People v. Donlow , 2020 IL App (4th) 170374 ( 2020 )

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Appellate Court Date: 2022.01.03
09:00:50 -06'00'
People v. Donlow, 2020 IL App (4th) 170374Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JORDAN M. DONLOW, Defendant-Appellant.
District & No. Fourth District
No. 4-17-0374
Filed March 24, 2020
Decision Under Appeal from the Circuit Court of Sangamon County, No. 15-CF-813;
Review the Hon. John M. Madonia, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Christofer R. Bendik, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Daniel K. Wright, State’s Attorney, of Springfield (Patrick Delfino,
David J. Robinson, and Benjamin M. Sardinas, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HOLDER WHITE delivered the judgment of the court, with
opinion.
Presiding Justice Steigmann and Justice Turner concurred in the
judgment and opinion.
OPINION
¶1 In August 2015, the State charged defendant, Jordan M. Donlow, with one count of
aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2014)), where defendant
“knowingly or intentionally and by means of the discharging of a firearm caused an injury to
Pierre Hicks, in that said defendant shot Pierre Hicks in the face with a .223 caliber firearm.”
Following a January 2017 trial, a jury found defendant guilty of aggravated battery with a
firearm. In April 2017, the trial court sentenced defendant to a 20-year prison sentence with
credit for 603 days served.
¶2 Defendant appeals, arguing (1) the trial court failed to comply with Illinois Supreme Court
Rule 431(b) (eff. July 1, 2012), when it failed to ensure a potential juror understood and
accepted all four principles enumerated in that rule, (2) the court erred in giving an incomplete
jury instruction on prior inconsistent statements, and (3) the court erred when it considered
defendant’s assertion of innocence as a factor in aggravation at sentencing. We affirm.
¶3 I. BACKGROUND
¶4 In August 2015, the State charged defendant with one count of aggravated battery with a
firearm (720 ILCS 12-3.05(e)(1) (West 2014)), where defendant “knowingly or intentionally
and by means of the discharging of a firearm caused an injury to Pierre Hicks, in that said
defendant shot Pierre Hicks in the face with a .223 caliber firearm.”
¶5 A. Defendant’s Jury Trial
¶6 In January 2017, the State filed a motion for use immunity under section 106-2.5(b) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/106-2.5(b) (West 2016)), asking the
trial court to compel codefendant, Freddrick Johnson (Fred), to testify as a witness against
defendant. Over objection, the court granted the motion. In the motion, the State indicated that
if Fred’s testimony was inconsistent with his prior statements, the State intended to introduce
Fred’s videotaped statements as substantive evidence pursuant to section 115-10.1 of the Code
(725 ILCS 5/115-10.1 (West 2016)).
¶7 During voir dire, the court read the four Illinois Supreme Court Rule 431(b) (eff. July 1,
2012) principles to each juror and asked each juror if they understood and accepted each
principle. Specifically, the court asked juror Alfred B., “[Y]ou also understand and accept that
the defendant does not have to testify; and if he chooses not to, that fact cannot be held against
him in arriving at your verdict?” Juror Alfred B. answered, “I understand.” The trial judge
asked juror Alfred B. no further questions.
¶8 Following voir dire, the trial commenced. The parties presented the following evidence.
¶9 1. Pierre Hicks
¶ 10 Pierre Hicks, the shooting victim, testified that on the afternoon of August 4, 2015, he
attended a dice game in the Poplar area of Springfield, Illinois. Hicks rode his bicycle to the
dice game with Demarco Johnson (Demarco). Hicks testified to the presence of around four
other people at the dice game. Specifically, Hicks testified that Fred arrived at the dice game
in a blue vehicle with tinted windows, along with defendant and another man. Only Fred joined
the dice game. When asked how he knew Fred, Hicks stated that he knew Fred for several
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years and had disagreements with him in the past. Hicks testified he had previously seen
defendant before August 4, 2015, but did not know his name. The record shows Fred owned a
four-door 2005 Pontiac.
¶ 11 During the dice game, a verbal dispute arose between Fred and Hicks. Fred told Hicks to
“stay here, I’ll be back” and left with defendant and another man. About 10 minutes later, Fred
returned. Upon returning, Fred opened the door to his vehicle, and Hicks testified he saw a
long black firearm on Fred’s lap. Fred then drove away stating, “[I]t’s on, we in war now.”
¶ 12 After the interaction with Fred, Hicks and Demarco rode their bicycles toward 24th Street
and Cook Street to head home. As they rode through the parking lot of the Walker Funeral
Home, Hicks saw Fred in the driver’s seat of the same blue vehicle. As Hicks passed the
passenger side of the vehicle, the rear-passenger window rolled down, and Hicks saw
defendant holding a gun. Hicks then testified that defendant shot at him and struck him in the
face.
