not a “match” for John
Thornton’s DNA and that he could not be certain that it was Thornton’s blood. Winters also
acknowledged that DNA analysis cannot determine how or when the blood got on the
defendant’s jeans. Counsel elicited testimony from Winters that he did not test a swab taken
from a bloodstain on the interior roof of the vehicle because he was not given permission to
conduct tests that would consume the DNA in the swab, even though he acknowledged that his
testing consumed all the DNA in the bloodstain on the defendant’s jeans. Counsel also
questioned Winters about the calculations he used to determine the frequency of the partial
profile in the general population. Winters admitted that he performed one set of calculations
earlier, which yielded a different result from the frequencies he testified to at trial. He
acknowledged that the two sets of calculations were performed using the same profile. We
note, however, that Winters also explained that he used different calculations due to an
advancement in the testing process.
¶ 116 During closing argument, defense counsel reminded jurors that DNA in the blood was not a
match. He argued, “They can’t tell you that it’s John Thornton’s” blood. He also argued that it
would be physically impossible for Thornton’s blood to stain the part of the defendant’s jeans
where the stain was found if he was sitting in the car with Thornton when he was shot. Counsel
explained that when a person wearing jeans is sitting, the jeans tend to bunch up around the
area of the front pocket, where the blood was found. He also noted that the defendant was
wearing a sweatshirt, which would have covered the part of the jeans where the bloodstain was
located. (We note that there was conflicting evidence as to whether the defendant was wearing
the sweatshirt or carrying it when he got out of the car.)
¶ 117 In arguing that counsel was ineffective, the defendant asserts that counsel should have
presented additional evidence to show that the partial DNA profile was not reliable. In support
of this contention, he cites Watson and People v. Wright, 2012 IL App (1st) 073106. The courts
in both of those cases discussed studies demonstrating the limitations of partial DNA profiles.
Id. ¶¶ 103, 111; Watson, 2012 IL App (2d) 091328, ¶¶ 25-26.
¶ 118 To understand the relevance of these discussions, we need to consider what DNA analysis
entails. DNA analysts look for genetic variations in DNA, which are called alleles, at 13 loci.
See People v. Richmond, 2017 IL App (1st) 150642, ¶ 6. As Jay Winters testified in this case, if
the alleles at all of these loci match those in the known profile, the sample is considered a
“match.” When the profile is not complete at any of these loci, it cannot be called a “match.”
To calculate the frequency of a partial profile, DNA analysts use what is called the “product
rule.” This method involves multiplying the percentage of profiles in a database with the
alleles found at the first locus by the percentage of profiles with the alleles found at the second
locus—and so on—through all of the loci included in the partial profile. Id. ¶ 10. The product
rule can yield “extraordinarily large figures” to estimate the probability of a partial profile
occurring in a random unrelated individual. See Wright, 2012 IL App (1st) 073106, ¶ 84.
¶ 119 The studies discussed in Wright and Watson showed that searches of large DNA databases
in Arizona, Illinois, and Maryland nevertheless revealed numerous pairs of unrelated
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individuals whose DNA profiles “matched” at nine loci. Id. ¶ 82.4 However, as a panel of the
First District recently explained, these searches yielded results that were consistent with the
probability of random partial matches predicted by the product rule. Richmond, 2017 IL App
(1st) 150642, ¶¶ 21, 23. Thus, the studies demonstrate that (1) a partial profile is less certain
than a complete profile and (2) the statistical method used to calculate the probability of an
unrelated individual having the same alleles in a partial profile is fairly accurate. This is
consistent with the testimony Jay Winters gave in this case.
¶ 120 As discussed, defense counsel emphasized that the DNA profile in the bloodstain on the
defendant’s jeans was not a complete profile and that the State could not prove with certainty
that the blood was John Thornton’s. This is precisely what an attorney faced with similar DNA
evidence must do to provide effective assistance. See id. ¶ 24; see also Watson, 2012 IL App
(2d) 091328, ¶ 31 (noting that “the well-established fact that the police routinely test DNA
evidence at 13 loci is the only information needed to make a basic argument that the fewer loci
available for testing the less certain the results might be”).5
¶ 121 Before the trial court, the defendant asserted that counsel should have presented additional
evidence to challenge the reliability of the partial profile. He did not specify what additional
evidence counsel should have presented. We note, however, that a competent attorney might
well choose not to present evidence such as the studies discussed in Wright and Watson
because the complex statistical analysis involved in those studies could be confusing to most
jurors and the evidence may not be very helpful. Richmond, 2017 IL App (1st) 150642, ¶ 24.
¶ 122 On appeal, the defendant points out that Winters never testified to how many loci he was
able to analyze. He argues that counsel should have questioned Winters about this. We
recognize that this would have been an appropriate and potentially helpful line of inquiry. Had
Winters said that the profile included alleles at only four or five loci, defense counsel could
have highlighted this weakness during closing argument. However, it is worth noting that this
would not have altered or contradicted Winters’ testimony concerning the probability of the
blood coming from someone other than Thornton. Moreover, the effective assistance to which
a defendant is entitled requires that counsel provide competent representation, not perfect
representation. People v. Easley, 192 Ill. 2d 307, 344 (2000). We find that defense counsel’s
representation met this standard with respect to the DNA evidence as well as the other areas
challenged by the defendant. As such, we find no clear abuse of the trial court’s discretion in its
decision to reject his claims.
4
A search of the Arizona database revealed 120 pairs of inmates with the same alleles at nine loci in
a database of 65,493 inmates. Wright, 2012 IL App (1st) 073106, ¶ 11. In Illinois, there were
approximately 900 such pairs in a database of more than 220,000. Richmond, 2017 IL App (1st)
150642, ¶ 21. In Maryland, 32 pairs of inmates had nine loci “matches” out of a database of 30,000.
Wright, 2012 IL App (1st) 073106, ¶ 82.
5
We acknowledge that, in Wright, a division of the First District found that defense counsel was
ineffective for failing to introduce evidence of the results of the search of the Illinois prisoner database,
results he had successfully requested in another case. Wright, 2012 IL App (1st) 073106, ¶¶ 103-115.
However, that case involved unusual circumstances not present here. Moreover, a different panel of the
First District has rejected the Wright court’s holding. Richmond, 2017 IL App (1st) 150642, ¶ 23.
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¶ 123 CONCLUSION
¶ 124 For the foregoing reasons, we affirm the defendant’s conviction.
¶ 125 Affirmed.
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