People v. McLaurin

2015 IL App (1st) 131362
FIRST DIVISION
MAY 4, 2015
No. 1-13-1362
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 15116
)
MARKELL McLAURIN, ) Honorable
) Michael Brown,
Defendant-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.
OPINION
¶1 Following a second jury trial in the circuit court of Cook County, defendant Markell
McLaurin was convicted of first-degree murder. Subsequently, at a hearing on the defendant's
posttrial motion for a new trial, the trial court denied the defendant's pro se claims of ineffective
assistance of counsel and sentenced him to 60 years of imprisonment. On first direct appeal, the
defendant raised four issues by arguing that: (1) defense counsel was ineffective because he
failed to secure the testimony of eyewitness Timothy Williams through section 3 of the Uniform
Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal
Proceedings (Witness Attendance Act) (725 ILCS 220/3 (West 2008)); (2) defense counsel was
ineffective for failing to object to the admission of, and failing to request the redaction of,
inadmissible statements in State witness Marlon Williams' prior written statement and grand jury
testimony; (3) the trial court abused its discretion when it allowed the jury to receive and review
a portion of witness Marlon Williams' prior written statement that contained other-crimes
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evidence disclosing that the defendant "carries different types of guns"; and (4) the trial court
failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) because it did not
"provide each juror an opportunity to respond" to specific questions regarding the Zehr
principles (People v. Zehr, 103 Ill. 2d 472 (1984)). This court remanded the case to the trial
court for the limited purpose of conducting a more complete inquiry so as to allow the court to
evaluate the defendant's claims for ineffective assistance of counsel, but did not address the
defendant's remaining issues on first appeal. See People v. McLaurin, 2012 IL App (1st)
102943. On remand, the trial court conducted another hearing, found the defendant's pro se
ineffective assistance of counsel claim to be without merit, and again denied the defendant's pro
se motion for a new trial. In the instant second appeal, the defendant raises the same issues that
he raised in his first appeal. For the following reasons, we affirm the judgment of the circuit
court of Cook County.
¶2 BACKGROUND
¶3 The relevant underlying facts of this case were set forth in this court's December 10, 2012
opinion on the defendant's first appeal (McLaurin, 2012 IL App (1st) 102943), which we
reproduce as follows. On January 9, 2008, Demarlon Jernigan (victim), who was shot in the area
of Pulaski Road and Division Street in Chicago, and died of multiple gunshot wounds. After an
investigation, the police arrested the defendant, who was charged with six counts of first-degree
murder related to the shooting. On February 1, 2010, before the defendant's trial was set to
commence, defense counsel sought a continuance stating that he was unable to locate defense
witness Timothy Williams (Timothy). The State, also interested in Timothy, informed the trial
court that it desired to subpoena him, but had been unsuccessful in serving him at his last known
address. Defense counsel stated that he had not subpoenaed Timothy and told the trial court that
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he had "no excuse other than schedule and workload" for not serving Timothy with a subpoena
prior to the trial date. Defense counsel made a proffer that Timothy would testify that neither the
defendant nor State witness Bruce Jackson (Jackson) was at the scene of the shooting. Defense
counsel also stated that Timothy was unable to identify the actual shooter. The trial court
granted the continuance until March 8, 2010, stating that the defendant deserved to have a lawyer
who would investigate his case, and further commented that defense counsel's efforts to locate
Timothy up to that time were "not due diligence."
¶4 On March 8, 2010, the defendant's first jury trial commenced. On March 10, 2010, after
the State rested its case-in-chief, the trial court questioned defense counsel about whether
Timothy would testify. Defense counsel informed the court that Timothy had contacted him the
prior morning stating that he was in Chicago and that he would testify, but he then later left a
message indicating that he needed a ride to court. Defense counsel received Timothy's message
when the trial broke for lunch and he attempted to return Timothy's call multiple times that day.
Defense counsel told the court that Timothy did not answer the telephone. Timothy ultimately
did not appear in court that day or at any time during the trial. When the trial court asked
defense counsel if he had subpoenaed Timothy, defense counsel responded, "he did not tell me
where he was, and I did not have time to secure an investigator to locate him in Iowa, I believe
he stated [sic] he was living." The following day, defense counsel confirmed that Timothy
would not be present in court. The case then proceeded to closing argument. On March 12,
2010, the trial court declared a mistrial after the jury was hung and could not reach a verdict.
¶5 On June 7, 2010, the defendant's second jury trial began. Both sides agreed to adopt the
trial court's ruling on the motions in limine from the first jury trial, in which the court ruled that
evidence of the victim's gang membership was inadmissible. There was no discussion in the
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second trial concerning whether Timothy would appear as a defense witness. Defense counsel
indicated there would be no change to his witness list from the previous trial, and the trial court
informed the venire that Timothy was a potential witness in the case.
¶6 During voir dire, the trial court instructed the venire on the four Zehr principles and
asked whether they "had any problems" with the first three principles. The court also asked, "[i]f
the defendant decides not to testify, is there anyone here who believes that regardless of what I
have just said, you would hold that decision against the defendant?" None of the members of the
venire answered in the affirmative.
¶7 State witness Jackee Suttle (Suttle) testified that she was the victim's girlfriend. At about
9 p.m. on January 9, 2008, she and the victim intended to go to a restaurant together near Pulaski
and Division. They also had plans to meet their friend, Jackson, who was going to prison the
next morning. While conversing with friends near the restaurant, the victim became involved in
a verbal altercation with a "big heavy guy." The victim and the "big heavy guy" headed to a
nearby park and engaged in a fistfight. After the fight, the victim left the park in a vehicle driven
by his friend, Timothy, but returned to the Pulaski and Division area at 10 p.m. From inside the
restaurant, Suttle observed the victim walking toward a liquor store across the street from the
restaurant. She then heard "five or six" shots fired. Suttle walked outside and observed the
victim running away on Division. She saw the victim "taking bullets" and "getting shot," but did
not observe the shooter. She testified that she did not observe Timothy or the "big heavy guy" at
the crime scene, even though she had testified during the first trial that both were present at the
scene of the shooting. Suttle also testified that she did not observe Jackson at the crime scene
that night, but could not say for sure that Jackson was not there, because her attention was
focused on her wounded boyfriend. After the victim was shot, she went over to his wounded
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body, which was near the bus stop at Pulaski and Division. His body was covered by a brown
jacket, but he had been wearing a red jacket when she was with him earlier in the day. Although
she accompanied the police to the police station, she did not speak to the police that night
because she was upset. She returned to the police station a week and a half later.
¶8 Jackson testified that his relationship with the victim was "something like brothers" and
that they were together every day. On the night of the shooting, he dropped the victim off at
Pulaski and Division "in the evening or something like that" and did not hear from the victim for
about two or three hours. The victim called him because "[h]e had said that he was out there and
some boys was trying to fight him or something like that, he didn't want to fight them." Jackson
drove to the Division and Pulaski area to pick up the victim and parked his vehicle on Pulaski.
