People v. Osborne

2023 IL App (5th) 170353-UNOTICE
NOTICE
Decision filed 05/19/23. The
This order was filed under
text of this decision may be NO. 5-17-0353
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
IN THE limited circumstances allowed
Rehearing or the disposition of
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 15-CF-446
)
CORY OSBORNE, ) Honorable
) Kyle A. Napp,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Cates and Moore concurred in the judgment.
ORDER
¶1 Held: We affirm this matter, where the defendant invited the error regarding the
introduction of the AT&T evidence, and similarly invited error by failing to object
to the jury instructions. We find that the defendant forfeited any potential error in
the introduction of footwear comparison evidence. While the introduction of the
gun evidence was in error, we find that there was no plain error. We further find
that the defendant did not receive the ineffective assistance of counsel.
¶2 The defendant, Cory Osborne, was convicted of first degree murder, including a sentencing
enhancement for personally discharging a firearm that proximately caused the death of the victim,
Stacie Williams, after a jury trial. The defendant appeals evidentiary issues regarding the
admission of AT&T records, the defendant’s prior gun ownership, and expert witness testimony
regarding the analysis of shoeprints found at the crime scene. The defendant additionally argues
that this court should reverse the defendant’s conviction or vacate the defendant’s 50-year sentence
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for personally discharging a firearm, where the jury was given non-standard jury instructions. For
the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Stacie Williams was found dead in her car near her home in Granite City, Illinois, at
approximately 5:30 p.m. on February 18, 2015. She had been shot in the back of her head. Williams
was a 35-year-old mother of three daughters.
¶5 A few days prior to Williams’s death, she had ended a relationship with the defendant,
Cory Osborne. On February 20, 2015, the defendant was charged with two counts of first degree
murder, in violation of section 9-1(a)(1) of Criminal Code of 2012 (Code) (720 ILCS 5/9-1(a)(1),
(a)(2) (West 2014)), and one count of unlawful possession of weapons by a felon, in violation of
section 24-1.1(a) of the Code (id. § 24-1.1(a)).
¶6 A. Pretrial Motions
¶7 The defendant filed a motion in limine regarding shoeprint testimony on February 21, 2017.
The defendant sought to prohibit the State from introducing testimony describing shoeprints found
at the crime scene as similar to shoes seized from the defendant’s residence.
¶8 On February 22, 2017, the trial court addressed multiple motions, including the defendant’s
motion in limine regarding shoeprint testimony. The defendant argued that shoeprints were sent to
the Illinois State Police crime laboratory for examination, and a positive identification could not
be made. Nonetheless, the State wanted to elicit testimony that the shoeprints from the crime scene
were similar to shoeprints made from the shoes seized from the defendant’s residence. The
defendant argued that this testimony would be more prejudicial than probative. The State
responded that a witness would testify regarding a single set of shoeprints leading from Williams’s
car, that the crime scene investigator preserved the shoeprints through photographs, and that an
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expert in footwear comparison would provide testimony regarding the single set of shoeprints. The
State informed the trial court that the expert was expected to testify that there was a unique design
common to the bottom of the defendant’s shoes, and they were the type of shoe that made the
shoeprints found at Williams’s house and by her car. The State argued that the jury could consider
the weight to be given to the shoeprint evidence, subject to cross-examination. The court denied
the motion in limine, finding that the probative value was not outweighed by the prejudicial effect
of the evidence.
¶9 The State had filed a witness disclosure that they intended to call Detective Brian Koberna
as an expert witness in the area of digital forensics. The State’s witness disclosure also stated that
the State intended to call forensic scientist Thomas Gamboe as an expert in the areas of firearms
and ammunition identification, tool marking, and footwear comparison. The trial court addressed
the State’s disclosures at the February 22, 2017, hearing. Sergeant Koberna was present at the
hearing and testified to his qualifications as an expert in digital forensics. Sergeant Koberna stated
that he would testify at trial to information extracted from the defendant’s cellular telephone. The
trial court found that Sergeant Koberna had the experience and knowledge to qualify him as an
expert in the area of digital forensic analysis. The trial court further stated that a foundation would
need to be laid for the information Sergeant Koberna testified to at trial. The court indicated that
Gamboe’s qualifications as an expert witness would be addressed at trial once the State had laid
the proper foundation.
¶ 10 B. Jury Trial
¶ 11 The jury trial began on March 6, 2017. The State called William Bowen, who lived in
Williams’s neighborhood, as its first witness. Bowen testified that at approximately 2 p.m. on
February 18, 2015, he noticed a car in an empty lot in the alley behind his house. The front of the
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car was facing his back fence. Bowen then watched television for a few hours until his fiancée
asked about the car. He went outside to look at the car and saw that a woman was inside the vehicle.
