People v. Montes

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Montes, 2013 IL App (2d) 111132
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption AUGUSTINE T. MONTES, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-1132
Filed June 28, 2013
Held Defendant’s convictions in absentia for attempted first-degree murder
(Note: This syllabus and aggravated discharge of a firearm were upheld where defendant was
constitutes no part of properly admonished about a trial in absentia, the trial was scheduled
the opinion of the court when he was in court, he failed to appear for trial and offered no
but has been prepared explanation, an audio recording of the offenses made by an informant was
by the Reporter of properly admitted as substantive evidence, the jury was properly allowed
Decisions for the to review a transcript of the recording, and the evidence was sufficient to
convenience of the establish defendant’s guilt beyond a reasonable doubt.
reader.)
Decision Under Appeal from the Circuit Court of Kane County, No. 05-CF-2797; the
Review Hon. T. Jordan Gallagher, Judge, presiding.
Judgment Affirmed.
Counsel on Matthew J. Haiduk, of Geneva, for appellant.
Appeal
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Joan M. Kripke, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices Hutchinson and Schostok concurred in the judgment and opinion.
OPINION
¶1 On May 5, 2010, defendant, Augustine T. Montes, was convicted in absentia of
attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2004)) and aggravated
discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)). Defendant filed four motions
for a new trial. On February 4, 2011, the trial court denied defendant’s posttrial motions and
sentenced him (defendant was present at sentencing) to 26 years’ imprisonment for attempted
murder and a concurrent 10-year term for aggravated discharge of a firearm.
¶2 Defendant appealed and, on October 15, 2012, we granted the State’s motion to dismiss
the appeal for lack of jurisdiction. People v. Montes, 2012 IL App (2d) 111132-U. On
January 30, 2013, however, the supreme court, under its supervisory authority, directed us
to vacate our order and to consider defendant’s appeal on the merits. People v. Montes, No.
115244 (Jan. 30, 2013). We do so now.
¶3 On appeal, defendant argues that: (1) the trial court erred in trying him in absentia; (2)
the court erred in admitting substantively an audio recording of the crime; (3) the court erred
in allowing the jury to review a transcript as an aid in understanding the audio recording; and
(4) the evidence was insufficient to establish his guilt beyond a reasonable doubt. For the
following reasons, we affirm.
¶4 I. BACKGROUND
¶5 A. In Absentia Admonishments
¶6 On February 22, 2006, an amended indictment charged that, on November 22, 2005,
defendant took a substantial step toward committing murder, by personally discharging a
firearm at Julian Ramos. Further, defendant was charged with aggravated discharge of a
firearm, in that he discharged the firearm in Ramos’s direction.
¶7 On December 22, 2006, defendant appeared before the court, entered a not-guilty plea,
waived formal reading of the indictment, and reserved his right to a jury trial. At that time,
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the court admonished defendant that he had rights to trial by court, trial by jury, and counsel,
as well as the right to confront the witnesses against him. The court further admonished that:
“If you fail to appear at any scheduled court hearing, that would be considered as a waiver
of your right to confront the witnesses against you and that hearing could proceed in your
absence.” When asked if he understood those rights, defendant answered, “Yes, your Honor.”
¶8 On March 12, 2007, defendant posted bond and signed a certificate that stated that he
understood that the terms and conditions of his bond included that, if, at any time prior to the
final disposition of the charges, he failed to appear in court when required, the result would
be a waiver of his right to confront witnesses against him and “the trial can proceed in [his]
absence.”
¶9 Thereafter, defendant appeared at the majority of scheduled court hearings, including on
January 14, 2010, when the court continued the case to April 30, 2010, with a jury trial
scheduled to commence three days later, on May 3, 2010. On April 30, 2010, however,
defendant did not appear in court. Defense counsel informed the court that he had been
meeting regularly with defendant, but that defendant did not appear at their last scheduled
meeting. Counsel stated that he had sent defendant a letter, telling him to appear in court on
April 30, 2010, and that he had fully expected defendant to be present. Counsel asked for a
continuance, stating that he did not know where defendant was and that defendant might be
in custody somewhere. Counsel further represented that defendant was not, however, in
custody with the Kane County sheriff’s department.
¶ 10 The assistant State’s Attorney informed the court that, when defense counsel alerted her
to the fact that defendant did not appear to meet with him, she ran a new “rap sheet” to learn
whether defendant had been “picked up”; there was no arrest reflected thereon. She informed
the court that, since defendant’s last court appearance (in February 2010), a grand jury had
indicted defendant for delivering, on two different occasions, cocaine to a narcotics task
force officer. There was an outstanding warrant for defendant’s arrest in that case; the
assistant State’s Attorney explained that, for more than one month, the police had been
unable to arrest defendant and, so, perhaps he had left the area. The State wished to proceed
with trial on May 3, 2010, even if defendant did not appear. The assistant State’s Attorney
showed the trial judge the transcript from defendant’s arraignment, wherein he was
admonished regarding a trial in absentia. The State noted that it had witnesses ready,
including a witness who would be coming in over the weekend from out of state.
¶ 11 The court reviewed the transcript and stated, “[f]or the record, I guess this language
would be sufficient to make a finding that [defendant] was on notice of the potentiality of a
trial in absentia.” Further, the court noted that defendant was present on the court date when
the trial date was scheduled. Defense counsel noted that the admonishment stated only that
a “hearing” could be conducted in defendant’s absence and not, per section 113-4(e) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-4(e) (West 2004)), that a
“trial” could proceed in defendant’s absence. Defense counsel asked for a continuance. The
court replied that it had “noticed that the language used was the word hearing as opposed to
trial, but I still think that it covers the necessary admonishment about trial in absentia.”
Accordingly, the court denied the request for a continuance and ordered that trial would
proceed, as scheduled, the following Monday.
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¶ 12 B. Trial
¶ 13 On Monday, May 3, 2010, defendant did not appear, and trial proceeded in his absence.
¶ 14 1. Officer Hornback
¶ 15 Officer Danny Hornback testified that, on November 22, 2005, at around 12:30 p.m., he
responded to a call that shots were fired in a residential area near 191 North Calhoun Street
in Aurora. While en route to that location, Hornback was advised via radio that the intended
victim, Julian Ramos, had run from the location of the shooting and was now in the area of
Farnsworth and Liberty Streets. Hornback arrived there and found Ramos inside a pickup
truck, hiding below the dashboard. Ramos was visibly shaken, but not injured. Ramos
explained that someone shot at him three or four times. He reported seeing four people in a
green, four-door Pontiac Bonneville. Only one person, the shooter, exited the vehicle. The
shooter was primarily dressed in black with a white, hooded sweatshirt. Hornback and
Ramos returned to the scene, but did not find any shell casings or a weapon. Hornback asked
Ramos if he knew why someone might want to shoot him. Ramos replied that it might be in
retaliation for a shooting that he had been involved in a couple of years prior. Hornback
asked neighbors if they saw anything, and they did not. Hornback took Ramos home.