¶ 13 Hicks testified that after defendant shot him in the face, defendant shot about nine more
rounds toward him and Demarco as he ran across Cook Street to a health center. Police officers
found Hicks in the health center when they arrived. Due to Hicks’s injuries, he communicated
with the officers via text message, and when asked who shot him, he wrote “Fred.” Hicks
claimed he did not write defendant’s name because he did not know it. While hospitalized,
Hicks viewed two photograph arrays. Hicks identified Fred as the driver of the vehicle and
described his role. Hicks identified defendant as the shooter.
¶ 14 After his release from the hospital, Hicks provided a videotaped statement. Subsequently,
officers arrested Hicks in March 2016 for possessing half a kilogram of marijuana found in his
car. However, the State never charged Hicks with any offense following that arrest.
¶ 15 2. Demarco Johnson
¶ 16 During Demarco’s testimony, Demarco repeatedly stated he did not recall details of the
August 4, 2015, shooting. However, when confronted with his statements from an August 6,
2015, interview about the incident with police, he, for the most part, acknowledged making the
statements. Demarco testified that on August 4, 2015, he went to a dice game with Hicks.
While at the game, a blue Pontiac G6 arrived with two men in it whom Demarco did not know.
One of the men had long dreadlocks, and Demarco testified that man and Hicks got into a
verbal argument over the dice game. The man with dreadlocks then said, “[B]e here when I get
back, I’m going to have something for you.” He then drove away but returned soon thereafter
and stated, “[T]hat’s what we on or that’s what I’ll do to you?” The man then drove the vehicle
away a second time. Demarco did not see a gun.
¶ 17 Demarco and Hicks then rode their bicycles to the parking lot behind the Walker Funeral
Home. While in the parking lot, the blue Pontiac approached them. Demarco testified that as
the vehicle passed them, he saw a gun pointing out of the rear-passenger window. Demarco
then heard nine gunshots and a bullet grazed him. Demarco denied seeing the driver of the
vehicle with a gun.
¶ 18 Demarco viewed a photograph array two days after the shooting and identified Fred as the
man with dreadlocks. Demarco viewed a second photograph array that included another
possible suspect but not defendant. Demarco failed to identify anyone in the photograph array.
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¶ 19 3. Raymond Bardwell
¶ 20 On August 4, 2015, Raymond Bardwell worked at a nearby business and was on break
when the shooting occurred. Bardwell worked about one block east of the Walker Funeral
Home with a view of the parking lot behind the funeral home. Bardwell testified that he first
saw a blue Pontiac G6 vehicle drive away from him and toward a corner store. About a minute
later, the same blue vehicle drove toward him through the funeral home parking lot and pulled
alongside two men on bicycles. Bardwell testified that gunfire came from the vehicle before it
sped off. Bardwell heard five gunshots total, four in the parking lot and one after the vehicle
sped off onto the street. Bardwell then saw the two men on bicycles run toward the funeral
home. Bardwell called 911 and spoke with police at the scene.
¶ 21 4. Artavyious Williams
¶ 22 Artavyious Williams testified that on August 4, 2015, he attended a dice game where
Demarco arrived with a light-skinned black male that Williams did not know. Williams also
testified that a man with dreadlocks arrived in a blue vehicle with tinted windows. Williams
claimed that Demarco and the man with dreadlocks got into an argument, but the light-skinned
male was not involved. After the argument, the man with dreadlocks said that “he was going
to be right back” and left. Williams testified that everyone ended up leaving and that he walked
toward the corner store at 23rd Street and Cook Street. Williams testified that when he arrived
at the corner store, he again saw the blue vehicle and heard several gunshots.
¶ 23 5. Leona West
¶ 24 Leona West, Hicks’s girlfriend, testified that she received a telephone call on August 4,
2015, about Hicks being shot. West also received a call from Hicks’s cellular telephone where
a police officer asked if she knew a man named “Fred,” and she told him that she knew a Fred
Johnson. The officer then stated, “[T]hat’s who [Hicks] said shot him or, you know—when he
asked what happened, he pointed that name out. That’s the name he gave.”
¶ 25 On August 10, 2015, Hicks viewed a photograph array with West present and identified
Fred. West testified that friends of hers gave her photographs of people who they thought may
have taken part in the shooting. West then gave those photographs to the police. One of those
photographs showed Fred and defendant together. West testified that she knew defendant as
“Jordan” but never met him.
¶ 26 6. Springfield Police Officers
¶ 27 Officer Jacob Svoboda testified that on the morning of August 4, 2015, he went to a house
in response to a possible domestic incident. When he arrived, he observed defendant helping
Fred pack up his belongings, and then the two men left in defendant’s vehicle.
¶ 28 Officer Maxwell Paul testified that on August 4, 2015, he responded to a “shots fired” call
around 5 p.m. that related to a dice game at 2626 Sherwood Street. When Officer Paul arrived,
he observed a single die on the porch of 2626 Sherwood Street. While he was investigating,
Officer Paul heard a radio report about someone in a blue Pontiac G6 in the 2300 block of East
Cook Street shooting at two black males on bicycles. Officer Christopher Steffen arrived as
backup for Officer Paul and testified to the same events.
