People v. Holliday

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Appellate Court Date: 2020.06.14
13:35:22 -05'00'
People v. Holliday, 2020 IL App (5th) 160547Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DARIUS HOLLIDAY, Defendant-Appellant.
District & No. Fifth District
No. 5-16-0547
Rule 23 order filed February 19, 2020
Motion to
publish allowed March 3, 2020
Opinion filed March 3, 2020
Decision Under Appeal from the Circuit Court of Marion County, No. 16-CF-188; the
Review Hon. Allan F. Lolie, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Ellen J. Curry, and Lawrence J. O’Neill, of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
Bill J. Milner, State’s Attorney, of Salem (Patrick Delfino, Patrick D.
Daly, and Sharon Shanahan, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE OVERSTREET delivered the judgment of the court, with
opinion.
Presiding Justice Welch and Justice Boie concurred in the judgment
and opinion.
OPINION
¶1 The defendant was convicted by a jury of two counts of aggravated battery with a firearm
and sentenced to two concurrent terms of 30 years in prison, with 3 years of mandatory
supervised release. On appeal, the defendant challenges his conviction, claiming that the circuit
court abused its discretion in denying his motion to discharge the jury, that photographs
admitted into evidence were not properly authenticated by the State, and that the State
improperly used a prior consistent statement of a complaining witness to bolster his credibility.
For the following reasons, we affirm.
¶2 BACKGROUND
¶3 On June 8, 2016, the State charged the defendant, by information, with one count of
aggravated battery in that the defendant, in committing a battery in violation of section
12-3(a)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/12-3(a)(1) (West
2016)), knowingly caused bodily harm to Devale L. Johnson by discharging a firearm and
caused injury to Devale, in that bullets fired by the defendant struck Devale in the leg and
buttocks, in violation of section 12-3.05(e)(1) of the Criminal Code (id. § 12-3.05(e)(1)). The
information further charged the defendant with one count of aggravated battery in that the
defendant, in committing a battery in violation of section 12-3(a)(1) of the Criminal Code (id.
§ 12-3(a)(1)), knowingly caused bodily harm to Juan R. Hayes by discharging a firearm and
caused injury to Juan, in that a bullet fired by the defendant struck Juan in the leg, in violation
of section 12-3.05(e)(1) of the Criminal Code (id. § 12-3.05(e)(1)).
¶4 On October 4, 2016, before trial, the parties filed a stipulation of evidence in reference to,
inter alia, an exhibit containing three Facebook photographs. The stipulation provided as
follows:
“The Parties hereby stipulate to the foundation regarding a page containing three
photographs of the defendant. The Parties have agreed that all writing will be removed
from said page, and that testimony regarding the contents of said writing will be barred.
To the extent testimony is adduced regarding the origin of the photograph[s], the
People’s witness([e]s) will be instructed only to state that [they] came from a Facebook
page possibly believed to be that of the defendant.”
¶5 A jury trial was conducted on October 5 and 6, 2016. During voir dire, the circuit court
held an in-chambers conference with counsel, the defendant, and Officer Peebles from the
Centralia Police Department. There, Officer Peebles indicated that he was aware of a telephone
call originating from the Marion County jail. The call was made by the defendant to an
individual named Therion, with whom Peebles was familiar because he had “arrested him
several times.” Peebles testified that the telephone call was recorded. During the telephone
call, the defendant indicated that he was “worried about nothing but the guy who put him ***
there.” Therion told the defendant, “Don’t worry, man, because I’m trying to *** get it taken
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care of right now.” Peebles informed the circuit court that the call invoked concern that “he
was going to try to in some way intimidate the victim in the case.”
¶6 The circuit court advised that Detective Decker reported inappropriate behavior at the
courthouse that day by individuals who were removed from courthouse property. Peebles
responded that said events transpired downstairs. He reported that while Devale—one of the
alleged victims in the case—was entering, Therion and another individual named Javonte
Simms were there and, instead of walking around Devale, “tried to walk through him in a way
to intimidate him.” Peebles added that Therion and Simms were required to leave, as it was
“clearly a tactic to try to intimidate Mr. Johnson.”
¶7 The state’s attorney indicated that, when questioned about the situation, Devale reported
that “there was slight contact, but nothing *** major.” The state’s attorney further reported
that Detective Uhls also witnessed the event and reported that one of the individuals seemed
to whisper something in Devale’s ear before being pulled away by officers. Officer Peebles
added that the events transpired just as the witnesses were arriving at the courthouse. When
asked if there were any potential jurors present during the incident, Peebles responded, “I’m
thinking court was going on, but I can’t guarantee it.” The state’s attorney indicated that “it
appeared all prospective jurors were still inside being questioned[,] [s]o I don’t think anyone
would have been downstairs.” The assistant state’s attorney interjected, however, that she
received a text message indicating that a juror had witnessed the situation. The circuit court
advised that a general inquiry of the jury panel would be made as to whether anything had
occurred that morning that they wished to report to the court. No objections were made by
either party.
¶8 After voir dire was concluded and the jury was selected, the circuit court conducted another
in-chambers conference. There, the circuit court indicated that, after the prior in-chambers
conference concluded, Detective Decker informed the court that people who were wearing jury
badges were observed downstairs when the incident occurred. The circuit court stated that the
jury would be asked general questions and added that “I’m not going to allude to anything. ***
I don’t want to draw any undue attention to this. I don’t want *** the defendant to be prejudiced
in any way, but I also want to make sure I don’t have jurors[ ] who may feel intimidated for
some reason.”