¶ 16 2. Victim Ramos
¶ 17 Ramos testified that, on November 22, 2005, he was walking to his girlfriend’s house
when he saw a green Pontiac Bonneville pass him. Ramos testified that he saw three
Hispanic men and one African-American man in the car (although, on cross-examination,
he testified that he could not tell if the vehicle’s occupants were male or female). Ramos
noticed someone get out of the car and, so, he began to run; shortly thereafter, when he
looked over his shoulder, no one was there. Ramos believed that something was suspicious,
so he kept running. Ramos said he was not paying close attention “at all” to what the person
was wearing, but when he “just glanced over” he saw a black, hooded sweatshirt. Ramos
continued to run and then began walking quickly down various streets.
¶ 18 Ramos came to a corner and saw the green Bonneville at a gas station. At that time, he
saw only the driver, an African-American male wearing a white, hooded sweatshirt, in the
car. Ramos froze, but then began running. At some point, he turned around and saw someone
about 35 to 40 feet away pointing a gun at him. The person holding the gun was wearing a
black “hoody”; Ramos explained that it was a baggy sweatshirt and the hood was over the
person’s head, so he could not see his or her face. He could not tell if the person was male
or female. The person was heavyset and likely weighed around 230 pounds. Ramos agreed
that he did not provide this description to Hornback at the time of the incident. Ramos saw
a gun and then turned around and heard “shots fired”; he started running and screaming “I
ain’t no King.” Ramos continued running, jumped a fence, and ran onto a busy four-lane
street asking for help. A man in a white truck stopped and allowed Ramos to climb into the
truck. Ramos was asked how many shots he heard, and he replied, “One. No more than one.”
Ramos knew the sound to be a gunshot, as he had heard gunshots before.
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¶ 19 3. FBI Agent Camacho
¶ 20 Special agent Larissa Camacho testified that she is employed by the FBI and is currently
assigned to run the informant program at the FBI’s Chicago office. In 2005, she was assigned
to the West Suburban Violent Gang Task Force. In early 2005, Camacho was familiar with
the Aurora Latin Kings street gang and received information about a potential cooperator
named Blake Pannell. At the time, Pannell was serving a sentence in the Department of
Corrections. After interviewing Pannell, the FBI decided to use him as an informant.
Camacho explained that it is very difficult for an outsider to infiltrate a gang; therefore, it is
useful for the FBI to have as an informant someone who is already a trusted member of the
gang. Pannell’s agreement to cooperate with the FBI (as well as the Aurora police department
and Kane County sheriff’s office) included his truthful admission to his past crimes and a
willingness to testify before grand juries in federal and state courts. Further, Pannell agreed
to wear a recording device and have it with him the majority of the time. Pannell was
released from prison and placed on probation. Although Pannell admitted to his involvement
in 16 or 17 shootings (including one wherein he was the shooter and killed someone), selling
narcotics, and other gun crimes, he was essentially given immunity and was never charged
with those crimes. In addition to testifying against other gang members, the agreement
required Pannell to follow the law. Pannell was “absolutely” supposed to avoid participating
in violent activities, “if he could avoid it.” The Latin Kings were restructuring and, so, at the
FBI’s request, Pannell sought and became the gang’s “enforcer.”1
¶ 21 Camacho was Pannell’s “handler” and they spoke “very often.” Camacho gave Pannell
a recording device. She agreed that Pannell was responsible for operating the device and
could control when he turned it on and off. Pannell was supposed to call Camacho and tell
her if he was going to turn on the device, “and he would, yes, sir. [Pannell] was very good
about calling me when there was–when it was warranted as far as the recordings were
concerned.” However, as the “hood enforcer,” he was also given permission to use his
judgment to determine when the recorder should be turned on, particularly in an emergency.
After a recording, Camacho would take the recording device off of Pannell’s person and take
it to be downloaded. Pannell’s first recordings were of monitored drug purchases. Pannell
proved himself trustworthy. Then, with the goal of recording confessions made by a shooter,
Pannell began recording shootings. When asked to describe the recording device, Camacho
explained: “Technically, I’m not supposed to record the device, based on our FBI rules and
procedures, but let’s just say it was–it’s not anything that you would see on TV that would
cause anyone to think that it’s this huge device that would be revealing; but it was small
enough to not compromise [Pannell]’s safety considering I’m actually giving him the device
and I’m not with him.” Further, Camacho explained that, if she or other agents were to
follow Pannell, she would endanger his life because gangs are surveillance-conscious.
1
The enforcer was responsible for making sure the gang members behaved according to the
gang’s rules; if they did not, they could be beaten or killed. The FBI wanted Pannell in that role
because he would have control over the gang’s guns, and it was trying to prevent more violence.
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¶ 22 On November 22, 2005, Pannell called Camacho and sounded panicky; he said he did
not have much time to talk, but he was in a car with other people and there was something
going on that was not good, and he would call her back as soon as he could. Pannell did call
her again later and she met with him. Camacho agreed that Pannell had been involved in
“many, many bad things,” and that she had known him only around three months; however,
in her opinion, she did not believe that Pannell was panicky because he had been involved
in smoking marijuana or spray painting buildings. Rather, she believed he was panicked
because there was a gun in the car and he thought that someone might get killed. On
November 22, 2005, Camacho took Pannell’s recording device off of him and listened to its
contents.
¶ 23 Camacho was familiar with members of the Aurora Latin Kings, and, after identifying
photographs of defendant, Quentin Moore, and Ruben Hernandez, she confirmed that they
were all Latin King gang members. Pannell made approximately 15 recordings for the FBI
between September and November 2005. The recording at issue in this case was his final
recording because, shortly thereafter, he had a dispute with his girlfriend and it was revealed
in front of a police officer that he had been cooperating with the FBI. Concerned for
Pannell’s safety because his identity was compromised, the FBI decided to “pull” Pannell as
an informant. In total, the federal government paid Pannell approximately $20,000; part of
that money was for his services, but part involved relocating him to protect his safety.