Jackson approached the victim as he was crossing the street to enter the liquor store. Jackson
"was walking right behind [the victim]" at a distance of a few feet. There were people by the
liquor store, and after Jackson and the victim arrived at the liquor store, Jackson heard shots and
observed everyone running. Jackson then observed a gun, which looked like a revolver and was
"chrome or a silver like" with a black handle. He also observed the shooter's face in good light
from a "car length" away. In court, Jackson identified the defendant as the shooter. He testified
that though he fled when the shots first rang out, he observed the defendant shoot the victim.
Jackson heard four or five shots, chased the defendant for awhile, until Jackson ran into police
officers who had arrived at the scene. He told the police officers which way the defendant ran,
but the police did not pursue the defendant. Instead, they attended to the victim. Jackson did not
talk to the police about the shooter's identity on the night of the shooting because he was upset
and mad at the police for not pursuing the shooter more vigorously. He further testified that the
victim later died. On January 10, 2008, the next morning, he reported to the Illinois Department
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of Corrections, to serve his sentence on an unrelated matter. He did not speak to the police until
April 1, 2008, after his release in "mid-March" 2008. Jackson testified that at the police station
on April 1, 2008, he identified the defendant after a discussion with detectives. On July 10,
2008, he identified the defendant in a lineup.
¶9 Marlon Williams (Marlon) testified that he was currently in the custody of the Stateville
Correctional Center, serving time for a 2009 conviction for aggravated unlawful use of a
weapon. He testified that he was not in the Pulaski and Division area when the victim was shot
in 2008, did not know the victim, and did not observe anyone get shot on January 9, 2008.
Marlon also did not remember giving a written statement to Assistant State's Attorney Beth
Pfeiffer (ASA Pfeiffer) and Detective Roger Sandoval (Detective Sandoval) on February 22,
2008, about what he saw on the night of the shooting. He claimed the signature on the statement
attributed and presented to him in court was not his. Moreover, he did not remember signing the
document, having it read back to him, or testifying in front of a grand jury.
¶ 10 Emmanuel Bass (Bass) testified that he was in the custody of the Stateville Correctional
Center where he was serving a six-year sentence for delivery of a controlled substance. On
January 9, 2008, he was in the area of Pulaski and Division "selling weed," when he observed the
victim in a fistfight with a man named "Reesie" in a nearby park. He did not observe who won
the fistfight, but he observed that the victim walked out of the park, left the area, and returned
about 20 minutes later. Bass recalled testifying before the grand jury that the victim knocked
Reesie out. Bass testified that Reesie was drinking after the fight and remained in the area. He
did not observe the defendant walk up to the victim and start shooting. However, at this second
jury trial, the prosecutor asked Bass to read excerpts from his grand jury testimony. Bass read
portions of his grand jury testimony that indicated that he had previously testified that he did
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observe the defendant shoot the victim. Bass said he recalled testifying before the grand jury
that he observed the defendant shoot the victim, but testified at the instant second trial that he
heard about the shooting from people in the neighborhood. When asked at the second trial about
his grand jury testimony, Bass explained that much of it was not true. Bass further testified that
Detective Sandoval promised him that he would be released from jail if Bass revealed what he
had heard from the neighborhood. In his grand jury testimony, Bass testified that no promises
were made to him. However, at the second trial, Bass did not recall testifying before the grand
jury that no promises were made to him. Bass testified that after his grand jury testimony, he
told his defense counsel, who was an assistant public defender, to contact the State's Attorney to
tell her that Detective Sandoval promised him that he would be released if he told the grand jury
what the police wanted. Bass explained that he did not tell the State's Attorney before the grand
jury proceeding because he was worried that he would lose the deal he made with Detective
Sandoval, who had told him not to say anything about the promise. Bass did not receive any
help after his grand jury testimony and subsequently was sent to prison to serve his full six-year
term.
¶ 11 ASA Pfeiffer testified that on February 22, 2008, after meeting with detectives, she met
with Marlon to hear what he had to say about the shooting. ASA Pfeiffer did not want Marlon to
be under the impression that their conversation would lead to anything regarding his pending
case. She denied speaking to him about his pending case, and also denied that Detective
Sandoval, who was present at the meeting, spoke to him about his case. She obtained Marlon's
written statement in which he explained "what he heard said a couple of days after the murder"
of the victim. ASA Pfeiffer further testified that Marlon's written statement explained that no
threats or promises were made to him in exchange for the statement. Regarding the night of
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January 9, 2008, Marlon's statement explained that about 8 p.m., he was with the defendant and
others when he observed the victim and Reesie in a fight over a girl. After the fight, the victim
left the area but Reesie remained nearby. About 45 minutes later, Marlon was standing near
Pulaski and Division when he observed the victim and friends walk across the street toward a
liquor store. Marlon then heard someone say, "he's got a banger on him." Marlon then heard
some gunshots in front of the liquor store and observed the defendant holding a gun with fire
coming out of it. The victim was running away from the defendant, but the defendant followed
him and fired a total of six to eight shots at him. After the shooting, the defendant placed the gun
in his waistband and fled the scene. The written statement also stated that Marlon had "seen [the
defendant] with a gun before. [The defendant] carries different types of guns, 9 millimeters,
automatics and revolvers." The written statement also said:
"A day and a half later Marlon saw [the defendant] in the same
area Marlon had been on January 9, 2008, on Keystone and
Thomas. Marlon was in a car with [the defendant], Little Joe, and
another guy Marlon did not know. The guy Marlon did not know
told [the defendant], 'yeah, you stretched buddy' to [the defendant]
and everyone was laughing. [The defendant] just sat back looking
and nodding his head. By saying 'you stretched buddy,' that means
he killed him. That's the last time Marlon saw [the defendant]."
¶ 12 As Marlon's written statement was admitted into evidence and published to the jury in the
second trial, defense counsel objected to the portion of the statement that described the defendant
carrying other guns, on the grounds that it was inadmissible other-crimes evidence. The State
responded that it had no objection to refraining from reading that portion of the statement to the
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jury. However, the trial court ruled that when the written statement was to be given to the jury,
there would be no alterations because Marlon's testimony raised the issue of whether he had
actually signed the document. The trial court also rejected defense counsel's request to alter the
document to exclude the portions regarding other-crimes evidence because such evidence is
admissible for "any other purpose than propensity." Ultimately, the State did not read the
objectionable portion of the written statement to the jury. However, it was not redacted from the
written statement given to the jury during deliberations.