¶9 Upon returning to the courtroom, the alternate juror was selected, and other potential
alternate jurors were excused. Subsequently, the circuit court called a recess and went on the
record in chambers again with counsel and the defendant. The circuit court stated that the jurors
would be questioned about the incident before being sworn in. Counsel had conferred with the
circuit court prior to going on the record and had reached an agreement regarding how to frame
the question to the jurors. Defense counsel replied that there was no objection to the circuit
court questioning the jury as agreed.
¶ 10 The circuit court indicated: “I just wanted to make sure that hasn’t planted any seeds that
would make it difficult to give [the defendant] a fair trial.” The assistant state’s attorney
replied:
“[T]he parties[’] concern is that the possible jurors may not realize it’s at all related to
this and would not realize it until a witness involved in it came into the courtroom to
testify. I think that’s the concern, but pointing it out would then of course immediately
prejudice [the defendant]. So we’re trying to avoid that as well.”
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The circuit court asked defense counsel if there was anything he wanted to add, to which he
replied, “Not at this time, Your Honor.”
¶ 11 Upon reconvening in the courtroom and before swearing in the jurors, the circuit court
questioned the jury as follows: “Since you’ve been in the courthouse today have you witnessed
anything outside of the courtroom that caused you concern or caused you any difficulty here
today? If so, raise your hand.” The circuit court added, “And has anyone tried to discuss this
case with you in any way today? If so, raise your hand.” The circuit court then observed,
“Everyone indicates negatively.” When offered, neither counsel had anything to add.
¶ 12 After the foregoing questioning and before the jury was sworn, a sidebar conference was
conducted, where defense counsel moved to discharge the entire panel and to continue the trial
based on concerns about what the jurors may or may not have seen downstairs. Defense counsel
added, “There’s no way even with your questioning of telling what they have seen, and they
might not even realize they saw something that could be related to this case until the witness
actually shows up on the stand.” The circuit court denied the motion, observing that the court
had just met with counsel in chambers and all had agreed with the method of questioning the
jurors. The circuit court added, however, that “[i]f something would arise later in the trial, I
would reevaluate this ruling.”
¶ 13 After the jury was sworn, Devale took the stand and testified that he was 19 years old and
had resided in Atlanta, Georgia, for the last couple of years. In June 2016, he was staying with
family members in Centralia. On June 5, 2016, Devale received a telephone call from his
cousin, Caprice, who was crying because she was riding her bicycle and two men were
following her. Caprice gave a physical description of the men. Accordingly, Devale,
accompanied by his cousins and Caprice’s brothers, Kiwan and Jeff, set out to look for the
men. Devale testified on cross-examination that it was after 9 p.m. at this time. Devale, Kiwan,
and Jeff went to Laura Leake Park and saw two men matching Caprice’s description. Both men
were riding bicycles. Devale testified that one of the men was light-skinned with dreadlocks
and the other man did not have dreadlocks. Devale indicated that he had never seen either of
the men before.
¶ 14 Devale testified that he, Kiwan, and Jeff approached the two men, and Devale asked them
if they had been following a girl on a bicycle. Devale testified that the men denied doing so
and informed him they did not like how he walked up to them and that they “don’t take no
disrespect.” Devale testified, “I said something back then I walked.” Devale then heard Kiwan
say, “He got a gun.” Devale testified that he turned around and saw that the man without
dreadlocks had a gun. Devale told the man, “[Y]ou shoot me, you better kill me.” Devale
testified that the man began shooting and the first bullet “went right beside me.” He explained,
“I think I got a little graze mark.” Devale testified that he “took off running after that” and
attempted to “zigzag” and take cover behind a white SUV-type truck. He testified that he heard
bullets coming and got shot in the leg and hip. Devale testified that, after being shot, he
proceeded to the white SUV and took cover inside in the backseat. At the time, he did not know
who owned the white SUV. He indicated that his uncle arrived and transported him to the
hospital shortly after the shooting.
¶ 15 People’s Exhibit 1 was introduced to Devale, who identified it as a DVD. The DVD
contained recordings from the surveillance video from the Marion County Housing Authority
(MCHA) property adjacent to the park and depicted a recording of the events on the night of
the shooting. Devale testified as the DVD was played for the jury. After the DVD concluded,
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Devale reiterated that he had never seen the two men before the night in question. He agreed
that he was standing close enough to see the face of the man who shot him.
¶ 16 After the incident, Devale recalled people discussing who the shooter was but testified that
“when I seen [sic] the pictures, I already knew who it was.” Devale added that his cousins
knew who the suspect was and referred to him as “D Rice.” Devale affirmed that, after hearing
the name of the suspect, he went online to verify that the name he was given was in fact the
person who shot him. He testified that he found photographs on Facebook and recognized the
person in the photographs as the defendant. Devale explained that his cousin showed him a
Facebook photograph depicting the defendant holding a gun. Devale testified that the gun in
the photograph “was the same exact gun that I got shot with.”
¶ 17 People’s Exhibit 2—which was admitted via stipulation the day before trial—was
introduced to Devale, who identified the exhibit as the photographs he saw online. He
identified the individual in the photographs as the defendant, identified the defendant in the
courtroom as the individual in the photographs, and confirmed that the gun in the photographs
was the “[s]ame exact one.” The circuit court noted on the record that People’s Exhibit 2 was
admitted without objection.
¶ 18 Devale testified that, two days after he was shot, detectives from Centralia Police
Department came to his aunt’s house where he was staying. The detectives showed Devale
three photograph lineups. People’s Exhibit 3 was admitted into evidence, which Devale
identified as photograph lineup number one. Devale testified that, in that lineup, he identified
the person with the number three over his head as the defendant. When the detectives asked
him if he knew who it was, he responded that he did not know him, but “I know his Facebook
page.” Accordingly, Devale opened his phone and shared the Facebook photograph with the
detectives. Devale identified the defendant in the courtroom as the person he identified in the
lineup. The other two lineups were admitted into evidence as People’s Exhibits 4 and 5. Devale
identified the exhibits and testified that he made no identifications in either lineup. Devale
admitted that he has five pending felony counts of aggravated assault against him in Georgia
but denied being offered any leniency in exchange for testifying in the instant trial.
