People v. Bailey , 2020 IL App (5th) 160458 ( 2020 )


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    2020 IL App (5th) 160458
    NOTICE
    Decision filed 07/23/20. The
    text of this decision may be                NO. 5-16-0458
    changed or corrected prior to
    the filing of a Peti ion for
    Rehearing or the disposition of
    IN THE
    the same.
    APPELLATE COURT OF ILLINOIS
    FIFTH DISTRICT
    ______________________________________________________________________________
    THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
    )     Circuit Court of
    Plaintiff-Appellee,                       )     Madison County.
    )
    v.                                              )     No. 14-CF-1068
    )
    CALEB R. BAILEY,                                )     Honorable
    )     Kyle Napp,
    Defendant-Appellant.                      )     Judge, presiding.
    ______________________________________________________________________________
    JUSTICE WHARTON delivered the judgment of the court, with opinion.
    Presiding Justice Welch and Justice Overstreet concurred in the judgment and opinion.
    OPINION
    ¶1       The defendant, Caleb R. Bailey, appeals his conviction for first degree murder in the
    shooting death of Travis Mayes. Evidence at trial revealed that, in the weeks leading up to the
    shooting, the defendant was hurt and angry because Mayes was involved with the defendant’s
    girlfriend, Brittney Bess. The defendant asserted that he shot Mayes because he was afraid that
    Mayes was going to shoot or stab him. On appeal, the defendant argues that the court erred by
    failing to ask jurors whether they understood all four principles embodied in Illinois Supreme
    Court Rule 431(b) (eff. July 1, 2012). He acknowledges that counsel did not object, but he urges
    us to review this claim under the plain error doctrine. He also argues that he received ineffective
    assistance of counsel because his trial attorney failed to (1) request that jurors be instructed that a
    witness is not required to speak to an attorney before testifying, (2) object to evidence and
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    argument concerning his invocation of the right to remain silent, and (3) object to evidence of other
    bad acts or request a limiting instruction. We affirm.
    ¶2                                   I. BACKGROUND
    ¶3     The defendant and Bess began dating when they were in high school. Their relationship
    had its ups and downs. The defendant joined the Army National Guard at 17 and deployed to Egypt
    in 2010 and 2011. Both the defendant and Bess were unfaithful to each other during the defendant’s
    deployment. According to the defendant, however, they forgave each other and moved on.
    ¶4     The defendant became acquainted with Mayes because Mayes worked as a bouncer at the
    Rust Bucket, a bar the defendant frequented. Although the defendant characterized their friendship
    as being “bar buddies,” he also testified that he spent time with Mayes away from the bar
    participating in activities related to their mutual interest in motorcycles. At some point, the
    defendant introduced Bess to Mayes and asked Mayes to help Bess get a job at the Rust Bucket.
    ¶5     Shortly after the defendant’s return from his deployment in Egypt, Bess became pregnant
    with their daughter, Avery. At some point after Avery’s birth, Bess broke up with the defendant
    and began an affair with Mayes. It is not entirely clear which of these events came first. A few
    weeks before the shooting, Bess had an argument with Mayes. She moved back in with the
    defendant, and the two agreed to try to rekindle their relationship and fix the problems they had.
    However, Bess either continued or resumed her relationship with Mayes during this period.
    ¶6     On May 17, 2014, Bess went to a bar with some of her friends. There, she met up with
    Mayes. The defendant and Bess exchanged text messages and phone calls while she was at the bar.
    According to the defendant, Bess asked him to come to the bar to talk to Mayes. The defendant
    encountered Mayes outside the bar. Ultimately, the two men confronted each other in the parking
    lot of a chiropractic office a mile down the road. Shortly thereafter, Mayes’s body was found in
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    that parking lot with his motorcycle lying on top of one of his legs. The defendant acknowledged
    that he shot Mayes. He claimed that Mayes reached towards his waistband and said, “I’ve got
    something for you.” The defendant claimed that he then shot Mayes because he feared for his life.
    ¶7     The defendant drove home after shooting Mayes. He called his father, Willie Bailey, and
    asked him to bring his daughter, Avery, home. Bess arrived home shortly after Willie arrived with
    Avery. The defendant told them that he shot Mayes and asked them to call 9-1-1.
    ¶8     The defendant was arrested at his home during the early morning hours of May 18, 2014.
    He gave a brief video-recorded statement in the police cruiser while it was parked in front of his
    house. The officer, Illinois State Police Agent Elbert Jennings, advised the defendant of his
    Miranda rights (see Miranda v. Arizona, 
    384 U.S. 436
     (1966)), and the defendant signed a waiver
    form. Agent Jennings then asked the defendant, “What happened with you and Travis?” The
    defendant replied, “Um, I’d prefer to have a lawyer, I think.” Agent Jennings responded, “Okay.”
    Without further prompting, the defendant said, “We talked, and the conversation ended, and I came
    home.” Agent Jennings then asked the defendant, “Did you say you want to have a lawyer?” The
    defendant replied, “I think when it comes to questions involving myself and Travis, that would be
    best.” Agent Jennings did not ask any further questions. He transported the defendant to the
    Madison County jail.
    ¶9     That afternoon, the defendant indicated that he wanted to speak to Agent Jennings and that
    he was willing to give a statement without his attorney present. He gave another video-recorded
    interview at the jail, beginning at approximately 3:25 in the afternoon. At the outset, Agent
    Jennings asked the defendant to confirm that he wanted to speak to him without his attorney present
    and that he was the one who reinitiated contact. After the defendant did so, Agent Jennings again
    provided the defendant with the Miranda warnings and had him sign a waiver form.
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    ¶ 10   Agent Jennings then asked the defendant to tell his story. The defendant began by stating
    that he caught Bess cheating on him with Mayes, a man he thought was his friend. He told Agent
    Jennings that in the weeks leading up to the shooting, he and Bess were “trying to work on [their]
    relationship.” He then recounted the events of May 17 and 18, 2014. He stated that on May 17,
    both he and Bess worked until approximately 10 p.m. While they were at work, they exchanged
    text messages and talked on the phone. During these discussions, Bess told the defendant that she
    wanted to go out after work. The defendant preferred to stay home. He also wanted to “work on”
    trusting Bess again. For these reasons, he told Bess to go out with her friends, but he asked her to
    be home by 1 a.m.
    ¶ 11   The defendant told Agent Jennings that while Bess went out with her friends, he stayed
    home, caught up on some yard work, and cleaned his motorcycle. He admitted that he drank
    margaritas while he was doing so. He noted that although he had only three margaritas, he used
    almost an entire fifth of tequila to make them.
    ¶ 12   The defendant stated that he and Bess continued to exchange texts while she was out with
    her friends. Bess told him that she was at Nick’s Bar with three friends, including a girl named
    Sammie. The defendant drove by Sammie’s house and saw that her vehicle was parked in the
    driveway. He admitted that he photographed Sammie’s vehicle. He also drove past Nick’s Bar and
    saw that Mayes’s motorcycle was parked nearby. He stated, “And I was like, okay, well they’re
    still doing the same shit, she’s just fucking with me.”