Camacho agreed that the FBI also paid for Pannell’s tattoo-removal treatments, as well as
transportation costs whenever he returned to testify. Pannell’s agreement with the FBI did
not terminate on account of his smoking marijuana, his spray painting buildings, or his
domestic battery arrest in November 2005. Camacho agreed that, in light of the foregoing,
Pannell was “apparently” not always truthful.
¶ 24 4. Informant Pannell
¶ 25 Pannell testified that he grew up in Aurora and lived there until 2005. In 2000, at age 20,
he became a member of the Latin Kings by committing multiple shootings. In 2004, while
serving a sentence for residential burglary and aggravated fleeing and eluding, police came
to discuss with Pannell a murder in which they had heard he was involved. At that time, it
became apparent to Pannell that members of his gang were providing information about him
to the State, which “bothered” him. Pannell agreed to cooperate with authorities. In turn,
Pannell’s prison sentence was vacated, he was released, and his conviction was reduced from
a nonprobationable to a probationable offense. Further, another felony was removed from his
record; his driver’s license, which had been revoked, was returned; he received money; and
he received immunity for his past crimes, including a murder.
¶ 26 On cross-examination, defense counsel thoroughly explored Pannell’s past crimes, the
benefits he received through his cooperation, and the fact that it was upon his word that the
State was asking the jury to believe who said and did what on the night of the offense.
Pannell agreed that, before he began cooperating with law enforcement, he committed “a lot
of very violent crimes.” Because informants against Latin Kings are killed, the government
relocated Pannell after he was arrested in late November 2005 for domestic battery and, in
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the investigation thereof, his identity was compromised. Since being relocated, Pannell has
been called back to testify four or five times, and the government pays for his traveling
expenses.2 In total, Pannell estimated that he had been paid approximately $30,000 for his
work with the authorities, and he was given the use of an automobile prior to buying his own
(with money he received from the government).
¶ 27 The FBI gave Pannell a recording device, and he agreed to activate it to get evidence
regarding past crimes and to record current crimes. On November 22, 2005, Pannell took his
car to an auto repair garage. Latin King member Quentin Moore picked him up at the garage
in Moore’s green Bonneville. Defendant and Ruben Hernandez, also Latin King members,
were in the car. Moore drove, while Hernandez sat in the front passenger seat; Pannell sat
in the back behind Moore and defendant sat in the back behind Hernandez. The four men
carried spray paint to cover graffiti that rival gangs had painted in Latin King territory.
Pannell knew that the spray painting, called “tagging,” constituted vandalism and was
considered illegal gang activity. The men wore gloves and hooded sweatshirts, so that they
could cover their heads and faces with the hoods while working. Pannell could not recall the
color of his sweatshirt. Moore had a gun in the car; it was a 9-millimeter Beretta, which is
a semiautomatic handgun. At some point, they stopped briefly at a friend’s home. Pannell
turned on his recording device.
¶ 28 While they were painting, defendant noticed a man on foot (Ramos) whom he believed
to be a member of the Insane Deuces, a rival gang. The men began plotting how to catch up
with the man to shoot him; Pannell, however, was not plotting, because he was working with
the government. Moore parked in an alley so that defendant could get out of the car and catch
up with Ramos. Hernandez gave defendant the gun, and defendant put it in his sweatshirt’s
outside pocket. Pannell, Moore, and Hernandez stayed in the car while defendant exited;
however, Moore noticed some graffiti and Pannell got out to cover it. As Pannell finished
and returned to the car, defendant returned also. They got back in the car, and defendant
related that, when Ramos had noticed him coming with his hood up, Ramos got scared and
ran off. Defendant said he knew exactly where Ramos was heading, and he then instructed
Moore on how they could drive to catch up with him. Defendant wanted to get to a location
and park, so that they could ambush Ramos when he arrived.
¶ 29 Defendant wiped the gun with a towel, threw it on the middle backseat, and put the towel
over it. Pannell, sitting on the other side, reached over and, through the towel, pushed a
button on the gun to remove the clip that holds the ammunition; he dragged the clip out and
stuffed it between the seat cushions. While Pannell explained that he did not know if a bullet
was still in the gun’s chamber, by removing the clip he removed any other bullets. He did so
because he did not want anyone killed. When they arrived at the second location, defendant
grabbed the gun, put it in his sweatshirt pocket, and exited the vehicle. Pannell saw defendant
stand between two houses until Ramos appeared.
¶ 30 At that point, Pannell’s cell phone, which was located in the same area as the gun clip,
2
Apparently, after he was relocated, Pannell used cocaine, went to rehabilitation, and was
jailed for driving under the influence.
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began to ring. When Pannell reached to pick up his phone, he noticed that Hernandez was
looking back at him. Pannell thought that Hernandez saw the clip, so he grabbed it and said
“[defendant] doesn’t have the clip.” Hernandez told Pannell to go give it to defendant, in case
Ramos, whom they believed to be an Insane Deuce, had a gun and tried to open fire on
defendant. Pannell exited the car while Hernandez began trying to call defendant to let him
know he did not have the clip. About the same time, Ramos appeared, and defendant came
out and fired at him. Pannell heard the gunshot and saw defendant fire. Pannell, holding the
clip, started running across the street toward defendant, calling defendant’s name. Ramos
was running away, screaming, “I’m not a King, I’m not a King, I’m not a King.” Pannell met
up with defendant and said to him, “you have no clip, you have no clip,” and they ran back
to the car.
¶ 31 When they got inside the car, defendant said, “I almost had him. I almost had him.”
Hernandez said to defendant that “you better finish this since he’s seen us. You better kill
that person.” They began driving to find Ramos, and defendant was going to “just gun him
down.” As they neared a busy street, they saw that Ramos had stopped traffic and was in the
middle of the street; because there were several vehicles stopped on a major road, at 12:30
p.m., they abandoned Ramos and left to hide. They went to a friend’s home where they
smoked marijuana, defendant showered, and they waited for time to pass. Later, Pannell was
dropped off at another friend’s house. Pannell telephoned Camacho, who met him at another
location. Pannell gave Camacho the recording of the shooting.
¶ 32 Pannell testified that, while he knew that graffiti and smoking marijuana were illegal, his
refusal to do so would have raised flags with the other gang members because to them those
things were such small crimes that not participating would have been suspicious. Pannell
explained that, if the Latin Kings found out he was an informant, he would have been killed.
¶ 33 The court recessed. Outside the jury’s presence, the court explained its understanding that
the next part of Pannell’s testimony would lead to the introduction of the oral recording he
testified he made. The State explained that it did not plan to play the entire recording and
that, in addition to the recording, it had a transcript for the jurors. The transcript was of the
entire recording, but the State planned to direct the jurors to the point in the transcript where
it was starting the recording.