¶ 19 Kiwan Brown testified that he is 13 years old and in the eighth grade. He testified that
Devale is his older cousin. Kiwan recalled going to Laura Leake Park on June 5, 2016, with
his older brother, Jeff, and Devale to look for some people. He confirmed that his older sister,
Caprice, had been afraid and upset that evening. Kiwan testified that he, Devale, and Jeff
approached two men who were on bicycles and asked them if they had been following Caprice.
He indicated that the men matched the description Caprice had given. Kiwan testified that one
of the men had dreadlocks and the other had an Afro. When asked whether he saw either of
the two men holding a gun, he responded affirmatively. Kiwan testified that he heard gunshots
and began running. He indicated that the man with the dreadlocks ran after him, but he was
able to find a safe place and call for help.
¶ 20 Kiwan testified that, two days later, detectives came to his house and showed him three
photograph lineups. Kiwan testified pursuant to People’s Exhibit 3, that he identified person
number three in that lineup as the individual who shot Devale. People’s Exhibits 4 and 5 were
then shown to Kiwan. He indicated that he did not pick out anyone from the second lineup but
reported that he picked out person number four from the third lineup as the man with the
dreadlocks.
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¶ 21 Kiwan testified on cross-examination that when he, Devale, and Jeff arrived at Laura Leake
Park, he stood back while Devale approached the men. He confirmed that he had seen the man
with dreadlocks around town before, but he had never seen the man with the Afro before that
night. Kiwan indicated that the man with the Afro had a gun that came out of a book bag that
the man with dreadlocks was carrying. He testified that he began to run when he saw the man
with the Afro point the gun at Devale. Kiwan reiterated that he did not know the name of the
shooter, but the next day he began hearing rumors that a man named “D Rice” may have been
involved.
¶ 22 When questioned whether he and Devale had discussed the incident before the police
arrived at the house, Kiwan replied, “Not really.” He further denied looking at any photographs
on Facebook. Kiwan testified that, after the lineup, the officer asked him if he knew the shooter
and he replied that he had heard what his name might be. Kiwan stated that he and Devale were
in separate rooms while the police were showing them the photograph lineups.
¶ 23 Katherine Taylor testified that Juan is her husband. She testified that on the evening of June
5, 2016, she and Juan drove their white Ford Explorer to Laura Leake Park in Centralia. She
testified that once the vehicle was parked, Juan got out of the vehicle and she heard gunfire.
Juan began yelling at her to “get down.” She indicated that she saw Juan and another man
running toward the vehicle and she “kind of ducked down at that point because the gun fire
was still going on.” Katherine testified that when Juan got to the truck, he jumped on top of
her and the other man jumped in on the other side, and “when [Juan] jumped on top of [her]
he got shot.” She indicated that, at the time of the events, she did not know the other man who
jumped in the vehicle.
¶ 24 Andrew Harvard testified that he is employed as an officer for the Centralia Police
Department. Harvard was on duty at approximately 9:15 p.m. on the evening of June 5, 2016,
and was dispatched to Laura Leake Park to respond to a reported shooting in that area. Harvard
testified that, when he arrived at the park, he observed a white Ford Explorer. As he
approached, he noticed a black male—later learned to be Juan—sitting on the passenger side
of the vehicle and screaming that he had been shot. Harvard testified that he inspected the
injury and noticed “a handgun caliber gunshot wound.” Harvard testified that Juan was treated
and transported from the scene by ambulance.
¶ 25 Steve Hulen testified that he is employed as a crime scene investigator for the Illinois State
Police. On June 5, 2016, he was requested to go to Laura Leake Park. He arrived at the scene
around 11:30 p.m., as it took him nearly two hours to drive there. Once he arrived, he was
given initial information, and he photographed the scene, did a rough sketch, and collected
evidence. Hulen testified that, as he photographed, he focused on a white Ford Explorer that
was parked on the west side of the park, as well as a shelter area located in the northwest corner
of the park. Hulen indicated that he, along with the Centralia Police Department, looked for
shell casings at the scene, but none were recovered.
¶ 26 Blaine Uhls testified that he is employed as the sergeant over the detective division of the
Centralia Police Department. He was on duty on the evening of June 5, 2016, when he
responded to the scene at Laura Leake Park. Uhls testified that, upon arrival, he and the
patrolmen began “walking in a grid fashion” using flashlights to light the area. They walked
back and forth looking for shell casings. Uhls explained that shell casings can identify the
weapon used and its caliber. Uhls affirmed that there are situations where gunfire occurs but
shell casings are not found. He explained that firing a “lock breach gun like a single-shot or a
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revolver” will result in an absence of shell casings because, in that type of firearm, the shell
casings remain in the cylinder after each shot. He further explained that the cylinder rotates to
the next round and the process is repeated. Once the rounds are spent, the casings remain
housed inside the cylinder. Uhls testified that no casings were found at the scene,
notwithstanding multiple officers engaging in the search “numerous times from different hang
angles.”
¶ 27 Uhls testified that the MCHA property borders three sides of Laura Leake Park. The police
department obtained video surveillance footage from the MCHA that was recorded on the
evening in question. Uhls indicated that the police department requested and received a one-
hour block of the footage that encompassed the relevant time period. Uhls testified as the
video—People’s Exhibit 1—was shown to the jury. At one point, Uhls noted that the shooter
was “holding his left arm out, fully extended to what appears to be a pistol in his hand.” Uhls
further noted another male with long dreadlocks who was seated on a bicycle next to the
shooter.
¶ 28 Uhls testified that he and Detective Dukes prepared photograph lineups for Devale and
Kiwan to review. Uhls indicated that Devale and Kiwan were not in the same room when they
were shown the lineups. The State asked Uhls if Devale said anything about what he had seen
online. Uhls replied that after Devale was shown the lineups and identified the shooter, Devale
told him about a Facebook photograph of the individual and showed the photograph to Uhls.
Defense counsel did not object to this line of questioning or testimony. People’s Exhibit 2 was
shown to Uhls, who identified the individual in the photographs as the defendant. Uhls
indicated that, in one of the photographs, the defendant is holding what looks to be a revolver
in his left hand. On cross-examination, defense counsel asked Uhls if he questioned Devale
about the gun the shooter used. Uhls repeated that Devale showed him the Facebook
photograph on his phone and indicated that the gun depicted in the photograph was the one he
was shot with.
¶ 29 Uhls testified that, although bicycles are visible on the surveillance video and were seen
by witnesses, no bicycles were found at the scene. Uhls further acknowledged that no book
bag was seen in any of the still photographs that were derived from the surveillance video.
Uhls testified that Devale informed him that he had never seen the shooter before the night in
question and told him that he heard the shooter’s nickname was “D Rice.” The State then asked
Uhls if Devale was questioned about the firearm after being shown the lineups. Uhls replied in
the affirmative.
¶ 30 Uhls agreed that Devale, Kiwan, and Jeff were all at the park together, but Jeff did not wish
to speak to the officers. Uhls confirmed that Kiwan also identified the defendant as the shooter
and identified the man with the dreadlocks as the individual who accompanied the shooter that
night. Kiwan informed Uhls that he had previously seen the man with dreadlocks around town
but had never seen the shooter before.
¶ 31 On the second day of trial, after the jury was brought in and before testimony began, the
circuit court asked the jury: “First of all, does anyone have anything to report? *** If so, raise
your hand.” After no juror raised their hand, Blake Dukes took the stand and testified that he
is employed as a detective with the Centralia Police Department and was on duty the evening
of June 5, 2016, when he responded to the shooting in Laura Leake Park. As a follow-up to the
investigation, Dukes had prepared three photograph lineups that he showed Devale and Kiwan
on June 7, 2016. Dukes testified that, in lineup number one, Devale identified the individual in
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the number three position as the shooter. Dukes added that Devale did not identify anyone
from photo lineups two and three.
¶ 32 Dukes testified that he followed the same procedure in showing Kiwan the lineups. Dukes
reported that in lineup number one, Kiwan picked out individual number three as the shooter.
Dukes added that Kiwan did not identify anyone in lineup number two, but in lineup number
three, he identified the fourth individual as Devarus Mitchell, who accompanied the shooter
that night. Dukes learned that Kiwan was familiar with Devarus Mitchell by seeing him around
the area. Dukes confirmed that Devale and Kiwan were separated and had no contact with each
other while they were being shown the lineups.
¶ 33 After deliberations, the jury found the defendant guilty on both counts of aggravated
battery with a firearm, and the circuit court entered judgment on the verdict. On October 12,
2016, the defendant filed a posttrial motion for judgment notwithstanding the verdict or, in the
alternative, a new trial. On October 25, 2016, after a hearing, the circuit court denied the
motion. On December 20, 2016, the defendant was sentenced to two concurrent terms of 30
years in prison, with 3 years of mandatory supervised release. The defendant filed a timely
notice of appeal.
¶ 34 ANALYSIS
¶ 35 The defendant raises the following issues on appeal, which we restate as follows:
(1) whether the circuit court’s denial of the defendant’s motion to discharge the jury deprived
the defendant of an impartial jury and fair trial, (2) whether the exhibit containing the Facebook
photographs of the defendant that was admitted into evidence via stipulation was properly
authenticated, and (3) whether the State improperly used prior consistent statements of Devale
to bolster his credibility.
¶ 36 I. Motion to Discharge Jury
¶ 37 The first issue on appeal is whether the circuit court’s denial of the defendant’s motion to
discharge the jury deprived the defendant of an impartial jury and fair trial. “It is inherent in a
defendant’s right to a fair trial that he receive a trial by an impartial jury free from outside
influence.” People v. Perez, 98 Ill. App. 3d 64, 67 (1981). “A mistrial is necessary when it
appears that the jury was so influenced and prejudiced that it could not have been fair and
impartial and that the damaging effect could not be cured by admonitions and instructions.”
People v. Clark, 231 Ill. App. 3d 571, 574-75 (1992). “The trial judge determines whether
jurors have been influenced and prejudiced to such an extent that they would not, or could not
be fair and impartial, and this determination will not be disturbed absent an abuse of
discretion.” Jones v. Beck, 2014 IL App (1st) 131124, ¶ 25. “A juror may only be discharged
upon a showing of good cause, and prejudice must be shown in order to warrant reversal.”
(Emphasis in original.) Id.¶ 38 Here, the defendant argues that the circuit court abused its discretion in denying his motion
to discharge the jury because the disturbance in the courthouse hallway tainted the jury in that
the attempted intimidation and harassment of Devale implied a consciousness of guilt and may
have intimidated the jurors. We disagree. This argument is unfounded, as it is not supported
by evidence that any of the selected jurors actually witnessed the disturbance. The defendant
cannot establish the requisite prejudice resulting from the incident without first providing
evidence that any of the jurors in fact witnessed it.
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¶ 39 At the in-chambers conference, when the circuit court asked whether any potential jurors
witnessed the incident, mixed responses were received. Officer Peebles stated, “I’m thinking
court was going on, but I can’t guarantee it.” The state’s attorney responded that it appeared
that all prospective jurors were still inside being questioned. However, the assistant state’s
attorney reported receiving a text message indicating that a potential juror had witnessed the
disturbance. Moreover, at the second in-chambers conference, the circuit court indicated that
Detective Decker had observed individuals downstairs wearing jury badges when the incident
occurred.
¶ 40 Notably, the disturbance arose during voir dire, before jury selection was complete.
Accordingly, any individuals in the vicinity of the disturbance were only potential jurors,
resulting in, at most, a mere possibility that any members of the jury panel that was ultimately
selected actually observed the incident. Notwithstanding this possibility, there is no evidence
in the record that any of the selected jurors did, in fact, witness the incident. Indeed, the
evidence in the record supports a contrary conclusion. After the panel was selected and before
being sworn in, the circuit court instructed the individuals of the jury to raise their hand if any
had witnessed anything in the courthouse and outside of the courtroom to cause them any
concern or difficulty. No juror raised their hand.
¶ 41 Likewise, on the second day of the trial and after Devale had testified, the circuit court
asked the jurors if they had anything to report. Again, no hands were raised. This leads to the
conclusion that none of the jurors witnessed what had occurred. Even if we were to assume,
arguendo, that a juror actually did witness the event, there is no evidence that anything he or
she saw caused difficulty or concern, as no juror raised his or her hand indicating such when
prompted by the circuit court on both days of the trial. We further note that Devale, who
encountered the two individuals in the hallway, indicated that there was “slight contact but
nothing major.” Detective Uhls reported that one of the individuals seemed to whisper
something in Devale’s ear.
¶ 42 Notably, the circuit court was meticulous to question the jury in such a way as to not
prejudice the defendant, while at the same time ensuring that no jurors felt intimidated. At the
in-chambers conference, counsel and the circuit court agreed on the wording of the question
and no objections were made by either party. Moreover, the circuit court indicated that its
ruling to deny the motion to discharge the jury would be reevaluated if any issues arose later
in the trial, thereby ameliorating the concern that members of the jury who potentially saw the
disturbance may not realize anything pertinent to the trial had occurred until Devale took the
stand and testified. As noted, in order to put that possibility to rest, the circuit court asked the
jury on the second day of the trial—after Devale had testified—if anyone had anything to
report. Nobody did.
¶ 43 The record establishes that the circuit court carefully exercised adequate precautions to
ensure that the defendant was not prejudiced by anything the jury may have witnessed.
Prejudice required to reverse the circuit court’s decision to deny the defendant’s motion to
discharge the jury cannot be established by bare speculation. See id. There is no evidence to
show that any of the jurors saw anything or, if they did, that they were influenced and
prejudiced by what they saw to the extent of being incapable of being fair and impartial. See
id. For these reasons, we conclude that the circuit court did not abuse its discretion in denying
the defendant’s motion to discharge the jury.
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¶ 44 II. Facebook Photographs
¶ 45 The second issue on appeal is whether the exhibit containing the Facebook photographs of
the defendant that was admitted into evidence via stipulation was properly authenticated. At
the outset, we note that the defendant waived this issue by failing to object at trial and failing
to raise the issue in his posttrial motion. “Ordinarily, a defendant must both specifically object
at trial and raise the specific issue again in a posttrial motion ***.” People v. Woods, 214 Ill.
2d 455, 470 (2005). “If a defendant fails to satisfy either prong of this test, his challenge is
considered waived on appeal.” Id.“This rule is particularly appropriate when a defendant argues that the State failed to
lay the proper technical foundation for the admission of evidence, and a defendant’s
lack of a timely and specific objection deprives the State of the opportunity to correct
any deficiency in the foundational proof at the trial level.” Id.This is precisely what occurred in this case. Defense counsel did not object to the foundation
of the Facebook photographs at trial, nor would the State have expected him to, as the
photographs and their foundation were admitted into evidence by stipulation of the parties the
day before the trial. Because no objection was made at trial, the State was deprived of the
chance to cure any alleged defect. See id. Likewise, the defendant omitted any mention of this
issue in his posttrial motion. For these reasons, we find this issue was waived by the defendant.
¶ 46 Waiver notwithstanding, we observe that the defendant went to great lengths in his brief in
an attempt to convince this court that the exhibit containing the Facebook photographs was not
properly authenticated, arguing that the State presented no foundational evidence to show that
the purported Facebook profile actually belonged to the defendant or that the defendant was
responsible for these particular photographs. Even assuming, arguendo, that the defendant had
not waived this issue, we would nevertheless decline to address these arguments because we
find the doctrine of invited error applies, as the defendant stipulated to the admission of the
Facebook photographs and the foundations thereof that he now complains of on appeal.
¶ 47 The stipulation provides as follows:
“The Parties hereby stipulate to the foundation regarding a page containing three
photographs of the defendant. The Parties have agreed that all writing will be removed
from said page, and that testimony regarding the contents of said writing will be barred.
To the extent testimony is adduced regarding the origin of the photograph[s], the
People’s witness([e]s) will be instructed only to state that [they] came from a Facebook
page possibly believed to be that of the defendant.”
¶ 48 If a party stipulates that evidence is admissible, the need to lay a foundation for the
admission of that evidence no longer exists. People v. Bush, 214 Ill. 2d 318, 333 (2005). “Under
the doctrine of invited error, an accused may not request to proceed in one manner and then
later contend on appeal that the course of action was in error.” People v. Carter, 208 Ill. 2d
309, 319 (2003); see also People v. Trice, 2017 IL App (1st) 152090, ¶ 59 (defendant may not
argue on appeal that circuit court erred by admitting the very evidence he stipulated to at trial).
Indeed, “[t]o permit a defendant to use the exact ruling or action procured in the trial court as
a vehicle for reversal on appeal ‘would offend all notions of fair play’ [citation], and
‘encourage defendants to become duplicitous’ [citation].” People v. Harvey, 211 Ill. 2d 368,
385 (2004) (quoting People v. Villarreal, 198 Ill. 2d 209, 227 (2001), and People v. Sparks,
314 Ill. App. 3d 268, 272 (2000)). Applied to this case, having stipulated to the foundation and
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admission of the Facebook photographs in People’s Exhibit 2, the defendant invited any
alleged errors and cannot now challenge the foundation and admission of the same on appeal.
¶ 49 In the alternative, the defendant requests this court to review this issue under the plain-
error doctrine. We decline to do so, however, as “plain-error review is forfeited when the
defendant invites the error.” People v. Harding, 2012 IL App (2d) 101011, ¶ 17. “ ‘[A]
defendant’s invitation or agreement to the procedure later challenged on appeal “goes beyond
mere waiver.” ’ ” Id. (quoting Harvey, 211 Ill. 2d at 385, quoting Villarreal, 198 Ill. 2d at 227).
“The issue is sometimes referred to as one of estoppel.” Id. The principles of invited error “also
apply to preclude plain-error analysis.” Id. “Where the defendant invited the error, our supreme
court has declined to address any related plain-error claim.” Id. For these reasons, we refuse to
review this issue for plain error.
¶ 50 Finally, the defendant asserts an ineffective assistance of counsel claim, contending that
his counsel was ineffective for failing to object to the “improper admission” of the Facebook
photographs. To succeed on an ineffective assistance of counsel claim, a defendant must show
that trial counsel’s representation fell below an objective standard of reasonableness and that
the defendant was prejudiced by counsel’s substandard performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To show prejudice, the defendant must establish a
reasonable probability that, but for counsel’s alleged error, the result of the proceeding would
have been different. Id. at 694.
¶ 51 Notably, the defendant does not argue in his opening brief that his counsel was ineffective
for agreeing to the stipulation, only that counsel was ineffective for not objecting to the
admission of the photographs. Not objecting to admission of the photographs was not only
sound trial strategy but also commonsensical, as counsel on both sides stipulated to the
admission of the photographs, under certain conditions, the day before the trial. See People v.
Edwards, 195 Ill. 2d 142, 172 (2001) (matters of trial strategy do not support claims of
ineffective assistance of counsel). Counsel’s failure to object was not error or oversight, but a
rational and expected result of the stipulation entered the day before. It would have been absurd
for counsel to object based on a lack of foundation to show that the purported Facebook profile
actually belonged to the defendant when counsel had just agreed to the stipulation forbidding
any testimony on that very topic, which necessarily entails the writings on the Facebook page.
Counsel could not have been expected to object to the admission of the very evidence that he
had just stipulated to. Accordingly, counsel’s performance did not fall below an objective
standard of reasonableness for failure to object to the admission of the Facebook photographs,
as not objecting was a matter of trial strategy. See Strickland, 466 U.S. at 689; see also People
v. Brown, 2017 IL App (1st) 150203, ¶ 25 (strong presumption of trial strategy must be
overcome to show counsel’s performance was deficient).
¶ 52 We are mindful that it was not until the defendant filed his reply brief that he first asserted
the argument that his counsel was ineffective for agreeing to stipulate to the admission of the
Facebook photographs. The State contends that the defendant waived this argument and cites
People v. Accardo, 139 Ill. App. 3d 813 (1985), in support of this argument. In Accardo, the
reviewing court held that the defendant could have anticipated the State’s waiver argument,
the ineffective assistance of counsel argument advanced by the defendant was not strictly
confined to replying to arguments in the appellee’s brief, and the defendant’s reply brief
responded neither factually nor legally to the State’s argument that a waiver occurred. Id. at
816-17. The court concluded that the reply brief raised a new issue not claimed in the initial
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brief in an effort to evade the State’s waiver argument. Id. at 817. Accordingly, the Accardo
court held that the issue was waived and refused to consider it. Id.
¶ 53 On the other hand, the defendant cites People v. Maxwell, 89 Ill. App. 3d 1101 (1980), in
which the reviewing court allowed the defendant to add an ineffective assistance of counsel
issue by motion after briefing was complete but admonished the defendant that the argument
should have been included in the reply brief, as the argument “grows out of and is responsive
to the waiver argument made by the State in its appellee’s brief.” Id. at 1104. Here, relying on
Maxwell, the defendant contends that his argument that his counsel was ineffective for agreeing
to the stipulation should be allowed to be raised in his reply brief, as it is related to the claim
raised in his initial brief that his counsel was ineffective for failing to object to the admission
of the Facebook photographs.
¶ 54 Notwithstanding these waiver arguments, the ineffective assistance of counsel claim fails
because we find that the stipulation was strategically crafted, as it was carefully worded to
make the admission of the photographs conditional on removing the writing from the Facebook
page and forbidding any testimony regarding any writing on the page. The admission was
further conditional on limiting witnesses to state that the photographs came from a Facebook
page “possibly believed to be that of the defendant.” No objections were made at trial regarding
any breach of the limitations set forth in the stipulation. For these reasons, we conclude that
defense counsel’s performance did not fall below an objective standard of reasonableness for
stipulating to the admission of the Facebook photographs, as this was a matter of trial strategy.
See Edwards, 195 Ill. 2d at 172 (matters of trial strategy do not support claims of ineffective
assistance of counsel).
¶ 55 Taken one step further, even if we were to assume no trial strategy was involved and
counsel’s performance was deficient, the defendant’s ineffective assistance of counsel
arguments still fail, as the defendant did not satisfy the second prong of Strickland, establishing
that he was prejudiced by counsel’s deficient performance. See 466 U.S. at 686. To show
prejudice, the defendant must establish a reasonable probability that, but for counsel’s alleged
error, the result of the proceeding would have been different. Id. at 694. Here, neither defense
counsel’s agreement to the stipulation nor counsel’s failure to object to the admission of the
Facebook photographs changed the result of the trial.
¶ 56 Both Devale and Kiwan identified the defendant in the photographic lineups presented by
the detectives. Kiwan testified that he did not look at any photographs on Facebook. Moreover,
Devale testified that he recognized the defendant in the lineups because he stood close enough
to see the face of the man who shot him on the night in question. Devale also identified the
defendant in open court. There is ample evidence in the record besides the Facebook
photographs to support the defendant’s conviction. Accordingly, we cannot conclude that the
result of the trial would have been different but for any alleged error of defense counsel
regarding the admission of the Facebook photographs. For the foregoing reasons, we find the
exhibit containing the Facebook photographs of the defendant that was admitted into evidence
via stipulation was properly authenticated.
¶ 57 III. Prior Consistent Statements
¶ 58 The final issue on appeal is whether the State improperly used prior consistent statements
of Devale to bolster his credibility. The defendant takes issue with the following testimony.
First, he cites the testimony of Devale that, after hearing the name of the suspect, he found
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photographs on Facebook and recognized the person in the photographs as the defendant.
Devale further testified that the gun in the photographs was the same gun he was shot with.
Next, the defendant cites the following subsequent testimony of Detective Uhls:
“Q. After Devale was shown his photo lineup, did you ask him questions regarding
what the firearm looked like of the person he had identified as the shooter from the
photo lineup?
A. Yes, we did.
Q. Did Devale say anything to you about what he had seen online of that person?
A. Yes. He brought up that one he had seen one [sic] on Facebook, someone had
told him about.”
The defendant argues that the State improperly bolstered Devale’s credibility by eliciting from
Uhls Devale’s prior consistent statement. The defendant contends this was prejudicial because
the State’s case hinged on the believability of Devale’s identification of the defendant as the
shooter. The State counters that all the statements were admissible as statements of
identification.
¶ 59 At the outset, the defendant concedes that defense counsel did not object to the State’s
elicitation of the prior consistent statement. We add that the defendant failed to raise this issue
in his posttrial motion. Accordingly, the defendant has waived this issue. See Woods, 214 Ill.
2d at 470 (issue waived unless defendant objects at trial and raises issue in posttrial motion).
However, waiver notwithstanding, the defendant requests this court to review this issue for
plain error.
¶ 60 The plain-error doctrine “is a narrow and limited exception to the general waiver rule.”
People v. Pastorino, 91 Ill. 2d 178, 188 (1982). The purpose of allowing review under the
plain-error doctrine “is to protect the rights of the defendant and the integrity and reputation of
the judicial process.” People v. Herron, 215 Ill. 2d 167, 177 (2005). “ ‘[I]f the admission of
evidence constitutes plain error resulting in a miscarriage of justice upon a defendant or a
tainting of the integrity and reputation of the judicial process, then it is considered although
such error was not brought to the attention of the trial court.’ ” (Emphasis omitted.) Id. at 177-
78 (quoting People v. Baynes, 88 Ill. 2d 225, 231 (1981)).
“Rule 615(a) provides that if ‘substantial rights’ are not affected, any such claim
‘shall be disregarded.’ [Citation.] That language *** mandates that ‘[b]efore plain error
can be considered as a means of circumventing the general waiver rule, it must be
plainly apparent from the record that an error affecting substantial rights was
committed.’ [Citation.] But the threshold concern is just as often as not whether the
evidence presented was ‘closely balanced.’ The reason: the strength or weakness of
inculpatory evidence has long been seen as relevant to ignoring procedural defaults in
remedying occasioned injustice. [Citation.]” (Internal quotation marks omitted.) Id. at
178.
¶ 61 “[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when
(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error, or (2) a clear or obvious error occurred and that error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless
of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
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¶ 62 The defendant requests this court to consider this issue under the closely balanced prong
of the plain-error rule. However, we must first determine if a clear or obvious error occurred.
See id.; see also Herron, 215 Ill. 2d at 178. “Generally, a witness’s prior consistent statements
are inadmissible to corroborate the trial testimony of that witness because they serve to unfairly
enhance the witness’s credibility.” People v. Temple, 2014 IL App (1st) 111653, ¶ 34.
“However, this rule does not apply to statements of identification.” Id. Section 115-12 of the
Code of Criminal Procedure of 1963 (Code) provides the following regarding the substantive
admissibility of prior identification: “A statement is not rendered inadmissible by the hearsay
rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-
examination concerning the statement, and (c) the statement is one of identification of a person
made after perceiving him.” 725 ILCS 5/115-12 (West 2016).
¶ 63 In Temple, 2014 IL App (1st) 111653, ¶ 1, the defendant contended that the trial court erred
by admitting prior consistent statements of witnesses. Observing section 115-12 of the Code,
the Temple court concluded that the witnesses all testified at trial and were subject to being
cross-examined. Id. ¶ 41. The court further found that the witnesses’ statements regarding the
description of the defendant were statements regarding the steps in the identification process
and were, therefore, properly admissible as statements of identification. Id. Moreover, the
testimony of police officers regarding the prior consistent statements of identification made by
the witnesses was found to be admissible under section 115-12 of the Code. Id. ¶ 42. The court
concluded that, because the witnesses’ statements were admissible under section 115-12, the
police officers’ testimony about the same statements was also properly admitted. Id.
¶ 64 Applied to this case, Devale’s testimony about finding photographs on Facebook,
recognizing the subject in the photographs as the defendant, and recognizing the gun in the
photograph as the one he was shot with was admissible as statements of identification. See id.
¶ 41. Moreover, we find Detective Uhls’s testimony regarding Devale’s prior consistent
statements is also admissible as statements of identification under the purview of section 115-
12 of the Code. See id. ¶ 42. Since Devale’s statements were admissible under section 115-12,
Uhls’s testimony about the same statements was also properly admissible. See id.
¶ 65 The defendant argues in his reply brief that section 115-12 of the Code does not apply here
because Devale did not identify the defendant in the Facebook photographs until two days after
the shooting. He further argues that Devale’s statement to Detective Uhls regarding the
identification from the Facebook photographs was made before “perceiving” the defendant in
a formal identification procedure. He contends that the Code requires the statement of
identification to be made “after perceiving him.” Accordingly, the defendant argues that the
statements must be made proximate in time to the declarant perceiving the suspect, and because
they were not, section 115-12 is inapplicable. We disagree.
¶ 66 The defendant in People v. Thompson, 2016 IL App (1st) 133648, made these exact
arguments. There, the defendant argued that section 115-12 of the Code did not apply because
the witness did not identify the perpetrator until a few days after the shooting. Id. ¶ 41. In
disposing of that argument, the reviewing court held that section 115-12 “does not require
immediate identification, and we will not read into the statute any provision that the plain
language of that statute does not contain.” Id. The Thompson court further held that section
115-12 does not require the statement to be made “after ‘perceiving’ [the shooter] in any formal
identification procedure, such as a lineup.” Id. For these reasons, we reject the defendant’s
arguments in the instant case regarding the timing of Devale’s statements.
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¶ 67 The defendant further argues that section 115-12 does not apply because Devale’s
identification of the defendant to Detective Uhls included more than mere identification but
also included a description of the defendant’s clothes and the indication that he was holding a
gun. Again, we disagree. Section 115-12 has been interpreted “to include any ‘identification
evidence,’ including a witness’s statements to police describing the offender.” Id.; see also
Temple, 2014 IL App (1st) 111653, ¶ 41 (witnesses’ description of defendant is considered
steps in identification process and admissible as statements of identification). We reject the
defendant’s arguments to the contrary. Because we conclude that the identification testimony
was properly admissible, there is no clear or obvious error. Accordingly, there can be no plain
error. See Piatkowski, 225 Ill. 2d at 565.
¶ 68 However, even assuming, arguendo, that the testimony was inadmissible, it would still not
rise to the level of plain error. As noted, the defendant requests us to review this issue under
the closely balanced prong of the plain-error rule. He contends that the evidence is closely
balanced here for the reasons set forth in the foregoing issue. We disagree. As discussed in the
foregoing issue, even omitting any testimony regarding the Facebook photographs, there is
ample additional evidence in the record to support the defendant’s conviction. Both Devale
and Kiwan identified the defendant in the photographic lineups presented by the detectives.
Kiwan denied looking at any photographs on Facebook. Moreover, Devale testified that he
recognized the defendant in the lineups because he stood close enough to see the face of the
man who shot him on the night in question. Devale also identified the defendant in open court.
¶ 69 For the foregoing reasons, we cannot conclude that the evidence was so closely balanced
that the guilty verdict may have resulted from the alleged error and not the evidence. See
Herron, 215 Ill. 2d at 178. Accordingly, this issue does not merit review under the closely
balanced prong of the plain-error rule, and we deny the defendant’s request to review it on this
basis.
¶ 70 In the alternative, the defendant argues that his counsel was ineffective for failing to object
to the State’s elicitation of the prior consistent statement. To reiterate, in order to succeed on
an ineffective assistance of counsel claim, the defendant must show that trial counsel’s
representation fell below an objective standard of reasonableness and that the defendant was
prejudiced by counsel’s substandard performance. Strickland, 466 U.S. at 687. To show
prejudice, the defendant must establish a reasonable probability that, but for counsel’s alleged
error, the result of the proceeding would have been different. Id. at 694.
¶ 71 Here, the defendant cannot show that he received ineffective assistance of counsel because
we concluded that the testimony about the prior consistent statements of identification was not
improper. Defense counsel cannot be ineffective for failure to object to properly admitted
evidence. Not objecting does not show a deficient performance by counsel. To the contrary,
not objecting establishes that counsel was aware of the established law that a witness who
testifies at trial and is subject to being cross-examined is allowed to testify regarding statements
of identification. See Temple, 2014 IL App (1st) 111653, ¶ 54; see also 725 ILCS 5/115-12
(West 2016). Accordingly, the first prong of Strickland is not satisfied. 466 U.S. at 687.
¶ 72 Moreover, the defendant failed to satisfy the second prong of Strickland, as he failed to
show the requisite prejudice. See id. at 687, 694. As observed in the discussion of the previous
issue, even without the testimony regarding the Facebook photographs, there is ample
additional evidence to support the defendant’s conviction. Devale and Kiwan both identified
the defendant in the photographic lineups. Kiwan denied seeing any photographs on Facebook.
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Devale testified that he recognized the defendant in the lineups because he stood close enough
to see the face of the man who shot him on the night in question. Devale also identified the
defendant in open court.
¶ 73 We conclude that, even if defense counsel had objected to the identification testimony, the
outcome of the trial would not have been different. Accordingly, the defendant has failed to
establish prejudice under Strickland and his ineffective assistance of counsel claim fails.
¶ 74 CONCLUSION
¶ 75 For the foregoing reasons, we affirm the defendant’s conviction.
¶ 76 Affirmed.
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