¶ 13 Assistant State's Attorney Mary Anna Planey (ASA Planey) testified that on March 10,
2008, she spoke to Bass about the events of January 9, 2008. ASA Planey read parts of Bass's
grand jury testimony. The portions she read were the same as the portions about which Bass was
questioned in his earlier testimony. Specifically, ASA Planey read parts of Bass's grand jury
testimony that stated that Bass never told ASA Planey that he did not actually witness the events
recounted in his grand jury testimony and that Bass was not told what to say before the grand
jury. ASA Planey testified that she did not know what the detectives had talked to Bass about
before she met with him. ASA Planey also testified that she met with Marlon on April 11, 2008,
before Marlon testified before the grand jury and that Marlon never mentioned anything about a
promise from a detective. He told her things that "he'd actually seen." ASA Planey then read
parts of Marlon's grand jury testimony, which was substantially similar to the written statement
mentioned in ASA Pfeiffer's testimony, except that Marlon's grand jury testimony did not
recount the defendant's nodding after the unknown individual stated that the defendant had
"stretched buddy."
¶ 14 Dr. James Filkins (Dr. Filkins) testified that he performed the autopsy on the victim's
body on January 10, 2008, and opined that the victim died of multiple gunshot wounds.
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¶ 15 Officer Michael Edens (Officer Edens) testified that he worked in the gang enforcement
unit. On January 30, 2008, he arrested Marlon after executing a search warrant of his residence
and recovering 22 grams of crack cocaine, along with drug paraphernalia. At the police station,
Marlon told police officers that he had information about a homicide that occurred earlier that
month near Pulaski and Division, prompting Officer Edens to contact detectives. Officer Edens
had no further conversation with Marlon about the homicide. Officer Edens did not promise
Marlon anything for information about the homicide and told Marlon that, regardless of what
information he gave, the charges against him would stand. Marlon had not asked Officer Edens
if he could do anything about his pending charges, and Officer Edens had not known Marlon
before the arrest. Officer Edens did not tell Marlon that he would charge him with home
invasion if he did not provide information about the shooting.
¶ 16 Officer Jerry Pentimone (Officer Pentimone) testified that he arrested Bass for a narcotics
offense on February 13, 2008. Officer Pentimone asked Bass about his knowledge of criminal
activity, and Bass told him that he had information about the shooting and a home invasion near
the same location. Officer Pentimone did not promise Bass any leniency for this information,
but Officer Pentimone admitted that Bass might have requested leniency.
¶ 17 Detective Sandoval testified that he and Detective Carlos Cortez (Detective Cortez)
interviewed Marlon on January 30, 2008. Marlon told the detectives that he witnessed a
shooting at Pulaski and Division on January 9, 2008, and did not request any leniency in
exchange for the information. Detective Sandoval did not threaten to charge Marlon with home
invasion, did not promise him anything in exchange for information, and had no contact with
Marlon prior to the January 30, 2008 interview. Detective Sandoval was present when ASA
Pfeiffer obtained Marlon's written statement, and he observed Marlon sign the statement.
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Detectives Sandoval and Cortez also interviewed Bass on February 13, 2008. Detective
Sandoval did not promise Bass anything and had no contact with Bass prior to the interview. He
neither told Bass what to say to the grand jury nor told him that he had to be a witness at the
grand jury proceedings. Bass gave the detectives information about the shooting and stated that
he witnessed the shooting.
¶ 18 Detective Cortez testified that he attempted to interview Suttle on January 9, 2008, but
she was too distraught. He eventually interviewed her on January 17, 2008. Suttle told him that
she heard from other people that the defendant was the shooter. On January 30, 2008, Detective
Cortez interviewed Marlon, who told him that the person who shot the victim was named "Kell."
Detective Cortez then searched a database using that name and found a picture matching the
information that Marlon had provided. He showed the photograph to Marlon during the
interview and Marlon identified the person as "Kell," the person who shot the victim. "Kell" is
the defendant's nickname. Detective Cortez testified that he did not have any contact with
Marlon prior to the interview, did not promise him anything in exchange for the information, and
did not promise Marlon that he would make Marlon's case disappear if he provided information.
Detective Cortez further testified that he interviewed Jackson at the police station on April 1,
2008. Jackson told the detective that he witnessed the shooting but did not know the name of the
shooter. Jackson identified the defendant as the shooter in a photographic array. On June 9,
2008, Detective Cortez arrested the defendant in a park near Pulaski and Division. On July 10,
2008, Jackson identified the defendant as the shooter from an in-person lineup.
¶ 19 After the conclusion of Detective Cortez's testimony, the State then rested its case in the
second jury trial. The defense proceeded by way of stipulation that Suttle had testified at a prior
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proceeding in which she identified "Reesie" as the "big heavy guy" who was present at the
shooting. The defendant did not testify on his own behalf.
¶ 20 After closing arguments, the parties discussed which exhibits would go to the jury.
Defense counsel objected to the jury receiving Marlon's complete handwritten statement and the
transcripts of Marlon's and Bass's grand jury proceedings. The trial court ruled that Marlon's
written statement would go to the jury in its entirety so that the jury would be able to determine
whether Marlon actually made the statement. The trial court ruled that the grand jury transcripts
would be provided only if requested by the jurors. After jury deliberations began, the jury
requested and received the grand jury transcripts of Marlon's and Bass's testimony.
¶ 21 On June 11, 2010, the jury found the defendant guilty of first-degree murder and found
that he personally discharged a firearm that proximately caused the victim's death.
¶ 22 On July 6, 2010, defense counsel filed a posttrial motion for a new trial. At the hearing
on the motion for a new trial, the defendant requested a new attorney for his posttrial motions
and raised pro se claims of ineffective assistance of counsel. The trial court explained that it
would hear the defendant's claims, and if his claims were sufficient, it would appoint other
counsel to represent him in a proceeding for ineffective assistance of counsel. The following
colloquy then ensued:
"THE DEFENDANT: Well, I feel that Mr. Miraglia didn't
properly investigate the case and he stated himself during the
proceedings, that he didn't know what anyone would testify to and
so forth. You yourself, Your Honor, stated that he was ineffective.
THE COURT: When did I say that?
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THE DEFENDANT: I can't recall the exact date in which
you stated this, Your Honor, but you yourself asked him, was you
going to report himself [sic]?
MR. MIRAGLIA [defense counsel]: There was a date
judge, that the State answered ready and I asked for a date because
I hadn't subpoenaed a witness and we had a conversation.
THE COURT: All right. I recall that.
***
THE COURT: Now, when we were talking about failing to
subpoena a witness, who was that witness?
THE DEFENDANT: Timothy Williams
THE COURT: Timothy Williams. And tell me what Mr.
Williams would have testified to.
***
THE DEFENDANT: He would have testified that he was
there, he was with [the victim] during the time that [the victim]
was shot. He never saw me there and he never saw [Jackson]
there.
THE COURT: And how do you know that he would have
testified to that?
THE DEFENDANT: Mr. Miraglia.
MR. MIRAGLIA: It was in the police reports, and I talked
to him and he did inform me that he would come after the case was
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continued because Mr. Williams was not under subpoena. I was
able to locate him out of state. I never served him but I did talk to
him by phone. He guaranteed me that he would be in court during
the trial and he never came.
***
THE COURT: All right. Mr. McLaurin, there are two
aspects to a charge of ineffective assistance of counsel. The first is
whether or not the lawyer's performance fell below an objective
standard, not that you didn't like the result but would a reasonably
competent lawyer have behaved in a different way such that Mr.