¶ 34 Defense counsel objected. First, he argued that the recording was incomplete and that he
had never seen or heard the complete tape; he argued that someone, who remained
unidentified, had deleted portions, claiming they were irrelevant, which was reflected at least
three times in the transcript. Also, counsel argued, the transcript contained portions that were
highlighted by bold print, and numerous points were noted as unintelligible and with
unidentified speakers. Further, counsel objected to a lack of foundation for the recording. He
argued that the only evidence presented was that Pannell wore a body recorder, but that
Camacho had not described the equipment, what technique was used, how the recording was
transferred to a CD, or any chain of custody or provided any other authentication. Also,
counsel argued, there was no foundation or authentication for the transcript. Counsel argued
that there was no evidence regarding who prepared it and the process used to do so.
¶ 35 The State disagreed, arguing that Pannell could authenticate the recording because he had
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listened to it and could testify that the recording reflected what happened that day. As for the
transcript, the State argued that it could “use whatever type of transcript” it wanted, and, if
the defense did not like it, counsel could make arguments about it. It explained that it
planned to stop the recording at various points to ask Pannell the identities of the voices
being heard. Finally, the State noted that there were a couple of different recordings, the
original recording and an enhanced version, and that both had been tendered to the defense.
The State indicated that someone with the FBI, not the State’s Attorney’s office, prepared
the transcript.
¶ 36 The court noted that an unidentified person made the transcript and that there were
changes made to the transcript between discovery and trial; accordingly, when people “are
picking and choosing what’s going in there,” the transcript might not be accurate. However,
the court noted that the recording, not the transcript, was the evidence. It ruled that it would
not allow the transcript into evidence, but it would allow the jury to follow along in the
transcript while listening to the recording. “As soon as it’s over, I’m taking it back from
them. It’s not going back with them.” In response to the State’s request that the entire
recording go into evidence, even though it planned to play only portions of it, the court
agreed that “the tape will go into evidence. I don’t have any problem with that because
[Pannell’s] going to authenticate it, right? *** Based on that, that will be enough sufficient
foundation as far as the court [sic].”3
¶ 37 The court further noted that there was an original conversation that was hard to hear, and
then another copy of the recording that was “cleaned up” to make it easier to hear. Defense
counsel again noted that, in the transcript being provided to the jury, there was occasional
bolded text, highlighting portions of the transcript. The court agreed, but noted that “it’s not
going to go to them. They are only going to be reading it as we go along. I do not like the
highlighting. If it was going back to the jury, that would be reason not to send it back. But
since it’s not going to go back with them, I’m going to allow it over your objection ***.”
¶ 38 Pannell returned to the stand and the jury was brought back in. The court informed the
jury that portions of an audio recording would be played, that it would be stopped and started
as necessary so that the jury did not have to sit through a 1.5-hour tape, and that the transcript
was simply an aid while listening to the recording. The court allowed the State to distribute
the transcript to the jurors and to direct the jurors to the transcript pages as the recording
played. Later, the court collected the transcripts.
¶ 39 Before starting the recording, the State asked Pannell if, “prior to coming in to court
today and at times in the past, [he had] had occasion to listen to the tape recording?” He
replied, “yes.” The State asked if the recording was “an accurate recording of the
conversations that you recorded that day?” Again, he replied, “yes.” Pannell explained that
3
When the State informed the court that it intended to play only portions of the recording,
it nevertheless noted that it wanted the entire recording admitted into evidence. “If that’s going to
be objected to, then we’ll play the whole tape. I don’t think there is a reason for them to have to sit
in open court and listen to the whole thing because there’s a lot of, you know, music, chatting.”
Defense counsel did not object to the playing of only portions of the recording during trial.
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several portions of the recording were inaudible because the recording device was underneath
his clothing. The recording was played, beginning with page one of the transcript, reflecting
when Pannell turned on the recording device. The State then directed the jury and Pannell
to page 30 of the transcript and played that portion of the recording. The State asked Pannell
what was happening at that time. Pannell explained that he was outside of the vehicle, spray
painting, and that the static heard on the recording reflected his movement.
¶ 40 Next, someone on the recording, whom Pannell identified as defendant, spotted Ramos
and said “he’s a Dukie,” which is a derogatory slang word for Deuce. Pannell identified a
voice that said “Damn, then he’ll see my face” as defendant’s voice. He identified a voice
that said “You want a bandana” as Hernandez’s. He also identified a voice that said “You
look like a bank robber” as his own. Pannell explained that, when defendant got out of the
car the second time, after originally seeing Ramos, he wore over his face a black bandana
that Hernandez had handed to him. Once he put it on, one could see only defendant’s eyes
and part of his forehead. Otherwise, defendant’s face just appeared black. Pannell identified
defendant’s voice as saying, “Take a left. I know exactly how to catch him up ***.” Pannell
identified and explained additional portions of the recording, including when defendant
exited the vehicle, the sound of the gunshot, the sound of his own running as he got back into
the car with defendant, and defendant saying “I had to bump that ‘nigga’ ” (which means kill
him), “it was all over for him,” “I was chasin’, chasing down the block,” and “I kept hearin’
click, click, click.” Pannell identified the time in the recording when they pulled up at their
friend’s house and exited the car, the sound of the car doors, and the sound of defendant’s
voice asking if he could take a quick shower.
¶ 41 Pannell was asked on cross-examination if he was wearing a black, hooded sweatshirt,
and he answered, “yes.” He was asked if defendant was wearing a white, hooded sweatshirt,
and he said, “yes.” Also on cross-examination, defense counsel noted that Pannell testified
that he was on the phone with his girlfriend before the shot was fired, that Hernandez called
defendant to tell him to return to the car because he had no clip, and that they were all
directing defendant to return to the car. Further, according to his testimony, after the shot was
fired, Pannell exited the vehicle and began running toward defendant, with Pannell holding
the clip and defendant holding the gun. Defense counsel then pointed Pannell to a part in the
transcript (but did not play the corresponding part of the recording) that said: “Come on hurry
up. Give me the clip. Give me the clip. Augustine.” Counsel asked who made that statement,
and Pannell answered, “without hearing it, I’m not sure.” Counsel asked Pannell, if defendant
had the gun with no clip, how would defendant be able to give anybody the clip? Pannell
answered, “like I said, without hearing it, I wouldn’t know. This transcript is not accurately
printed out as to what’s on the tape.”