    ¶ 13   The defendant told Agent Jennings that he drove home after seeing Mayes’s motorcycle
    and continued to drink. He acknowledged that he “started to up the tequila in [his] margaritas.” He
    told Agent Jennings that he and Bess continued to exchange text messages and phone calls. He
    sent her a message asking if she wanted to go for a motorcycle ride with him. She said, “No.” The
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    defendant admitted that he replied by stating, “Well maybe if I painted my bike green and white,
    you’d want to ride home on my bike.” He explained that those were the colors of Mayes’s
    motorcycle. At some point, Bess sent the defendant a text message telling him that she did not
    really want to reconcile with him and explaining that she only moved back in with him because
    she was afraid of losing custody of their daughter, Avery.
    ¶ 14   Agent Jennings asked the defendant why he went back to Nick’s Bar. The defendant
    explained that during the evening, he and Bess had been discussing the state of their relationship
    through text messages and phone calls. He stated that during this exchange, Bess asked him to
    come to Nick’s to discuss the situation with Mayes. He also told Agent Jennings that, prior to this
    time, Mayes had agreed to tell the defendant if Bess contacted him.
    ¶ 15   The defendant continued his narrative. He told Agent Jennings that as he sat in his vehicle
    outside Nick’s Bar, he saw Mayes leave the bar and get on his motorcycle. He stated that they both
    drove the same direction down Route 203, but he denied that he intentionally followed Mayes.
    According to the defendant, he pulled up next to Mayes, and Mayes waved for him to pull over.
    The defendant stated that he and Mayes both pulled into the parking lot of a chiropractic office,
    where they discussed the situation. According to the defendant, Mayes told him to leave Bess
    alone, telling him, “That’s my girl, that’s not your girl.”
    ¶ 16   It was at this point, approximately 18 minutes into the interview, that the defendant first
    mentioned that when he pulled over, he took his pistol out of the glove box and placed it on his
    lap. He explained, “I’m kind of scared of the guy. He’s got a big rap sheet.” The defendant
    continued his story, telling Agent Jennings that after Mayes told him to leave Bess alone, he asked
    Mayes, “Well, what are we gonna do?” At this point, according to the defendant, Mayes stood up,
    started reaching towards his waistband, and said, “I’ve got something for you, motherfucker.” The
    5
    defendant stated that he was scared by this and “freaked out.” He picked up his pistol, fired one
    shot, and saw Mayes fall. He admitted that he “freaked out” and drove off.
    ¶ 17   The defendant stated that he tried to call Bess, but she did not answer her phone. He then
    called his father, who was babysitting Avery, and asked him to bring her home. He explained that
    he intended to turn himself in and he wanted to hug his daughter before he went to jail. The
    defendant told Agent Jennings that his father arrived at the house with Avery just before Bess
    arrived home. He stated that when Bess arrived, she began yelling at the defendant’s father, angry
    that he had woken Avery up in the middle of the night. The defendant told Bess that he shot Mayes
    and thought he was dead.
    ¶ 18   In response to questioning, the defendant stated that Mayes was standing approximately
    six to eight feet away from him while they were talking in the parking lot. He also stated that
    Mayes turned off the engine of his motorcycle so they could hear each other. Although Mayes
    stood up, he did not get off his motorcycle. The defendant noted that he remained inside his vehicle,
    with his seatbelt on. Although his vehicle was in park, he left the engine running.
    ¶ 19   The defendant then volunteered that he knew he should not have had the pistol with him
    that night, but he explained that he brought it with him because he was afraid of Mayes. He
    explained that this fear was also the reason that he never went into the bar that night. He then said,
    “Obviously, it’s not a concealable weapon. It’s a large .357.” Agent Jennings asked the defendant
    whether he had a concealed carry permit, to which the defendant replied, “No.”
    ¶ 20   At trial, the defendant argued that the defendant acted in self-defense when he shot Mayes.
    As an alternative, he argued that he should be convicted of second degree murder, rather than first
    degree murder, because he had an actual, but unreasonable, belief that he needed to act in self-
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    defense. The State’s theory of the case was that the defendant acted out of his anger over Mayes’s
    relationship with Bess.
    ¶ 21   The State’s first witness was Agent Jennings. He provided the foundation for the admission
    of both of his video-recorded interviews with the defendant, which were then played for the jury.
    In addition, Agent Jennings testified that Mayes and his motorcycle were found in the parking lot
    of Forbes Chiropractic, which is approximately one mile from Nick’s Bar.
    ¶ 22   Trooper Derek Cullen and Detective Tim Lawrence both responded to the defendant’s
    home in response to the 9-1-1 calls placed by Bess and Willie. Both testified that the defendant
    was cooperative during his arrest. Trooper Cullen testified that an unloaded pistol was on the living
    room floor, surrounded by one spent shell casing and five unspent bullets.
    ¶ 23   Trooper Grant Hentze is the crime scene investigator who processed the scene where
    Mayes’s body was found with his motorcycle. He testified that although he did not find any
    weapon in either of Mayes’s hands, he did find a pocketknife on his person. Trooper Hentze did
    not recall where the knife was found. He testified that the knife had a 3- to 3½-inch blade. Asked
    on cross-examination whether the knife could be used to inflict a fatal would, he indicated that it
    most likely could.
    ¶ 24   The State presented the testimony of three of the defendant’s friends—Kurt Watters, Jesse
    Bush, and Michael Heath. Watters had known the defendant for 10 years and considered him a
    close friend. He testified that he went to Nick’s Bar that night with Bush and Heath. When they
    arrived, Watters saw Bess there with some female friends. Mayes arrived approximately 15
    minutes after Watters and his friends. According to Watters, when he saw Bess and Mayes
    together, they appeared to be “handsy” and “flirtatious.”
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    ¶ 25   Watters testified that at some time between 1 a.m. and 2 a.m., he and Bush went to retrieve
    Watters’ cell phone, which he had left in his vehicle. The vehicle was parked across the street in
    the parking lot of a bank. As they crossed the street, Watters saw the defendant’s vehicle. The
    defendant waved for Watters and Bush to come over to his vehicle, which they did. Watters
    testified that the defendant usually “has this very friendly, loving, outgoing personality,” but he
    did not “seem like his normal self” when they saw him that night. According to Watters, the
    defendant offered him $500 to go into the bar and “kick Travis’s ass.” Watters declined, and the
    defendant drove away. Watters and Bush then retrieved Watters’s cell phone, returned to the bar,
    and told Heath that they saw the defendant outside and he “didn’t seem right.”
    ¶ 26   Watters further testified that Bess asked him for a ride home, and he agreed to drive her.
    Watters left with Bess, Bush, and Heath. Watters estimated that they arrived at the home shared
    by the defendant and Bess at approximately 3:30 or 3:35 a.m. The defendant and his father were
    in the front yard when they arrived. Bess exited the car, and she and the defendant began yelling
    at each other. Watters then drove away.
    ¶ 27   Bush testified that he heard the defendant offer Watters $500 to fight Mayes. He also
    confirmed Watters’s testimony concerning the argument that ensued when they dropped Bess off
    at the home she shared with the defendant. On cross-examination, he acknowledged that when he
    spoke to police, he did not mention the argument between the defendant and Bess.