Bowen stated that he never touched the car, but that he yelled at the woman while standing near
the car and did not receive a response. Bowen went back inside his house and his fiancée called
the police at approximately 5:30 p.m. Bowen testified that there was ankle deep snow on the
ground, and he had observed one set of shoeprints in the snow “leading from the back right
passenger door.” The shoeprints went towards the alley.
¶ 12 The State called Officer Daniel Grayson. Officer Grayson testified that he worked for the
Granite City Police Department on the date of the incident and had responded to a call regarding
a woman in a vehicle in the alley behind Bowen’s residence. When Officer Grayson arrived on the
scene, he found a blue Dodge Avenger still running with an unresponsive woman inside. Officer
Grayson identified the woman as Williams based on the registration and license plate of the
vehicle. Officer Grayson testified that he had noticed two sets of shoeprints near the car. One set
of shoeprints approached from the front quarter panel of the vehicle, then went around the front of
the vehicle to the passenger side, and in turn, headed back towards Bowen’s house. A second set
of shoeprints tracked from the passenger side of the vehicle toward the alley and sidewalk.
Emergency medical services examined Williams and determined that she was deceased. Officer
Grayson secured the scene and contacted the detectives and the coroner.
¶ 13 Aylexus Williams, the 18-year-old daughter of Williams, was also called by the State and
testified that two weeks prior to her mother’s death, Aylexus was living with the defendant, her
mother, and her sisters, Taylor and Arielle, in Granite City, Illinois. Aylexus testified that the
defendant had moved out of their home after he “beat my mom up.” Aylexus had observed
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Williams with a black eye and a swollen nose after the incident of domestic violence. Aylexus
testified that Williams changed the locks to the house.
¶ 14 Aylexus further testified that on February 18, 2015, she arrived home after school at
approximately 1:30 p.m. When she arrived home, her mother was there and was asleep. Her mother
left the house at approximately 2:45 p.m. to pick up Taylor from school. About five minutes after
her mother left, the defendant let himself into Williams’s house at 3:10 p.m. The defendant was
looking for Williams. Aylexus was not expecting the defendant and did not believe that he had a
key to the residence. Aylexus asked the defendant how he got into their house. The defendant
replied, “Don’t worry about it; tell your mom I came by.” The defendant left through the back door
at approximately 3:25 p.m., and about five minutes after that, Aylexus’s sister, Taylor, came home
from school. Williams did not come back into the house with Taylor. Aylexus tried to call Williams
about eight times with no answer, which was unusual. Aylexus had an appointment that day and
testified that Williams would have normally made sure she attended. Aylexus never spoke with
Williams again.
¶ 15 Aylexus also testified that the defendant was wearing black work boots while at the house.
Further, she said that four years prior to Williams’s death, the defendant had owned a gun. The
defendant had kept the gun in a purple Crown Royal bag on top of a cabinet in the kitchen. Aylexus
could not describe the gun.
¶ 16 Taylor Williams, Williams’s 17-year-old daughter, also testified to what occurred on
February 18, 2015. Taylor testified that Williams picked up Taylor from school, a little after school
got out at 3:10 p.m., in a blue Dodge Avenger. On their way home, Taylor overheard Williams
talking on the phone about how the defendant was going to drop off the money that he owed her.
The defendant had borrowed money from Williams, and he wanted to repay her. Williams was
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still on the phone with the defendant when they were pulling up to the house at approximately 3:30
p.m., and Taylor saw the defendant step out of a car located at a stop sign near the alley that ran
behind the Williamses’ house. The car was “a cream color with a bubble shape to it.” The
defendant approached Williams’s car and was talking to Williams, but as Williams saw the cream
car pull off, she told him that he could not stay there, and that he had to go. Taylor asked her
mother if she would drop her off at the house to avoid interacting with the defendant. Williams
told the defendant that she was going to drop Taylor off at the house and turned into the alley to
do so. Taylor got out of the car and went into the house. Williams remained in the car but turned
the engine off. Taylor later looked out the window of their house and Williams’s car was not there.
¶ 17 Taylor testified that the defendant had moved out of their house after getting into a fight
with Williams, after which Williams made him leave. She had seen the defendant with a black gun
a few years prior to the murder. Taylor saw the gun when the defendant was living with Williams
and her family at a prior residence in Alton, Illinois. The defendant had kept the gun in the kitchen
above a counter.
¶ 18 Joshua Williams testified that Williams was his sister. He testified that he had changed the
locks at Williams’s house after she and the defendant had been in an altercation.