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¶ 29 After receiving the radio dispatch, the officers drove to the location of the shooting in the
Walker Funeral Home parking lot. There, Officer Steffen observed two bicycles, several shell
casings, a white shirt with blood on it, and three bullet holes on the south side of the funeral
home. Officer Steffen talked to Bardwell at the scene.
¶ 30 Officer Paul observed Hicks with a jaw injury at the health center across the street from
the funeral home. Officer Paul witnessed Hicks communicating via his cellular telephone with
Sergeant Brian Graves regarding who “shot him.” Sergeant Graves testified that he asked
Hicks who shot him and that Hicks showed him the name “Fred” on his phone. Officer Paul
and Sergeant Graves later talked to West. West told Sergeant Graves that Fred’s last name was
Johnson and that he lived by her and Hicks.
¶ 31 In the funeral home parking lot, Detective Don Bivens recovered eight casings, several
human teeth, a white shirt with blood on it, and two bicycles. Detective Bivens noted the
casings were most likely from a .223-caliber gun.
¶ 32 Detective Timothy Zajicek conducted the photograph arrays with Demarco on August 6,
2015, and with Hicks on August 10, 2015. Detective Ryan Irwin created each array. Due to
Hicks’s difficulty speaking, Detective Zajicek provided Hicks with lined paper to describe
what each person did during the shooting. Hicks identified defendant in one array and wrote
that he was the shooter. Hicks identified Fred in another array and wrote under Fred’s
photograph, “I want to kill that b***.” Hicks described Fred’s involvement, stating
“[H]e went and got a gun because a petty argument and came back with it, he was
driving with it in his lap telling me he in war. We was on Sherwood, off Evergreen. I
was on a bike. I made [it] almost [to] Cook, and he handed the gun in the backseat. The
first shot hit me in my face. Then I took off, I believe it says running. They shot about
eight more shots.”
¶ 33 Detective Charles Redpath arrested defendant at his home around August 10, 2015.
Defendant attempted to flee when officers arrived. Once detained, defendant asked Detective
Redpath to get his telephone from inside the house. While fetching defendant’s telephone,
Detective Redpath saw a large target sheet that looked like it had been fired upon. Detective
Redpath recovered the sheet.
¶ 34 7. Fred
¶ 35 Fred initially asserted his fifth amendment right against self-incrimination on the stand.
After being informed by the trial court, it would hold him in criminal contempt should he refuse
to testify because of a motion for use immunity, Fred testified. While Fred admitted making
statements to police on August 14, 2015, regarding the details of the events on August 4, 2015,
he testified he could not recall exactly what he said.
¶ 36 After Fred’s testimony, the court held a sidebar to determine whether the State could
substantively admit the video of Fred’s custodial statements. The court found that Fred’s
testimony, claiming not to remember the substance of his prior statements, allowed the State
to substantively admit prior recordings of his statements to police. However, the court
instructed the jury to disregard any statements on the video not attributable to or adopted by
Fred.
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¶ 37 8. Fred’s Custodial Statements
¶ 38 Detective Irwin testified that he investigated the case to determine whether Fred acted
alone. Detective Irwin initially believed that Jamarius Waters had been with Fred during the
shooting because a police report written prior to the shooting stated that police found Fred and
Waters in a vehicle where Waters possessed a firearm. Detective Irwin included Waters’s
photograph in the array Demarco viewed, but Demarco failed to identify Waters as being
involved in the shooting.
¶ 39 Detective Irwin later learned of a police report detailing the domestic incident involving
Fred on the morning of August 4, 2015, where defendant was present and left with Fred.
Detective Irwin received information from West about defendant’s potential involvement in
the shooting. Detective Irwin created a photograph array with defendant’s photograph, and
Hicks identified defendant as the shooter.
¶ 40 On August 14, 2015, Detective Irwin interviewed Fred, with his attorney present. The State
introduced into evidence the entirety of that taped statement. In the statement, Fred implicated
defendant in the shooting. On April 12, 2016, Detective Irwin again interviewed Fred with his
attorney present. The State also introduced this tape into evidence. In the second interview,
Fred further implicated defendant. In each statement, Fred told police that someone called
defendant and stated that, as Fred and defendant drove away from the dice game, someone shot
at them. Detective Irwin testified that police made no arrests based upon such a shooting and
that nothing showed such a shooting occurred.
¶ 41 9. Jury Instructions
¶ 42 During the jury instruction conference, defense counsel objected to the jury receiving
Illinois Pattern Jury Instructions, Criminal, No. 3.11 (approved Oct. 17, 2014) (hereinafter IPI
Criminal No. 3.11) on “Prior Inconsistent Statements.” Specifically, defense counsel objected
to the instruction “giving validity to the admission by the State of two other statements by the
codefendant in this case.” The trial court overruled the objection, stating,
“I understand. This Court has already pronounced and ruled on that issue. And
having made its ruling, it is absolutely imperative that this jury be instructed on how to
handle such evidence, so this will be given over the Defendant’s objection.