¶ 42 On redirect, the State played that portion of the recording, and asked Pannell to explain
who was speaking. Pannell explained that he could be heard yelling defendant’s name
(Augustine) and then Hernandez said “Come on hurry up. Give him the clip, Give him the
clip.” Then Pannell opened the door and started running, yelling “Augustine” as he jumped
out of the car. On the recording, he identified the sound of the gunshot and the sound of a
door opening. Pannell agreed, however, that while Hernandez said “give him the clip,” and
he, Pannell, said “Augustine,” it appeared on the transcript as though one person said both
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things. Pannell testified that he weighed a little less than 135 pounds at the time of the
incident. Defendant, in contrast, was a “much bigger guy.”
¶ 43 5. Officer Tellner
¶ 44 Officer Dave Tellner was accepted by the court as an expert in gang intelligence. Tellner
testified that the Aurora police department maintains a registry of gang members, gang
affiliates, and gang activity. He testified that, in 2005, defendant, Moore, and Hernandez
were members of the Latin Kings. Tellner had seen defendant in the year preceding trial and
identified a State exhibit as a photograph of defendant.
¶ 45 The State rested. The court denied defendant’s motion for a directed finding. Defendant
offered an exhibit into evidence and then rested. He made another motion for a directed
finding, arguing that there was no proof of an intent to murder; the court denied the motion.
After closing arguments, the court instructed the jury. The instructions included that the
testimony of a person involved in a crime with defendant, i.e., Pannell, should be viewed
with suspicion and caution and carefully examined in light of the other evidence.
¶ 46 6. Deliberations, Verdict, and Posttrial Proceedings
¶ 47 During deliberations, the jury came back with a question and wanted to both hear the
recording and have the transcript to review. Defendant again objected to the admissibility of
the recording and transcript, and the court discussed with the attorneys how to allow the jury
to play the recording. The court responded to the jury’s question by answering, “[w]e are
working on getting the tape to you. I am not going to give you the transcripts.” The court sent
to the jury a computer and the recording, and asked the bailiff to show the jury how to use
them.
¶ 48 The jury returned a verdict of guilty on both counts and signed a special interrogatory,
finding that defendant personally discharged the firearm. The court denied defendant’s
posttrial motions and sentenced him to 26 years’ imprisonment for attempted murder and 10
years’ imprisonment for aggravated discharge of a firearm. Defendant appeals.
¶ 49 II. ANALYSIS
¶ 50 A. Trial In Absentia
¶ 51 Defendant argues first that the trial court erred in proceeding to a trial in absentia.
Defendant argues that, because the court did not admonish him that a trial, as opposed to a
hearing, could proceed in his absence, the admonishments were deficient. Defendant argues
that a hearing and a trial are not the same thing, as evidenced by the fact that local forms and
the Code do not use the terms interchangeably but, rather, use them independently and, at
times, even use both words in the same section (e.g., section 108A-8(c), which prohibits the
use of evidence obtained via illegal use of an eavesdropping device “in any trial, hearing, or
other judicial or administrative proceeding” (725 ILCS 5/108A-8(c) (West 2010))). As such,
where defendant was admonished only that a hearing could proceed in his absence, he
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contends that his failure to appear at trial cannot be interpreted as a knowing waiver of his
right to be present. We disagree.
¶ 52 Trials in absentia are generally abhorred because of their inherent unfairness to a
defendant. The question of whether a trial in absentia violated a defendant’s constitutional
right to be present at trial is a legal one reviewed de novo. People v. Liss, 2012 IL App (2d)
101191, ¶ 10.
¶ 53 “The right to be present at trial is of constitutional dimension and can only be waived by
a defendant himself.” People v. Lester, 165 Ill. App. 3d 1056, 1058 (1988). A defendant’s
voluntary absence from trial may be construed as an effective waiver of his or her
constitutional right to be present. Liss, 2012 IL App (2d) 101191, ¶ 11. However, a waiver
of the right to be present at trial is valid if the record indicates that the defendant was aware
of the right he or she was waiving. Lester, 165 Ill. App. 3d at 1058. As such, in Illinois, a
defendant has a statutory right to be orally admonished regarding the possible consequences
of failing to appear in court when required. People v. Phillips, 242 Ill. 2d 189, 195 (2011).
Specifically, section 113-4(e) of the Code provides that, if a defendant pleads not guilty, the
court:
“shall advise him at that time or at any later court date on which he is present that if he
escapes from custody or is released on bond and fails to appear in court when required
by the court that his failure to appear would constitute a waiver of his right to confront
the witnesses against him and trial could proceed in his absence.” 725 ILCS 5/113-4(e)
(West 2008).
The court must orally admonish the defendant; preprinted bond slips that warn of the
possibility of trial in absentia are not, alone, sufficient to support a knowing waiver of the
right to be present at trial. See Phillips, 242 Ill. 2d at 199; see also People v. Green, 190 Ill.
App. 3d 271, 272-74 (1989); Lester, 165 Ill. App. 3d at 1057.
¶ 54 However, the primary purpose of section 113-4(e) is to prevent “bail jumping” and to
promote speedy judgment. Phillips, 242 Ill. 2d at 196. “To allow a defendant to stop trial
proceedings by his voluntary absence would allow him to profit from his own wrong.”
People v. Johnston, 160 Ill. App. 3d 536, 540 (1987). As such, “[a] defendant who is
properly admonished that trial might proceed in his absence, has notice of his trial date, and
voluntarily fails to appear offering no explanation for his absence may be tried in absentia.”
Id.; see also People v. Lane, 2011 IL App (3d) 080858, ¶ 22.
¶ 55 Further, while a trial court must orally admonish a defendant pursuant to section 113-
4(e), only “substantial compliance” with that section is necessary to permit the trial of an
absent defendant.4 See Liss, 2012 IL App (2d) 101191, ¶ 17; see also Phillips, 242 Ill. 2d at
4
A trial in absentia requires compliance with section 115-4.1(a) of the Code, which provides:
“When a defendant after arrest and an initial court appearance for a non-capital felony or
a misdemeanor, fails to appear for trial, at the request of the State and after the State has
affirmatively proven through substantial evidence that the defendant is willfully avoiding
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199 (there cannot be “substantial compliance” with the Code where the trial judge did not,
in any way, admonish the defendant pursuant to section 113-4(e)).