¶ 19 Next, Tamika Evans testified that the defendant moved in with her family in Alton, Illinois,
after he had moved out of Williams’s home. Evans testified that on February 18, 2015, the
defendant arrived at her house shortly after 4 p.m. and left shortly after 5 p.m. Later that evening,
Evans discovered, through a Facebook post, that Williams had died. Evans called the defendant
and told him about Williams’s death. The defendant was not aware of Williams’s death and did
not know what Evans was talking about. Evans told the defendant that she would look into it and
call him back. During Evans’s second phone call with the defendant, she told him that the police
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were looking for him. They discussed that the defendant should turn himself in to the police the
following morning because the defendant had been drinking.
¶ 20 Evans testified that on that same evening, between 2 a.m. and 2:30 a.m., police officers
came to Evans’s house and asked her about a gun. Evans testified that she told the officers that the
defendant had not given her a gun, and she allowed the officers to search her home. The police did
not find a gun, but they collected two pairs of the defendant’s shoes and some of his clothing.
¶ 21 Officer Nicholas Roberts testified that he was an officer with the Granite City Police
Department and worked with the nuisance abatement team, which assists the detective division
with different assignments. He testified that he was involved with the investigation following the
murder of Williams. Officer Roberts further testified that, based on an interview with Joseph
Moore, investigators believed that a white Hyundai Sonata, driven by Moore, had been in the Step
N Go parking lot, parked at pump five, and that two subjects had gotten out of the vehicle and
gone into the business. Officer Roberts stated that he retrieved the video surveillance footage from
the Step N Go gas station located in Granite City, Illinois. Officer Roberts testified that the
surveillance video depicted February 18, 2015, and showed Moore at the gas station, along with
the defendant. Officer Roberts was able to determine from the videos that the white Hyundai
Sonata arrived at the Step N Go at 2:57 p.m. and left at 3:01 p.m. Officer Roberts also retrieved
surveillance video from Hardee’s, located two businesses away from the Step N Go, which also
captured the white Hyundai Sonata turning from Route 3.
¶ 22 Sergeant Kenneth Wojtowicz was called by the State and testified that he was employed
with the Granite City Police Department. Sergeant Wojtowicz testified that he was trained in
computer, cellphone forensics, and cellular record analysis. In response to a search warrant, AT&T
provided the defendant’s cellular phone records, as well as Moore and Williams’s records.
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Sergeant Wojtowicz testified to the contents of the cellular phone records received from AT&T.
The AT&T records included a spreadsheet prepared by AT&T that included the dates and times
phone calls were made, the numbers that originated the calls, the numbers that received the calls,
the location of the cellular tower used during the calls, and the global positioning system (GPS)
locations of the cellular towers. Sergeant Wojtowicz testified that, generally, the nearest cellular
tower was used when making a call, but that the tower used was also based on signal strength.
During his testimony, on a Google map document, Sergeant Wojtowicz marked the approximate
location of various cellular phone towers used by the defendant on February 18, 2015. Sergeant
Wojtowicz additionally testified that Williams did not answer her phone after 3:13 p.m. on
February 18, 2015.
¶ 23 Sergeant Wojtowicz completed a similar analysis of AT&T records on Moore’s cellular
phone. At 1:56 p.m., the defendant and Moore’s phones began utilizing the same cellular tower in
Alton, Illinois. At 2:59 p.m., both the defendant and Moore’s cellular phones were utilizing the
same cellular tower on West Chain of Rocks Road in Granite City, Illinois. The two cellular phones
continued to track together until 4:18 p.m., after which Moore’s phone received calls that utilized
cellular towers around the area of East Alton and Bethalto, Illinois. Defense counsel cross-
examined Sergeant Wojtowicz, utilizing Defendant’s Exhibits 1, 1A, 1B, 1C, and 1D, which were
all pages from the defendant’s cellular phone records provided by AT&T, other than 1A. Defense
counsel credited Sergeant Wojtowicz with helping him to prepare his exhibit 1A, which was a
visual timeline relative to certain calls contained in the AT&T records and the corresponding times
of those calls. Defense counsel introduced group exhibit 1 into evidence and published it to the
jury. Defense counsel also pointed out other calls and their times that were contained in the AT&T
records introduced by the State.