I believe it is properly—do you have any objection at all, counsel, to the wording?
I understand you don’t want it given and you’d prefer that evidence not come in at this
trial, but that’s different than objecting to the wording of the instruction. I have
reviewed it, I believe it is properly worded in accordance with the evidence and the IPI
criminal [No.] 3.11.”
The court asked counsel if he had any “further objection as to the substance of the instruction.”
Counsel did not.
¶ 43 The instruction given to the jury omitted [2] of IPI Criminal No. 3.11, which includes the
language, “the statement narrates, describes, or explains an event or condition the witness had
personal knowledge of.” According to the directions for IPI Criminal No. 3.11, when an earlier
inconsistent statement is offered for impeachment purposes, and another earlier inconsistent
statement is offered as substantive evidence, the instruction should have been given as follows:
“The believability of a witness may be challenged by evidence that on some former
occasion he made a statement that was not consistent with his testimony in this case.
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Evidence of this kind ordinarily may be considered by you only for the limited purpose
of deciding the weight to be given the testimony you heard from the witness in this
courtroom.
However, you may consider a witness’s earlier inconsistent statement as evidence
without this limitation when the statement narrates, describes, or explains an event or
condition the witness had personal knowledge of;
and
the statement was accurately recorded by a tape recorder, videotape recording, or a
similar electronic means of sound recording.
It is for you to determine what weight should be given to that statement. In
determining the weight to be given to an earlier statement, you should consider all of
the circumstances under which it was made.” IPI Criminal No. 3.11.
¶ 44 However, the instruction given read as follows:
“The believability of a witness may be challenged by evidence that on some former
occasion he made a statement that was not consistent with his testimony in this case.
Evidence of this kind ordinarily may be considered by you only for the limited purpose
of deciding the weight to be given the testimony you heard from the witness in this
courtroom.
However, you may consider a witness’s earlier inconsistent statement as evidence
without this limitation when *** the statement was accurately recorded by a tape
recorder, videotape recording, or a similar electronic means of sound recording.
It is for you to determine what weight should be given to that statement. In
determining the weight to be given to an earlier statement, you should consider all of
the circumstances under which it was made.” IPI Criminal No. 3.11.
¶ 45 10. Verdict
¶ 46 Following deliberations, the jury found defendant guilty of aggravated battery with a
firearm.
¶ 47 B. Defendant’s Posttrial Motions and Sentencing Hearing
¶ 48 On February 24, 2017, defendant filed a motion for a new trial alleging, inter alia, that the
trial court erred in giving IPI Criminal No. 3.11 over objection. On April 4, 2017, the trial court
denied defendant’s motion for a new trial and held a sentencing hearing. At the hearing,
defendant addressed the court, stating:
“I would just like to say to the courtroom that this whole case does not revolve around
me. As in testimony Pierre Hicks said I was not involved in the dice game or the
argument, so why would I be involved in the shooting that had nothing to do with me?
This case is brought upon Freddrick Johnson being the victim, I mean not the victim,
but a part of this whole problem between Pierre and Johnson that has nothing to do
with me. And as Demarco Johnson said in the video, the shooter had on a ninja mask,
which means that it concealed his identity. So, therefore, how does all this come upon
me of being the shooter? Therefore, that’s all I have to say, Your Honor.”
¶ 49 After defendant addressed the court and asserted his innocence, the trial court stated that it
considered the presentence investigation report, evidence and argument in aggravation and
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mitigation, the statutory factors, and defendant’s assertion of innocence in determining
defendant’s sentence. Specifically, the court stated:
“Whether your criminal conduct is the result of something likely to reoccur or whether
your character and attitude as the defendant indicate you’re unlikely to commit another
crime, while this Court is [in] no position to punish you for exercising your right to a
trial and continuing to proclaim innocence, a jury heard this evidence, heard the
testimony, weighed it all and essentially considered you to be an enforcer for one
[Fred]. And in refusing to accept any responsibility, this Court has to question whether
or not the sooner you’re released the sooner you will be going back to this particular
life of crime. It’s hard to argue that the circumstances will not reoccur or that you have
the character and attitude of someone who is unlikely to commit another crime when
faced with the evidence, the jury verdict and now an opportunity, there’s simply no
acceptance of any responsibility. That position doesn’t allow the Court to factor in
mitigation to the degree that your attorney is looking for when requesting a sentence at
the low end of the sentencing range.”
The court then addressed the State’s factors in aggravation, stating that a different analysis was
required. Ultimately, the court sentenced defendant to a 20-year prison sentence with credit for
603 days served followed by a 3-year period of mandatory supervised release.