Miraglia's conduct fell below that standard. In other words, good
lawyers don't do this. And the second part of ineffective assistance
of counsel is that you're prejudiced as a result of that deficient
performance. And so with that view and understanding that
lawyers have the ability to make certain choices, they have to have
the ability to make certain representations, they have to have the
ability to set a strategy, that's what they're allowed to do. ***
With that in mind let's take those issues. When you say
that Mr. Miraglia didn't properly investigate the case because he
didn't subpoena this witness, the power of the Court to subpoena a
witness is within the Court's jurisdiction, that is the State of
Illinois. The State nor no one else can require an out-of-state
person to be served with a subpoena, and come in. There may be
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some mechanism to do that, but if the person is outside of the State
of Illinois, they can't be served with a subpoena, and that was the
case of Mr. Williams.
Mr. Williams was outside of the state. Your lawyer was in
contact with him. He was aware of what Mr. Williams could have
testified to and Mr. Williams told him that he would come in.
However, he didn't come in. ***
I don't think that your lawyer failed to investigate your case
just because he couldn't get in a witness who wasn't coming in
from out of state. He told Mr. Miraglia one thing and it didn't
happen. This trial took several days and he didn't come in. You've
got to remember this is a retrial. He had an opportunity to come in
the first time. He had an opportunity to come in the second time
from out of state. He didn't.
***
As a result based on everything that I've heard you say, I
don't think that we need to go any farther on your pro se motion
for ineffective assistance of counsel. I'm not going to appoint
another lawyer because you haven't made a showing at this point."
¶ 23 Defense counsel then argued the motion for a new trial, emphasizing Marlon's and Bass's
lack of credibility. He also argued that the State had not laid the proper foundations to admit the
entirety of Marlon's and Bass's prior statements into evidence. On September 17, 2010, the trial
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court denied the motion for a new trial, and sentenced the defendant to 60 years in prison. The
defendant then filed his first direct appeal before this court, raising the four issues outlined.
¶ 24 On December 10, 2012, this court remanded the case to the trial court for the limited
purpose of conducting a more complete inquiry, pursuant to People v. Krankel, 102 Ill. 2d 181
(1984), into the efforts taken by defense counsel to investigate Timothy as a witness and to
secure his testimony for the second trial. See McLaurin, 2012 IL App (1st) 102943, ¶ 53.
Specifically, this court found that the inquiry conducted by the trial court at the posttrial hearing
was inadequate, noting that the information discussed during the trial court's inquiry was already
known to the court because it pertained only to defense counsel's efforts to locate Timothy before
the first trial, and that the trial court failed to inquire about defense counsel's efforts to locate
Timothy for the defendant's second trial. Id. ¶ 52. Moreover, this court found that the trial
court's comments at the posttrial hearing, suggested that the court was unaware of the Witness
Attendance Act (725 ILCS 220/3 (West 2008)), by which an out-of-state witness may be made to
appear in an Illinois court. McLaurin, 2012 IL App (1st) 102943, ¶ 47. In light of our ruling,
this court did not reach the merits of the remaining issues on first appeal.
¶ 25 On remand, the trial court conducted a Krankel inquiry on April 16, 2013, found that the
defendant's pro se claim of ineffective assistance of counsel was without merit, and again denied
the defendant's motion for a new trial.
¶ 26 On April 16, 2013, the defendant filed a timely notice of appeal. Accordingly, this court
has jurisdiction.
¶ 27 ANALYSIS
¶ 28 In this instant second appeal, the defendant raises the same issues that he originally raised
in his first appeal. We determine the following issues: (1) whether defense counsel was
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ineffective for failing to present Timothy's testimony at the second trial; (2) whether defense
counsel was ineffective for failing to object to the admission of, and request a redaction of,
opinion testimony contained in Marlon's prior written statement and grand jury testimony; (3)
whether the trial court erroneously admitted other-crimes evidence at trial when it allowed the
jury to receive and review a portion of Marlon's prior written statement disclosing that the
defendant "carries different types of guns"; and (4) whether the trial court failed to comply with
the requirements of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007).
¶ 29 We first determine whether defense counsel was ineffective for failing to present
Timothy's testimony at the second trial.
¶ 30 The defendant argues that defense counsel was ineffective because he failed to present
Timothy's testimony at the second trial. The defendant claims that Timothy would have testified
that Timothy was present during the shooting but that he did not see either the defendant or
Jackson at the crime scene. The defendant contends that Timothy's testimony would have
provided crucial support for his defense and refuted the testimony of Jackson. In the alternative,
the defendant argues that this court should remand the case for a third inquiry for defense
counsel to explain what his efforts were in securing Timothy's presence and testimony prior to
the second trial.
¶ 31 The State counters that the defendant cannot show that defense counsel's performance
was deficient or that he suffered prejudice. The State contends that the defendant's alternative
argument for another remand should be rejected, where the trial court's Krankel inquiry on
remand was sufficient and a second remand for the same purpose is unnecessary.
¶ 32 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1)
counsel's performance was deficient and (2) counsel's actions resulted in prejudice to the
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defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Evans, 209 Ill. 2d
194, 220 (2004). Under the first prong, a defendant must demonstrate that his attorney's
performance fell below an objective standard of reasonableness. Evans, 209 Ill. 2d at 220.
Under the second prong, prejudice is shown where there is a reasonable probability that the result
would have been different but for counsel's alleged deficiency. Id. Failure to satisfy either
prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland,
466 U.S. at 697.
¶ 33 In the case at bar, on remand from this court's December 10, 2012 ruling that the trial
court's initial inquiry into the defendant's pro se ineffective assistance of counsel claim was
inadequate, the trial court conducted a Krankel hearing on April 16, 2013. At the April 16, 2013
hearing, the trial court acknowledged the reasoning behind this court's remandment and
questioned defense counsel about his attempts to contact Timothy for "this trial." Defense
counsel informed the court that he obtained Timothy's mobile number and had "several"
conversations with Timothy, but that Timothy never disclosed his location to defense counsel.
The State also informed the court that the State's investigator was unsuccessful in locating
Timothy and that the State had absolutely no information as to Timothy's whereabouts. The trial
court then questioned defense counsel as to whether he had developed any information from any
source as to Timothy's whereabouts, to which defense counsel answered in the negative.
Defense counsel stated that Timothy had indicated that he was located outside of Illinois, that he
would come to Chicago on "the day of trial," that he would be available to testify for the defense,
but that he never came to Chicago "on the date of trial." Defense counsel further noted that he
spoke with Timothy on the morning of trial, that counsel called Timothy when Timothy failed to
arrive in court, but that Timothy did not answer the telephone at that point. In making its ruling,
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the trial court noted that it was mindful of the Witness Attendance Act, but that the statute's
requirements could not be complied with where neither the State nor defense counsel knew of
Timothy's whereabouts. As such, the trial court found defense counsel diligent in his efforts "to
arrange for the attendance of [Timothy]," rejected the defendant's pro se claim of ineffective
assistance of counsel as "without merit," and again denied the defendant's motion for a new trial.