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¶ 24 Joseph Moore testified that he was not close with the defendant. On February 18, 2015, the
defendant contacted Moore through Facebook Messenger. The defendant offered Moore $40 for a
ride. Moore picked up the defendant in Alton, Illinois, and drove him to Granite City, Illinois, in
his cream color Hyundai Sonata. After they arrived in Granite City at approximately 2:58 p.m.,
Moore stopped for gas. Moore identified himself and the defendant on the surveillance video
obtained from the Step N Go gas station in Granite City. Moore testified that, after he and the
defendant left the Step N Go, the defendant had given him directions on where to drive. Moore
testified that they rode around waiting for someone, and when a blue car that looked like a Chrysler
pulled up behind them, the defendant got out of the car and walked toward the blue car. The
defendant told Moore to “hit a block while he takes care of his business.” Moore assumed that the
defendant was selling marijuana. As he drove away, Moore did not watch the defendant. Moore
drove around the entire block. After completing the circle, the defendant was standing where he
had been dropped off, and the blue car was gone. Moore then drove the defendant back to Alton,
Illinois. He testified that on the drive back, the defendant was “relaxing,” and that the defendant
used his phone a couple of times to call people. Moore never saw the defendant with a gun.
¶ 25 Moore additionally testified that he spoke to the investigating detectives on February 19,
2015, and was not forthcoming. Moore believed that the defendant had been involved in a “drug
deal gone bad.” However, after learning that Williams had been killed and that the defendant was
a suspect, Moore broke down in tears and rode with a detective, showing him the route Moore had
taken with the defendant. Moore testified that he had not been aware that the defendant had an
intention to harm Williams.
¶ 26 Detective Jeff Donahey, with the Granite City Police Department, testified that he
interviewed the defendant during his investigation of Williams’s death. Detective Donahey
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testified that the Granite City Police Department issued a press release on the night of the murder
with a photograph of the defendant, indicating that they wanted to speak with him. The details of
the manner of Williams’s death were not released to the public. After seeing the press release, the
defendant called the police department and was picked up to be interviewed by Detective Donahey
and Detective Skalsky. Once back at the Granite City Police Department, Detectives Donahey and
Skalsky interviewed the defendant. During the interview, which was played for the jury, the
defendant recounted what he did on February 18, 2015. The defendant repeatedly denied ever
being in Granite City on that day. The detectives never told the defendant that Williams’s cause of
death was a gunshot wound, where the gunshot was located on her body, nor the caliber of the
bullet.
¶ 27 Detective Donahey also met with Moore. Detective Donahey drove with Moore and
another detective on the route Moore had taken on February 18, 2015, with the defendant. Moore
had dropped the defendant off less than 175 yards from where Williams’s body was found.
Detective Donahey testified that he had retrieved video footage from a stationary camera at
Madison Avenue and 27th Street in Granite City, which was approximately two blocks from the
crime scene. Detective Donahey testified that the video footage showed images of Moore’s car
passing through the intersection at approximately 3:25 p.m.
¶ 28 Joshua Easton, a crime scene investigator with the Illinois State Police, testified that he had
taken photographs of the crime scene. Included in those photographs were photographs of a
shoeprint impression in the snow at the intersection of 25th and Madison, near where Williams’s
car was found. Easton took additional photographs of the shoeprint after it was sprayed with snow
wax to show contrast. Tape lifts and latent prints were taken from Williams’s vehicle. Easton also
testified that he had recovered a “fired Winchester .22[-]caliber cartridge casing, several cigarette
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butts and cigars, and a bag in the driver’s side door pocket, a cigar from the ashtray, [and] a
Monster Energy can from the rear back seat area of the vehicle.” The .22-caliber shell casing was
recovered from the front passenger floorboard. Easton testified that the location of the casing
meant that the weapon had been discharged from inside of the vehicle or close to the vehicle with
the doors open. Easton additionally had collected a cigarette butt from Williams’s residence, as
well as photographs of footwear impressions at that location. He also photographed and collected
evidence during Williams’s autopsy. Finally, he had collected evidence from Moore’s vehicle.
¶ 29 Thomas Gamboe was proffered as an expert in the areas of firearms and footwear
identification. Gamboe testified that he was employed by the Illinois State Police as a forensic
scientist and had prepared a firearms report and a footwear report for this case. Gamboe testified
that the shell casing was a Winchester brand and was either a “.22 long or a .22[-]long rifle caliber
discharged cartridge case.” Gamboe testified that no gunshot residue was found on the defendant
or on the defendant’s clothing. Gunshot residue, however, was not expected to be found on the
shooter’s clothing from a semiautomatic weapon unless the firearm was held close to the shooter.
Further, the defendant had showered prior to the gunshot residue sample being taken.
¶ 30 Gamboe also testified to the shoeprint comparison analysis he conducted for this case. He
testified that he had received a pair of the defendant’s Nike Air Jordans and a computer disk with
photographic images of shoeprints left in the snow. Gamboe generally explained how a footwear
examination was conducted. He used a shoeprint worksheet to determine the brand, model, and
size of the shoes, and then he would imbed a photograph of the sole of the shoe on the worksheet.