    ¶ 28   Heath testified that at the time the events at issue unfolded, he was aware that Bess was
    dating both Mayes and the defendant. He noted that although the defendant had never said that he
    wanted to harm Mayes, he knew the defendant was upset about the situation. Heath testified that
    he saw Bess and Mayes together at Nick’s Bar on the night in question. Although he did not see
    the defendant that night, he was made aware that the defendant was outside the bar. He called the
    8
    situation to the attention of the bar manager. Asked why, he stated that he was concerned because
    of the circumstances involving the defendant, Bess, and Mayes. Finally, Heath testified that the
    defendant did not ordinarily carry a gun with him unless he was hunting or going to the shooting
    range.
    ¶ 29     Alexander Arosemena, the manager of Nick’s Bar, and Ashley Barnes, the bartender
    working that night, both testified for the State. Arosemena was friends with Mayes, and he knew
    the defendant and Bess casually. He testified that he never heard Mayes make any threats against
    the defendant. Both Arosemena and Barnes testified that they saw Bess arrive with some female
    friends on the night of the shooting. Both also testified that they later saw her with Mayes.
    ¶ 30     The defendant’s father, Willie, testified that on the night of the shooting, he and his wife
    were babysitting Avery at their home. The defendant called them and asked them to bring Avery
    home to his house. Willie drove Avery to the defendant’s home. Shortly after he arrived, Bess
    arrived home. Willie testified that the defendant said to her, “I shot your effing boyfriend.” He
    noted that he did not want to use the actual word used by his son because he did not curse. Willie
    further testified that when he spoke to the defendant later that morning, the defendant said that
    Mayes told him that Avery would start calling Mayes “Daddy” and that he then “blew his brains
    out.” During this conversation, the defendant did not mention seeing Mayes reach into his
    waistband or thinking that he might have a weapon.
    ¶ 31     On cross-examination, Willie was asked if he had any reason to believe that the defendant
    was afraid of Mayes. He replied, “Not Travis Mayes himself, but he was afraid of, someone had
    threatened him. I don’t know who.”
    ¶ 32     The State next introduced into evidence text messages retrieved from the defendant’s cell
    phone and Facebook posts and messages. The text messages were introduced through the
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    testimony of Special Agent James Peterson, who performed a cell phone extraction on the
    defendant’s phone, and through printouts in People’s Exhibit 49. The text messages were
    voluminous. Although we need not discuss all of them in detail, we observe that the State relied
    heavily on these messages to support its theory that the defendant was angry at Mayes and jealous
    of his relationship with Bess in the weeks leading up to the events of May 17 and 18, 2014. As
    such, we will highlight some of these messages.
    ¶ 33   On March 29, 2014, the defendant sent Mayes a text saying, “What sucks is I still love her
    and she is just another piece of ass to you.” On April 5, Mayes sent the defendant a text telling him
    that he was in love with Bess, but he could not understand why she liked him or why she would
    leave the defendant. Later that day, the defendant responded, “Dude, what you’ve done is wrong.
    Shaking my hand the whole time, me trusting you and asking you to make sure she was okay every
    time I came to that bar.” Still later, the defendant sent Mayes a text telling him that although he
    blamed Bess more than Mayes, he felt hurt by Mayes because he considered him to be a friend.
    ¶ 34   People’s Exhibit 49 includes multiple text exchanges between the defendant and Bess in
    which the defendant expressed anger over Bess’s relationship with Mayes. The exhibit also
    includes a series of text messages between the defendant and Bess in which the defendant told
    Bess that he wanted to get back together with her.
    ¶ 35   The State also presented evidence that the defendant sent Mayes a text on his birthday. In
    it, the defendant wrote, “I’d wish you a happy birthday, but I don’t have to because my girlfriend’s
    doing it for me.” Attached were two sexually explicit photographs of the defendant with Bess.
    ¶ 36   People’s Exhibit 49 includes a series of text messages from early in May 2014 in which
    Bess told the defendant that she had an argument with Mayes. In the exchange, Bess and the
    defendant agreed to attempt a reconciliation.
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    ¶ 37   Finally, People’s Exhibit 49 includes the messages exchanged between the defendant and
    Bess on the night of the shooting. Shortly before 2 a.m., the defendant sent Bess a text message
    asking if she wanted to go for a bike ride. Bess responded, “I [am] talking to Sammie. No. You’re
    drunk.” A few minutes later, Bess sent the defendant a text saying that her friend, Kristin, would
    bring her home soon. The defendant replied, “Kristin already left.” He then sent a text stating,
    “Maybe you wanna ride that green and white soft tail home.” A few minutes later, the defendant
    sent Bess another text saying, “The first time you go out since we’re working on things and it’s
    right back where we left off. Won’t come home.”
    ¶ 38   Special Agent Peterson testified that in performing the cell phone extraction, he was also
    able to retrieve information about Internet searches the defendant conducted from his phone. He
    further testified that between 1:34 a.m. and 1:35 a.m. on May 18, 2014, the defendant conducted
    two searches for Mayes, one search for Bess, and one search for Nick’s Bar. The defendant
    acknowledged in his second statement to Agent Jennings that he looked up Mayes, Bess, and
    Nick’s Bar on Facebook that night.
    ¶ 39   Agent Jennings was recalled to the stand to testify about Facebook posts and messages
    recovered related to this case. He testified that on March 29, 2014, the defendant posted a
    photograph of Bess and Mayes together on his Facebook page. In the post, the defendant wrote,
    “This isn’t rumor. I caught them together after my suspicions got the better of me.” Agent Jennings
    further testified that he found no messages of any kind sent from Mayes to the defendant on
    Facebook, and he found no messages or posts in which the defendant stated that he had been
    threatened by Mayes.
    ¶ 40   Bess testified for the defense. Asked about Mayes’s reputation in the community, she
    testified that he is known to be violent. She was then asked if she witnessed any threats of violence
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    by Mayes. Bess testified that Mayes once made a phone call to the defendant in her presence in
    which he told the defendant to leave Bess alone or he would kill the defendant and Avery would
    then call Mayes “Dad.” She described another incident that took place at the Rust Bucket while
    she was working. She testified that the defendant planned to meet her there to discuss their
    daughter. He asked her to ask Mayes to leave. She alleged that when she did so, Mayes told her to
    tell the defendant that he had left but that he was instead going to wait in the office with a baseball
    bat. Bess testified that she told the defendant not to come to the Rust Bucket that night.
    ¶ 41   Finally, Bess testified that Mayes owned three weapons—a pistol, a switchblade, and a
    baton. She testified that he kept the knife in his pocket, and he kept the pistol in the waistband of
    his pants. She further testified that she never knew him not to carry at least one of the weapons.
    ¶ 42   On cross-examination, Bess acknowledged that when she spoke to police immediately after
    the murder, she did not tell them any of the things she testified to during direct examination. She
    further acknowledged that she did not tell anyone from the police or the prosecutor’s office that
    Mayes carried a gun. Bess acknowledged making the following four statements to Agent Jennings:
    (1) the defendant deliberately angered Mayes by telling him that he had raped Bess, (2) the
    defendant hated Mayes for becoming involved with Bess, (3) she was tired of the defendant issuing
    threats to her every day concerning custody of their daughter, and (4) she loved Mayes.
    ¶ 43   The defense introduced into evidence a certified copy of Mayes’s 1999 conviction for
    retaliating against a witness. Mayes’s sister, Amber Duke, later acknowledged that Mayes went to
    prison more than once.
    ¶ 44   The defendant testified on his own behalf. Much of his testimony was consistent with his
    second statement to Agent Jennings, although he offered some additional details. He testified that
    he began dating Bess in high school and enlisted in the Army National Guard at the age of 17.
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    After he returned from a deployment to Egypt in 2011, Bess became pregnant with Avery, and his
    father’s health began to decline. He testified that he applied for Inactive Relief Reserve (IRR)
    status with the Army National Guard because this would allow him more time to care for his child
    and his father.
    ¶ 45   The defendant next testified about his friendship with Mayes. He testified that he met
    Mayes at the Rust Bucket, and they became “bar buddies,” but they were not “best friends.” The
    defendant testified that Mayes once offered to trade him a motorcycle in exchange for a pistol. The
    defendant refused to make the trade because Mayes was a convicted felon. According to the
    defendant, Mayes responded by calling him a “pussy” and telling him that he already owned guns.
    He testified that Mayes also showed him the knives and guns that he owned.
    ¶ 46   Defense counsel asked the defendant whether he had received any specific threats from
    Mayes. He testified that Mayes threatened him after a heated argument between Bess and her
    mother, which left Bess upset and crying. The argument took place in the presence of the
    defendant. Later, according to the defendant, Mayes called him and told him that he was to blame
    for allowing Bess to get “her ass kicked by her mom.” The defendant stated that Mayes then
    threatened to kill him over the incident and told him that within a year Avery would be calling
    Mayes “Daddy.”
    ¶ 47   The defendant next testified about the events that took place on the night he shot Mayes.
    Much of his testimony was similar to what he told Agent Jennings. He testified that at some point
    while Bess was at Nick’s Bar, she sent him a text message asking him to come to the bar to talk to
    her and Mayes. He drove to the bar but decided not to go in because he was afraid that he would
    be beaten up if he encountered Mayes and his friends in the bar. Instead, he explained, he decided
    to wait outside for Bess.
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    ¶ 48   The defendant testified that while waiting for Bess, he talked to Watters. He stated that he
    asked Watters to go into the bar and get Mayes to leave. When Watters asked how he was supposed
    to do that, the defendant replied, “I don’t know. I don’t need you to get into a fight with the guy.”
    The defendant testified that he then decided to leave because he realized that staying to talk to
    Mayes and Bess “was probably a terrible idea.” As he was preparing to leave, he saw Mayes leave
    the bar and get on his motorcycle to go home. As he did in his statement to Agent Jennings, the
    defendant stated that he drove the same direction as Mayes, but he denied following him.
    ¶ 49   The defendant testified that when he and Mayes stopped next to each other for a traffic
    light, Mayes waved for him to pull over, and he followed him into the parking lot of Forbes
    Chiropractic. His description of the confrontation that follows was mostly consistent with what he
    told Agent Jennings previously; however, he added details about the conversation that preceded
    the shooting. The defendant testified that Mayes told him to stop “messing with” Bess’s head. He
    stated that the conversation then “started to escalate” to include raised voices and “a lot more
    cussing.” He testified that Mayes then reached with his hand towards the front of his waistband
    and told the defendant that he “had something” for him. The defendant testified that at this point,
    he picked up his pistol and fired one shot. He explained that he feared for his life because he knew
    that Mayes was a violent person who usually carried a weapon.
    ¶ 50   On cross-examination, the defendant acknowledged that he told police that he intentionally
    failed physical training requirements in order to get IRR status. He explained that this lowered his
    “promotion points” so that he would be eligible for IRR. He further acknowledged that he did not
    have any problems with Mayes until March 2014. The prosecutor asked the defendant about his
    claim that Mayes threatened to kill him for allowing a fight between Bess and her mother. The
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    defendant testified that he took the threat seriously, but he admitted that he did not report it to the
    police.
    ¶ 51      The defendant acknowledged that he discovered Bess was not with her friend Sammie
    because he drove by Sammie’s house and photographed her vehicle in the driveway. He further
    admitted to checking the Facebook pages of Bess, Mayes, and Nick’s Bar to see if any pictures of
    Bess and Mayes had been posted. He acknowledged that he was upset to learn that Bess was with
    Mayes that night.
    ¶ 52      When asked why he pulled into a parking lot with Mayes if he was afraid of him, the
    defendant replied, “Poor judgment.” He acknowledged that he did not see anything in Mayes’s
    hand before he shot him. He further acknowledged that, after the shooting, he left without checking
    to see if Mayes had a survivable injury. He also acknowledged that he did not immediately call the
    police or an ambulance when he arrived home.
    ¶ 53      The defendant was then questioned about the statements he made to his father, Bess, and
    Agent Jennings shortly after the shooting. He acknowledged that he never told either his father or
    Bess that he saw Mayes reach for something in his waistband. The following exchange then
    occurred:
    “Q. [ASSISTANT STATE’S ATTORNEY] In your first interview with Elbert
    Jennings ***, you never said a single word about Travis Mayes reaching into his pants?
    A. I didn’t discuss the incident.
    Q. Well, you told Elbert, ‘We talked, the conversation ended, and I went home’?
    A. Yes. I asked for an attorney.
    Q. You said, ‘we talked’?
    A. Yes.
    15
    Q. ‘The conversation ended, and I went home’?
    A. Yes.
    Q. At no point during that statement is there anything about Travis reaching into
    his pants?
    A. No.”
    The defendant then acknowledged that during his second interview with Agent Jennings, he did
    not mention his fear of Mayes until approximately 20 minutes into the interview.
    ¶ 54   On redirect examination, the defendant testified that he was on suicide watch during the
    period between the two interviews. He further testified that he was under stress and that he did not
    have the luxury of organizing his thoughts before speaking to Agent Jennings.
    ¶ 55   The State called Mayes’s sister, Duke, as a rebuttal witness. She testified that after Mayes’s
    death, she cleaned out his home and she did not find any guns.
    ¶ 56   Because one of the defendant’s claims of ineffective assistance of counsel focuses on
    remarks made during the State’s closing argument, we will discuss that argument in detail. The
    prosecutor began his argument, stating, “ ‘I shot your fucking boyfriend; Travis said Avery was
    going to start calling him Daddy; we talked, the conversation ended, and I went home.’ These are
    the things that the defendant said minutes and hours after he shot Travis Mayes in the head.” The
    prosecutor then argued that the evidence showed that the defendant was a jealous “scorned lover”
    who was angry because he could not be with Bess, the woman he loved.
    ¶ 57   The prosecutor went on to explain the defense of self-defense to the jury. He explained that
    the use of force is justified “when and to the extent that [the defendant] reasonably believes that
    such conduct is necessary to defend himself against the imminent use of unlawful force.” He then
    discussed whether the defendant’s conduct on the night of the murder was reasonable. He
    16
    highlighted evidence that the defendant drove to Bess’s friend Sammie’s house to see if she was
    home because he did not believe Bess when she told him she was with Sammie. He also highlighted
    evidence that the defendant drank a fifth of tequila, then grabbed a loaded gun, and put it in his
    car. He asked jurors, “Is that reasonable after drinking a fifth of a bottle of tequila? Let me grab a
    gun. Let me put it in my car. He didn’t even have a concealed carry permit.” The prosecutor then
    highlighted evidence that the defendant drove to Nick’s Bar, waited outside, offered a friend $500
    to beat up Mayes, and followed Mayes down Route 203 for a mile. He also highlighted the
    defendant’s acknowledgement that, after the shooting, he drove away without checking to see if
    Mayes was alive or calling an ambulance.
    ¶ 58   The prosecutor next addressed the question of whether the defendant’s use of force was
    necessary. He noted that although there was a knife in Mayes’s pocket, there was no weapon in
    his hand. He emphasized that Mayes was six to eight feet away from the defendant and the fact
    that the defendant was seated in his vehicle.
    ¶ 59   The prosecutor then went on to address the credibility of the defendant’s claim that he
    feared for his life when he shot Mayes. He argued, “Remember, the first hour he talked to Elbert
    [Jennings], you saw that just a couple [of] hours after it happened, what did he say? ‘We talked,
    the conversation ended, I went home.’ ” He went on to argue, “It was only during the second
    interview, 20 minutes into it, the first time we hear, ‘Well, I was kinda scared.’ That’s actually
    what he said the first time.” The prosecutor continued this line of argument, stating that if someone
    were truly afraid for his life, he would “shout it from the rooftop.” He continued, “Wouldn’t it be
    the first thing you [would] say to everyone you meet? Wouldn’t it be, ‘I had to do it?’ Or would it
    be, ‘I just shot your fucking boyfriend’? Or would it be, ‘Well, Travis said Avery was going to call
    17
    him Daddy, so I blew his brains out’? It’s what he said to his own father. Would it be, ‘We talked,
    the conversation ended, and I went home’?”
    ¶ 60   The prosecutor went on to argue that the defendant was manipulative. As evidence for this
    inference, he pointed to the fact that the defendant admitted to intentionally failing physical
    training requirements in order to qualify for IRR status.
    ¶ 61   He then returned to the theme of the defendant’s initial statements to his father, Bess, and
    Agent Jennings. He reminded the jury what the defendant said in these statements, and he
    emphasized that he did not tell the police that he was scared until he had 12 hours to think about
    it.
    ¶ 62   The prosecutor then argued at length about the lack of any evidence that the defendant had
    expressed any fear of Mayes prior to the night in question and the evidence that he took actions
    inconsistent with being afraid of Mayes. He highlighted evidence that the defendant sent Mayes
    two pictures of the defendant with Bess, along with a message stating, “I’d wish you a happy
    birthday, but I don’t have to because my girlfriend’s doing it for me.” The prosecutor argued that
    this was likely to antagonize Mayes. He also highlighted evidence that the defendant went to
    Nick’s Bar to seek out Mayes.
    ¶ 63   The prosecutor once again returned to the defendant’s statements to his father, Bess, and
    Agent Jennings. He argued, “And I’ll ask you one more time, at any point in any of those
    statements did we hear a word about self-defense?” The prosecutor went on to discuss the
    defendant’s theory of second degree murder and explain to the jury the verdict forms it would
    receive. He concluded by asking the jury to find the defendant guilty of first degree murder.
    ¶ 64   Defense counsel argued that the antagonistic text messages highlighted by the prosecution
    did not contradict the defendant’s assertion that he was afraid of Mayes. He argued that it is easy
    18
    to “talk smack at a distance, but it’s not the same thing as in your face and up front or six feet from
    your car.” He argued that Mayes’s conviction for retaliating against a witness showed that he was
    a dangerous man, and he emphasized that Mayes was armed with a knife at the time he was shot.
    ¶ 65   Significantly for purposes of this appeal, defense counsel went on to address the State’s
    argument that the defendant had 12 hours in which to come up with a story between the time of
    the shooting and his second interview with Agent Jennings. Counsel argued, “he was in jail on a
    suicide watch. It’s not like he was plotting what he was going to say.” He also emphasized the fact
    that the defendant decided to speak with Agent Jennings voluntarily.
    ¶ 66   Counsel also addressed the State’s arguments concerning the reasonableness of the
    defendant’s conduct. He argued that the question was not whether it was reasonable for the
    defendant “to send dumb texts” or to make other bad decisions “that [were] unrelated to that
    moment.” Rather, he argued, the only question was what was reasonable when Mayes “was
    reaching in his pants, his waistband, and said ‘I got something for you, motherfucker’?”
    ¶ 67   The jury was instructed on self-defense and second degree murder. During deliberations,
    the jury foreman sent a note to the court asking the court to remind the jurors that they may not
    consider anything other than the evidence presented during the trial. The parties agreed that the
    court should tell the jurors that they had received all the instructions they needed to decide the
    case. The jury continued to deliberate, returning a verdict of guilty of first degree murder.
    ¶ 68   The court subsequently sentenced the defendant to 30 years in prison along with a
    mandatory 25-year sentence enhancement for using a firearm. The defendant filed a motion to
    reconsider that sentence, which the court denied. This appeal followed. We will discuss additional
    factual matters as necessary during our analysis.
    19
    ¶ 69                                   II. ANALYSIS
    ¶ 70                       A. Rule 431(b) and Plain Error Review
    ¶ 71   The defendant’s first contention centers on the court’s questioning of prospective jurors
    pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). That rule requires courts to
    question jurors about their understanding and acceptance of four basic principles of law known as
    the Zehr principles (see People v. Zehr, 
    103 Ill. 2d 472
     (1984)). Those principles are that (1) the
    defendant is presumed innocent, a presumption that stays with him throughout the proceedings;
    (2) the State is required to prove the defendant guilty beyond a reasonable doubt; (3) the defendant
    is not required to prove his innocence; and (4) the defendant is not required to testify and, if he
    chooses not to do so, jurors may not draw any negative inferences from this fact. People v.
    Thompson, 
    238 Ill. 2d 598
    , 606 (2010) (citing Ill. S. Ct. R. 431(b) (eff. May 1, 2007)); see also
    Zehr, 
    103 Ill. 2d at 477
    . The court is required to give all prospective jurors an opportunity to
    indicate whether they both accept and understand each of these four principles. Thompson, 
    238 Ill. 2d at 607
    .
    ¶ 72   In this case, the court asked all prospective jurors whether they disagreed with each
    principle and whether they were willing to apply each principle as instructed, but the court did not
    ask whether they understood the Zehr principles. Thus, there is no dispute that the court did not
    fully comply with Rule 431(b). See People v. Wilmington, 
    2013 IL 112938
    , ¶ 32. There is also no
    dispute, however, that the defendant forfeited review of this claim by failing to object during
    voir dire. See People v. Belknap, 
    2014 IL 117094
    , ¶ 47. Thus, the question for us is whether plain
    error review of his claim would be appropriate.
    ¶ 73   The plain error doctrine allows a court of review to excuse a defendant’s forfeiture under
    two circumstances. We may review a claim that has been forfeited if the evidence was so closely
    20
    balanced that the error alone threatened to tip the scales of justice against the defendant, regardless
    of the seriousness of the error. We may also review a claim of an error so fundamental that it
    undermined the fairness of the defendant’s trial and threatened the integrity of the judicial process,
    regardless of the strength of the evidence. People v. Piatkowski, 
    225 Ill. 2d 551
    , 565 (2007). The
    defendant argues that plain error review is appropriate under both prongs of the plain error rule.
    We disagree.
    ¶ 74    We first address the defendant’s contention that the evidence in the case before us was
    closely balanced. Under the first prong of the plain error test, the question is whether the evidence
    was so closely balanced that “the error alone severely threatened to tip the scales of justice.” People
    v. Sebby, 
    2017 IL 119445
    , ¶ 51. The defendant has the burden of persuading this court that the
    evidence was close enough to meet this standard. People v. Choate, 
    2018 IL App (5th) 150087
    ,
    ¶ 52.
    ¶ 75    In support of his assertion that the evidence in this case was close enough to meet this
    standard, the defendant argues that “substantial evidence” supported his claim that he believed he
    needed to act in self-defense. He points to Bess’s testimony that Mayes owned three weapons, and
    that as far as she knew, he always carried one of those weapons with him. He emphasizes evidence
    that a knife was found on Mayes’s person after his death. The defendant also points to the report
    and evidence deposition of Dr. Raj Nanduri, the forensic pathologist who performed an autopsy
    on Mayes. According to the autopsy report, Mayes’s blood alcohol content of 0.171 at the time of
    his death. Dr. Nanduri testified that this level of intoxication could lead to anger and emotional
    swings. Finally, the defendant highlights the evidence that Mayes was found lying on the ground
    with the motorcycle on top of one of his legs, which is consistent with his testimony that Mayes
    was straddling the motorcycle when he shot him. We are not persuaded.
    21
    ¶ 76   We note that the jury was not required to find Bess’s testimony credible. Her claim that
    Mayes owned a pistol was contradicted by the testimony of Mayes’s sister, who stated that she did
    not find a gun when going through Mayes’s possessions after his death. In addition, the jury was
    aware that Bess previously made statements that were inconsistent with her trial testimony.
    ¶ 77   Moreover, although the evidence highlighted by the defendant does provide some support
    for his version of events, the record contains far more evidence that supports the State’s theory
    that the defendant shot Mayes in anger. The record contains substantial evidence that the defendant
    was angry at Mayes in the weeks leading up to the encounter, much of which is not contradicted.
    This evidence includes the numerous text messages admitted into evidence, the testimony of two
    of the defendant’s friends that the defendant offered Watters money to beat up Mayes, and the
    defendant’s own statement to police. There is also evidence that the defendant acted in ways that
    were inconsistent with his claim that he was afraid of Mayes. For example, he asked Mayes to help
    Bess get a job working with him at the Rust Bucket, and he sent Mayes a text with explicit
    photographs of Bess and the defendant shortly before the events at issue unfolded, something likely
    to antagonize Mayes. The fact that the defendant pulled into a deserted parking lot late at night
    when waved over by Mayes likewise belies his claim that he feared Mayes.
    ¶ 78   In addition, although Dr. Nanduri’s deposition provides support for the defendant’s claim
    that he shot Mayes while he was straddling his motorcycle, it also contradicts the defendant’s claim
    that Mayes stood up before the defendant shot him. Dr. Nanduri explained that the bullet entered
    Mayes’s ear and traveled on a downward trajectory. This trajectory indicated that Mayes was likely
    sitting on the motorcycle when he was shot, not standing, as the defendant asserted. In light of the
    voluminous evidence in support of the State’s theory of the case, we do not find the evidence to
    22
    be so closely balanced that the error alone threatened to tip the scales of justice against the
    defendant.
    ¶ 79   We next consider the defendant’s contention that we may review his claim under the
    second prong of the plain error doctrine. Under the second prong, we may review errors so serious
    they amount to structural errors. Thompson, 
    238 Ill. 2d at 613-14
    . Only “a very limited class” of
    errors are considered structural errors. 
    Id. at 609
    .
    ¶ 80   As the defendant correctly acknowledges, both the Illinois Supreme Court and this court
    have repeatedly held that Rule 431(b) errors are not generally cognizable under this prong. Sebby,
    
    2017 IL 119445
    , ¶ 52; Wilmington, 
    2013 IL 112938
    , ¶ 33; Choate, 
    2018 IL App (5th) 150087
    ,
    ¶ 39. Our supreme court has explained that although the requirements of Rule 431(b) are designed
    to ensure that a defendant is tried before a fair and impartial jury (Thompson, 
    238 Ill. 2d at 609
    ), a
    trial court’s failure to fully comply with those requirements “does not automatically result in a
    biased jury” (id. at 610). As such, an error in Rule 431(b) questioning does not necessarily “render
    a trial fundamentally unfair.” 
    Id. at 611
    .
    ¶ 81   The defendant, however, points to language in both Sebby and Thompson suggesting that
    a Rule 431(b) error would be cognizable under the second prong of the plain error test if a
    defendant can show that the error actually resulted in a biased jury. See Sebby, 
    2017 IL 119445
    ,
    ¶ 52 (explaining that such an error “is not cognizable under the second prong of the plain error
    doctrine, absent evidence that the violation produced a biased jury” (emphasis added)); Thompson,
    
    238 Ill. 2d at 614
     (noting that evidence “that [a] defendant was tried by a biased jury would
    certainly satisfy the second prong of plain-error review”). He argues that such evidence is present
    in this case. In support of this claim, the defendant points to the jury foreman’s note to the court.
    The note stated, “Can you please reiterate that we should only consider the evidence presented in
    23
    the case!!” According to the defendant, this note demonstrates that “at least one juror was
    considering evidence outside of the record.” We are not persuaded.
    ¶ 82   The defendant correctly observes that a trial before a jury that is not fair and impartial is a
    structural error which is cognizable under the second prong of the plain error doctrine. Thompson,
    
    238 Ill. 2d at 610
    . He is also correct in implicitly arguing that it is improper for jurors to consider
    extraneous information or influences in reaching their verdict. See People v. Hobley, 
    182 Ill. 2d 404
    , 464 (1998). Consideration of extraneous information by jurors can serve as an independent
    basis for reversal. See People v. Holmes, 
    69 Ill. 2d 507
    , 516-19 (1978). However, reversal is not
    always required. 
    Id. at 519
    . Rather, a verdict will be overturned only if, considering the nature of
    the extraneous information or influence, the jurors’ consideration of it “involved ‘such a
    probability that prejudice [would] result that it is [to be] deemed inherently lacking in due
    process.’ ” (Internal quotation marks omitted.) 
    Id. at 514
     (quoting Estes v. Texas, 
    381 U.S. 532
    ,
    542-43 (1965)).
    ¶ 83   Here, the foreman’s note to the court does not indicate what type of extraneous information
    other jurors may have wanted to consider. Thus, standing alone, it would not provide a basis for
    reversal. The defendant, however, attempts to link his assertion of juror misconduct to the court’s
    failure to ask jurors whether they understood all four of the Zehr principles. This argument has one
    critical flaw. The principle that jurors must decide the case based only on the evidence before them
    is important, but it is not one of the four Zehr principles, and Rule 431(b) does not address it. As
    such, there is no causal connection between the error and the fact that at least one juror wanted to
    consider extraneous information. We therefore reject the defendant’s assertion that structural error
    occurred. Because the defendant cannot satisfy either prong of the plain error test, we do not find
    it appropriate to review his claim of error under Rule 431(b).
    24
    ¶ 84                         B. Ineffective Assistance of Counsel
    ¶ 85    The defendant argues that counsel was ineffective for (1) failing to request that the jury be
    instructed that a witness is not required to speak with an attorney or an attorney’s investigator
    before testifying, (2) failing to object to what he characterizes as commentary by the prosecution
    on his invocation of his Miranda rights, and (3) failing to object to evidence of other bad acts. We
    reject all three claims.
    ¶ 86    We evaluate claims of ineffective assistance of counsel using the two-part test established
    by the United States Supreme Court in Strickland v. Washington, 
    466 U.S. 668
     (1984), and adopted
    by the Illinois Supreme Court in People v. Albanese, 
    104 Ill. 2d 504
     (1984). To prevail, a defendant
    must show both that counsel’s performance was deficient and that he suffered prejudice as a result.
    Strickland, 
    466 U.S. at 687
    . To demonstrate deficient performance, a defendant must show that
    counsel’s representation “fell below an objective standard of reasonableness.” 
    Id. at 687-88
    . This
    showing requires him to overcome a strong presumption that counsel’s decisions constituted sound
    trial strategy. 
    Id. at 689
    . To demonstrate prejudice, a defendant must show that “there is a
    reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
    would have been different.” 
    Id. at 694
    . “A reasonable probability is a probability sufficient to
    undermine confidence in the outcome.” 
    Id.
    ¶ 87    We will first consider the defendant’s claim that counsel was ineffective for failing to ask
    the court to instruct the jury that a witness is not required to speak to an attorney or an attorney’s
    investigator before testifying. This principle is included in a bracketed sentence in Illinois Pattern
    Jury Instructions, Criminal, No. 3.10 (4th ed. 2000) (hereinafter IPI Criminal 4th). The instruction
    provides: “It is proper for an [(attorney) (attorney’s investigator)] to interview or attempt to
    interview a witness for the purpose of learning the testimony the witness will give.” IPI Criminal
    25
    4th No. 3.10. This instruction should be given if the jury has heard evidence that any of the
    witnesses were interviewed or asked to be interviewed by an attorney or an investigator working
    for an attorney. IPI Criminal 4th No. 3.10, Committee Note. Under some circumstances, an
    additional bracketed sentence should be added, which provides: “[However, the law does not
    require a witness to speak to [(an attorney) (an attorney’s investigator)] before testifying.]” IPI
    Criminal 4th No. 3.10. This sentence should only be included in the instruction if the jury heard
    evidence that a witness refused to speak with an attorney or investigator. IPI Criminal 4th No.
    3.10, Committee Note.
    ¶ 88   Here, the jury heard testimony that Bess was interviewed by attorneys for both parties.
    Accordingly, the court gave the first sentence of IPI Criminal 4th No. 3.10. The jury also heard
    testimony that, when she was interviewed by prosecutors, Bess did not tell them that Mayes was
    violent or that he usually carried a weapon. The defendant argues that the bracketed second
    sentence of IPI Criminal 4th No. 3.10 should have been given to counteract the impact this
    testimony had on Bess’s credibility. He contends that her testimony was crucial to his defense
    because she corroborated his version of events. We are not convinced.
    ¶ 89   We reach this conclusion because we do not believe the evidence in this case warranted
    inclusion of the bracketed sentence. The testimony at issue came during the State’s cross-
    examination of Bess. Earlier, we set forth that testimony in detail. The testimony did not show that
    Bess refused to speak with the prosecutors or their investigators; rather, it showed that she did
    speak with them and that she told a story that was inconsistent with her trial testimony. Thus, the
    bracketed sentence was not appropriate, and the court would have properly refused to give it had
    counsel requested it. Counsel cannot be found to be ineffective for failing to perform an act that
    would have been futile. People v. Wallace, 
    2015 IL App (3d) 130489
    , ¶ 41.
    26
    ¶ 90   We next consider the defendant’s claim that counsel was ineffective for failing to object to
    what he characterizes as the State’s commentary on his invocation of his right to remain silent.
    This claim focuses on the defendant’s brief first statement to Agent Jennings. As we discussed
    previously, the defendant invoked his right to counsel; he then told Agent Jennings that he spoke
    to Mayes, the conversation ended, and he went home; and he then invoked his right to counsel
    again. Agent Jennings did not question him further until several hours later, when the defendant
    initiated further discussion. As we also discussed earlier, the State argued in closing that if the
    defendant were really afraid for his life when he shot Mayes, as he claimed, he would have told
    that to his father, Bess, and Agent Jennings when he made statements to them shortly after the
    shooting. The defendant contends that counsel was ineffective for failing to object to these
    arguments because he had a constitutional right not to say anything more to Agent Jennings. We
    reject this contention.
    ¶ 91   In Doyle v. Ohio, 
    426 U.S. 610
    , 619 (1976), the United States Supreme Court held that it
    is constitutionally impermissible for the State to impeach a defendant’s exculpatory testimony with
    his silence following his arrest and receipt of Miranda warnings. As such, if a defendant has
    remained silent, prosecutors may not cross-examine him about his failure to tell police the version
    of events in his testimony. See 
    id. at 611
    . The Court reached this conclusion because it found that
    such a practice would be “fundamentally unfair” because a defendant has a constitutionally
    protected right to remain silent. 
    Id. at 618
    . In Anderson v. Charles, 
    447 U.S. 404
    , 408 (1980)
    (per curiam), the Court held that “Doyle does not apply to cross-examination that merely inquires
    into prior inconsistent statements.” The Court explained that, because a defendant who makes a
    statement “has not remained silent,” at least “[a]s to the subject matter of his statements,” such
    questioning does not unfairly use his postarrest silence against him. 
    Id.
    27
    ¶ 92   The question before us, then, is whether this case is controlled by Doyle or Anderson. In
    support of his claim that Doyle controls, the defendant relies heavily on the Second District’s
    decision in People v. Gagliani, 
    210 Ill. App. 3d 617
     (1991). That case involved charges of home
    invasion, residential burglary, armed robbery, and sexual assault. Id. at 619. Initially, the defendant
    told police that he did not know anything about these crimes and that he did not know how his
    fingerprints came to be found in the victim’s home. Id. at 623-24. At trial, however, he testified
    that he was acquainted with the victim, and he admitted to having consensual sex with her in her
    home on three prior occasions. Id. at 623. On cross-examination, the defendant was confronted
    with his statement to police denying any knowledge of the crimes. Id. at 623-24. He was asked
    several times to acknowledge that he had the opportunity to tell the investigating officers his
    version of the events at issue. See id. at 625.
    ¶ 93   On appeal, the defendant argued that this questioning violated Doyle. Id. at 624. The
    appellate court agreed, explaining that the prosecution’s questions “suggested that [the]
    defendant’s trial testimony was fabricated due to the fact that he could have told the police officers
    the same story during the investigation but did not,” a suggestion the court found to be improper
    due to a defendant’s constitutional right to remain silent. Id. at 626.
    ¶ 94   Subsequent to the Second District’s 1991 decision in Gagliani, several Illinois courts
    distinguished Gagliani on the grounds that the defendant did not give “authorities any version of
    events which later proved inconsistent; the defendant simply denied knowledge of the incident.”
    People v. Frieberg, 
    147 Ill. 2d 326
    , 356 (1992); see also People v. Maggio, 
    2017 IL App (4th) 150287
    , ¶ 26; People v. Huddleston, 
    243 Ill. App. 3d 1012
    , 1025-26 (1993). Although neither party
    fully addresses this distinction, we note that the defendant’s first statement to Agent Jennings is
    similar to the statement at issue in Gagliani in the sense that the defendant did not really give
    28
    Agent Jennings a substantive account of the events at issue in that statement. Nevertheless, we do
    not find Gagliani—or Doyle—to be controlling for three reasons. First, we find Gagliani
    distinguishable for other reasons. Second, we find that the challenged remarks do not run afoul of
    the rationale underlying Doyle, and we are not required to follow the decisions of other districts of
    the Illinois Appellate Court. Maggio, 
    2017 IL App (4th) 150287
    , ¶ 26. Third, even assuming the
    State’s argument was improper, we do not believe that the defendant can satisfy the Strickland
    test.
    ¶ 95    Although the statement at issue in this case was similar to the statement at issue in Gagliani,
    we find that there is another, more significant distinction between the two cases. There, as we have
    just discussed, the cross-examination challenged by the defendant repeatedly focused on the fact
    that the defendant declined to offer an exculpatory story to police despite having ample opportunity
    to do so. See Gagliani, 210 Ill. App. 3d at 625. Here, by contrast, the State’s closing argument
    emphasized the fact that although the defendant made statements to three different people—his
    father, Bess, and Agent Jennings—shortly after the shooting, he did not tell any of those people
    that he was afraid of Mayes or that he acted in self-defense. The focus was on what the defendant
    said and did not say within these statements, not on the opportunity the defendant had to say more.
    Viewing these arguments in context, as we must (see People v. Ramos, 
    396 Ill. App. 3d 869
    , 874
    (2009)), we find that this argument was far less likely than the cross-examination at issue in
    Gagliani to unfairly lead jurors to hold the defendant’s exercise of his right to remain silent against
    him.
    ¶ 96    It is also important to emphasize that the rationale underlying Doyle is that it is inconsistent
    with the protections in Miranda to allow the State to use a defendant’s exercise of those rights
    against him. Doyle, 
    426 U.S. at
    618-19 (citing United States v. Hale, 
    422 U.S. 171
    , 182-83 (1975)
    29
    (White, J., specially concurring)). We do not believe the arguments challenged here were
    inconsistent with the protections of Miranda. The exclusionary rule of Miranda only applies to
    statements made in response to police questioning; it does not apply to spontaneous statements.
    People v. Acoff, 
    188 Ill. App. 3d 208
    , 212-13 (1989). Thus, a statement that is unsolicited and
    spontaneous is admissible, even if it is made after a defendant invokes his right to counsel.
    Miranda, 
    384 U.S. at 478
     (explaining that “[v]olunteered statements of any kind are not barred by
    the Fifth Amendment”). Here, the defendant’s unsolicited statement to Agent Jennings was
    therefore admissible in spite of his invocation of his right to remain silent until counsel was present.
    As the State points out, the defendant does not contend otherwise. The State’s commentary on this
    admissible statement does not run afoul of either Miranda or Doyle. To the extent that Gagliani is
    inconsistent with this conclusion, we decline to follow it. See Maggio, 
    2017 IL App (4th) 150287
    ,
    ¶ 26.
    ¶ 97    Moreover, even if we were to accept the defendant’s claim that the State’s argument was
    improper, we would reject his claim of ineffective assistance of counsel because we find that he is
    unable to satisfy either prong of the Strickland test. As we discussed earlier, satisfying the first
    prong—which focuses on counsel’s performance—requires a defendant to overcome a strong
    presumption that counsel’s performance constituted sound trial strategy. Strickland, 
    466 U.S. at 689
    . Here, rather than objecting to the prosecutor’s argument, an objection that may not have been
    sustained, defense counsel countered the argument. He reminded jurors that they heard evidence
    that the defendant was on suicide watch during the hours between his two statements to Agent
    Jennings, and he argued that the defendant was unlikely to have been focusing his attention on
    coming up with an untrue story during this time. He also emphasized that the defendant voluntarily
    30
    relayed his story to Agent Jennings only a few hours after giving his first statement. We find that
    this choice constituted sound trial strategy.
    ¶ 98    As we also explained earlier, to satisfy the second prong of the Strickland test—which
    requires the defendant to establish prejudice—the defendant must demonstrate a reasonable
    probability of a different outcome had counsel objected. 
    Id. at 694
    . Here, as we have already
    discussed, voluminous evidence supported the State’s theory of the case. It is also worth noting
    that nothing in Doyle required the prosecutor to refrain from arguing that if the defendant really
    feared for his life when he shot Mayes, he would have included this fact in his statements to Willie
    and Bess. As such, even a successful objection to the remarks addressing his initial statement to
    Agent Jennings would not have precluded the State from making essentially the same argument
    by focusing solely on his statements to Willie and Bess. We therefore conclude that the defendant
    is unable to satisfy either part of the Strickland test.
    ¶ 99    The defendant’s final contention is that counsel was ineffective for failing to object to
    evidence of prior bad acts or to request a limiting instruction concerning that evidence. Because
    the defendant must satisfy both prongs of the Strickland test to prevail on his claim of ineffective
    assistance of counsel, we may reject his claim solely on the basis of his inability to satisfy the
    prejudice prong. 
    Id. at 697
    .
    ¶ 100 The defendant challenges the evidence that he intentionally failed physical training
    requirements so he would qualify for IRR status and the evidence that he did not have a concealed
    carry permit. We do not believe this evidence was prejudicial enough to adversely affect the
    outcome of his trial. The defendant testified that he applied for IRR status so that he would be able
    to care for his newborn daughter and his ailing father. He explained that it was necessary for him
    to fail the physical training requirements in order to qualify. The defendant also told Agent
    31
    Jennings that his pistol was not a “concealable” weapon, and there was evidence that he did not
    normally carry a weapon. Because we find that a different outcome is not reasonably probable, we
    conclude that the defendant’s claim of ineffective assistance of counsel must fail.
    ¶ 101                                III. CONCLUSION
    ¶ 102 For the foregoing reasons, we affirm the defendant’s conviction.
    ¶ 103 Affirmed.
    32
    
    2020 IL App (5th) 160458
    NO. 5-16-0458
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIFTH DISTRICT
    THE PEOPLE OF THE STATE OF ILLINOIS,      )     Appeal from the
    )     Circuit Court of
    Plaintiff-Appellee,                 )     Madison County.
    )
    v.                                        )     No. 14-CF-1068
    )
    CALEB R. BAILEY,                          )     Honorable
    )     Kyle Napp,
    Defendant-Appellant.                )     Judge, presiding.
    ______________________________________________________________________________
    Opinion Filed:          July 23, 2020
    ______________________________________________________________________________
    Justices:            Honorable Milton S. Wharton, J.
    Honorable Thomas M. Welch, P.J., and
    Honorable David K. Overstreet, J.,
    Concur
    ______________________________________________________________________________
    Attorney          N. Scott Rosenblum, Rosenblum, Schwartz, Rogers & Glass, PC, 120 S.
    for               Central Avenue, Suite 130, St. Louis, MO 63105
    Appellant
    ______________________________________________________________________________
    Attorneys         Hon. Thomas D. Gibbons, State’s Attorney, Madison County Courthouse,
    for               157 North Main Street, Suite 402, Edwardsville, IL 62025; Patrick
    Appellee          Delfino, Director, Patrick D. Daly, Deputy Director, Office of the State’s
    Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2,
    P.O. Box 2249, Mt. Vernon, IL 62864
    ______________________________________________________________________________