¶ 50 In May 2017, defendant filed a motion to reconsider his sentence and a motion to reconsider
the denial of his motion for new trial. In the motion to reconsider the denial of the motion for
new trial, defendant argued that in giving IPI Criminal No. 3.11, the court misstated the law
when it omitted the portion of the instruction that stated, “the statement narrates, describes, or
explains an event or condition the witness had personal knowledge of.” The State conceded
the error but maintained the error was inadvertent, defense counsel failed to object to the
wording of the instruction at trial, and that no issue arose at trial related to Fred’s personal
knowledge of the events relayed in the taped statements. The court agreed with the State that
at trial defense counsel failed to make an objection about the wording of the instruction.
Defense counsel counterargued that the omitted language related to important evidence that
the State was trying to get in and that counsel only discovered the error in modifying the
instruction since the last hearing.
¶ 51 The trial court denied the motion, stating
“that the second part of the analysis other than it was inadvertent and specific language
not caught or objected to at the time, specifically that language by the Defendant, it
also goes to a fact that is uncontroverted in all of the evidence that what the videotape
evidence that was played was describing was obviously something that the witness had
personal knowledge of. So, the error, as inadvertent as it was, not captured by counsel
during the, or the Court for that matter, during the jury instruction conference, in
looking at it, the type of language that was neglected to be included in light of the
evidence, the error that was inadvertent at the time this Court does not find justification
to un-do an otherwise valid jury verdict.”
¶ 52 The trial court next addressed defendant’s motion to reconsider his sentence. Defense
counsel argued that the court used defendant’s statement in allocution as a factor in
aggravation. The State and court acknowledged that defendant made a statement in allocution.
The court stated that defendant’s assertion of innocence “went to rehabilitative efforts that he
would have while in custody when the whole crux of your position is that you’ve been
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wrongfully treated during the process and you’ve even been potentially wrongfully convicted.”
The court denied defendant’s motion to reconsider his sentence. Subsequently, defendant filed
a notice of appeal.
¶ 53 On September 26, 2017, defendant filed a motion for leave to file a late notice of appeal.
On September 28, 2017, this court granted defendant’s motion for leave to file a late notice of
appeal.
¶ 54 This appeal followed.
¶ 55 II. ANALYSIS
¶ 56 On appeal, defendant argues that (1) the trial court failed to comply with Illinois Supreme
Court Rule 431(b) (eff. July 1, 2012), when it failed to ensure a potential juror understood and
accepted all four principles enumerated in that rule, (2) the court erred in giving an incomplete
jury instruction on prior inconsistent statements, and (3) the court erred when it considered
defendant’s assertion of innocence as a factor in aggravation at sentencing. We review each
issue in turn.
¶ 57 To preserve an error for consideration on appeal, a defendant must object to the error at
trial and raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d
675. Failure to do so constitutes forfeiture. Id. However, we may consider a forfeited claim
where the defendant demonstrates a plain error occurred. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).
To prevail under the plain error doctrine, a defendant must first demonstrate a clear and obvious
error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007). If
an error occurred, we will only reverse where (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.” Id.¶ 58 Defendant failed to raise issues one and three before the trial court, rendering the issues
forfeited. Sebby, 2017 IL 119445, ¶ 48. Therefore, we review those claims for plain error.
Whether plain error occurred is a question of law we review de novo. People v. Jones, 2016 IL
119391, ¶ 10, 67 N.E.3d 256.
¶ 59 In contrast, both the State and the trial court addressed, on the merits, defendant’s
contention that the trial court erred in giving an incomplete jury instruction on prior
inconsistent statements. Thus, we decline to find defendant forfeited this issue. Usually, jury
instructions are reviewed for an abuse of discretion. However, as we explain later, where we
must determine whether the instruction given correctly explained the law, our review is
de novo. People v. Anderson, 2012 Il App (1st) 103288, ¶ 34, 977 N.E.2d 222.
¶ 60 A. Rule 431(b)
¶ 61 Defendant first argues that the trial court failed to comply with Illinois Supreme Court Rule
431(b) (eff. July 1, 2012), when it failed to ensure that a potential juror understood and
accepted all four principles enumerated in that rule. The State argues defendant failed to show
that the court’s compliance constituted a clear and obvious error under Rule 431(b). We agree
with the State.
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¶ 62 The Illinois Supreme Court adopted Rule 431(b) to ensure compliance with the
requirements of People v. Zehr, 103 Ill. 2d 472, 476, 469 N.E.2d 1062, 1063-64 (1984). Rule
431(b) requires a trial court to ask potential jurors whether they both “understand[ ]” and
“accept[ ]” that (1) the defendant is presumed innocent, (2) the State bears the burden of
proving the defendant guilty beyond a reasonable doubt, (3) the defendant has no obligation to
present evidence, and (4) the defendant’s choice to not testify cannot be held against him. Ill.
S. Ct. R. 431(b) (eff. July 1, 2012). Rule 431(b) “mandates a specific question and response
process.” People v. Thompson, 238 Ill. 2d 598, 607, 939 N.E.2d 403, 409 (2010).
¶ 63 The trial court engaged in a specific question and response process as required by Rule
431(b) when it inquired into juror Alfred B.’s understanding and acceptance of the Zehr
principles. As it relates to one of the principles, Juror Alfred B. responded, “I understand.”