The worksheet would also include other evidence, such as images received and descriptions of the
evidence.
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¶ 31 Gamboe explained that, when making a comparison of the shoe to the images received, he
would look for class characteristics of the out sole pattern or design, which is the design on the
bottom part of the shoe that we walk on. Gamboe testified that “[i]f they’re similar, then I know
that there’s a chance that the shoes could have made those impressions.” Gamboe then testified
that he would make test prints of the shoes in evidence and overlay prints made from the
photographic images of the shoeprints from the scene for a comparison. Gamboe explained that he
does this to determine if there are “individual or identifying characteristics which would make the
shoes unique” such as “scuffs, cuts, breaks in the pattern that have occurred over the use/over the
wear of the time that the shoe’s been in use by the individual.” When such features are not present
in the comparison, then the shoes cannot be eliminated as the shoes which made the impression,
but they also cannot provide a positive identification.
¶ 32 Gamboe testified that the medium used for the comparison in this case was “not very good”
because it was difficult to take a good photograph of a shoeprint in the snow. It was also difficult
to cast shoeprints in the snow because the wax used to cast the shoeprints clumps when it is cold,
causing dents to form, which can deform the impression. Gamboe further stated that a casting
created by pouring dental stone over the impression is also difficult to create in snow because the
dental stone can cause the snow impression to melt.
¶ 33 Despite those issues, Gamboe used the photographs that he had received to perform a
comparison of the shoes in evidence. Five shoeprint impressions from the snow were
photographed. Gamboe made test prints with the defendant’s shoes that he received and created
an overlay for the photographs to look for class characteristics and individual identifying
characteristics. He testified that four of the shoeprint impressions had a similar out sole pattern,
size, and design. Gamboe explained that there was a teardrop shape in the middle of the heel area
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and rectangular designs around the perimeter. He additionally explained that “these shoes are
really unique in that from about the arch area all the way to the heel they’re basically the same.”
The photographic shoeprints from the snow had the same class characteristics as the defendant’s
shoes. Then the following testimony took place:
“MS. UHE [(ASSISTANT STATE’S ATTORNEY)]: So what is your opinion as
far as the comparison that you made?
GAMBOE: The footwear impressions depicted on the photographs could have been
made by these shoes. However, I could not make an identification.
THE STATE: And is that because of those individual characteristics you were
talking about?
GAMBOE: Yes. There’s just a lack—lack of individual identifying detail.”
¶ 34 On cross-examination, Gamboe testified that the defendant’s shoes were Nike Air Jordans,
which are a popular, widely distributed shoe. Gamboe also testified that he had prepared a report
with his findings when he conducted the examination of the shoes and made the comparison to the
photographic images. In response to questioning by the defendant’s attorney, Officer Gamboe
indicated that he had reported that “no identification” could be made in three of the five
impressions included in his report. The fourth comparison had insufficient detail to make a
comparison and the fifth impression was “totally dissimilar.”
¶ 35 Sergeant Koberna testified that he worked in the department’s digital forensic laboratory.
Sergeant Koberna had conducted a consensual forensic search of the defendant’s phone. Sergeant
Koberna read a series of text messages between the defendant and Williams regarding their break-
up and Williams loaning money to the defendant. Sergeant Koberna testified that, after some back
and forth, the defendant had sent a message to Williams on February 14, 2015, at 1:19 p.m. The
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concluding message from Williams, that was sent on February 14, 2015, at 1:53 p.m., stated: “I
will always love you n b your friend also but it’s not as hard for me right now because I haven’t
been happy for a while and then you beat the last lil love I had in me out of me s-m-h.”
¶ 36 Sergeant Koberna testified that seven minutes after the defendant’s last message was sent,
the defendant used his phone to access the internet. Sergeant Koberna stated that he had rebuilt the
webpages that the defendant accessed in order to observe the defendant’s internet activity.
Sergeant Koberna testified that the defendant viewed a webpage with a title “do you need to have
the murder weapon in order to make an arrest.” The defendant then searched, “what evidence do
the State need to find you guilty of murder.” Later that evening, the defendant searched “how long
do the police investigate a crime for until they consider it a cold case?” and “how do they police
investigate a murder in the first.” On February 15, at 9:07 a.m., the defendant continued to search,
typing into a web browser “what types of evidence does the prosecutor need to convict a person
of attempted murder,” followed by “what evidence the prosecutor [sic] need to convict you on
murder.”