¶ 56 In People v. Condon, 272 Ill. App. 3d 437, 442 (1995), overruled on other grounds by
Phillips, 242 Ill. 2d at 200-01,5 the court held that “[s]ubstantial, not perfect, compliance with
section 113-4(e) is required to legitimize a trial in absentia.” There, the defendant first signed
a form admonishing him that he had a right to be present at “the proceedings” and that, if he
did not appear, he could be “tried” in his absence. Later, the defendant was orally reminded
that “the proceedings” could go forward in his absence and that he had an obligation to
appear on scheduled court dates. On appeal, the defendant argued that the oral admonition
did not satisfy section 113-4(e)’s requirements, because the court stated that the
“proceedings” could go forward, not, specifically, that the trial could go forward. The court
rejected this argument, noting that, even if the oral admonition presumed an understanding
of the word “proceedings,” the written admonition had specified that the trial could proceed
in his absence. Holding that substantial compliance was all that was required, the court
determined that the “combination of the written admonition and the oral admonition”
constituted substantial compliance because together they sufficiently conveyed to the
defendant that, if he did not appear for trial, the trial could proceed without him. Id.; see also
People v. Broyld, 146 Ill. App. 3d 693, 698 (1986) (reversal not required where “imperfect
admonishment” informed the defendant that a trial could proceed in her absence but not that,
by failing to appear, she would be waiving her right to confront the witnesses against her).
¶ 57 Here, defendant was admonished that if he failed to appear at “any scheduled court
hearing, that would be considered a waiver of [his] right to confront the witnesses against
[him] and that hearing could proceed in [his] absence.” (Emphases added.) Obviously, the
better practice would be for trial judges, when giving the section 113-4(e) admonishment,
to use the word “trial.” However, while the admonishment here was not perfect, in that the
court used the word “hearing,” instead of “trial,” we conclude that it substantially complied
with section 113-4(e)’s requirements and sufficiently informed defendant that, if he failed
to appear, trial could proceed in his absence. We simply disagree with defendant’s argument
that, because the words “hearing” and “trial” are sometimes used separately, the words “any
hearing,” as used here, insufficiently encompassed a trial. To the contrary, we think that,
when defendant was admonished that a failure to appear at “any hearing” could result in that
hearing proceeding in his absence, he was sufficiently admonished, in substantial compliance
with section 113-4(e)’s requirements, that the failure to appear at any scheduled court
hearing, including a trial, could result in waiver of his rights.
¶ 58 Further, as in Condon, defendant here did not receive only an oral admonition. Rather,
in addition to the oral admonition, defendant signed a bond form, which stated that he must
trial, the court may commence trial in the absence of the defendant.” 725 ILCS 5/115-4.1(a)
(West 2008).
Defendant does not argue on appeal that section 115-4.1(a) was violated.
5
The decision in Condon was overruled by the supreme court in Phillips only to the extent
it suggested that written admonitions, alone, could satisfy section 113-4(e)’s requirements.
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appear at all scheduled court hearings and that, if he failed to do so, trial could proceed in
his absence. Together, the oral admonition and the written bond form sufficiently apprised
defendant that, if he failed to appear, trial could proceed in his absence. As such, where
defendant was sufficiently admonished that trial could proceed in his absence, he was present
at the hearing when trial was scheduled, he did not appear at trial, he offered no explanation
for his absence,6 and efforts to locate him were unsuccessful, the court did not err in
proceeding to try defendant in absentia.
¶ 59 B. Foundation for Audio Recording
¶ 60 Defendant argues next that the court committed reversible error where it allowed the jury
to consider an audio recording that lacked foundation and was prejudicial. Specifically,
defendant contends that the State laid an insufficient foundation and that, to the extent a
foundation was established, it was only to admit the recording as a demonstrative exhibit;
thus, defendant argues, the court erred in permitting its entry as substantive evidence. For the
following reasons, we disagree.
¶ 61 The admissibility of trial evidence rests in the trial court’s sound discretion, and we will
not reverse its ruling absent an abuse of that discretion. People v. Illgen, 145 Ill. 2d 353, 364
(1991). An abuse of discretion occurs when the ruling is arbitrary or fanciful or where no
reasonable person would adopt the trial court’s view. Id. “There is no doubt that sound
recordings are admissible if they are otherwise competent, material and relevant and where
a proper foundation is laid.” People v. Williams, 244 Ill. App. 3d 669, 673 (1993). An
adequate foundation for admission of a sound recording into evidence exists if a witness to
the recorded conversation testifies that the recording accurately portrays the conversation in
question. People v. Williams, 109 Ill. 2d 327, 338 (1985).
¶ 62 Defendant concedes the foregoing, but he asserts that, generally, when a witness testifies
that he was present at the time the recording was made and that the recording accurately
reflects the conversation, the recording becomes admissible for only demonstrative purposes.
Here, defendant argues, the audio recording was admitted substantively and required
additional authentication. Specifically, to admit an audio recording substantively, defendant
asserts, the “silent witness” method requires “evidence on the capability of the device for
recording, the competency of its operator, the proper operation of the device, the preservation
of the recording with no changes additions or deletions, and the identification of the persons,
locale, or objects depicted sufficient to make a clear showing of relevance.” People v.
Dennis, 2011 IL App (5th) 090346, ¶ 23; see also People v. Taylor, 2011 IL 110067, ¶ 35.
Defendant argues that the State here failed to satisfy this standard. We disagree.
¶ 63 We conclude that sufficient foundation existed here such that the trial court’s decision
to admit the recording as substantive evidence was not an abuse of discretion. In so
concluding, we are mindful of the supreme court’s decision in Taylor, wherein the court
stated that, while a court may look to many factors to determine whether a proper foundation
has been laid for a recording, “we emphasize that this list of factors is nonexclusive. Each
6
In fact, no explanation for defendant’s absence was ever offered below or on appeal.
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case must be evaluated on its own and depending on the facts of the case, some of the factors
may not be relevant or additional factors may need to be considered. The dispositive issue
in every case is the accuracy and reliability of the process that produced the recording.”
Taylor, 2011 IL 110067, ¶ 35.
¶ 64 Here, the combination of Pannell’s and Camacho’s testimonies provided sufficient
foundation such that the court’s decision to admit the recording was not an abuse of
discretion. Specifically, Pannell, a witness to the events, testified that he turned on the
recording device given to him by the FBI. We note that the fact that the recording exists
evidences that the device was functional and that Pannell knew how to operate it. See id.
¶ 39. Pannell further testified that, after the events at issue, he met with Camacho and she
personally took the recording from him. Finally, Pannell testified that, prior to coming into
court, he had listened to the recording and that it was an accurate recording of the
conversations and events that he witnessed and recorded.