Defendant argues that a clear and obvious error occurred where juror Alfred B. responded “I
understand” to one of the principles and the court failed to clarify if he also accepted the
principle.
¶ 64 Defendant relies on People v. Brown, 2017 IL App (1st) 142197, 82 N.E.3d 148, in support
of his argument. In Brown, the trial court failed to follow up on a juror’s understanding of one
of the Zehr principles when the juror answered “I don’t understand’ ” to one of the court’s Rule
431(b) questions. Id. ¶¶ 34-35. On appeal, the reviewing court found that an error occurred
because the trial court failed to comply with Rule 431(b). Id. ¶ 39. We find Brown
distinguishable.
¶ 65 Rule 431(b) simply “mandates a specific question and response process.” Thompson, 238Ill. 2d at 607. The trial court asked juror Alfred B. whether he understood and accepted the
four principles. Thus, we find that the trial court complied with Rule 431(b). See People v.
Willhite, 399 Ill. App. 3d 1191, 1197, 927 N.E.2d 1265, 1270 (2010) (concluding the trial court
complied with Rule 431(b) when it asked jurors if they understood and would follow the four
principles). The juror in Brown stated she did not understand, which is the opposite of juror
Alfred B.’s response. In situations such as this, and in Brown, the trial court must use its
discretion and engage in follow-up questioning as necessary. While juror Alfred B. failed to
also say “I accept,” we do not find that equivalent to saying, “I don’t understand.” A juror who
indicates a lack of understanding is unable to properly apply the principle. Thus, such a
response requires further inquiry to ensure that the juror is fit to serve. Here, we see no need
for follow-up questioning. Absent is any evidence in the record suggesting that juror Alfred B.
failed to accept the principle. Thus, we find no clear or obvious error occurred. As the error
was not clear or obvious, defendant’s claim fails. See Piatkowski, 225 Ill. 2d at 565.
¶ 66 B. IPI Criminal No. 3.11
¶ 67 In this case, the trial court admitted evidence of prior inconsistent statements made by Fred
as substantive evidence. Defendant argues that, as to Fred’s prior inconsistent statements, the
trial court erred in giving an incomplete IPI Criminal No. 3.11 prior inconsistent statements
instruction. Defendant argues the error is reversible under the first prong of the plain error
doctrine. In response, the State concedes it was error to omit a section of the jury instruction
but maintains defendant is unable to prevail under the first prong of plain error where the
evidence was not closely balanced.
¶ 68 Given our prior determination that forfeiture is inapplicable on this issue, we decline to
undertake plain error analysis. Instead, as explained below, we find IPI Criminal No. 3.11 to
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be an incorrect statement of the law and reject its use in the manner suggested by defendant or
at all in this case. Thus, we affirm the trial court’s judgment.
¶ 69 Here, defendant complains that the instruction was inaccurate because it omitted [2] of IPI
Criminal No. 3.11, which states, “the statement narrates, describes, or explains an event or
condition the witness had personal knowledge of.” The introductory paragraph of which [2] is
a part reads as follows: “However, you [meaning the jury] may consider a witness’s earlier
inconsistent statement as evidence without this limitation [which is discussed in the
instruction’s previous opening paragraph] when ___.” IPI Criminal No. 3.11. Thus, the
instruction tells the jury it may consider the witness’s earlier inconsistent statement only if the
jury is first able to conclude, under [2], that “the statement narrates, describes, or explains an
event or condition the witness had personal knowledge of.” The State concedes that the
instruction at issue was deficient but argues that defendant suffered no prejudice under the
particular circumstances of this case. However, we decline to accept the State’s concession
because IPI Criminal No. 3.11 is not a correct statement of the law and not properly given in
this case.
¶ 70 The fundamental problem with IPI Criminal No. 3.11 is that it mistakenly equates the
criteria for the admissibility of substantive evidence of a prior inconsistent statement under
section 115-10.1 of the Code (725 ILCS 5/115-10.1 (West 2016)) with a factual question for
the jury to resolve. Specifically, the bracketed material under IPI Criminal No. 3.11, including
[2], which is at issue in this case, describes criteria the trial court must apply to determine
whether the prior inconsistent statement at issue is substantively admissible.
¶ 71 In this instance, the trial court needed to determine whether Fred’s statement “narrates,
describes, or explains an event or condition the witness had personal knowledge of.” In the
event the court determines Fred lacked personal knowledge of the event or condition in
question, the statement would not be admissible. Conversely, if the court determines that Fred
did have personal knowledge of the event or condition in question and also finds that the other
statutory criteria are met, the court should admit the statement, and the statutory criteria are no
longer at issue.
¶ 72 Once the trial court determined Fred’s statement was admissible, the only question for the
jury was what weight to give the statement. Whether the prior inconsistent statement that the
trial court deemed admissible “narrates, describes, or explains an event or condition the witness
had personal knowledge of” is never an issue for the jury to resolve. Thus, we reject
defendant’s claim that the jury needed to determine that the statement “narrates, describes, or
explains an event or condition the witness had personal knowledge of.”
¶ 73 Moreover, in circumstances like this case, where no statement was admitted for the limited
purpose of attacking believability, IPI Criminal No. 3.11 should not have been given at all. All
evidence admitted is admitted substantively, and the jury may consider all evidence before it
in reaching its verdict unless the trial court informs the jury that some particular kind of
evidence has been received for a limited purpose. Accordingly, when a prior inconsistent
statement has been admitted substantively, juries need not and should not be instructed
regarding such statement any more than they need to be instructed about any other evidence
the trial court has admitted. Our position is supported by paragraphs 5 and 6 of the committee
note to IPI Criminal No. 3.11.
¶ 74 Paragraph 6 of the committee note reads as follows:
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“There is no need to use this instruction when the earlier inconsistent statement is
being offered as substantive evidence under Section 115-10.1 and no earlier
inconsistent statement is being offered for use only for the purpose of impeachment.”
IPI Criminal No. 3.11, Committee Note.
¶ 75 Additionally, paragraph 5 of the committee note correctly points out that all evidence is
substantive unless limited to a nonsubstantive purpose.
¶ 76 Considering the above analysis, we find the trial court did not err when it neglected to
include language from IPI Criminal No. 3.11, stating that “the statement narrates, describes, or
explains an event or condition the witness had personal knowledge of.” However, the court did
err in giving the instruction at all where the only inconsistent statements admitted came in as
substantive evidence. Even so, the use of the instruction afforded defendant an advantage by
requiring the jury to make certain findings properly left to the trial court. Given the impropriety
of the use of IPI Criminal No. 3.11 at all, let alone in the manner suggested by defendant,
defendant’s claim fails.
¶ 77 C. Ineffective Assistance of Trial Counsel
¶ 78 In the alternative, defendant argues his trial counsel was ineffective for failing to object
during trial to the inaccurate wording of the jury instruction. The State argues that while the
court provided a deficient instruction, defendant suffered no prejudice as a result of the missing
language because it is indisputable that Fred’s statement narrated, described, and explained the
events based on his personal knowledge.
¶ 79 We review claims of ineffective assistance of counsel under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, the defendant
must show defense counsel’s performance was deficient and prejudice resulted from counsel’s
deficient performance. People v. Houston, 226 Ill. 2d 135, 143, 874 N.E.2d 23, 29 (2007).
Specifically, “a defendant must show that counsel’s performance was objectively unreasonable
under prevailing professional norms and that there is a ‘reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
People v. Domagala, 2013 IL 113688, ¶ 36, 987 N.E.2d 767 (quoting Strickland, 466 U.S. at
694).
¶ 80 Both prongs of the Strickland test must be satisfied; therefore, a finding of ineffective
assistance of counsel is precluded if a defendant fails to satisfy one of the prongs. People v.
Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601. “A court may resolve a claim of ineffective
assistance of counsel by reaching only the prejudice prong, as a lack of prejudice renders
irrelevant the issue of counsel’s alleged deficient performance.” People v. Hall, 194 Ill. 2d 305,
337-38, 743 N.E.2d 521, 540 (2000).
¶ 81 In light of our resolution of defendant’s IPI Criminal No. 3.11 instruction claim, counsel
cannot be considered ineffective for failing to advocate using IPI Criminal No. 3.11 as
suggested by defendant. Had counsel done so, his position would have been contrary to the
law and an improper use of IPI Criminal No. 3.11. Thus, defendant’s ineffective assistance of
counsel claim is without merit.
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¶ 82 D. Defendant’s Assertion of Innocence at Sentencing
¶ 83 Lastly, defendant argues that the trial court erred when it considered defendant’s assertion
of innocence as a factor in aggravation at sentencing. While defendant admits he failed to
preserve this issue for appeal, he argues that this court may review the issue under either prong
of the plain error doctrine. See Piatkowski, 225 Ill. 2d at 565. The State argues that no clear or
obvious error occurred where the totality of the trial court’s statements regarding defendant’s
failure to accept responsibility disprove defendant’s claim. We agree with the State.
¶ 84 A trial court cannot impose a more severe sentence simply “because a defendant refuses to
abandon his claim of innocence.” People v. Byrd, 139 Ill. App. 3d 859, 866, 487 N.E.2d 1275,
1280 (1986). However, trial courts may consider a defendant’s lack of remorse or lack of
veracity in imposing a sentence, since those are factors which may have “a bearing on the
defendant’s potential for rehabilitation.” People v. Speed, 129 Ill. App. 3d 348, 349, 472
N.E.2d 572, 573 (1984). In determining whether the trial court took defendant’s failure to
admit his guilt following conviction into account in its decision, reviewing courts have focused
upon whether the trial court expressly indicated or implied that defendant would have received
better treatment on sentencing if he had abandoned his claim of innocence. People v. Costello,
95 Ill. App. 3d 680, 688, 420 N.E.2d 592, 597-98 (1981). If the court does so indicate, then the
sentence likely was improperly influenced by the defendant’s persistence in his innocence.
People v. Sherman, 52 Ill. App. 3d 857, 859, 368 N.E.2d 205, 207 (1977). However, if “the
record shows that the court did no more than address the factor of remorsefulness as it bore
upon defendant’s rehabilitation,” then the court’s reference to a defendant’s claim of innocence
will not amount to reversible error. (Internal quotation marks omitted.) Costello, 95 Ill. App.
3d at 688. A trial court’s statements during sentencing are not read in isolation from one
another but rather in light of the entire record on appeal. People v. Ward, 113 Ill. 2d 516, 527-
28, 499 N.E.2d 422, 426 (1986).
¶ 85 During sentencing, defense counsel argued for a lower sentencing range based on
defendant’s lack of a criminal record to rebut the State’s request for a 28-year sentence. After
defendant addressed the trial court and asserted his innocence, the court stated that, in
determining defendant’s sentence, it took into consideration the presentence investigation
report, evidence, and argument in aggravation and mitigation, the statutory factors, and
defendant’s assertion of innocence. Specifically, the court stated,
“Whether your criminal conduct is the result of something likely to reoccur or whether
your character and attitude as the defendant indicate you’re unlikely to commit another
crime, while this Court is [in] no position to punish you for exercising your right to a
trial and continuing to proclaim innocence, a jury heard this evidence, heard the
testimony, weighed it all and essentially considered you to be an enforcer for one
[Fred]. And in refusing to accept any responsibility, this Court has to question whether
or not the sooner you’re released the sooner you will be going back to this particular
life of crime. It’s hard to argue that the circumstances will not reoccur or that you have
the character and attitude of someone who is unlikely to commit another crime when
faced with the evidence, the jury verdict and now an opportunity, there’s simply no
acceptance of any responsibility. That position doesn’t allow the Court to factor in
mitigation to the degree that your attorney is looking for when requesting a sentence at
the low end of the sentencing range.”
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The court then addressed the State’s factors in aggravation, stating that a different analysis was
required.
¶ 86 Based on the trial court’s statements at sentencing, defendant argues that the court used his
assertion of innocence as a factor in aggravation, resulting in him receiving a greater sentence.
Specifically, defendant alleges that a clear and obvious error occurred where the court told
defendant it was not giving him a lower sentence—as requested by trial counsel—because
“there’s simply no acceptance of any responsibility.” Defendant relies on Byrd, 139 Ill. App.
3d 859, and Speed, 129 Ill. App. 3d 348, in support of his argument.
¶ 87 In Byrd, the trial court at sentencing compared the two defendants of the crimes, stating
that one defendant admitted his guilt and then concluding that the other defendant, who did not
admit his guilt, deserved a harsher sentence. 139 Ill. App. 3d at 866 (“Mr. Moore at least had
the benefit of admitting his involvement, admitting his crime, the first step to redemption,
perhaps. We have a continual denial here by Mr. Byrd of any involvement.” (Internal quotation
marks omitted.)). On appeal, the reviewing court vacated and remanded for a new sentencing
hearing without consideration of the defendant’s continuing denial of guilt. Id.¶ 88 In Speed, the trial court stated that it changed the defendant’s sentence because of his
protestation of innocence at the hearing and did not address the defendant’s likelihood of
rehabilitation. 129 Ill. App. 3d at 350-51 (“After a portion of the testimony I thought perhaps
a ten[-]year sentence might be appropriate. When Mr. Speed said he didn’t commit the crime
[for] which he stands charged and convicted [that] tilted the scale the other way.” (Internal
quotation marks omitted.)). The appellate court found that the trial court improperly increased
defendant’s term of imprisonment based solely on his refusal to admit guilt. Id. at 351. We find
Byrd and Speed distinguishable.
¶ 89 Here, the trial court expressly stated to defendant that “this Court [is] in no position to
punish you for exercising your right to a trial and continuing to proclaim innocence.”
Furthermore, the court stated that the State’s factors in aggravation required a different
analysis. Rather, the court addressed defendant’s assertion of innocence regarding his
rehabilitative potential and noted that his failure to accept responsibility failed to justify
mitigation. Just because the court declined to consider defendant’s assertion of innocence in
mitigation does not mean the court considered it in aggravation. Considering the record, we
reject defendant’s claim that the court used defendant’s assertion of innocence as a factor in
aggravation. When read in its totality, the court’s statements clearly rebut defendant’s
interpretation of the sentencing hearing. As no clear or obvious error occurred, defendant’s
claim failed to rise to the level of plain error, and we need not address defendant’s claim of
ineffective assistance of counsel for failing to preserve this issue in the motion to reconsider
sentence. See Piatkowski, 225 Ill. 2d at 565.
¶ 90 III. CONCLUSION
¶ 91 For the reasons stated, we affirm the trial court’s judgment in this case.
¶ 92 Affirmed.
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