¶ 37 Sergeant Koberna stated that he had also created a timeline of the defendant’s phone
activity that took place on February 18, 2015, the day of the murder. Sergeant Koberna testified
that the defendant had made repeated calls to a cab company and sent text messages to Williams
and a woman named Julianne, throughout the morning. One message to Williams said, “I got that
money for you, Babe, l-y.” At 1:29 p.m., the defendant sent Williams a text message that said,
“You still at your appointment, Babe?” Williams responded that she was home and about to take
a nap. The defendant then sent a text message to Williams that said, “seeing if you wanted to get
this 40, Babe.” Williams responded, “I don’t want to drive that way, period, period, period, no.
Maybe I’ll get it tomorrow.” The defendant responded, “I can bring it to you.” Williams asked the
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defendant to hold the money until she could get it, and the defendant asked if he could still see
Williams that day. There was no response from Williams to that question.
¶ 38 Sergeant Koberna testified that after the text exchange with Williams, the defendant called
Moore multiple times and sent text messages requesting a ride. The defendant also called a cab
company. At 2:19 p.m., Moore replied, “be there in 10” in response to a message from the
defendant that stated, “What up, I need that ride, Cuz, ASAP, S’up.” At 3:13 p.m., the defendant
called Williams’s phone. At 3:35 p.m., the defendant called Aylexus, who responded via text
message at 3:36 p.m. that she was “in a meeting.”
¶ 39 Sergeant Koberna went on to testify that at 6:07 p.m., the defendant searched the internet
for information on .22-caliber handguns. He searched “what damage can a .22[-]caliber handgun
cause at point-blank range.” A minute later, the defendant searched “can a shot from a .22 handgun
in the head kill someone.” The defendant accessed an internet page by clicking on one of the search
results that said, “yes a .22 will kill you.” Next, Koberna testified that the defendant accessed an
internet page that stated, “what can I kill with a Ruger 10/22.” At 6:20 p.m., the defendant again
searched “can a .22[-]caliber pistol kill a person with one shot to the head.” Sergeant Koberna
concluded his testimony by stating that a selfie of the defendant was taken during the timeframe
of the internet activity, on the phone he conducted the search on.
¶ 40 Dr. Gershom Norfleet, a forensic pathologist that performed Williams’s autopsy, testified
that Williams’s cause of death was a “gunshot wound of the head and neck.” The manner of her
death was “homicide.” The State rested after Dr. Norfleet’s testimony.
¶ 41 The defendant moved for a directed verdict. The defendant argued that, based on the
testimony and exhibits, the timeline would not have allowed for the defendant to have committed
the crime. The State argued that there was overwhelming evidence that the jury could find, beyond
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a reasonable doubt, that the defendant was in Granite City at the time of Williams’s death and that
the defendant committed the offense. The trial court denied the defendant’s motion.
¶ 42 The defendant called Carter Burford, with the Granite City Police Department, as his first
witness. Burford was involved in the investigation of Williams’s death. He testified that he had
obtained video surveillance footage of the defendant and Williams entering a Super 8 Motel
together on February 16, 2015. Next, the defendant presented a witness from the Madison County
circuit clerk’s office. The testimony revealed that Williams had never filed an order of protection
against the defendant.
¶ 43 Jennifer Endres, with the Metro East Forensic Science Laboratory, testified that she
analyzed fingerprints lifted from the passenger door of Williams’s car, and that none of the
fingerprints matched the defendant. Endres stated that she had not been provided with the .22
casing to determine if a fingerprint could be raised off of the cartridge. Endres testified that she
could not determine whether the defendant had been in Williams’s car.
¶ 44 Suzanne Kidd, with the Illinois State Police at the Metro East Forensic Science Laboratory,
testified that she had performed a DNA analysis on samples from the cigar, knit cap, and cigarette
butt found on Williams’s driveway, and also on the cigar and cigarette butts found in Williams’s
car. According to Kidd, there was not enough DNA present on the knit cap to complete a profile,
and the defendant’s DNA was not found on any of the items tested. A partial male DNA profile
matched the cigar and cigarette butt samples found in Williams’s car. The defendant was excluded
as a possible source of that profile.
¶ 45 Michaelesha Wyatt, a neighbor, testified that on February 18, 2015, she saw a Dodge
Avenger running in a yard. She did not see anyone near the car, but she saw a tall, black, heavy-
set man wearing a black skull cap and a black jacket walking on the sidewalk. Her mother had
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encouraged her to report what she had witnessed to the police. Wyatt testified that she told the
police that she saw the man around the time that kids get off the school bus. Defense counsel
questioned her as to whether she told police, when questioned near the time of the murder, that she
saw the man at 4:40 p.m., and she admitted that she may have.
¶ 46 The coroner, Deborah Brown Von Nida, testified that Williams was pronounced dead at
6:03 p.m. on February 18, 2015. Rigor mortis was not noted in her report.
¶ 47 Ellen Chapman, a forensic scientist with the Illinois State Police Forensic Science Center
in Chicago, testified that she did not find any gunshot residue on the cuffs of the black hooded
sweatshirt that she tested. Chapman testified that she had tested the defendant’s hands for gunshot
residue, and none was present; however, due to the time that had passed between the murder and
the test, as well as the defendant having showered, she would not expect to find gunshot residue.
Chapman testified that she observed tape lifts from four different areas of Williams’s vehicle and
found that none of the hairs collected were suitable for DNA analysis. Chapman additionally
testified that she was not able to detect gunshot residue on the defendant’s clothing.
¶ 48 C. Jury instructions
¶ 49 The State submitted multiple jury instructions, including an instruction labeled “IPIC 7.01”
which stated:
“A person commits the offense of first degree murder when he kills an individual if, in
performing the acts which cause the death, he intends to kill or do great bodily harm to that
individual; or he knows that such acts create a strong probability of death or great bodily
harm to that individual.”
The State also submitted an amended instruction labeled “IPIC 7.02” which stated:
“To sustain the charge of first degree murder, the State must prove the following
propositions:
First Proposition: That the defendant personally discharged a firearm and shot
Stacie Williams which caused the death of Stacie A. Williams; and
17
Second Proposition: That when the defendant did so, he intended to kill or do great
bodily harm to Stacie A. Williams; or he knew that his acts created a strong probability of
death or great bodily harm to Stacie A. Williams.
If you find from your consideration of all the evidence that each one of these
propositions has been proved beyond a reasonable doubt, you should find the defendant
guilty.
If you find from your consideration of all the evidence that any one of these
propositions has not been proved beyond a reasonable doubt, you should find the defendant
not guilty.”
The jury was also provided with two blank verdict forms to complete, depending on whether the
jury found the defendant guilty or not guilty of first degree murder. The jury was not provided
with any of the Illinois pattern jury instructions 1 or special verdict forms on sentencing
enhancements. Defense counsel did not object to these instructions.
¶ 50 After the jury received the instructions, they deliberated and returned a verdict of guilty of
first degree murder. The jury was polled and affirmed the verdict, and the trial court entered a
verdict of guilty of first degree murder along with a finding that the defendant personally
discharged a firearm resulting in the death of Williams.
¶ 51 D. Posttrial Motions
¶ 52 The defendant filed a posttrial motion arguing that the evidence was insufficient to prove
the defendant guilty beyond a reasonable doubt. The defendant additionally argued that the trial
court erred in denying portions of the defendant’s motion in limine, by (1) allowing Sergeant
Koberna to testify to messages from Williams’s phone and (2) allowing Gambo to testify that the
shoes seized from the defendant were similar to the shoeprints in the snow by Williams’s car and
house. Further, the defendant argued that the trial court erred by sustaining the State’s objection
1
See IPI Criminal 28.01 et seq. (approved July 18, 2014).
18
during closing argument that Williams could have provided the defendant with a key to her house.
The defendant further argued that the prosecution improperly shifted the burden of proof to the
defendant, and that the cumulative effect of errors committed during the trial deprived the
defendant of a fair trial. After hearing argument on the matter, the trial court denied the defendant’s
motion.
¶ 53 The defendant was sentenced to 50 years’ imprisonment for first degree murder. The trial
court also sentenced the defendant to 50 years’ imprisonment based on the finding that the
defendant personally discharged a firearm, for a total of 100 years’ imprisonment, to be served at
100%.
¶ 54 The defendant filed a motion to reconsider the sentence on May 17, 2017. The defendant
argued that the trial court did not properly weigh the factors in mitigation, gave undue weight to
the factors in aggravation, and that the sentence was excessive. The court heard, and denied, the
defendant’s motion on September 7, 2017. This appeal followed.
¶ 55 II. ANALYSIS
¶ 56 On appeal, the defendant argues that cumulative trial errors, including the admission of
AT&T cellular records, the alleged improperly elicited evidence about a gun, and the alleged
improper expert testimony regarding footwear analysis, prejudiced the defendant. The defendant
additionally argues that he was denied his right to a fair trial where the jury was given non-standard
jury instructions regarding the applicable sentencing enhancement, that the defendant personally
discharged a firearm in the commission of the offense. As a result of the alleged errors, the
defendant also alleges that he received ineffective assistance of counsel.
19
¶ 57 A. Evidentiary Issues
¶ 58 First, we will address the defendant’s argument that a combination of errors resulted in the
defendant being denied a fair trial, and that he was denied the effective assistance of counsel. We
will address the defendant’s issues on appeal in turn; however, based on the following analysis,
we cannot agree that cumulative errors denied the defendant a fair trial or the effective assistance
of counsel. A trial court’s determination on the admission of evidence will not be disturbed absent
an abuse of discretion. People v. Shum, 117 Ill. 2d 317, 353 (1987).
¶ 59 1. AT&T Records
¶ 60 The defendant argues that the State should not have been allowed to introduce AT&T
records and testimony about those records to establish the locations of the defendant, Moore, and
Williams’s phones at certain times based on cellular tower data. The defendant argues that such
evidence lacked foundation, was hearsay, and Sergeant Wojtowicz was not qualified to discuss the
AT&T records. The records were admitted in the form of spreadsheets prepared by AT&T, both
on discs and in printed form, for the defendant, Moore, and Williams’s phones (AT&T records).
¶ 61 The Illinois Rules of Evidence govern the admissibility of evidence at trial. People v.
Brand, 2021 IL 125945, ¶ 36. Hearsay evidence is defined as an out-of-court statement offered in
court to prove the truth of the matter asserted. Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). Hearsay
evidence is inadmissible unless the rules provide an exception, such as business records kept in
the regular course of business activity. Ill. R. Evid. 802 (eff. Jan. 1, 2011); Ill. R. Evid. 803(6) (eff.
Apr. 26, 2012). For business records to be admissible, they still must be authenticated, requiring
the proponent to present some evidence that the business record is what it purports to be. Ill. R.
Evid. 901(a) (eff. Jan. 1, 2011). Some records are self-authenticating, meaning extrinsic evidence
is not necessary to authenticate the record. People v. Thomas, 2022 IL App (4th) 210538-U, ¶ 10.
20
For those records, the proponent may produce a written certification along with the records,
averring that the record meets the foundational requirements of Illinois Rule of Evidence 902(11)
(eff. Jan. 1, 2011). In the present case, the cellular phone records were also subject to a prior
version of Illinois Rule of Evidence 902(12) (eff. Jan. 1, 2011), relating to records generated by
an electronic process or system. Rule 902(12) included additional foundational requirements for
computer-generated records. While the State disagrees that the additional foundational
requirements were necessary here, the State concedes that even the lesser foundational
requirements were not met in the introduction of the AT&T records. As such, the State concedes
the error; however, the defendant failed to object to the introduction of the AT&T records. The
defendant also failed to object to the opinion testimony of Sergeant Wojtowicz regarding the
AT&T records and failed to include either issue within his posttrial motion.
¶ 62 The defendant acknowledges that he did not object to the introduction of the AT&T
evidence or testimony, and further acknowledges that he failed to raise the issues in a posttrial
motion. Such failure operates as a forfeiture of the right to raise the issues as grounds for reversal
on review. People v. Thompson, 238 Ill. 2d 598, 611-12 (2010). The defendant urges this court,
however, to review these evidentiary issues under the plain-error doctrine, which provides a
narrow and limited exception to the forfeiture rule. People v. Averett, 237 Ill. 2d 1, 18 (2010). The
plain-error doctrine may be applied as an exception to the forfeiture rule where the record clearly
shows that an alleged error affecting substantial rights was committed or where the error occurs in
a case in which the evidence is closely balanced. Thompson, 238 Ill. 2d at 613.
¶ 63 Plain-error review, however, is forfeited when the defendant invites the error. People v.
Harding, 2012 IL App (2d) 101011, ¶ 17. When a party procures, invites, or acquiesces in the
admission of evidence, even where the evidence is improper, that party cannot contest the
21
admission on appeal. People v. Caffey, 205 Ill. 2d 52, 60 (2001); People v. Harvey, 211 Ill. 2d 368,
386 (2004).
¶ 64 Here, when the State sought to admit the AT&T records, along with printed paper copies
from the disks, defense counsel responded: “No objection.” Not only did the defendant not object,
but the defendant’s theory of the case rested largely on the AT&T records and the concomitant
testimony of Sergeant Wojtowicz. During opening statements, defense counsel stated that, during
the investigation, Wyatt told the Granite City Police that she saw a “big black man” walking away
from Williams’s car, and that it was around 4:40 p.m. Defense counsel went on to state to the jury
that:
“[T]he evidence is going to show based on cellphone data that [the defendant] is leaving
the area about 3:23, when [Moore] picks him up. