People v. Neal , 2020 IL App (4th) 170869 ( 2020 )

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Appellate Court Date: 2020.09.04
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People v. Neal, 2020 IL App (4th) 170869Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
Caption v. CHRISTOPHER L. NEAL, Defendant-Appellee.
District & No. Fourth District
No. 4-17-0869
Filed June 29, 2020
Rehearing denied August 3, 2020
Decision Under Appeal from the Circuit Court of Macon County, No. 15-CF-1065; the
Review Hon. Jeffrey S. Geisler, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, John M. McCarthy, Catherine K. Hart, and Edward
Appeal J. Wittrig, of State Appellate Defender’s Office, of Springfield, for
appellant.
Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
Robinson, and James C. Majors, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the
court, with opinion.
Justices Knecht and Cavanagh concurred in the judgment and opinion.
OPINION
¶1 In September 2015, the State charged defendant, Christopher L. Neal, with four felony
offenses involving illegal drugs. In November 2016, a jury convicted defendant on two of the
drug charges. The trial court later sentenced him to 18 years in prison on one charge and 2
years in prison on the other, and it ordered those sentences to be served concurrently.
¶2 Defendant appeals and makes the following arguments.
¶3 First, defendant contends he was denied his right to the effective assistance of counsel
because his trial counsel failed to object to the admission of certain incriminating documents
that constituted inadmissible hearsay. Specifically, defendant claims that (1) a phone bill with
his name and the address of the residence where the drugs were found and (2) an unopened
envelope addressed to him at that same residence were hearsay statements used to prove he
lived at the residence. As a matter of first impression in Illinois, we hold that implied assertions
of fact contained within mail and other documents are not hearsay.
¶4 Second, defendant argues the prosecutor’s improper closing argument denied him a fair
trial. However, after reviewing the arguments made by defense counsel, we conclude that
(1) her argument clearly invited a response and (2) the prosecutor’s rebuttal arguments were
appropriate.
¶5 Third, defendant asserts the trial court erred because it did not properly admonish potential
jurors as required by Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Defendant
recognizes he did not object to the improper admonishments but maintains the court committed
plain error. We reject defendant’s argument because the evidence against him was
overwhelming.
¶6 Fourth, defendant argues that the trial court improperly conducted a Krankel hearing. See
People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). We conclude that the trial court
(1) properly conducted the hearing and (2) committed no error when it declined to appoint new
counsel.
¶7 Accordingly, we affirm the trial court’s judgment.
¶8 I. BACKGROUND
¶9 A. The Charges Against Defendant
¶ 10 In September 2015, the State filed the following drug charges against defendant:
Count I: Unlawful possession of a controlled substance with intent to deliver with
a prior unlawful possession of a controlled substance with intent to deliver (specifically,
more than 600 but less than 1500 objects containing Methylenedioxymethamphetamine
(Ecstasy)) (720 ILCS 570/401(a)(7.5)(C)(ii), 408 (West 2014)).
Count II: Unlawful possession of a controlled substance with intent to deliver with
a prior unlawful possession of a controlled substance with intent to deliver conviction
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(more than 15 grams but less than 100 grams of a substance containing heroin) (id.
§§ 401(a)(1)(A), 408).
Count V: Unlawful possession of a controlled substance with a prior unlawful
possession of a controlled substance with intent to deliver conviction (specifically,
more than 600 but less than 1500 objects containing Ecstasy) (id. §§ 402(a)(7.5)(C),
408).
Count VI: Unlawful possession of a controlled substance with a prior unlawful
possession of a controlled substance with intent to deliver conviction (15 grams or
more, but less than 100 grams of a substance containing heroin) (id. §§ 402(a)(1)(A),
408).
The State’s original charges also included two charges of unlawful possession of a weapon by
a felon, but prior to trial, the trial court granted defendant’s motion to sever those counts from
the drug counts. After defendant was convicted of the drug charges, the State dismissed the
gun charges.
¶ 11 In November 2016, the State filed a motion to amend counts I and V of the information,
explaining that it had originally filed those counts under the belief that the controlled substance
in question was Ecstasy but later received a lab report stating the substance in question was
identified as a different illegal controlled substance under Illinois law, namely, 4-chloro-2, 5-
dimethoxy-N-((2-methoxyphenyl)methyl)-benzeneethanamine, otherwise known as 25C-
NBOMe.
¶ 12 The trial court granted the State’s motion over defendant’s objection, and both counts were
amended accordingly. When granting that motion, the court noted that a factual issue may arise
for the jury to decide “if there is one lab report that says one thing, and then a year later, another
lab report that says something different.” Accordingly, the court informed defendant’s counsel,
who was privately retained, that if she “[wished] to have an independent investigation or
independent lab [examine the drugs], I certainly think that is also something that should be
allowed.”
¶ 13 In February 2017, defense counsel informed the trial court that she had looked into an
independent lab to test the pills that were at issue in this case. She had found a lab, but because
(1) it did not have a proper certification and (2) the cost was “just going to be prohibitive,” she
was going to announce ready for trial.
¶ 14 B. The Evidence at Defendant’s Trial
¶ 15 In June 2017, defendant’s case proceeded to a jury trial. The charges in this case arose from
the execution of a search warrant on August 26, 2015, in Decatur, Illinois. The search warrant
authorized the search of defendant’s person as well as the building at 1344 East Division Street
in Decatur (hereinafter, “the residence”), which was a single-family residence.
¶ 16 1. The Search of Defendant
¶ 17 On the afternoon of August 26, 2015, several Decatur police officers watched the
residence. They had seen defendant come and go from the residence earlier that day, as well
as the day before. Around 2:30 that afternoon, the officers watched defendant get into his
vehicle, which was parked in the residence driveway, and drive away. They followed him for
a few minutes and then made a traffic stop. Defendant was the only one in the vehicle.
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¶ 18 The police explained to defendant that they had a warrant to search both his person and the
residence. They searched him for any weapons or contraband, found none, and then handcuffed
his hands behind his back. They then told defendant they were going to transport him to the
Decatur police station.
¶ 19 One of the officers who stopped defendant, Detective Jason Hesse, had a body camera,
which was operating during the traffic stop, and the footage from that camera was admitted
into evidence and shown to the jury. Hesse explained to defendant that they had a search
warrant both for his person and the residence. Hesse told defendant, “You were at 1344 East
Division.” Defendant responded, “No, I wasn’t. No, I wasn’t.”
¶ 20 Defendant had clipped to his pants on his right hip, near his pocket, a “phone holster” that
contained a cell phone. Although the officers saw the phone in the holster, they did not seize
it at the traffic stop, and it remained on defendant’s person until he arrived at the Decatur police
station.
¶ 21 The video from Hesse’s body camera showed that defendant was placed in handcuffs and
seated in the front seat of their squad car. The front passenger door of the squad car was open
for several minutes as the officers conversed with defendant. The video showed defendant
adjusting himself in the front seat. Of importance for later events, the video also clearly showed
that although defendant’s hands were handcuffed behind his back, he was able to move his
right hand to the area of the holstered cell phone, and he almost completely covered the holster
when he did so.
¶ 22 Detective Jonathan Roseman transported defendant in Roseman’s squad car from the traffic
stop to the Decatur police station. They were the only ones in the car during the 11-minute
ride, and what happened was captured with audio and video recording equipment in the
vehicle. The video was played for the jury, and at one point Roseman can be heard saying to
defendant, “What are you looking at?” Roseman testified that he made that statement because
he could hear a clicking noise that he believed was coming from defendant’s handcuffs, given
that defendant was “moving around quite a bit.”
¶ 23 Roseman also testified that, because defendant was looking down at his right thigh area at
the same time Roseman heard the clicking noises, Roseman was concerned that defendant was
slipping out of his handcuffs. Roseman explained that defendant had earlier complained about
the handcuffs being too tight, but Roseman testified he had properly fit them on defendant.
¶ 24 During the drive to the police station, defendant told Roseman that the residence was not
his but that he knew children were present in the house, and he provided their ages.
¶ 25 After they arrived at the police station, Roseman did not search defendant again or remove
any property from his person. Roseman did not remove the cell phone from the holster, nor did
he put the cell phone in defendant’s right front pants pocket. However, Roseman did not recall
seeing defendant do that either.
¶ 26 At the police station, Hesse removed the cell phone from defendant’s person, which was a
black “flip phone,” but when Hesse did so, the phone was then located in defendant’s front
right pants pocket. Only Hesse, Roseman, and defendant had had access to that cell phone from
the time of the traffic stop until Roseman delivered defendant to the police station, at which
point Hesse took possession of the phone.
¶ 27 Hesse testified that he did not place defendant’s cell phone in defendant’s right front pants
pocket. Even though Roseman and Hesse saw defendant’s cell phone in the phone holster,
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neither officer seized the holster, and at the time of trial, neither could account for what
happened to it.
¶ 28 When searching defendant at the police station, Hesse took possession of defendant’s
wallet. It contained a real estate business card that had handwriting on the back that, as Hesse
described it, “said something to the effect of Christopher Neal paid $450 for rent for 1344 East
Division for November.” Hesse also found $1097 on defendant’s person.
¶ 29 2. The Search of the Residence
¶ 30 After learning that defendant’s vehicle had been stopped, other Decatur police officers
went to the residence to execute the search warrant. The only persons (other than the police)
present in the residence that afternoon were Kyra Walker and her two very young children.
¶ 31 The residence contained surveillance cameras set up to monitor its front door and its
driveway. Officers searched the freezer area of the refrigerator and, behind the ice maker,
found a “baggie” containing five smaller baggies that each contained heroin. In the broiler
drawer under the stove, they located four smaller baggies containing pills. The officers
separated the baggies from the pills and the heroin so the baggies could be tested for
fingerprints. Other officers found three bags containing a large number of pills in a floor vent
in the living room. The police also recovered baggie corners and a digital scale from within
the residence.
¶ 32 In one of the bedrooms, the officers found a 9-millimeter pistol on a dresser, a .25-caliber
pistol on the floor by the head of the bed, and a box of ammunition.
¶ 33 The police searched Walker’s purse in the living room and found three documents in it:
(1) an AT&T phone bill dated August 3, 2015, in the name of Christopher Neal at the address
of 1344 East Division Street, Decatur, Illinois, that stated it was page “3 of 3” but did not set
forth an amount due; (2) an unopened envelope from American Family Insurance addressed to
Christopher Neal at that same address; and (3) a copy of a warranty deed for the residence. The
warranty deed showed that the residence was conveyed to defendant on February 20, 2015,
and it had been recorded in the Macon County Recorder of Deeds office on April 21, 2015.
¶ 34 The police also recovered two cell phones from the residence and observed adult men’s
clothing in one of the bedroom closets.
¶ 35 3. Kyra Walker’s Testimony
¶ 36 Walker testified as a State’s witness and explained that she was in a “dating relationship”
with defendant when the police searched the residence on August 26, 2015, but she no longer
was at the time of the June 2017 jury trial. Walker testified that, on that date, she was living at
the residence with defendant and her two young children. Defendant was the father of one of
those children. Walker further testified that the police found illegal drugs during the search and
that the drugs belonged to defendant.
¶ 37 Walker stated she was arrested on the day of the search. At the scene, she told the police
that she did not know anything and had nothing to say to them. Five weeks later, as Walker
remained in custody hoping that someone was going to come and bond her out, she decided to
talk to the police with her lawyer present. Pursuant to a plea agreement, Walker agreed to
testify at defendant’s trial. In exchange for her testimony, she would plead guilty to a Class 4
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felony for a sentence of probation, and the State would dismiss all of the other charges against
her.