¶ 34 We find that the trial court did not err in concluding that the defendant's claim of
ineffective assistance was without merit. The defendant argues that the trial court's Krankel
inquiry on remand was again insufficient, by insisting that defense counsel gave no explanation
as to his efforts in locating Timothy prior to the second trial, but rather provided the "same
excuse" for failing to locate him and present his testimony for the first trial. We reject this
contention. Our review of the hearing transcript shows that the trial court's questions and
defense counsel's answers pertained specifically to counsel's efforts to locate Timothy prior to
the second trial. The trial court stated on the record that it was aware of the reasoning behind
this court's remandment and posed questions to defense counsel about his attempts to contact
Timothy for "this trial." While the term "second trial" was not expressly used and though there
are similarities between the unfolding of events in counsel's attempts to secure Timothy's
presence for the first and second trials, it is clear from defense counsel's responses that they
described his efforts to locate Timothy to testify at the second trial. As discussed, the record
shows that at the first trial, defense counsel told the court that Timothy had contacted defense
counsel on the day of trial after he had traveled to Chicago, Timothy had told counsel he needed
a ride to court, but that Timothy had neither returned counsel's subsequent calls nor appeared in
court. In contrast, at the April 16, 2013 hearing, defense counsel stated that he had "several"
conversations with Timothy, but that Timothy never disclosed his location to him; that Timothy
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never came from out of state to Chicago "on the date of trial"; that Timothy failed to come to
court despite saying he was available to testify; and that Timothy did not answer counsel's
telephone calls. Based on our review of the record, it can be inferred from defense counsel's
responses at the April 16, 2013 hearing that counsel was specifically recalling his efforts to
locate Timothy for the second trial. Nothing in the record suggests otherwise. See People v.
Gaultney, 174 Ill. 2d 410, 420 (1996) (a reviewing court "ordinarily presume[s] that the trial
judge knows and follows the law unless the record indicates otherwise").
¶ 35 Because Timothy's whereabouts were unknown and he could not be located, the
requirements of section 3 of the Witness Attendance Act, which allows for an out-of-state
witness to be summoned to testify in an Illinois court, could not be complied with to secure
Timothy's presence at the second trial. See 725 ILCS 220/3 (West 2008). It is important to note
that the State also informed the court at the remandment hearing that its investigator could not
locate Timothy and that the State had no information as to his whereabouts. Thus, where
Timothy could not be located and he was unwilling to disclose his location, defense counsel
could not have been deficient in failing to secure his presence or testimony at the second trial.
See People v. Williams, 147 Ill. 2d 173, 247 (1991) (defense counsel cannot be faulted for failing
to pursue a witness who could not be located or induced to testify, even though counsel was
aware of the witness' existence); People v. Lewis, 97 Ill. App. 3d 982, 992 (1981) (counsel's
failure to subpoena witness was not deficient, where the whereabouts of witness was unknown).
¶ 36 Notwithstanding the foregoing, the defendant primarily relies on People v. Truly, 230 Ill.
App. 3d 948 (1992), and People v. Morris, 335 Ill. App. 3d 70 (2002), in arguing that defense
counsel's performance was deficient. We find these cases to be inapposite. In Truly, the court
found defense counsel to be "derelict in his duties" because he never made a reasonable attempt
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to locate or subpoena four potential witnesses, whose names and addresses were provided by the
defendant. Truly, 230 Ill. App. 3d at 950, 954-55. Unlike Truly, in the case at bar, no address
for Timothy was available to defense counsel and his location could not be ascertained based on
both defense counsel's and the State's efforts to find him. Compare People v. Brooks, 345 Ill.
App. 3d 945 (2004) (defense counsel's failure to invoke the Uniform Rendition of Prisoners as
Witnesses in Criminal Proceedings Act (725 ILCS 235/6 (West 2000)) for securing alibi witness
at trial was not deficient performance, where defense counsel obtained telephone numbers of
alibi witness but lost contact after numbers were disconnected; alibi witness was incarcerated out
of state on day of defendant's trial; and counsel's motion for a continuance was denied). The
defendant further relies on Morris. In Morris, in reversing the second-stage dismissal of the
defendant's postconviction ineffective assistance of counsel claim and remanding for a third-
stage evidentiary hearing, this court found that the defendant's petition contained unrebutted
allegations that defense counsel failed to investigate or interview the alibi witnesses before trial;
failed to disclose any witnesses in compliance with discovery before trial; and failed to subpoena
or secure any witnesses to testify on behalf of defendant at trial. Morris, 335 Ill. App. 3d at 75,
83. Unlike Morris, the case at bar is on direct appeal and, thus, is in a different procedural
posture than Morris, which involved a postconviction proceeding. We note that the defendant
may wish to later file an ineffective assistance of counsel claim in a postconviction petition,
should there actually be matters outside of the record that might support his claim regarding
counsel's failure to present Timothy's testimony at the second trial. See People v. Patrick, 2011
IL 111666, ¶ 39 (a Krankel motion is not a substitute for a postconviction petition); see People v.
Phillips, 383 Ill. App. 3d 521, 544 (2008) (claim of ineffective assistance of counsel requiring
consideration of matters outside of the record is best resolved in a postconviction proceeding).
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The defendant cannot satisfy the first prong of the Strickland test and his ineffective assistance of
counsel claim on this basis must fail.
¶ 37 We further reject the defendant's alternative arguments that the case should be remanded
for the appointment of new counsel to undertake an independent investigation of this claim or for
a third hearing to be held. We find the April 16, 2013 hearing to be complete and sufficient
under Krankel, and the trial court did not err in concluding that the defendant's ineffective
assistance claim was without merit and in declining to appoint new counsel to further investigate
the defendant's claim. See Patrick, 2011 IL 111666, ¶ 32 (new counsel is not automatically
required to be appointed in every case when a defendant presents a pro se posttrial motion
alleging ineffective assistance of counsel); People v. Moore, 207 Ill. 2d 68, 77-78 (2003) ("when
a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial court
should first examine the factual basis of the defendant's claim. If the trial court determines that
the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint
new counsel and may deny the pro se motion. However, if the allegations show possible neglect
of the case, new counsel should be appointed."). Accordingly, we reject the defendant's
alternative arguments.
¶ 38 We next determine whether defense counsel was ineffective for failing to object to the
admission of, and request a redaction of, opinion testimony contained in Marlon's prior written
statement and grand jury testimony.
¶ 39 The defendant argues that defense counsel was ineffective for failing to object to the
admission of, and request a redaction of, inadmissible opinion testimony in Marlon's prior
written statement and grand jury testimony. Specifically, he argues that the phrase "you
stretched buddy," which was contained therein as something that was spoken by an unknown
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individual to the defendant a day and a half after the shooting, was interpreted by Marlon to
mean that the defendant had killed the victim. The defendant argues that such opinion testimony
was inadmissible and defense counsel failed to file a motion in limine to prevent the statements
from coming into evidence at the second trial and he failed to object when those statements were
presented to the jury.
¶ 40 The State counters that defense counsel was not ineffective for not objecting to the
admission of Marlon's testimony in his prior written statement and grand jury testimony
regarding the meaning of the phrase "you stretched buddy," which constituted proper lay opinion
testimony related to an adoptive admission made by the defendant. The State argues that
because the evidence was properly admitted at trial, any objections raised by defense counsel
would have been futile. The State further maintains that the defendant could not establish that
the testimony complained-of prejudiced him so as to satisfy the Strickland test.
¶ 41 As discussed, at the second trial, Marlon denied being in the Pulaski and Division area
when the victim was shot in 2008, denied knowing the victim, and denied observing anyone get
shot on the night of the shooting. He also did not recall giving a prior written statement to ASA
Pfeiffer or testifying before a grand jury. However, ASA Pfeiffer testified to obtaining Marlon's
prior written statement in February 2008. Marlon's prior written statement, which was admitted
into evidence and published to the jury in the second trial, stated that he observed the defendant
firing a gun at the victim near the liquor store on January 9, 2008; that a day and a half after the
shooting, Marlon was in a car with the defendant, Little Joe and an unknown individual; that the
unknown individual told the defendant "yeah, you stretched buddy," which meant the defendant
killed the victim; and that everyone laughed and the defendant nodded his head. Marlon's grand
jury testimony, which was also introduced into evidence at the second trial, was substantially
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similar to the written statement mentioned in ASA Pfeiffer's testimony, except that the grand jury
testimony did not recount the defendant's nodding after the unknown individual stated that the
defendant had "stretched buddy."
¶ 42 The general rule is that hearsay, defined as " 'an out of court statement *** offered to
establish the truth of the matter asserted,' " is inadmissible at trial. People v. Donegan, 2012 IL
App (1st) 102325, ¶ 33 (quoting People v. Gonzalez, 379 Ill. App. 3d 941, 954 (2008)).
However, an exception exists to allow prior inconsistent statements of a testifying witness to be
admitted to impeach the witness' credibility. Donegan, 2012 IL App (1st) 102325, ¶ 33. Section
115-10.1 of the Code of Criminal Procedure of 1963 (the Code) also allows for the admission as
substantive evidence of a prior inconsistent statement made by a witness as long as he is subject
to cross-examination and the statement (1) was made under oath at a trial, hearing or other
proceeding, or (2) narrates, describes, or explains an event or condition of which the witness had
personal knowledge, and the statement is proved to have been written or signed by the witness or
the witness acknowledged under oath the making of the statement at a trial, hearing, or other
proceeding. 725 ILCS 5/115-10.1 (West 2008). For the "personal knowledge" requirement to be
satisfied, "the witness whose prior inconsistent statement is being offered into evidence must
actually have seen the events which are the subject of that statement." (Internal quotation marks
omitted.) Donegan, 2012 IL App (1st) 102325, ¶ 34.
¶ 43 Illinois Rule of Evidence 701 governs opinion testimony by lay witnesses: "If the witness
is not testifying as an expert, the witness' testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of
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a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702." Ill. R. Evid. 701 (eff. Jan. 1, 2011).
¶ 44 The defendant argues that the portions of Marlon's prior written statement and grand jury
testimony regarding the meaning of the phrase "you stretched buddy," was inadmissible opinion
testimony and should not have been allowed into evidence under section 115-10.1 of the Code.
We disagree. First, we find that Marlon's prior inconsistent statements contained in his written
statement and grand jury testimony were properly admitted as substantive evidence under section
115-10.1 of the Code. The prior written statement, which was signed by Marlon, described and
explained the events relating to the shooting of which Marlon had personal knowledge because
he was an eyewitness to the shooting. Marlon's grand jury testimony was also made under oath
at the grand jury proceeding.
¶ 45 Second, the complained-of statements regarding the meaning of "you stretched buddy"
contained in Marlon's prior written statement and grand jury testimony satisfied the requirements
of Rule 701, where the opinions and inferences testified to were rationally based on Marlon's
perception, were helpful to a clear understanding of Marlon's testimony or the determination of a
fact in issue, and were not based on any scientific, technical, or other specialized knowledge. In
Donegan, the State presented as substantive evidence the prior handwritten statement and grand
jury testimony of two testifying witnesses, Crowder and Coleman. Donegan, 2012 IL App (1st)
102325, ¶ 40. In the prior statements, Crowder stated that codefendant Pikes told him that Pikes
was going to " 'do some business,' " which Crowder interpreted to mean Pikes was " 'going over
there to harm somebody' " or " 'go do a shooting.' " Id. Crowder also stated that several months
later, Pikes said " 'why ain't nobody keeping going over there, finishing what he had left off
with,' " which meant Moseley's murder. Coleman's prior statements also revealed that when
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Pikes said he was going to " 'get' " a car, he meant " 'steal' " a car to do a shooting; that when the
defendant said he wanted retaliation he meant that he wanted to kill someone; that when the
defendant ran through a gangway, he did so in order to retrieve some guns; and that the
defendant's statement that " 'it's time,' " meant " 'to go kill.' " Id. The defendant in Donegan, like
the defendant here, argued that the witnesses' prior statements constituted inadmissible opinion
testimony to which defense counsel was ineffective for failing to object at trial. Id. The
Donegan court rejected the defendant's claim, finding the prior statements to be admissible
opinion testimony under Rule 701. Id. ¶ 43. The Donegan court specifically found the
statements to be rationally based on the perception of the witnesses, and helpful to a clear
understanding of their testimony or the determination of a fact in issue. Id. The Donegan court
further noted that "[w]hen considering whether a witness's opinion as to what a declarant meant
by a statement is admissible under Rule 701, circuit courts should consider the facts,
circumstances, and context under which the statement was made." Id. We find Donegan to be
instructive. Like Donegan, here, Marlon's prior statements that the phrase "you stretched buddy"
meant the defendant killed the victim, satisfied the criteria set forth under Rule 701. The
statement "you stretched buddy" was made by an unidentified declarant to the defendant in the
presence of Marlon only a day and a half after the shooting, during a conversation in which the
unidentified declarant "brung [sic] up the incident." Like Donegan, Marlon's opinion testimony
regarding the meaning of the statement "you stretched buddy" was properly admitted, where it
was rationally based on Marlon's perception and own understanding of the phrase, rather than
speculation about defendant's understanding of the phrase, and where it was helpful to a clear
understanding of Marlon's testimony and not based on any scientific, technical, or other
specialized knowledge. See People v. Holveck, 141 Ill. 2d 84 (1990) (proper for babysitter of
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alleged victim of sexual offense to explain the meaning of the phrase "stranger danger" used by
the child victim, where testimony was based on her personal knowledge of the particular
program being conducted by police department to make children aware of dangers posed by
strangers); People v. Lewis, 147 Ill. App. 3d 249 (1986) (testimony by mother stating that
"cootch" meant vagina, "bootie" meant buttocks, and "his thing" meant defendant's penis, was
admissible after mother testified that her daughter had told her that defendant had rubbed his
penis on daughter's "bootie" and "cootch" and had made daughter suck "his thing," where mother
had personal knowledge of meanings she had taught daughter to associate with those words).
¶ 46 Third, because we find Marlon's opinion testimony regarding the meaning of "you
stretched buddy" to be properly admitted, the defendant's nod in response to the declarant's "you
stretched buddy" statement, as detailed in Marlon's written statement, could constitute a tacit
admission. See People v. Campbell, 332 Ill. App. 3d 721, 734 (2002) (a tacit admission "may be
admissible as an exception to the hearsay rule if sufficient evidence supports a finding that, in
light of the totality of the circumstances, a defendant remained silent when faced with an
incriminating statement which, if untrue, would normally call for a denial").
¶ 47 Because Marlon's prior written statement and grand jury testimony were properly
admitted under section 115-10.1 of the Code, and his opinions therein as to the meaning of "you
stretched buddy" were properly admitted as lay opinion testimony under Rule 701, we find that
defense counsel was not deficient for failing to object and request a redaction of, the complained-
of statements. See People v. Mercado, 397 Ill. App. 3d 622, 634 (2009) (defense counsel is not
required to make losing motions or objections in order to provide effective legal assistance).
Moreover, in light of our ruling that the prior inconsistent statements were properly admitted, we
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necessarily reject the defendant's arguments regarding "double hearsay" where those arguments
are based on the presumption that Marlon's prior statements were inadmissible.
¶ 48 Further, defendant's ineffective assistance of counsel claim fails where he cannot
establish the prejudice prong required by Strickland. Therefore, we hold that the defendant's
ineffective assistance of counsel claim on this basis must fail.
¶ 49 We next determine whether the trial court erroneously admitted other-crimes evidence at
trial when it allowed the jury to receive and review a portion of Marlon's prior written statement
disclosing that the defendant "carries different types of guns." We review this issue under an
abuse of discretion standard. See People v. Hale, 2012 IL App (1st) 103537, ¶ 10.
¶ 50 The defendant argues that the trial court abused its discretion in allowing the jury to
receive improper and highly prejudicial other-crimes evidence by refusing to redact the portion
of Marlon's prior written statement in which he alluded to the defendant's carrying of guns. He
argues that the complained-of statements constituted other-crimes evidence, which had no
bearing on the jury's determination in this case. He further argues that the trial court abused its
discretion in failing to provide the jury with a limiting instruction regarding the other-crimes
evidence. He contends that the improper admission of such evidence was not harmless error.
¶ 51 The State argues that the complained-of statements did not constitute other-crimes
evidence. The State contends that even if they were considered other-crimes evidence, such
evidence was properly admitted because it was relevant for a purpose other than showing the
defendant's propensity to commit crimes. The State further argues that the defendant's argument
regarding the trial court's failure to instruct the jury regarding the purported other-crimes
evidence is forfeited for review on appeal, where the defendant never sought a limiting
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instruction at trial and failed to raise this claim of error in a posttrial motion. Even if it was error
to admit the complained-of statements, the State argues that it was harmless error.
¶ 52 At the second trial, Marlon testified that he did not recall giving a prior written statement
about his observations of the shooting to ASA Pfeiffer; he denied that the signature on the prior
written statement belonged to him; and he testified that he did not recall signing the statement,
having it read back to him, or testifying in front of the grand jury. As noted, Marlon's prior
written statement was presented to the jury during the second trial. As Marlon's prior written
statement was admitted into evidence and published to the jury in the second trial, defense
counsel objected to the portion of the statement that described the defendant as carrying other
guns, on the grounds that it was inadmissible other-crimes evidence. The State responded that it
had no objection to refraining from reading that portion of the statement to the jury. Ultimately,
the State did not have the objectionable portion of the prior written statement read to the jury.
However, the trial court ruled that when the written statement was to be given to the jury for
deliberations, there would be no alterations because Marlon's testimony at the second trial raised
the issue of whether he had actually signed the document. The trial court also rejected defense
counsel's request to alter the document to exclude the portions regarding the other-crimes
evidence because according to the court, such evidence is admissible for "any other purpose than
propensity." After closing arguments, the parties discussed which exhibits would go to the jury.
Defense counsel objected to the jury receiving Marlon's unredacted prior written statement. The
trial court ruled that Marlon's written statement would go to the jury in its entirety so that the
jury would be able to determine whether Marlon actually made the statement.
¶ 53 "The term 'other-crimes evidence' encompasses misconduct or criminal acts that occurred
either before or after the allegedly criminal conduct for which the defendant is standing trial."
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People v. Spyres, 359 Ill. App. 3d 1108, 1112 (2005). The complained-of statements in Marlon's
prior written statement read as follows: Marlon had "seen [the defendant] with a gun before.
[The defendant] carries different types of guns, 9 millimeters, automatics and revolvers." As
noted, although the complained-of statements were not read to the jury during ASA Pfeiffer's
testimony, they were not redacted from Marlon's prior written statement that was ultimately
given to the jury for deliberations. We cannot conclude that the complained-of statements
constituted other-crimes evidence, as the defendant claims. Those statements did not describe
any misconduct or criminal acts committed by the defendant, but rather only Marlon's
observations that he had seen the defendant in possession of certain guns at some unknown time.
The defendant argues in his reply brief that the defendant's alleged possession of the guns was a
crime because it was illegal to possesses handguns in Chicago at the time of Marlon's prior
written statement in 2008, and points out that his prior felony conviction prohibited him from
being in possession of any weapons under Illinois law. However, the complained-of statements
provided no additional relevant information regarding where and when Marlon had previously
seen the defendant in possession of these weapons, and it could not be presumed that the alleged
possession occurred in Chicago or that it occurred after the defendant had already been convicted
of his prior felony offense. Further, no evidence of the defendant's prior felony conviction was
ever presented at the second trial and, thus, it cannot be said that the jury would have been aware
of any misconduct or criminal acts by the defendant that occurred either before or after the
shooting for which the defendant was tried in the instant case. Thus, it requires many
assumptions to determine that the complained-of statements were other-crimes evidence. We
decline to make those assumptions and thus hold that the statements did not constitute other-
crimes evidence.
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¶ 54 Moreover, even assuming, arguendo, that the trial court should have allowed redaction of
the contested portion of Marlon's prior written statement before giving it to the jury, or should
have instructed the jury on the limited usage of other-crimes evidence (despite defense counsel's
failure to request such instruction at trial), we find the error, if any, to be harmless. Strong
evidence presented at the second trial established that both Jackson and Bass were eyewitnesses
to the shooting and observed the defendant shoot the victim. See People v. Nieves, 193 Ill. 2d
513, 530 (2000) (improper introduction of other-crimes evidence is harmless error when a
defendant is neither prejudiced nor denied a fair trial based upon its admission); see also People
v. Petermon, 2014 IL App (1st) 113536, ¶ 30 (where the identification of defendant constitutes
the central question in a criminal prosecution, the testimony of even a single witness is sufficient
to convict where the witness is credible and viewed the accused under conditions permitting a
positive identification to be made). Accordingly, we hold that the defendant is not entitled to
relief on this basis.