¶ 65 Camacho, in turn, testified that she gave Pannell the recording device, although FBI
policy precluded her from describing the actual device in detail. She testified that Pannell
telephoned her on November 22, 2005, to alert her that something might happen, that he
normally called her before he began recording, and that he later telephoned her again to meet
with him. That same day, Camacho met with Pannell, removed the recording from Pannell’s
person, and listened to its contents. Finally, Camacho testified that, after Pannell made a
recording, she would take the recording device off of Pannell’s person and then take the
recording to be downloaded, presumably at the FBI’s offices.
¶ 66 It is true that the evidence does not reflect specifically to whom Camacho gave the
recording and who transferred the recording to a CD. However, as long as there are other
factors demonstrating the authenticity of a recording, a strict chain of custody is unnecessary.
Id. ¶ 41. “Even if one link in the chain of custody is missing, if there is testimony describing
the condition of the evidence when delivered that matches the description of the evidence
when examined, the evidence is sufficient to establish a chain of custody.” Dennis, 2011 IL
App (5th) 090346, ¶ 28. Here, defendant testified that he gave the recording to Camacho,
Camacho testified that she took the recording from defendant and took it to be downloaded,
and defendant testified that he listened to the recording as downloaded on the CD and that
it accurately reflected the events he witnessed. Any gaps in the chain of custody go to weight,
not admissibility. Taylor, 2011 IL 110067, ¶ 41.
¶ 67 We note that “neither in the circuit court nor before this court does the defendant make
a colorable claim that the recording is not authentic or accurate.” Dennis, 2011 IL App (5th)
090346, ¶ 28. Where a defendant does not present any actual evidence of tampering,
substitution, or contamination, the State need establish only a probability that those things
did not occur. Id. Any deficiencies go to the weight, rather than the admissibility, of the
evidence. Id. We acknowledge that, in argument, the parties and the court discussed the fact
that there were two copies of the recording, with one being “enhanced” to provide a cleaner,
more intelligible sound. While defense counsel originally suggested that he had not heard the
full recording and that portions were deleted by unidentified persons, the State represented
that the original and “cleaned up” versions had been produced. Defense counsel thereafter
appeared to abandon that claim, focusing instead on the transcript, but we note that counsel
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never argued that the recording was actually fabricated or tampered with improperly. In any
event, even if portions of the recording here were deleted, the supreme court in Taylor held
that it is too restrictive to expect that no deletions will be made when an original recording
is copied, noting, for example, that “unimportant, irrelevant, prejudicial, privileged and/or
confidential material should be removed.” Taylor, 2011 IL 110067, ¶ 44. Additionally, “the
more important criteri[on] is that the edits cannot affect the reliability or trustworthiness of
the recording. In other words, the edits cannot show that the recording was tampered with
or fabricated.” Id. The court noted that most editing will not render the evidence inadmissible
but, rather, will go to the weight of the evidence. Id.
¶ 68 To the extent defendant argues that the court should not have allowed the recording to
go back to the jury, this argument is forfeited, as defendant’s arguments below challenged
foundation, not the propriety of allowing the jury to have the recording, portions of which
it had already heard.7 In any event, a recording may, in the court’s discretion, be employed
in the jury room. People v. Manuel, 294 Ill. App. 3d 113, 126 (1997). Here, where the court
properly admitted the recording as substantive evidence and the jury heard portions of the
recording during the trial, we find no abuse of discretion in permitting the recording, at the
jury’s request, to go to the jury room.
¶ 69 In sum, the court did not abuse its discretion in admitting the recording as substantive
evidence. Pannell, a witness to the recorded events, was present to testify to the accuracy of
the recording, and additional factors demonstrated its reliability. Further, any alleged flaws
in chain of custody, quality, etc., go to the weight of the evidence, not admissibility.
¶ 70 C. Transcript
¶ 71 Next, defendant argues that the trial court erred where it permitted the jury to “rely
heavily” on the transcript as an aid. Defendant argues that the transcript was unauthenticated
and inaccurate. For the following reasons, we disagree that the court’s decision–to allow the
jury to review the transcript while the recording was played in court–was an abuse of
discretion.
¶ 72 It is proper “for a trial court to permit the jury to use written transcripts of recorded
conversations in order to assist them while they listen to the conversations.” People v.
Rogers, 187 Ill. App. 3d 126, 132 (1989). In Rogers, the court found no error in the trial
court’s decision to permit the jury to review transcripts while listening to an audio recording,
as: (1) the court admonished the jury that the transcripts were not evidence; (2) the court
collected the transcripts from the jurors after they listened to the recording; and (3) the
witness-informant who was present for the conversations testified that she listened to the
tapes, that she helped prepare the transcripts, and that the transcripts were accurate. Id. at
7
As to the fact that only portions of the recording were played, but the entire recording went
back to the jury, we note that, in argument, the State informed the court that, if defendant objected
to this manner of proceeding, it would play the entire recording in court. Defendant did not object.
Further, there is nothing in the record to indicate that, if defendant on cross-examination had wished
to play additional portions of the recording, he would not have been permitted to do so.
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132-33. The court in Rogers found that the aforementioned facts distinguished the case from
People v. Melchor, 136 Ill. App. 3d 708 (1985), the primary case upon which defendant
relies here, because in Melchor there was no testimony establishing the authenticity of the
transcripts or the identities of the speakers on the tapes; further, because there was no
evidence identifying the speakers on the recording, the transcripts, without any
authentication, were the only method of linking the defendant to the crime. In contrast, the
Rogers court held, the problem in Melchor was not present in the case before it, because the
informant’s testimony authenticated the transcripts and identified the speakers on the tapes.
Rogers, 187 Ill. App. 3d at 133. Finally, the court rejected the defendant’s arguments that
there was reversible error because of inaccuracies in the transcripts. Id. at 133-34. The court
acknowledged one point where the informant’s testimony differed from the transcripts, and
that the informant denied making a statement as reflected in the transcripts. Id. However, it
found no prejudice, because the informant testified to her own independent recollection, the
jury listened to the tapes, and the distinction was brought to the jury’s attention. Id. at 134.
Further, although the court found in its own review of the tapes and transcripts other minor
inaccuracies, they were not so severe as to prejudice the defendant or establish error in the
trial court’s decision to permit the jury to use the transcripts. Id.
¶ 73 Here, we are presented with a set of facts more similar to Rogers than to Melchor.
Although the State represented that it did not prepare the transcript–rather, the FBI prepared
the transcript when it produced the recording–it was for this very reason (coupled with the
fact that some portions of the transcript appeared in a bolded font) that the court denied the
State’s request to admit the transcript into evidence.8 Instead, the court: (1) held that the jury
could use the transcript only as a guide, with the recording being the evidence; (2)
admonished the jury that the transcript was only a guide; (3) collected the transcript from the
jurors after they heard the recording; and (4) denied the jury’s request for the transcript
during deliberations. We agree with the court in People v. Spicer, 61 Ill. App. 3d 748, 759
(1978), rev’d on other grounds, 79 Ill. 2d 173 (1979), that the better practice is for the trial
court to admonish the jury of the purpose of the transcript (i.e., to aid only) and to admonish
the jury that it is to determine for itself the events transpiring on the tape. Nevertheless, like
in Rogers, Pannell, a witness to the events recorded, was present at trial to both review the
transcript and identify the speakers on the recording. Defendant makes much of Pannell’s
comment that, at one point, the transcript did not accurately reflect what was on the
recording. However, in context, it is apparent that, in his cross-examination (and after having
listened to several portions of the recording), defendant identified only one point where the
transcript appeared to differ from Pannell’s testimony on direct examination. Pannell then
noted that, to explain the discrepancy, he would need to hear that portion of the recording.
Upon doing so, Pannell explained that there was an error in the transcript, in that it appeared
8
We caution that we do not condone the use of transcripts with only portions printed in
bolded font, and that the better practice is to use a clean copy. As explained below, however, the use
of the transcript here was not an abuse of discretion where Pannell was available to review the
transcript and was subjected to cross-examination regarding its accuracy, and where the jury was not
permitted to retain the transcript.
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to show only one person as making a statement when, in fact, the comments were made by
two different people. Thus, the alleged inaccuracy was explained to the jury, and the jury was
free to accept or reject that explanation.
¶ 74 As the jury was instructed that the transcript was to be used only as a guide, Pannell
identified the speakers on the recording, and the only alleged inaccuracy was explained by
Pannell, we do not find error in the court’s decision to permit the jury to use the transcript
as a guide.9
¶ 75 D. Sufficiency of Evidence
¶ 76 Finally, defendant argues that the State failed to prove beyond a reasonable doubt that he
fired a shot at Ramos. He notes that Ramos testified that the assailant wore a black, hooded
sweatshirt, while Pannell testified that defendant wore a white, hooded sweatshirt. Defendant
notes that the only testimony reflecting that he fired a gun came from Pannell, who was a
paid informant facing harsh consequences were he to have been involved in any illegal
activity. Meanwhile, he argues, Ramos testified only that he saw a person, dressed like
Pannell, raise his hand, and then he heard a “pop,” and, thus, the evidence was insufficient
to sustain defendant’s conviction. For the following reasons, we reject defendant’s
sufficiency argument.
¶ 77 When reviewing the sufficiency of the evidence, the relevant question is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis
in original and internal quotation marks omitted.) People v. Cooper, 194 Ill. 2d 419, 430-31
(2000). We will not substitute our judgment for the trier of fact’s and will not reweigh the
evidence. Id. at 431. It is the trier of fact’s responsibility to resolve conflicts in the testimony,
weigh the evidence, and draw reasonable inferences therefrom. Id.
¶ 78 Here, the evidence was sufficient to sustain the jury’s verdict. Both Camacho and Tellner
identified defendant from a photograph. Pannell testified that defendant was in the car with
him, that defendant exited the vehicle after spotting Ramos, an alleged member of a rival
gang, and that defendant then issued driving directions to a location where he could
“ambush” Ramos. When they arrived at the location to which defendant directed them,
defendant exited the vehicle and waited between two homes until Ramos appeared. At that
time, Pannell saw defendant raise his hand and shoot at Ramos. When he returned to the
vehicle, defendant commented that he had tried to kill Ramos, but kept hearing “click, click,
click,” and that later, because he had fired the weapon, defendant showered to wash off any
gunshot residue. Pannell described the foregoing events for the jury, and the jury then heard
9
We note that this court cannot listen to the recording to compare it with the transcript, as
the parties agree that the recording, as presented in the record on appeal, was inexplicably damaged
such that it is inoperable. Further, although two copies of the recording were produced to defendant,
one original and one “enhanced,” it appears (although is not specified) that the “enhanced” version
was played and made part of the record. The record does not reflect, however, the location or
condition of the original recording.
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the recording of those events. This evidence, viewed in the State’s favor, is sufficient to
uphold the jury’s finding that defendant shot at Ramos.
¶ 79 As to defendant’s challenge to Pannell’s credibility on the basis that Pannell was a paid
informant with a violent criminal history and an interest in cooperating with the State, we
note that defense counsel thoroughly brought that information to the jury’s attention. We
further note that the jury had the unique opportunity to ascertain Pannell’s credibility simply
by listening to Pannell’s voice in person, and then comparing his voice to the voices it heard
on the recording. It was within the province of the jury to compare Pannell’s voice and
description of events to the voices and events it heard on the recording and to weigh and
draw inferences from that evidence. In addition, the jury was instructed that it should view
Pannell’s testimony with suspicion and caution and carefully examine it in light of the other
evidence. Accordingly, we will not disturb the jury’s decision to credit Pannell’s testimony.
¶ 80 As to the varying descriptions of the shooter’s appearance, we note that, according to
Hornback, Ramos told him on the day of the event that the shooter was dressed primarily in
black, with a white, hooded sweatshirt. Pannell also testified that defendant wore a white,
hooded sweatshirt and, at the time of the shooting, a black bandana over his face. At trial,
Ramos testified that the shooter wore a black, hooded sweatshirt. However, he also testified
that he was not paying attention “at all” to what the person was wearing, that he “just glanced
over,” and that the person’s head was covered such that he could not see his face. This
description is not inconsistent with Pannell’s description of defendant’s face being covered
in black. Further, Ramos testified that the shooter was heavyset and likely weighed around
230 pounds. The jury saw Pannell in person and heard him testify that he weighed around
135 pounds. Thus, viewing the evidence in the State’s favor, the jury could have rejected
defendant’s suggestion that Pannell was the shooter, and, instead, could have credited the
evidence that defendant shot at Ramos.
¶ 81 Finally, defendant suggests that there was no shooting, because Ramos testified to
hearing a “pop,” and no weapon, bullets, or casings were found. Ramos, however, also
testified that he saw a gun, and that he knew that the sound he heard was a gunshot because
he had heard gunshots before. Again, it was the jury’s function to weigh the evidence and
draw inferences therefrom. In sum, we reject defendant’s arguments.
¶ 82 III. CONCLUSION
¶ 83 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 84 Affirmed.
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