¶ 38 Walker acknowledged that she was testifying pursuant to her plea agreement, and the
record reveals she was a reluctant witness. When pressed, Walker admitted that she once “gave
somebody something that [defendant] gave me,” but she was “not comfortable answering”
whether defendant personally gave her what she believed to be some kind of illegal drugs or
pills to deliver to another person because she never got anything in return for doing so.
¶ 39 Walker testified that defendant had another house at 1802 North Morgan Street in Decatur,
where he stayed with his cousin. Nonetheless, defendant bought the house at 1344 East
Division, and she, defendant, and her children lived there.
¶ 40 On cross-examination, defense counsel asked Walker the following question: “And so
[defendant] bought the house at 1344 East Division, but you live there?” Walker responded,
“That’s not correct. We both live there.” (Emphasis added.) Walker acknowledged that, on the
date of her arrest, she told the police that, even though mail was found in defendant’s name at
the residence, he did not live with her.
¶ 41 4. The Text Messages
¶ 42 Detective David Dailey of the Decatur Police Department testified as an expert witness
that he examined defendant’s cell phone along with the two cell phones taken from the
residence. He explained that he was a certified cellular phone physical analysist, which meant
that he was certified to operate software that enables information to be extracted from cell
phones or other electronic devices. Dailey further explained that an “extraction” takes
information out of the device being examined but does not alter the information. Dailey
successfully made extractions from defendant’s phone and from one of the cell phones in the
residence. The information he extracted was essentially text messages.
¶ 43 Dailey testified about several incoming and outgoing texts, as well as the contact names
for those texts, on defendant’s phone. One such text, received while defendant was in custody
at the police station at 4:23 p.m., read as follows: “Hey, you wouldn’t do two for 30.” After
the trial court permitted Dailey to testify as an expert regarding the trafficking of illegal drugs,
he testified that based upon his experience, the text was referring to a dosage unit of heroin
being 0.1 gram that would cost the individual approximately $20. In Dailey’s opinion, the
person sending the text message was “trying to get a deal—they’re trying to get two .1 grams
for $30 instead of $40.”
¶ 44 Dailey next testified about three texts that were sent while defendant was in custody in
Roseman’s squad car, being driven from the traffic stop to the Decatur police station. The first
was an outgoing text from defendant’s phone sent at 2:51 p.m. to “Little Bruh,” which read,
“They got me, them people.” Dailey testified that “them people” meant the police.
¶ 45 Dailey testified that a text message was sent to the contact name of “Wifee” from
defendant’s cell phone at 2:47 p.m. that said, “get everything out of the house now.” Dailey
said an additional text message was sent two minutes later from defendant’s phone, again to
“Wifee,” and its sole content was “flush it.” Both of these text messages to “Wifee” were also
sent while defendant was in police custody.
¶ 46 Dailey testified that a contact named “Old Man” sent defendant a text message on August
26, 2015, at 10:42 a.m. (about four hours before defendant’s arrest), stating “510 for 3?” Dailey
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explained this text as follows: The numbers “510 for 3” meant the texter was asking if he could
get “5 dimes” of heroin, which would normally cost $50, for $30.
¶ 47 Another text message was sent from defendant’s phone to a contact name of “Michele” on
August 25, 2015, at 10:06 a.m., the day before defendant was arrested. The text stated, “meet
me on Olive Street.” Dailey explained that drug sellers commonly do not like customers to
come to their residences because that is “where they store their stash” and it leaves them
vulnerable “to being ripped-off or having their residence broken into.” Dailey opined that
(1) defendant in that text message was telling the contact Michele to meet him on Olive Street
and (2) he was going to travel there to do some type of transaction.
¶ 48 Dailey testified that the text messages sent to “Wifee” showed up as unread on one of the
cell phones found in the residence. Dailey added that defendant’s cell phone had 32 text
messages extracted from it, but Dailey testified about only 7 of them. The others were not
relevant to the charges against defendant.
¶ 49 Finally, Dailey testified that in the business of trafficking in heroin, in his expert opinion,
50 grams of heroin would have been worth $10,000 in August 2015. He also testified that the
amount of heroin recovered from the residence was consistent with distribution, not personal
use.
¶ 50 5. The Drugs and Fingerprint Expert Testimony
¶ 51 Julia Edwards testified that she worked for the Illinois State Police as a forensic scientist
analyzing suspected narcotics. She determined that one of the substances submitted to her in
this case weighed 41.4 grams and contained heroin. Another substance submitted to her
weighed 10.1 grams and contained both heroin and cocaine.
¶ 52 When Edwards initially tested another item she received, multicolored tablets, she first saw
an indication for 25C-NBOMe. However, after further testing, she was unable to say to a
scientific certainty that the substance was in fact 25C-NBOMe. Because the large quantity of
heroin was a much more serious offense, she did not continue testing the suspected 25C-
NBOMe.
¶ 53 Edwards testified that, nearly a year after her initial test of these substances, the prosecutor
in this case had a phone conversation with her in which he asked her to conduct additional
testing. She did so and was then able to confirm that the tablets she was testing did contain
25C-NBOMe. She was able to make that determination because she used a “different type of
extraction technique.”
¶ 54 On cross-examination, defense counsel rigorously questioned Edwards about (1) how and
why Edwards performed a second test of those tablets and found they contained 25C-NBOMe
and (2) her conversation with the prosecutor in which he requested that second test. In defense
counsel’s questioning, counsel pointed out that Edwards was done with the pills in question
after the first round of testing and did not suggest to the prosecutor either that the pills be
resubmitted for further testing or that a different test would get “a better result.”
¶ 55 Another forensic scientist working for the Illinois State Police, who was a specialist in
latent fingerprints, testified regarding her examination of two guns and three plastic bags
submitted by the Decatur police. She could not obtain any fingerprints off the guns but did
obtain a latent fingerprint off one of the bags that matched defendant.
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¶ 56 6. Defendant’s Evidence
¶ 57 Defendant did not testify, but the parties agreed to a stipulation that defendant was on
parole in August 2015 and was required to provide his address to his parole officer, Bill
Cooper. The address defendant provided to Cooper was 1802 North Morgan Street in Decatur.
The stipulation added that Cooper visited defendant at that address several times before
defendant’s arrest on August 26, 2015, and some of those visits were unannounced and
unscheduled. On those visits, Cooper went inside the Morgan Street residence and could see
that the house was fully furnished and appeared to be lived in.
¶ 58 C. The Jury’s Verdict
¶ 59 At the close of the State’s case, defendant moved for a directed verdict, and the trial court
granted it with regard to count I, possession with intent to deliver 25C-NBOMe. The court
denied the motion with regard to possession of that substance (count V) and possession of
heroin with intent to deliver (count II).
¶ 60 The jury found defendant guilty of possession of heroin with the intent to deliver between
15 and 100 grams of a substance containing heroin (count II) and possession of 25C-NBOMe
(count V).
¶ 61 D. Posttrial Matters
¶ 62 After trial, defense counsel sought to withdraw, alleging an irretrievable breakdown of the
attorney-client relationship and pointing out that defendant had filed a complaint against her
with the Attorney Registration and Disciplinary Commission. After hearing of defendant’s
claim that his counsel was ineffective, the trial court ordered defendant to put his claims in a
written motion and stated that it would then conduct a Krankel hearing.
¶ 63 Defendant did so and alleged that defense counsel failed to (1) call certain witnesses,
including his parole agent, Bill Cooper, to testify, (2) sufficiently investigate Walker,
(3) challenge the search warrant, (4) retest the pills despite her receiving money from
defendant’s family to do so, and (5) file a pretrial motion to disclose an informant’s identity.
Defendant requested the appointment of the public defender’s office.
¶ 64 The trial court later conducted a Krankel hearing at which defense counsel addressed the
various claims defendant made in his pro se motion. Defendant also discussed these claims in
detail with the court. At the conclusion of the Krankel hearing, the court determined that
(1) trial counsel had been highly competent in her handling of defendant’s case and (2) the
court would not find that she had been ineffective. The court then denied defense counsel’s
motion to withdraw.
¶ 65 Defendant’s trial counsel then filed a motion for new trial challenging only the sufficiency
of the evidence. The trial court denied the motion and later sentenced defendant to 18 years in
prison on count II and 2 years in prison on count V, with those sentences to be served
concurrently. The State dismissed the remaining gun charges.
¶ 66 This appeal followed.
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¶ 67 II. ANALYSIS
¶ 68 Defendant appeals, arguing that (1) he was denied his right to the effective assistance of
counsel because his trial counsel failed to object to the admission of certain incriminating
exhibits that constituted inadmissible hearsay, (2) he was denied a fair trial based upon the
prosecutor’s improper closing arguments, (3) the trial court erred because it did not properly
admonish potential jurors under Rule 431(b), and (4) the trial court improperly conducted a
posttrial Krankel hearing. We disagree and affirm. We discuss defendant’s claims in turn.
¶ 69 A. Defendant’s Claim That Counsel Was Ineffective for Failing to Object
to Documents That Constituted Inadmissible Hearsay
¶ 70 Defendant first argues that he was denied his right to the effective assistance of counsel
because his trial counsel failed to object to the admission of certain documents that contained
inadmissible hearsay. The documents in question (hereinafter, “the documents”) are (1) page
“3 of 3” of an AT&T bill dated August 3, 2015, in the name of Christopher Neal at the address
of 1344 East Division Street, Decatur, Illinois, that did not set forth an amount due and (2) an
unopened envelope from American Family Insurance showing that it was mailed to defendant
at the same address. During the execution of the search warrant at the residence, officers found
these documents in Walker’s purse in the living room.
¶ 71 Defendant contends that they contained hearsay and were improperly used by the State for
the truth of the matter asserted therein—specifically, that defendant lived at 1344 East Division
Street in Decatur in August 2015. Defendant points out that, because this is a constructive
possession case, the State needed to prove that he had knowledge of the presence of the illegal
drugs at the residence where he could exercise immediate and exclusive control. People v.
Loggins, 2019 IL App (1st) 160482, ¶¶ 45-47, 130 N.E.3d 432. Defendant also points out that,
in the prosecutor’s closing argument, he said police officers found “an AT&T bill from August
2015, this raid happened in August 2015, with the defendant’s name on it. He is connected to
that house.” Defendant concludes by arguing his trial counsel was ineffective for failing to
object to the admission of the documents.
¶ 72 We disagree with defendant’s argument and conclude, as a matter of first impression in
Illinois, that these documents are not hearsay. Specifically, we hold that implied assertions of
fact contained within mail and other documents are not hearsay. Because the documents were
properly admitted, defendant’s trial counsel was not ineffective based on the claim that she did
not object to them.
¶ 73 1. Are Mail and Other Documents Containing Implied
Assertions of Fact Hearsay?
¶ 74 At issue in this case is the admissibility of mail bearing defendant’s name that was
addressed to him at an address where the mail was found. The mail bearing defendant’s name
and address constituted implied assertions of fact. The question is whether that mail was
admissible to link defendant to those premises. The fundamental issue underlying this question
is whether mail and other documents containing implied assertions of fact are hearsay. This
issue is one that courts in this nation and the United Kingdom have wrestled with for—
literally—almost 200 years (see Wright v. Tatham (1837), 112 Eng. Rep. 488, 7 Ad & E 313),
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and its resolution requires an analysis of the basic principles of the rules of evidence dealing
with hearsay.
¶ 75 In our analysis of this issue, we will discuss the following topics: (1) the Federal Rules of
Evidence and the advisory committee’s notes (Advisory Committee Notes), (2) the Illinois
Rules of Evidence, (3) state cases holding that implied assertions of fact contained within mail
and other documents are not hearsay, (4) federal cases holding that implied assertions of fact
contained within mail and other documents are not hearsay, (5) analysis of this issue by legal
scholars and commentators, and (6) Illinois cases that have indirectly addressed this issue. We
then state our conclusion, which is that implied assertions of fact contained within mail and
other documents are not hearsay, and we explain why we reached that conclusion. After doing
so, we (1) discuss the Illinois Rules of Evidence Committee Commentary, (2) explain that our
conclusion is consistent with Illinois caselaw, (3) state that our conclusion reflects sound
policy considerations, (4) explain the limited scope of our conclusion, and (5) discuss contrary
authority.
¶ 76 a. The Federal Rules of Evidence and the Federal Rules of
Evidence Advisory Committee
¶ 77 In 1975, the Federal Rules of Evidence were promulgated. Since that time, they have been
an important point of reference for rules of evidence that various states, like Illinois, have
adopted. Federal Rule of Evidence 801(a)-(c) reads as follows:
“(a) Statement. ‘Statement’ means a person’s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. ‘Declarant’ means the person who made the statement.
(c) Hearsay. ‘Hearsay’ means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing;
and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(a)-(c).
¶ 78 Prior to the 1975 adoption of the Federal Rules of Evidence, the Advisory Committee on
the Federal Rules of Evidence, Judicial Conference of the United States (Advisory
Committee), provided an analysis of the then-forthcoming rules, explaining, in part, how to
construe Federal Rule of Evidence 801(a). Courts view the Advisory Committee Notes as
important and persuasive. Tome v. United States, 513 U.S. 150, 160 (1995) (“We have relied
on those well-considered Notes as a useful guide in ascertaining the meaning of the Rules.
[Citations.] *** The Notes are also a respected source of scholarly commentary.”). Because
Advisory Committee Notes are important in construing such rules, we set forth in their entirety
the 1972 Advisory Committee Notes regarding then-proposed Federal Rule of Evidence
801(a):
“Note to Subdivision (a). The definition of ‘statement’ assumes importance because
the term is used in the definition of hearsay in subdivision (c). The effect of the
definition of ‘statement’ is to exclude from the operation of the hearsay rule all
evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the
definition is that nothing is an assertion unless intended to be one.
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It can scarcely be doubted that an assertion made in words is intended by the
declarant to be an assertion. Hence verbal assertions readily fall into the category of
‘statement.’ Whether nonverbal conduct should be regarded as a statement for purposes
of defining hearsay requires further consideration. Some nonverbal conduct, such as
the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words,
assertive in nature, and to be regarded as a statement. Other nonverbal conduct,
however, may be offered as evidence that the person acted as he did because of his
belief in the existence of the condition sought to be proved, from which belief the
existence of the condition may be inferred. This sequence is, arguably, in effect an
assertion of the existence of the condition and hence properly includable within the
hearsay concept. [Citations.] Admittedly evidence of this character is untested with
respect to the perception, memory, and narration (or their equivalents) of the actor, but
the Advisory Committee is of the view that these dangers are minimal in the absence
of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No
class of evidence is free of the possibility of fabrication, but the likelihood is less with
nonverbal than with assertive verbal conduct. The situations giving rise to the
nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation,
the nature of the conduct, and the presence or absence of reliance will bear heavily
upon the weight to be given the evidence. [Citation.] Similar considerations govern
nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis
for inferring something other than the matter asserted, also excluded from the definition
of hearsay by the language of subdivision (c).
When evidence of conduct is offered on the theory that it is not a statement, and
hence not hearsay, a preliminary determination will be required to determine whether
an assertion is intended. The rule is so worded as to place the burden upon the party
claiming that the intention existed; ambiguous and doubtful cases will be resolved
against him and in favor of admissibility. The determination involves no greater
difficulty than many other preliminary questions of fact.” (Emphasis added.) Fed. R.
Evid. 801(a), Advisory Committee Notes (1972 Proposed Rules).
¶ 79 b. The Illinois Rules of Evidence
¶ 80 In 2011, the Illinois Supreme Court promulgated the Illinois Rules of Evidence, which, like
our sister states in their rules of evidence, track the Federal Rules of Evidence very closely.
Illinois Rule of Evidence 801(a)-(c) (eff. Oct. 15, 2015) reads as follows:
“The following definitions apply under this article:
(a) Statement. A ‘statement’ is (1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A ‘declarant’ is a person who makes a statement.
(c) Hearsay. ‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.”
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¶ 81 c. State Cases Holding That Implied Assertions of Fact Contained
Within Mail and Other Documents Are Not Hearsay
¶ 82 Illinois courts have not directly addressed the issue before us. However, some state courts
have and have concluded that implied assertions of fact contained within mail and other
documents are not hearsay. In State v. Peek, 365 S.E.2d 320, 322 (N.C. Ct. App. 1988), the
defendant was convicted of various drug offenses after the police searched a single-family
residence in Charlotte, North Carolina, and found drugs inside. The defendant argued on appeal
that the trial court erred by allowing into evidence copies of several pieces of mail addressed
to her at that address. Id. She claimed that, because they were offered to prove that she lived
at that address, the mail was inadmissible hearsay. Id. The North Carolina Court of Appeals
disagreed and wrote the following:
“Hearsay is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered to prove the truth of the matter asserted. [Citations.] A
‘statement’ is either (1) an oral or written assertion, or (2) non-verbal conduct which is
intended as an assertion. [(The court of appeals here referred to North Carolina Rule of
Evidence 801(a). N.C. Gen. Stat. § 8C-1, Rule 801(a)-(c) (1988)).] Defendant’s name
and address, written or printed on an envelope or its contents, is neither a written
assertion nor conduct which is intended as an assertion and, therefore, is not hearsay
evidence.
On its face, a written or printed name and address on an envelope asserts nothing.
From the sender’s conduct in writing or affixing the name and address and mailing the
material so addressed, however, it may be inferred that the sender believes the person
named lives at that address. As the Commentary to [North Carolina Rule of Evidence
801] makes clear, conduct ‘offered as evidence that the person acted as he did because
of his belief in the existence of the condition sought to be proved’ is not a statement.
Although evidence of the sender’s conduct remains untested as to perception, memory,
and narration, those ‘dangers are minimal in the absence of an intent to assert, and do
not justify the loss of the evidence on hearsay grounds.’ [Citations.] The sender’s
conduct in addressing and mailing the envelope undoubtedly implies that the sender
believes the addressee lives at that address. Nevertheless, because no assertion is
intended, the evidence is not hearsay and is admissible. See United States v. Singer,
687 F.2d 1135 (8th Cir.1982).” Id.¶ 83 The North Carolina Rule of Evidence 801(a)-(c) cited in Peek, in pertinent part, is identical
to the Illinois rule and reads as follows:
“(a) Statement.—A ‘statement’ is (1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended by him as an assertion.
(b) Declarant.—A ‘declarant’ is a person who makes a statement.
(c) Hearsay.—‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” N.C. Gen. Stat. Ann. § 8C-1, Rule 801(a)-(c) (West 2019).
¶ 84 The Peek court also cited the commentary regarding North Carolina Rule of Evidence 801
in support of its decision. Peek, 365 S.E.2d at 322. That commentary is essentially the same as
the Advisory Committee Notes of 1972 regarding the then-proposed Federal Rule of Evidence
801, which makes sense, given that North Carolina Rule of Evidence 801 is essentially the
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same as Federal Rule of Evidence 801. See N.C. Gen. Stat. Ann. § 8C-1, Rule 801,
Commentary (West 2019). However, the North Carolina commentary adds the following
clarification: “Subdivision (a) differs from current North Carolina law by excluding from the
hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion.” Id.
¶ 85 In further support of its decision (Peek, 365 S.E.2d at 322), the Peek court cited McCormick
on Evidence § 250 (Edward W. Cleary ed., 3d ed. 1984), which states the following:
“The Federal Rule [(801(a))] *** requires that nonverbal conduct must be intended to
be an assertion if it is to be classed as hearsay.
***
Even though the risks arising from purposeful deception may be slight or
nonexistent in the absence of intent to communicate, the objection remains that the
actor’s perception and memory are untested by cross-examination for the possibility of
honest mistake. However, in contrast to the risks from purposeful deception[,] those
arising from the chance of honest mistake seem more sensibly to be factors useful in
evaluating weight and credibility rather than grounds for exclusion.” Id. § 250, at 738-
39.
¶ 86 In Shurbaji v. Commonwealth, 444 S.E.2d 549, 550-51 (Va. Ct. App. 1994), the defendant
argued that the trial court erred by admitting into evidence utility bills addressed to him found
in the master bedroom where cocaine was also found. He contended that those documents
constituted written hearsay and were inadmissible absent a business records foundation. Id.The Virginia Court of Appeals disagreed and wrote the following:
“To constitute hearsay[,] the documents must be ‘written evidence[ ] of a statement
made out of court, the statement being offered as an assertion to show the truth of
matters asserted therein, and thus resting for its value upon the credibility of the out-
of-court asserter.’ [Citation.] The challenged documents in this case were not offered
for the truth of the matter asserted therein. The utility bills were used as circumstantial
evidence that appellant received or stored his property, including his correspondence,
in the master bedroom. It was irrelevant what the utility bills ‘asserted therein.’ Rather,
the mere existence of the bills in the master bedroom tended to prove that appellant
controlled the room, and that the cocaine and paraphernalia found there belonged to
him.” (Emphases in original.) Id. at 551.
¶ 87 In State v. Miller, 106 P.3d 474, 475 (Idaho Ct. App. 2004), the defendant claimed that a
receipt with her name on it, which was found in a package containing methamphetamine, was
improperly introduced because it constituted inadmissible hearsay. The Idaho Court of Appeals
disagreed and explained as follows:
“[T]he district court correctly overruled [the defendant’s] hearsay objection because
the receipt was not offered ‘for the truth of the matter asserted’ and therefore did not
meet the definition of hearsay for purposes of this trial. The receipt, taken as a whole,
does constitute an assertion that a specified sum had been paid by [the defendant] ***.
The receipt was not offered by the State to prove such payment, however. Whether [the
defendant] had actually made the indicated payment was irrelevant and of no
consequence to the State in this prosecution. Rather, the receipt bearing [the
defendant’s] name was used as circumstantial evidence tying her to the
methamphetamine that was wrapped within the receipt. This case involved the issue of
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constructive possession, which required that the State show a ‘nexus between the
accused and the substance ***.’ [Citations.] The receipt that formed the bindle was
evidence of the necessary nexus between the methamphetamine and [the defendant].”
Id. at 475-76.
¶ 88 In reaching this decision, the Idaho court cited approvingly the decisions of the Second
Circuit Court of Appeals in United States v. Mejias, 552 F.2d 435 (2d Cir. 1977), and the Fifth
Circuit Court of Appeals in United States v. Mazyak, 650 F.2d 788 (5th Cir. 1981), which we
discuss later in this opinion. See Miller, 106 P.3d at 476.
¶ 89 In State v. Sedillo, 2014-NMCA-039, ¶¶ 2-3, 321 P.3d 152, the issue was the admissibility
of documents found in the bedroom of the defendant’s father’s home where methamphetamine
was also found during a search. The State claimed that the bedroom was under the defendant’s
control and sought to establish that by introducing two documents relating to telephone service.
Id. ¶ 3.
¶ 90 The first document in question, which was in the same colors, font, and style as a telephone
bill, stated, “Congratulations Lawrence Sedillo! You are done! Turn off your handset and turn
it back on … Information below. You can print this page to keep as a record of this transaction.”
Id. ¶ 8. The second document informed an unidentified customer that he or she must pay $40
to avoid cancellation of telephone services. Id.
¶ 91 The New Mexico Court of Appeals held that the “correspondence documents were offered
for another legitimate purpose other than to prove the truth of any statement contained therein
and did not constitute inadmissible hearsay.” Id. The court explained its reasoning, as follows:
“The State did not intend to prove that [d]efendant was required to pay forty dollars
in order to avoid cancellation of his telephone services or that [d]efendant was ‘done’
and could turn his handset off and then back on. Instead, the State sought to use the two
telephone correspondence documents as personal records of the individual residing in
the northwest bedroom of [d]efendant’s father’s house. The reasonable inferences that
the State can ask the jury to draw from this circumstantial evidence are: (1) that this
telephone customer—[d]efendant here—kept his personal telephone correspondence
documents in the northwest bedroom of the house, and (2) that such personal
correspondence was evidence that this telephone customer exercised control over the
northwest bedroom where drugs were located.
We have previously admitted similar evidence as non-hearsay when it was relevant
to prove the separate and legitimate purpose of a defendant’s exercise of control over
a particular location where drugs are found.” Id. ¶¶ 9-10.
¶ 92 In State v. McCurry, 582 S.W.2d 733, 734 (Mo. Ct. App. 1979), the defendant argued that
the trial court erred by admitting a telephone bill that the police recovered during a search of a
bedroom in the residence in which defendant allegedly lived. The telephone bill was addressed
to the defendant at the address of the residence. Id. The defendant argued that the telephone
bill was inadmissible hearsay, but the Missouri Court of Appeals disagreed, explaining as
follows:
“Defendant’s reliance on the hearsay rule is misplaced. The telephone bill was not
offered to show the truth of the matters asserted on the face of the bill. It was offered
because it was a personal effect of the defendant and it was located in [a bedroom of
the residence in which the defendant allegedly lived]. Since the amphetamine and the
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marijuana were found in a jointly controlled residence, further evidence connecting the
defendant with those illegal drugs was required. [Citation.] The telephone bill and the
other personal effects of the defendant found in [that bedroom] were admissible to show
that connection.” Id.¶ 93 In Hernandez v. State, 863 So. 2d 484, 486 (Fla. Dist. Ct. App. 2004), the defendant argued
that the trial court improperly admitted an unopened letter addressed to him that was taken
from his bedroom during a search thereof in which illegal drugs were found. The defendant
argued that the envelope was inadmissible hearsay, being an out-of-court statement of the
person who addressed the letter, which was offered to prove that the defendant lived at the
residence where the drugs were found. Id. The appellate court held that the name and address
on the envelope did not fall within the statutory definition of hearsay. Id.¶ 94 The Hernandez court explained that, under Florida law, the definition of hearsay is a
statement offered in evidence to prove the truth of the matter asserted. Id. (quoting Fla. Stat.
§ 90.801(1)(c) (2001)). The court noted that the Florida Evidence Code further defines a
statement as “ ‘[a]n oral or written assertion’ ” or “ ‘[n]onverbal conduct of a person if it is
intended by the person as an assertion.’ ” Id. (quoting Fla. Stat. § 90.801(1)(a) (2001)). The
court explained, “Appellant’s name and address printed on an envelope was not an assertion,
nor was the placement of the name and address on the envelope nonverbal conduct intended
as an assertion.” Id. The Hernandez court cited approvingly the Peek decision from North
Carolina and then concluded as follows:
“It is also significant that the envelope was offered not to prove ‘the truth of the
matter asserted’ under section 90.801(1)(c), but as circumstantial evidence that [the
defendant] stored his property, including his correspondence, in the bedroom. The
presence of the envelope in the bedroom tended to prove that appellant controlled the
room, and that the contraband found there belonged to him.” Id.¶ 95 In Carpenter v. State, 15 N.E.3d 1075, 1076-78 (Ind. Ct. App. 2014), the most recent state
case to address this issue, the defendant argued that mail addressed to him at the address where
the police found illegal drugs was inadmissible hearsay. An exhibit was admitted in Carpenter
that contained multiple pieces of mail addressed to the defendant at the address in question,
including bills from a utility company and a health services provider. Id. at 1079. The Indiana
Court of Appeals rejected the defendant’s arguments, explaining as follows:
“[The defendant] asserts the trial court abused its discretion when it admitted mail
containing his name and address because it was hearsay. It was not.
Hearsay is a statement (1) not made by the declarant while testifying at the trial or
hearing; and (2) offered to prove the truth of the matter asserted. Ind. Evid. R. 801. ‘To
run afoul of the hearsay rule[,] the evidentiary purpose of the proffered statement must
be the truth of the matter asserted.’ [Citation.]” Id. at 1078.
¶ 96 In reaching this conclusion, the Indiana Court of Appeals noted that the issue was one of
first impression in Indiana but that “a majority of the courts from other states that have
considered the issue have held the prohibition against the admission of hearsay is not violated
when mail found during an investigation is introduced at trial to demonstrate the defendant’s
name and address were on mail found in a specific location.” Id. The Indiana Court of Appeals
also cited approvingly the decisions in Peek, Hernandez, and Shurbaji. Id. at 1078-79.
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¶ 97 d. Federal Cases Holding That Implied Assertions of Fact Contained
Within Mail and Other Documents Are Not Hearsay
¶ 98 Some federal appellate courts have also addressed the issue of the admissibility of mail and
other documents sought to connect a person with particular premises and have concluded that
this evidence is not hearsay. In United States v. Mejias, 552 F.2d 435, 446 (2d Cir. 1977), the
defendant argued that his drug conviction should be reversed because the trial court improperly
admitted a hotel receipt and a luggage invoice, seized from him after his arrest, over his
objection that the government failed to lay a foundation for their admission as business records.
The Second Circuit rejected these contentions and wrote the following:
“These documents were not offered to prove either the payment of a hotel bill or the
purchase of a piece of luggage, but were circumstantial evidence of [the defendant’s]
connection with the [hotel at issue] and the attach[é] case seized therefrom. ***
Because these documents were not offered to prove the truth of their contents, they
were not hearsay, Fed. R. Evid. 801(c) ***.” Id.¶ 99 In United States v. Mazyak, 650 F.2d 788, 792 (5th Cir. 1981), the defendants argued that
their convictions should be reversed because the trial court improperly admitted various
documents bearing the defendants’ names and otherwise linking them to a boat and a particular
hotel in Miami. The defendants claimed all of these documents, such as a receipt with one
defendant’s name on it for repair work performed for the boat on which drugs were found,
constituted inadmissible hearsay. Id.¶ 100 The Fifth Circuit rejected the defendants’ claim and explained as follows:
“[T]he government did not offer these documents to prove the truth of the matter
asserted, i.e. that a payment for work repairs, hotel room, fuel, and equipment additions
actually occurred. *** This court has affirmed the admission of a hotel receipt [and
other documents] under virtually identical circumstances. United States v. Mejias, 552
F.2d 435, 446 ([2d] Cir. 1977).” Id.¶ 101 In United States v. Canieso, 470 F.2d 1224, 1232 (2d Cir. 1972), the defendant argued that
his drug conviction should be reversed because a letter taken from the person of his
codefendant was erroneously admitted against the defendant in violation of the hearsay rule.
The letter, which was not signed or dated, was found in the codefendant’s wallet, and that letter
“dovetailed” with other letters found on the defendant’s person, which had been admitted
against the defendant at trial. Id. The letter at issue, in part, contained instructions that,
immediately upon arrival at a hotel, “the recipient should cable an address in Bangkok giving
the name of the hotel, the number of the room, and the telephone number.” Id.¶ 102 The Second Circuit wrote the following:
“We have some doubt whether the [codefendant’s] letter is within the ban of the
hearsay rule at all. It made no assertion about what the defendants had done; rather it
told what they were to do. Its relevancy as against [defendant] was as circumstantial
proof that he was linked with [the codefendant], the carrier of the narcotics, in much
the same way as their common possession of cards giving the Bangkok cable address
and the names of the prospective New York contacts would have done.” Id.The Second Circuit concluded that the resemblance of the letter found in the codefendant’s
wallet to the one found on the defendant’s person afforded a strong basis for concluding that
the codefendant’s letter was admissible “circumstantially, as giving rise to indirect inferences,
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but not as assertions to prove the matter asserted.” (Emphasis in original and internal quotation
marks omitted.) Id.¶ 103 In United States v. Triplett, 855 F.2d 864 (9th Cir. 1988), an unpublished decision from the
Ninth Circuit, the defendant argued that the trial court improperly admitted a check, a motel
receipt, and a postal money order, all bearing his name, that should have been excluded as
hearsay. Citing Mejias, the Ninth Circuit rejected this claim and wrote the following:
“[T]he [trial] court did not admit these documents to prove that [the defendant]
purchased something with the check, paid for the motel room, or sent the money order
(i.e. for the truth of what the documents assert). Instead, the court admitted them as
evidence that [the defendant] occupied the trailer [in question]. The documents are not
hearsay by definition.” Id.¶ 104 In United States v. Tin Yat Chin, 371 F.3d 31, 35-36 (2d Cir. 2004), the defendant argued
that the trial court erred by excluding, as inadmissible hearsay, certain receipts he had offered
into evidence that he believed would be exculpatory. The Second Circuit agreed with the
defendant, cited Mejias approvingly, and wrote the following: “When a category of writings
does not trigger the traditional reliability concerns of hearsay—defects in memory, perception,
narration, or sincerity—we have sanctioned their admissibility as ‘non-hearsay.’ ” Id. at 38-
39.
¶ 105 In United States v. McIntyre, 997 F.2d 687, 702 (10th Cir. 1993), the defendant argued that
the trial court erred by admitting an American Express receipt, as well as testimony about other
documents, because the evidence constituted inadmissible hearsay. The trial court reasoned
that testimony regarding the documents and where they were found, if offered to link the
defendants together and to certain locations, did not pose hearsay problems because the
testimony was not offered for the truth of the matter asserted. Id. The Tenth Circuit agreed and
wrote the following:
“Although few courts have considered the issue in any detail, the overwhelming
majority of courts, including several panels of this Circuit, have concluded with little
discussion that circumstantial evidence is not hearsay under the Federal Rules of
Evidence. Furthermore, academic and practical writings are in agreement that such
evidence is not hearsay under the rules.” Id. at 702-03.
¶ 106 We deem significant that the Tenth Circuit in McIntyre quoted the Advisory Committee
Notes to then-proposed Federal Rule of Evidence 801(a) in that note’s entirety, as this court
similarly did earlier in this opinion. In doing so, the Tenth Circuit emphasized portions of the
Advisory Committee Notes, as follows:
“ ‘The situations giving rise to the nonverbal conduct are such as virtually to eliminate
questions of sincerity. Motivation, the nature of the conduct, and the presence of
absence of reliance will bear heavily on the weight to be given the evidence…. Similar
considerations govern nonassertive verbal conduct and verbal conduct which is
assertive but offered as a basis for inferring something other than the matter asserted,
also excluded from the definition of hearsay by the language of subdivision (c).’ ”
(Emphasis in McIntyre.) Id. at 704 (quoting Fed. R. Evid. 801(a), Advisory Committee
Notes).
¶ 107 McIntyre concluded by noting the American Express receipt and the testimony about the
other documents
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“were introduced only to link various of the defendants together by the ‘circumstance’
that documents bearing the names of certain defendants or the location of certain drug
transactions were found in [a codefendant’s] possession. That testimony did not depend
upon the truth of the assertions contained in the documents, and consequently we
conclude such evidence was not hearsay as defined by [Federal Rule of Evidence]
801(c).” Id.¶ 108 In United States v. Singer, 687 F.2d 1135, 1138 (8th Cir. 1982), the defendant argued that
an incriminating letter was erroneously introduced because it was inadmissible hearsay. The
letter was addressed to Joseph Sazenski and Carlos Almaden, 600 Wilshire, and contained a
notice to terminate their tenancy. Id. at 1139-40. The government had offered the letter to show
that “Carlos Almaden” lived with the defendant. Id. at 1147. The Eighth Circuit rejected the
defendant’s claim and, like the Tenth Circuit in McIntyre, quoted the Advisory Committee
Notes to then-proposed Federal Rule of Evidence 801(a) that “[t]he effect of the definition of
‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal
or nonverbal, not intended as an assertion.” (Internal quotation marks omitted.) Id. The Eighth
Circuit further explained, as follows:
“If this letter were submitted to assert the implied truth of its written contents—that
Carlos Almaden lived at 600 Wilshire—it would be hearsay and inadmissible. It is,
however, admissible nonhearsay because its purpose is to imply from the landlord’s
behavior—his mailing a letter to ‘Carlos Almaden,’ 600 Wilshire—that ‘Almaden’
lived there. In addition, it is important that the letter was found in the residence at 600
Wilshire.” (Emphasis in original.) Id.¶ 109 e. Analysis by Legal Scholars and Commentators
¶ 110 For decades, legal scholars and commentators have studied and written about the issue this
court is now addressing—namely, whether mail and other documents containing implied
assertions are hearsay. The following are some examples.
“[S]ince an implied assertion by definition consists of conduct not intended as an
assertion concerning f, there is no danger that the actor is being insincere about f. A
person who did not intend to make any statement about f could not have intended to
make a misleading statement about f. Similarly, since the actor’s conduct does not
consist of words expressly stating f, there is no danger that language apparently
affirming or denying f, and so understood by the fact finder, was in reality intended to
convey a different meaning. In brief, while reliance on uncross-examined express
assertions would expose the fact finder to the dangers of faulty narration, insincerity,
inaccurate perception, and erroneous memory, only the perception and memory
dangers seem to be posed by uncross-examined implied assertions. Because implied
assertions entail fewer dangers than express assertions—especially because implied
assertions raise no problems of insincerity—it is argued that they should be classified
as nonhearsay.” (Emphasis in original.) Ted Finman, Implied Assertions as Hearsay:
Some Criticism of the Uniform Rules of Evidence, 14 Stan. L. Rev. 682, 685-86 (1962).
¶ 111 Another legal expert has written the following:
“First, when a person acts in a way consistent with a belief but without intending by
his act to communicate that belief, one of the principal reasons for the hearsay rule—
to exclude declarations whose veracity cannot be tested by cross-examination—does
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not apply, because the declarant’s sincerity is not then involved. In the second place,
the underlying belief is in some cases self-verifying:
There is frequently a guarantee of the trustworthiness of the inference to be drawn
*** because the actor has based his actions on the correctness of his belief, i.e., his
actions speak louder than words.” Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence ¶ 801(a), at 801-61 to 801-62 (1st ed. 1990).
¶ 112 Other commentators have noted that the lack of intent to assert frees conduct from the
hearsay rule and makes unintended implied assertions much less vulnerable than express
assertions to the problems sought to be avoided by the hearsay rule. Judson F. Falknor, The
“Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky Mt. L. Rev. 133, 136
(1961). In particular, the article contends that there is a reduced risk of bad faith in implied
assertions when the declarant has no real intention of asserting a fact sought to be proved. Id.;
see also Steven Goode and Olin Guy Wellborn III, Courtroom Evidence Handbook, 2011-2012
Student Edition 283 (2011) (“The hearsay rule is not violated if an out-of-court utterance is
offered to prove a matter implied by, but not asserted in, the utterance.”).
¶ 113 f. Relevant Illinois Cases
¶ 114 Over the years, some Illinois cases have indirectly addressed the issue now before this
court. One such case is People v. Stewart, in which the defendant was convicted of murder and
received the death penalty. People v. Stewart, 105 Ill. 2d 22, 57-58, 473 N.E.2d 840, 857-58
(1984), abrogated on other grounds by People v. Gacho, 122 Ill. 2d 221 (1988). In that case,
some maids who cleaned the defendant’s motel room after he departed found a laundry receipt
on which “Stewart” was written. Id. at 57. The receipt was admitted into evidence and served
to link the defendant to that room, which was important to the State’s case. Id. at 57-58. The
defendant argued the testimony concerning the receipt and the receipt itself were inadmissible
hearsay. Id. at 57. The supreme court rejected that claim and the cases that the defendant cited
in support, explaining as follows:
“[T]he documents [in the cases the defendant cited] were offered to establish the truth
of the matters asserted on the documents. [Citations.] In our case[,] the laundry receipt
was not offered to prove that Stewart had his clothes cleaned at the particular laundry.
This laundry receipt tended to link Stewart with room 22 of the Westward Motel and
was but one link in a chain of investigative evidence ***. It is thus circumstantial
evidence which, as stated in Wigmore’s Treatise on Evidence, is not objectionable
hearsay.” Id. at 57-58.
¶ 115 In support of this conclusion, the supreme court favorably cited three opinions from federal
courts of appeal that we earlier discussed: Canieso, Mejias, and Mazyak. Regarding the latter
two cases, the supreme court noted that the documents in those cases were offered as
circumstantial evidence linking the defendants to each other and a location and not for the truth
of their contents. Id. at 58.
¶ 116 In People v. Cruz, 111 Ill. App. 3d 95, 101, 443 N.E.2d 769 (1982), the First District
addressed the defendant’s claim that the only piece of evidence tending to show his knowledge
and control of the apartment in which illegal drugs were found was an electric bill found therein
addressed to him. The First District noted, “It could be argued that the bill was not hearsay
evidence if it were simply offered as circumstantial evidence that Cruz was receiving mail at
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that address, from which it might be inferred that he resided there as well.” Id. The case was
ultimately decided on alternative grounds.
¶ 117 The Third District similarly concluded in People v. Hester, 87 Ill. App. 3d 50, 54, 409
N.E.2d 106 (1980), another drug case in which the issue was the defendants’ control of the
apartment in which drugs were found, that letters found therein were properly admitted because
“the [trial] court specifically limited their use, and stated that it was not admitting them to
prove the truth of tenancy by defendants. The court admitted the letters as evidence relevant to
the question of the defendants’ presence at and control over the apartment to which the letters
were addressed.” Id.¶ 118 2. Conclusion: Implied Assertions of Fact Contained Within
Mail and Other Documents Are Not Hearsay
¶ 119 a. Persuasive Authority
¶ 120 After considering all the foregoing authority, we conclude that the documents at issue in
this case are not hearsay. Because the documents were properly admitted, defendant’s trial
counsel was not ineffective based on the claim that she did not object to them.
¶ 121 In reaching this conclusion, we have carefully studied the authority earlier cited and find it
persuasive. We also agree with the observations of the Tenth Circuit in McIntyre that (1) “few
courts have considered the issue [now before us] in any detail” and (2) the overwhelming
majority of courts have reached the same conclusion we now reach. McIntyre, 997 F.2d at 702-
03.
¶ 122 An important part of our analysis deals with identifying the matter being asserted within
the documents and then asking: Are the documents at issue offered to prove the truth of that
matter? If they are not—that is, if they are being offered for a different matter—then the
documents are admissible. As the Fifth Circuit explained in Mazyak, “the government did not
offer these documents to prove the truth of the matter asserted, i.e. that a payment for work
repairs, a hotel room, fuel, and equipment additions, actually occurred,” and therefore the
documents were admissible. Mazyak, 650 F.2d at 792.
¶ 123 Similarly, in Sedillo, the New Mexico Court of Appeals wrote regarding the letter
addressed to the defendant about his telephone services that “[t]he State did not intend to prove
that [the defendant] was required to pay forty dollars in order to avoid cancellation of his
telephone services or that [the defendant] was ‘done’ and could turn his handset off and then
back on.” Sedillo, 2014-NMCA-039, ¶ 9. Likewise, the Idaho Court of Appeals in Miller
explained that “[t]he receipt [found with methamphetamine], taken as a whole, does constitute
an assertion that a specified sum had been paid by [the defendant] ***. The receipt was not
offered by the State to prove such payment ***. Whether [the defendant] had actually made
the indicated payment was irrelevant and of no consequence to the State in this prosecution.”
Miller, 106 P.3d at 475. Similarly, in Shurbaji, Virginia’s appellate court rejected the
defendant’s argument that the utility bills at issue constituted hearsay. Shurbaji, 444 S.E.2d
551. And in the present case, no one cares how much the AT&T bill in defendant’s name was
for (indeed, we do not know because it was not even included on the page of the bill that was
found), nor does anyone care whether that amount—the matter being asserted—was accurate.
¶ 124 We view the decision of the North Carolina Court of Appeals in Peek as the most
persuasive authority in part because that court relied upon the commentary regarding North
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Carolina Rule of Evidence 801 that is essentially the same as the Advisory Committee Notes
of 1972 regarding the then-proposed Federal Rule of Evidence 801. We deem the North
Carolina commentary very significant because it added to the Advisory Committee Notes this
important clarification: “Subdivision (a) differs from current North Carolina law by excluding
from the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an
assertion.” N.C. Gen. Stat. Ann. § 8C-1, Rule 801, Commentary (West 2019).
¶ 125 In our view, that statement from the North Carolina commentary, written nine years after
the Advisory Committee Notes of 1972, is simply a reiteration of the Advisory Committee
Notes’ statement that all evidence of conduct, verbal or nonverbal, not intended as an assertion,
should be excluded from the hearsay rule of evidence. We reiterate this important portion of
the Advisory Committee Notes:
“The effect of the definition of ‘statement’ [in subdivision (a)] is to exclude from the
operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended
as an assertion. The key to the definition is that nothing is an assertion unless intended
to be one.” (Emphasis added.) Fed. R. Evid. 801, Advisory Committee Notes (1972
Proposed Rules).
¶ 126 Further, the circumstances of Peek, which involve the admissibility of several pieces of
mail found at a particular address that were addressed to the defendant at that address, are
remarkably similar to the facts of the present case and make the analysis in Peek all the more
persuasive. The Peek court wrote the following:
“Defendant’s name and address, written or printed on an envelope or its contents, is
neither a written assertion nor conduct which is intended as an assertion and, therefore,
is not hearsay evidence.
On its face, a written or printed name and address on an envelope asserts nothing.
From the sender’s conduct in writing or affixing the name and address and mailing the
material so addressed, however, it may be inferred that the sender believes the person
named lives at that address. *** Nevertheless, because no assertion is intended, the
evidence is not hearsay and is admissible. See United States v. Singer, 687 F.2d 1135(8th Cir.1982).” Peek, 365 S.E.2d at 322.
¶ 127 b. Illinois Rules of Evidence Committee Commentary
¶ 128 We do not mean to ignore commentary regarding Illinois Rule of Evidence 801. However,
there is no pertinent committee commentary to cite.
¶ 129 The Illinois Rules of Evidence were promulgated in September 2010, effective January
2011, and a committee commentary prepared by the members of the committee appointed by
the supreme court to draft the Illinois Rules of Evidence accompanied those new rules.
However, although that committee commentary discussed other rules in article VIII of the
Illinois Rules of Evidence (which is the article dealing with hearsay), such as Rules 801(d),
803, 804, and 806, that commentary contains no discussion regarding Rule 801(a).
¶ 130 The Illinois Rules of Evidence committee commentary did reveal, however, that the
Federal Rules of Evidence played an important role in the drafting of the Illinois Rules of
Evidence, as shown by the following description of how the committee went about its task:
“Where there was no conflict with statutes or recent Illinois Supreme Court or Illinois
Appellate Court decisions, and where it was determined to be beneficial and uniformly or
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almost uniformly accepted elsewhere, the Committee incorporated into the Illinois Rules of
Evidence uncontroversial developments with respect to the law of evidence as reflected in the
Federal Rules of Evidence and the 44 surveyed jurisdictions.” Illinois Rules of Evidence,
Committee Commentary.
¶ 131 Accordingly, we give serious weight to the Advisory Committee Notes for the then-
proposed Federal Rules of Evidence, as well as the North Carolina commentary regarding the
North Carolina Rules of Evidence, because (1) we have no committee commentary regarding
Illinois Rule of Evidence 801 and (2) the very fact of the absence of such commentary suggests
that—to the extent the matter was considered at all—the commentaries accompanying both
Federal Rule of Evidence 801 and North Carolina Rule of Evidence 801 were met with the
approval of the Illinois rules committee members who were the drafters of Illinois Rule of
Evidence 801.
¶ 132 c. Our Conclusion Is Consistent With Illinois Caselaw
¶ 133 Another reason for reaching our conclusion that the documents at issue in this case are not
hearsay is based upon the Illinois Supreme Court decision in Stewart that we previously
discussed. Although, as we pointed out, the supreme court in Stewart did not directly address
the precise issue before us, that court nonetheless concluded that a laundry receipt that linked
the defendant with a particular room of a motel “was circumstantial evidence which, as stated
in Wigmore’s Treatise on Evidence, is not objectionable hearsay.” Stewart, 105 Ill. 2d at 57-
58. In so concluding, the supreme court discussed and cited approvingly three decisions of
federal courts of appeal that we earlier discussed in support of our conclusion in this case:
Canieso, Mejias, and Mazyak. The supreme court’s doing so constitutes—at a minimum—
some approval of the analysis in those cases.
¶ 134 d. Our Conclusion Reflects Sound Policy Considerations
¶ 135 As a last matter, we think this result just makes good sense. After all, every juror can be
expected to have common experience with mailed utility bills, as well as other mailed
documents, and can be expected to accord to such documents whatever evidentiary value they
might possess. On this point, we agree with the suggestion from McCormick on Evidence we
cited earlier that any claimed deficiencies in the mailed documents would arise from “the
chance of honest mistake” and would more sensibly be dealt with by challenging the weight to
be given them instead of barring their admission altogether. McCormick on Evidence § 250,
at 738-39 (Edward W. Cleary ed., 3d ed. 1984). A juror would understand that a phone bill is
being mailed to a person asserting that he owes a particular amount on his phone bill and
hoping that the address to which it is being sent was correct. Jurors’ common experiences
would also inform them that mistakes can occasionally be made in addressing such bills,
perhaps because of incomplete, inaccurate, or late information pertaining thereto. See Illinois
Pattern Jury Instructions, Criminal, No. 1.01 (approved July 18, 2014) (“You should consider
all the evidence in light of your own observations and experience in life.”).
¶ 136 Jurors hardly need to hear from some phone company official to explain why a phone bill
contains information that a defendant lives at a certain address when, in fact, the phone
company is making no such assertion. To paraphrase the Second Circuit in Mejias, the phone
bill in this case was not offered to prove the truth of the matter asserted therein, which was that
defendant owed money for his phone service. See Mejias, 552 F.2d at 446.
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¶ 137 No one cared.
¶ 138 Instead, the phone bill contained—at most—an “implicit assertion,” which was defendant’s
address to which the bill was sent. Despite defendant’s address being on the bill, the phone
company did not intend to assert anything by including that information, and, as the Advisory
Committee Notes state, “[T]he key to the definition [of statement under Federal Rule of
Evidence 801(a)] is that nothing is an assertion unless intended to be one.” Fed. R. Evid.
801(a), Advisory Committee Notes (1972 Proposed Rules).
¶ 139 We also find particularly persuasive the Second Circuit’s analysis in Tin Yat Chin about
the traditional reliability concerns underlying the rule against hearsay:
“When a category of writings does not trigger the traditional reliability concerns of
hearsay—defects in memory, perception, narration, or sincerity—we have sanctioned
their admissibility as ‘non-hearsay.’ ” Tin Yat Chin, 371 F.3d at 38.
¶ 140 Clearly, the phone bill in this case falls into a category of writing that does not trigger the
traditional reliability concerns of hearsay, in particular those of memory or sincerity. We agree
with the analysis in the Advisory Committee Notes regarding the then-proposed Federal Rule
of Evidence 801(a): “[T]he situations giving rise to the nonverbal conduct are such as virtually
to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or
absence of reliance will bear heavily upon the weight to be given the evidence.” Fed. R. Evid.
801(a), Advisory Committee Notes (1972 Proposed Rules). In this regard, we find compelling
the point made in Professor Falknor’s article that there is a reduced risk of mendacity in implied
assertions when the declarant has no real intention of asserting a fact sought to be proved.
¶ 141 We also believe our conclusion is consistent with the guidance provided in Trial Evidence,
a treatise on evidence law coauthored by Warren D. Wolfson and Thomas A. Mauet. The
former is well known to Illinois judges and practitioners because Warren D. Wolfson is a now-
retired justice of the Appellate Court, First District, who served with distinction on that court.
He has also been a frequent lecturer for several decades at judicial education programs and is
an expert on evidence law. Justice Wolfson has often lectured to judges on a point made in his
evidence book that determining the admissibility of any piece of evidence can often be resolved
by asking “the three Rs:”
“1. Is the evidence relevant for the offered purpose? If not, the inquiry ends. If the
answer is yes,
2. Is the evidence reliable for the offered purpose? If not, even though relevant, it
should not be admitted. If yes,
3. Is it right to allow the fact resolver to receive the evidence for the offered
purpose? That is, even if the evidence is relevant and reliable, there may be good
reasons to keep it out. These include constitutional strictures, matters of social policy,
and considerations of unfair prejudice and courtroom efficiency.” (Emphases in
original.) Thomas A. Mauet and Warren D. Wolfson, Trial Evidence § 1.2 (7th ed.
2020).
¶ 142 When judged in accordance with the guidance provided by Justice Wolfson’s “three Rs”
analysis, we believe our conclusion in this case—namely, that implied assertions of fact
contained within mail and other documents are not hearsay—is correct. In particular, we find
support for our conclusion in the following observation made in Trial Evidence:
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“The exclusion side of the scale [for weighing the admissibility of evidence] reflects a
recognition of the nature of the people in the jury box. They are fallible and untrained
for their tasks. Some evidence can overly persuade or be misused; other evidence can
be repetitive and cumulative.” Id.
¶ 143 As we mentioned earlier, jurors can be expected to have had the common experience of
receiving bills and other mail and can be further expected to appropriately evaluate the
information written thereon. We do not believe such evidence will either overly persuade a
jury or be misused.
¶ 144 e. The Limited Scope of Our Conclusion
¶ 145 We have stated our conclusion in this case as follows: “Implied assertions of fact contained
within mail and other documents are not hearsay.” We used the terms “mail and other
documents” advisedly because (1) only written documents are at issue in this case and (2) we
do not wish the scope of our conclusion to be expanded into something we have not addressed.
¶ 146 We emphasize this point because some of the authority we have approvingly cited deals
with verbal conduct, as well as nonverbal conduct, the latter being at issue in this case. For
instance, the very first paragraph of the Advisory Committee Notes states that the “effect of
the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence
of conduct, verbal or nonverbal, not intended as an assertion.” (Emphasis added.)
¶ 147 In our conclusion in this case, we are not including verbal conduct. Given our observation
that courts have been wrestling with this issue for almost 200 years, it would be particularly
inappropriate to include within our conclusion a context not presented for resolution.
¶ 148 Accordingly, we “leave for another day” the question of whether our conclusion should
ever include verbal conduct and express no opinion on that matter.
¶ 149 f. Contrary Authority
¶ 150 Even though we have concluded that the documents are not hearsay, we acknowledge that
contrary authority exists on this issue. See, e.g., State v. Dullard, 668 N.W.2d 585 (Iowa 2003);
Bernadyn v. State, 887 A.2d 602 (Md. 2005); Stoddard v. State, 887 A.2d 564 (Md. 2005).
¶ 151 Interestingly, the Supreme Court of Iowa in Dullard provided the following analysis about
the issue before us, which is whether implied assertions are hearsay:
“The issue we confront has been imbedded in debate and controversy throughout
the development of the common law, and has continued to be debated to a large degree
following the adoption of the federal rules of evidence. [Citations.] Despite the wealth
of legal commentary and some scholarly court decisions on the subject, no clear answer
or approach has emerged. [Citations.] In truth, many courts have not engaged in a
serious examination of the subject of implied assertions as hearsay, while those who
have follow divergent paths. [Citation.] *** The United States Supreme Court has
never squarely addressed the issue, but has previously endorsed the concept of implied
assertions as hearsay. [4 Clifford S. Fishmon, Jones on Evidence § 24:11, at 220 (7th
ed. 1992).]” Dullard, 668 N.W.2d at 590-91.
¶ 152 Although the Iowa Supreme Court in Dullard took a position on implied assertions as
hearsay different from the conclusion this court has reached, the Dullard court also wrote the
following: “Federal rule of evidence 801(a) appears to support the departure from the common
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law, evidenced more by the advisory committee note accompanying the rule than the language
of the rule itself.” Id. at 592.
¶ 153 We also note that Professor Michael H. Graham has similarly expressed his disapproval of
the conclusion we have reached in this case. See 6 Michael H. Graham, Handbook of Federal
Evidence § 801:10, at 156-64 (7th ed. 2012). Professor Graham provides some additional
commentary—and suggestions—on this subject as follows:
“Courts and commentators have struggled with the definitional aspects of hearsay
under the cloud that given the pigeonhole theory of class exceptions to the hearsay rule,
many trustworthy and necessary statements if classified as hearsay would be excluded
at trial. Attempts to expand admissibility through novel interpretations of the definition
of hearsay naturally resulted. *** While novel, such interpretations are neither correct
interpretations of the definition of hearsay nor do they comport with the analysis of
risks the hearsay rule attempts to address. Such novel interpretations have at the same
time greatly confused not only many practitioners and courts but thousands of law
students each year. Whatever value these novel interpretations once had is no longer
true today. With the availability of the residual hearsay exception of [Federal] Rule
807, trustworthy and necessary hearsay will no longer be inadmissible simply because
it fails to fit neatly into one of the pigeonhole hearsay exceptions.” Michael H. Graham,
Winning Evidence Arguments § 801:10 (Jan. 2020 update).
¶ 154 What is interesting—and significant—about Professor Graham’s analysis is that he seems
to be acknowledging that, under certain circumstances, some hearsay may in fact be
“trustworthy and necessary”—like, for instance, utility bills or the mail in this case. He
expresses regret over the confusion the efforts to deem such statements exceptions to the
hearsay rule have caused, and he urges such efforts to stop. In lieu thereof, he proposes that
the residual hearsay exception set forth in Federal Rule of Evidence 807 can serve as the
vehicle for admissibility so that “trustworthy and necessary hearsay will no longer be
inadmissible simply because it fails to fit neatly into one of the pigeonhole hearsay exceptions.”
Id.
¶ 155 The problem with Professor Graham’s analysis—at least as far as Illinois is concerned—is
that the Illinois Supreme Court has not adopted the residual hearsay exception contained in
Federal Rule of Evidence 807. As a result, Illinois courts and practitioners will continue to
need to provide interpretations of hearsay—as we are doing in this case—or otherwise
“trustworthy and necessary hearsay”—like utility bills linking a defendant to the premises on
which they are found—would not be admissible, even though it appears plain that they should
be.
¶ 156 Accordingly, although we are always reluctant to disagree with Professor Graham, we
deem his analysis unhelpful for Illinois courts and practitioners until such time—if ever—as
the Illinois Supreme Court, in its wisdom and judgment, chooses to adopt Federal Rule of
Evidence 807 as part of the Illinois Rules of Evidence. Until then, Illinois, quite literally, plays
by a different set of rules.
¶ 157 B. The Prosecutor’s Allegedly Improper Closing Argument
¶ 158 Defendant next argues that he was denied a fair trial because during closing arguments, the
prosecutor (1) misstated the evidence presented at trial and (2) improperly vouched for the
credibility of his witnesses by saying he did not believe the State’s witnesses or the prosecutor
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himself distorted evidence. Defendant contends that the prosecutor “invoked the integrity of
his position that he was a distinguished member of the Bar.” Defendant claims that the
prosecutor provided unsworn testimony during closing argument when he (1) said he was
personally offended by defense counsel’s suggestion of evidence tampering and (2) sought to
explain why some pills were retested by the State’s expert. Defendant further claims that the
prosecutor improperly vouched for his witnesses, “personally assuring the jurors that no
tampering [with the evidence] took place.” We reject all of defendant’s claims.
¶ 159 1. Defense Counsel’s Closing Argument
¶ 160 During defense counsel’s closing argument, she questioned whether Julia Edwards’s
testimony was “reasonable” or “logical.” Counsel suggested that Edwards came up with the
result in her 2016 report only when the State told her to “try again.” Defendant’s counsel
argued that “Phenethylamine is not benzeneethanamine” and that Edwards “never could give
an explanation” for the difference. Counsel argued, “I think she tested it the first time in 2015,
it didn’t have the words, the statement, the scientific name that matched with anything in the
Controlled Substance Act. The State said here it is again, try again, and suddenly, magically,
now it’s exactly what it says in the statute.”
¶ 161 Later on in her closing argument, defense counsel addressed the text messages, pointing
out that they were supposedly sent by defendant at a time when he was in police custody and
being transported from the traffic stop to the police station. Counsel then argued that (1) the
police officers searched defendant during the traffic stop but never opened the case on
defendant’s belt, (2) “when they arrived back at the station, this cell phone has magically
appeared now in [defendant’s] right front pants pocket,” and (3) the phone case was now
missing and was not entered into evidence. Counsel argued, “The whole thing bothers me, and
I’m not going to suggest to you what I think happened.” But counsel then reiterated, “I defy
anybody to be able to do that with their hands cuffed behind their back without at least
somebody being able to see ***. How does that happen? I don’t think it does.”
¶ 162 2. The Prosecutor’s Rebuttal Argument
¶ 163 In the prosecutor’s rebuttal argument, he stated the following:
“My understanding of her defense, she didn’t flat out say it, but I will say it for her, is
apparently I’m corrupt, telling the crime lab to retest and get whatever results I need.
The crime lab is corrupt because they’re going to do that, and the [police are] corrupt
because they’re going to plant text messages. I absolutely disagree with that.
Obviously, as a professional and a respected member of the Bar, that offends me, even
though she didn’t come out and say it.”
¶ 164 Later in the prosecutor’s rebuttal argument, he stated the following:
“[Julia Edwards] told you the first time she tested it, it indicated for 25C-NBOMe, but
she couldn’t call it. So when we sent it back after we got the fingerprint match to do
the retest because there’s no fingerprints on the heroin bag, she did her job, she tested
it, and the results she got on the retest is she could call it 25C-NBOMe because of the
research she did and the advanced techniques she used.”
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¶ 165 3. The Law Regarding Prosecutors’ Closing Arguments
¶ 166 Attorneys enjoy wide latitude in the content of their closing argument. People v. Jackson,
2020 IL 124112, ¶ 82. “A reviewing court will find reversible error only if the defendant
demonstrates that the remarks were improper and that they were so prejudicial that real justice
was denied or the verdict resulted from the error.” Id. ¶ 83.
¶ 167 The Supreme Court of Illinois has long held that “[t]he prosecutor may also respond to
comments by defense counsel which clearly invite a response.” People v. Hudson, 157 Ill. 2d
401, 441, 626 N.E.2d 161 (1993); see also People v. Willis, 2013 IL App (1st) 110233, ¶ 110,
997 N.E.2d 947 (“[T]he prosecution may fairly comment on defense counsel’s
characterizations of the evidence and may respond in rebuttal to statements of defense counsel
that noticeably invite a response [citation].”); People v. Hammonds, 409 Ill. App. 3d 838, 866,
957 N.E.2d 386 (2011) (noting that a defendant cannot be heard to complain about an argument
he invited).
¶ 168 4. This Case
¶ 169 Contentions about a prosecutor’s allegedly improper closing arguments, like those
defendant makes in this case, occur frequently. In the great majority of those cases, we have
found such claims to be meritless. This case is just the latest example. Consistent with what
the supreme court wrote in Hudson, defense counsel’s argument in this case—impugning the
ethics not only of the police and the expert lab analyst, but also of the prosecutor himself—
“clearly invite[d] a response.” Hudson, 157 Ill. 2d at 441. We conclude that, if one side calls
the other a liar, it is perfectly within the bounds of proper argument to bluntly respond.
Defendant on appeal asks us to conduct a plain-error analysis regarding the prosecutor’s
allegedly improper closing argument. However, because we conclude no error occurred, we
need not do so.
¶ 170 In concluding this discussion, we note that we have frequently repeated this court’s view
that trying felony cases before a jury “ain’t beanbag” and “we expect advocates in our
adversary system of justice to use all of their forensic skills to persuade the jury of the wisdom
or justice of their respective positions.” See People v. Montgomery, 373 Ill. App. 3d 1104,
1118, 87 N.E.2d 403 (2007), abrogated on other grounds by People v. Ayres, 2017 IL 120071,
88 N.E.3d 732; People v. Palmer, 382 Ill. App. 3d 1151, 1161, 889 N.E.2d 244 (2008); People
v. Dunlap, 2011 IL App (4th) 100595, ¶ 28, 963 N.E.2d 394; People v. Staake, 2016 IL App
(4th) 140638, ¶ 102, 78 N.E.3d 388, aff’d, 2017 IL 121755. We take this opportunity to do so
again.
¶ 171 C. Defendant’s Claim That the Trial Court Erred Because It Did Not
Properly Admonish Potential Jurors Under Rule 431(b)
¶ 172 Defendant next argues that the trial court erred because it did not properly admonish
potential jurors under Rule 431(b). Specifically, defendant contends that the trial court, instead
of asking each potential juror whether he or she understands and accepts that “if the defendant
does not testify, it cannot be held against him or her,” instead repeatedly admonished the jurors
that “the defendant’s failure to testify cannot be held against him.” (Emphases added.) As a
consequence, defendant contends that, “[b]y using that improper phrasing, the circuit court
violated Rule 431(b), prejudiced the jurors against [defendant], and tipped the scales of justice
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in this closely balanced case.” In support of this claim, defendant points out that, because he
never testified, the trial court’s error is all the more serious.
¶ 173 In making this argument, defendant concedes that he did not object to the trial court’s
improper admonitions for perspective jurors, nor did he include it in a timely motion for a new
trial. Nonetheless, he argues that this court should review the trial court’s violation of Rule
431(b) as plain error. He contends that the first prong of the plain-error doctrine applies to
these circumstances.
¶ 174 The State concedes that the trial court erred by not following Rule 431(b) in its admonitions
to prospective jurors. However, the State contends that the plain-error doctrine does not apply
because the evidence was not closely balanced. For the reasons that follow, we agree with the
State.
¶ 175 1. The Plain-Error Doctrine
¶ 176 The Illinois Supreme Court recently explained the plain-error doctrine as follows:
“A reviewing court will consider unpreserved error when a clear or obvious error
occurs and (1) the evidence is so closely balanced that the error alone threatened to tip
the scales of justice against the defendant, regardless of the seriousness of the error or
(2) the error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence. [Citations.] When a defendant fails to establish plain error, the result is that
his procedural default must be honored.” Jackson, 2020 IL 124112, ¶ 81.
¶ 177 In People v. Sebby, 2017 IL 119445, ¶ 53, 89 N.E.3d 675, the supreme court held that “[i]n
determining whether evidence adduced at trial was close, a reviewing court must evaluate the
totality of the evidence and conduct a qualitative, commonsense assessment of it within the
context of the case.”
¶ 178 2. The Overwhelming Evidence Against Defendant
¶ 179 The crimes with which the State charged defendant—possession of various drugs found in
the residence at 1344 East Division Street in Decatur—required the State to prove beyond a
reasonable doubt that defendant had constructive possession of those drugs.
¶ 180 a. The Law of Constructive Possession
¶ 181 In Loggins, 2019 IL App (1st) 160482, ¶ 45, Justice David Ellis noted that the State had to
prove the defendant “had knowledge and possession of the drugs,” which were both questions
of fact for the jury to resolve. The First District then wrote the following:
“Possession is constructive, as the State alleged here, when a defendant has the
‘intent and capability to maintain control and dominion’ over an item of contraband,
though he does not have immediate personal control of it. [Citation.] The intent (and
capability) to control the item can be inferred when the defendant ‘exercised immediate
and exclusive control’ over the area where that item was found. [Citation.] And control
over the area generally can be inferred when the area is within the defendant’s
residence.” (Emphases in original.) Id. ¶ 47.
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¶ 182 The First District further noted that “once possession has been proven, knowledge may be
inferred from ‘the surrounding facts and circumstances’ of the possession, including the
defendant’s declarations, acts, or conduct.” Id. ¶ 56.
¶ 183 We also note that, 60 years ago in a constructive possession case, the Illinois Supreme
Court held that, even though the evidence against a defendant must show that he was in
“exclusive possession” of the narcotics in question, “possession of narcotics may be joint.”
People v. Embry, 20 Ill. 2d 331, 335-36, 169 N.E.2d 767 (1960). The court explained that “[t]o
hold otherwise would permit two or more persons to gain immunity from prosecution on a
charge of unlawful possession of narcotics by proving joint possession of the drugs.” Id.¶ 184 b. This Case
¶ 185 In explaining our conclusion that the evidence of defendant’s guilt was overwhelming, we
need not mention again all of the evidence presented at trial but instead highlight the evidence
that led us to this conclusion:
(1) The police saw defendant come and go from the residence and spend hours
therein, on both the day they searched it and the day before.
(2) The residence contained adult men’s clothing in one of its bedrooms, but the
only people present when it was searched were Walker and her two young children.
(3) The record contains no suggestion that any other adult male had any connection
to the residence, leaving the strong inference that the adult men’s clothing in the closet
was defendant’s.
(4) Walker testified that, on the date her residence was searched and she was
arrested, she was living in that residence with defendant and her two young children.
Walker also testified that she knew the police found illegal drugs inside her residence
and defendant was the owner of those drugs. On cross-examination, defense counsel
asked Walker the following question: “And so [defendant] bought the house at 1344
East Division, but you live there?” Walker responded, “That’s not correct. We both live
there.” (Emphasis added.)
(5) The residence had multiple trappings of drug distribution—namely, baggie
corners, digital scales, guns, security cameras, and large quantities of drugs hidden in
(a) the oven broiler, (b) the freezer of the refrigerator, and (c) the living room vent. All
of this compels the conclusion that someone who lived in the residence was involved
in the business of trafficking in illegal drugs, and the only adult besides defendant who
lived in the residence was Walker. Although defense counsel in her closing argument
attempted to suggest that perhaps Walker was the drug dealer, nothing in this record
suggests that Walker sold drugs to the exclusion of defendant.
(6) Defendant’s fingerprint was found on one of the bags containing illegal drugs
that was hidden in the vent.
(7) While defendant was transported from the traffic stop to the police station, he
sent text messages from his cell phone to a phone found in the residence saying, “Get
everything out of the house now,” and “Flush it.” Both messages were directed to
“Wifee.”
(8) Other messages were also extracted from defendant’s cell phone that, according
to the expert, revealed that defendant was involved in illegal drug trafficking.
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(9) When searching the residence, the police found a deed to the residence showing
defendant had an ownership interest in it.
(10) The police found a real estate business card in defendant’s wallet showing that
he had paid $450 rent for the residence “for November.”
(11) The police also found an AT&T bill in the residence for August 2015 that was
addressed to defendant at the residence.
(12) The police found an unopened envelope in the residence from American
Family Insurance showing that it was mailed to defendant at the residence’s address.
(13) When the police made the traffic stop upon defendant and told him that he had
been at 1344 East Division Street, he responded: “No, I wasn’t. No, I wasn’t.”
However, the police had just seen him drive away from that residence.
¶ 186 Because defendant did not raise the issue of the trial court’s failure to comply with Rule
431(b) in the trial court, we will reverse defendant’s conviction and remand for a new trial only
if we first conclude that the first prong of the plain-error doctrine applies—namely, that the
evidence is closely balanced. Here, evidence of defendant’s guilt is hardly closely balanced;
indeed, it is overwhelming. Accordingly, we decline to apply the plain-error doctrine in this
case, with the result that his procedural default must be honored.
¶ 187 3. Trial Courts Must Stop Deviating From the
Requirements of Rule 431(b)
¶ 188 The issue in this case—namely, the failure of the trial court to strictly comply with Rule
431(b)—should never have arisen, and, indeed, should never arise in any case. That is because
there is no excuse for a trial judge to not strictly comply with the clear and explicit directions
the supreme court has provided for trial courts when admonishing prospective jurors.
¶ 189 Being a trial judge can be a difficult job, often requiring careful study to properly apply
difficult legal concepts and to ensure that a jury is properly instructed on the law. However,
admonishing prospective jurors pursuant to Rule 431(b) is not a difficult task.
¶ 190 It could hardly be easier.
¶ 191 Thirty-six years ago, the supreme court in People v. Zehr, 103 Ill. 2d 472, 477, 469 N.E.2d
1062 (1984), set forth four principles (now known as the Zehr principles) about which trial
courts need to instruct prospective jurors to ensure that defendants receive a fair trial. Then,
just to make sure trial courts understood exactly what admonitions to give to prospective jurors,
the supreme court promulgated Rule 431(b) in 2007, in which it explicitly set forth the precise
language trial courts should use to ensure that prospective jurors “understand and accept” the
Zehr principles. Yet, here we are, 36 years after Zehr and 13 years after the supreme court
promulgated Rule 431(b), and we are still dealing with a trial court’s failing to do what the
supreme court has directed.
¶ 192 We remind trial courts that supreme court rules are not suggestions, to be complied with
when convenient or unless the trial courts believe they could better explain these fundamental
principles to the jurors than Rule 431(b) does.
¶ 193 They cannot.
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¶ 194 4. What Is at Stake Because of Failure to Comply With Rule 431(b)
¶ 195 The Illinois Supreme Court in Sebby made clear that a trial court’s failure to comply with
Rule 431(b) is plain error. Whether that plain error will result in a reversal of a defendant’s
conviction and remand for a new trial depends upon a reviewing court’s assessment regarding
whether the evidence of defendant’s guilt is closely balanced.
¶ 196 Whenever a reviewing court concludes that reversal is required because (1) the trial court
failed to comply with Rule 431(b) and (2) the evidence of defendant’s guilt is closely balanced,
that reversal is due to judicial malpractice. And prosecutorial malpractice, if the prosecutor
stood idly by and permitted this easily corrected judicial error to go unchallenged. The
prosecutor is the one responsible for protecting the record and must be on high alert to ensure
it does not contain any obvious errors. There is scarcely a clearer, more obvious, and more
easily correctable error than a trial court’s failure to precisely comply with Rule 431(b).
¶ 197 Although this court has concluded in this case that the evidence was not closely balanced,
we know from experience that the evidence of a defendant’s guilt in many cases on appeal is
closely balanced. So, in the event that the trial court fails to comply with Rule 431(b) and the
evidence of defendant’s guilt is closely balanced, the following conversation might need to
take place (otherwise known as the conversation no prosecutor ever wants to have):
“Hello, Mrs. Jones? This is Charles Brown calling. I’m the prosecutor who three
years ago convicted Thomas Smith of raping and murdering your daughter, Susan, for
which he received a 50-year sentence. I regret to inform you that the appellate court
has reversed those convictions because, even though it concluded Smith received a fair
trial, it also concluded that the trial court did not properly admonish the prospective
jurors in that case.
As a result of that decision, even though Smith committed those crimes five years
ago, in order to keep him in prison, we will have to try him again.
If we can.”
¶ 198 D. The Trial Court Properly Conducted a Krankel Hearing
¶ 199 Last, defendant argues that the trial court erred by how it conducted the Krankel hearing in
this case and by determining that the appointment of new counsel was not appropriate to pursue
defendant’s claim that his trial counsel was ineffective. Citing this court’s decision in People
v. Roddis, 2018 IL App (4th) 170605, ¶¶ 79-80, 119 N.E.3d 52, defendant contends that the
trial court committed reversible error by rejecting defendant’s ineffective-assistance-of-
counsel claim only after evaluating its ultimate merits and determining that trial counsel was
not ineffective.
¶ 200 1. The Law Governing Krankel Hearings
¶ 201 Although defendant’s characterization of this court’s decision in Roddis is correct, the
Supreme Court of Illinois reversed this court and wrote the following:
“[E]ven in preliminary Krankel inquiries, a trial court must be able to consider the
merits [of the defendant’s ineffective assistance of counsel claims] in their entirety
when determining whether to appoint new counsel on a pro se posttrial claim of
ineffective assistance of counsel. This serves both the ends of justice and judicial
economy.” (Emphasis in original.) People v. Roddis, 2020 IL 124352, ¶ 61.
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¶ 202 The supreme court in Roddis elaborated upon this point, as follows:
“The trial court, most familiar with the proceedings at issue, remains best situated
to serve the interests of judicial economy by extinguishing conclusory claims. We
decline to unduly limit the most effective arbiter between patently frivolous claims and
those showing possible neglect. The court can ‘base its evaluation of the defendant’s
pro se allegations of ineffective assistance on its knowledge of defense counsel’s
performance at trial and the insufficiency of the defendant’s allegations on their face.’
[Citation.]” Id. ¶ 56.
¶ 203 In Roddis, the supreme court acknowledged that “the trial court inaccurately stated ‘I will
rule as to whether or not I find that there was ineffective assistance in this situation.’ ” Id. ¶ 67.
Nonetheless, the supreme court ruled as follows: “Although the court’s description may have
contained a few misnomers, this was an appropriately conducted inquiry. Defendant’s
allegations were either matters of trial strategy or unfounded claims.” Id.
¶ 204 In the supreme court’s recent decision in People v. Jackson, 2020 IL 124112, ¶ 97, that
court further clarified its holding in Roddis regarding Krankel procedures by writing the
following:
“If the trial court determines that the claim lacks merit or pertains only to matters of
trial strategy, then the court need not appoint new counsel and may deny the pro se
motion. However, if the allegations show possible neglect of the case, new counsel
should be appointed.”
¶ 205 In Jackson, the supreme court further wrote the following:
“Whether the trial court properly conducted a Krankel preliminary inquiry presents a
legal question that we review de novo. [Citations.] However, if the trial court has
properly conducted a Krankel inquiry and has reached a determination on the merits of
the defendant’s Krankel motion, we will reverse only if the trial court’s action was
manifestly erroneous.” Id. ¶ 98.
¶ 206 2. Defendant’s Claims
¶ 207 Defendant pro se filed a posttrial motion alleging that his trial counsel was ineffective. At
the trial court’s request that he reduce all of his claims against counsel to a written motion,
defendant complied and made several detailed allegations against her in the motion he filed.
These were generally that she failed to (1) call certain witnesses, including his parole agent,
Bill Cooper, to testify, (2) sufficiently investigate Walker, (3) challenge the validity of the
search warrant, (4) retest the pills, and (5) require the informant supporting the search warrant
to appear in court.
¶ 208 The trial court then conducted a Krankel hearing in which the court (1) carefully went over
each of the complaints defendant raised, (2) asked defendant for any further commentary
regarding them, and (3) asked his trial counsel to respond. We note that the trial court, in its
thoughtful explanation as to why it was not going to appoint counsel for defendant, stated the
following: “I did have the opportunity, first of all, to observe [defense counsel] in the trial. I
thought she was extremely competent, prepared, and capable during the trial. So that certainly
is something I can make part of the record.” The court further discussed at length the
allegations the defendant made in his written motion, defendant’s remarks at the Krankel
hearing, and defense counsel’s responses, all of which revealed a careful understanding of
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defendant’s complaints in the context of the trial the court had just concluded. In effect, the
court deemed the decisions counsel made to be matters of trial strategy, which the court found
did not constitute ineffectiveness. The court explained as follows: “Her preparation that the
court saw was highly competent. I do not find that her representation fell below any objective
standard of reasonableness. So, according to the Strickland v. Washington[, 466 U.S. 688(1984), standard], I’m not going to find that [defense counsel] was ineffective.”
¶ 209 Consistent with what the supreme court has recently written regarding Krankel hearings,
we conclude that how the trial court conducted the Krankel hearing in this case and the court’s
findings were appropriate. The record shows that the court based “its evaluation of the
defendant’s pro se allegations of ineffective assistance on its knowledge of defense counsel’s
performance at trial and the insufficiency of the defendant’s allegations on their face.” (Internal
quotation marks omitted.) Roddis, 2020 IL 124352, ¶ 56. Accordingly, we reject defendant’s
argument that the trial court committed any error when conducting the Krankel hearing or in
its findings.
¶ 210 III. CONCLUSION
¶ 211 For the reasons stated, we affirm the trial court’s judgment.
¶ 212 Affirmed.
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