¶ 55 We next determine whether the trial court failed to comply with the requirements of
Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during voir dire.
¶ 56 The defendant argues that a new trial—a third trial—is warranted where the trial court
failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during voir dire.
Specifically, he contends that the trial court recited the four Zehr principles to the venire as a
group, but only asked the potential jurors whether they "had any problems" with the first three
principles, and only asked if anyone would hold the defendant's decision not to testify against
him. He maintains that these questions pertained only to the potential jurors' willingness to
accept the law, but did not pertain to their ability to understand it. The defendant concedes that
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this issue was not properly preserved for appeal, but argues that the plain error doctrine applied
to circumvent forfeiture.
¶ 57 The State argues that the defendant's claim of Rule 431(b) error is forfeited for review on
appeal, does not amount to plain error, and is not a basis for reversal. The State maintains that
no error occurred because the trial court properly admonished the potential jurors under Rule
431(b). The State argues that even if an error occurred, it did not rise to the level of plain error
because the evidence in this case was not closely balanced.
¶ 58 We agree that the defendant has forfeited this issue for review on appeal. See People v.
Herron, 215 Ill. 2d 167, 175 (2005) (a defendant who fails to make a timely trial objection and
include the issue in a posttrial motion forfeits the review of the issue). However, the plain error
doctrine allows a reviewing court to consider unpreserved issues when either: (1) the evidence is
close, regardless of the serious of the error; or (2) the error is so serious, regardless of the
closeness of the evidence. Id. at 178-79; People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The
first step in a plain error analysis is to determine whether an error occurred at all. People v.
Hudson, 228 Ill. 2d 181, 191 (2008).
¶ 59 Rule 431(b) is a codification of our supreme court's holding in Zehr, 103 Ill. 2d 472, and
states as follows:
"The court shall ask each potential juror, individually or in a group,
whether that juror understands and accepts the following
principles: (1) that the defendant is presumed innocent of the
charge(s) against him or her; (2) that before a defendant can be
convicted the State must prove the defendant guilty beyond a
reasonable doubt; (3) that the defendant is not required to offer any
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evidence on his or her own behalf; and (4) that the defendant's
failure to testify cannot be held against him or her; however, no
inquiry of a prospective juror shall be made into the defendant's
failure to testify when the defendant objects.
The court's method of inquiry shall provide each juror an
opportunity to respond to specific questions concerning the
principles set out in this section." Ill. S. Ct. R. 431(b) (eff. May 1,
2007).
¶ 60 A review of the record shows that during voir dire, the trial court instructed the venire
about the defendant's presumption of innocence; the burden of proof placed on the State; and that
the defendant was not required to prove his innocence. The trial court then asked the venire
whether they "had any problems" with these first three principles. The court next informed the
venire that the defendant was not required to testify, and asked "[i]f the defendant decides not to
testify, is there anyone here who believes that regardless of what I have just said, you would hold
that decision against the defendant?" None of the members of the venire answered in the
affirmative.
¶ 61 In People v. Thompson, 238 Ill. 2d 598 (2010), our supreme court held that the trial court
failed to comply with Rule 431(b) because it admonished members of the venire regarding only
three of the four Zehr principles, asked the prospective jurors whether they "understood" two of
the principles, but failed to ask if they "accepted" all four principles. The Thompson court stated
that Rule 431(b) required "questioning on whether the potential jurors both understand and
accept each of the enumerated principles." Id. at 607. Nevertheless, the Thompson court found
that this error did not warrant an automatic reversal of the defendant's conviction, nor did it rise
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to the level of plain error because the defendant had not presented any evidence that the Rule
431(b) violation resulted in a biased jury. Id. at 611.
¶ 62 In the instant case, the defendant does not dispute that the trial court addressed each of
the four Zehr principles with the venire. Rather, he takes issue with the phraseology used by the
trial court in questioning the prospective jurors. The defendant contends that the court's
questions pertained only to the potential jurors' willingness to accept the law, but did not pertain
to their ability to understand it. We find this court's holding in People v. Lampley, 2011 IL App
(1st) 09061-B, to be highly instructive.
¶ 63 In Lampley, this court found that the trial court erred when it informed jurors of the four
Rule 431(b) principles and then engaged in questioning that conflated the principles.
Specifically, the trial court inquired about the first three principles as follows: " '[T]he defendant
is presumed innocent and does not have to offer any evidence on his own behalf but must be
proven guilty beyond a reasonable doubt by the State. Does anyone here have any problems
with those concepts?' " Id. ¶ 5. The court then inquired about the fourth principle, asking: " 'As I
have also previously stated, the defendant does not have to testify on his own behalf. If the
defendant decides not to testify, you must not hold that decision against the defendant. If the
defendant decides not to testify, is there anyone here who believes that, regardless of what I have
just said, you would hold that decision against the defendant?' " Id. The Lampley court found
that the trial court's inquiry was insufficient pursuant to Thompson, explaining that the court
"should have followed a straightforward questioning of the Zehr principles as outlined by Rule
431(b) and, as a result, committed error." Id. ¶ 35. However, in ruling that reversal was not
warranted, the Lampley court went on to find that the error did not rise to the level of plain error
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where the evidence against the defendant was overwhelming and the error was not so serious as
to overcome the overwhelming evidence. Id. ¶ 36.
¶ 64 We find the facts in the case at bar to be almost identical to those in Lampley. Like
Lampley, the trial court here admonished the potential jurors on all four Zehr principles, in the
same manner as the trial court in Lampley. Thus, following the sound reasoning in Lampley, we
conclude that the trial court in the instant case did not sufficiently comply with Rule 431(b) and
therefore erred. Having found that an error occurred, we examine whether the error rises to the
level of plain error. Because the defendant only argues plain error under the closely-balanced-
evidence prong of the plain error doctrine, we limit our analysis to the first prong of the plain
error test. See Herron, 215 Ill. 2d at 178 (reviewing court may consider unpreserved issues
under the closely-balanced-evidence prong of the plain error doctrine if "the evidence in a case is
so closely balanced that the jury's guilty verdict may have resulted from the error and not the
evidence"). Like Lampley, we find that the evidence in this case was not closely balanced. In
fact it was overwhelming. The jury was presented evidence by three eyewitnesses who had
independently identified the defendant as the shooter. Thus, we cannot say that the guilty verdict
may have resulted from the error committed by the court during voir dire, and not the
overwhelming evidence. Therefore, the plain error doctrine does not apply to reach this forfeited
issue.
¶ 65 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 66 Affirmed.
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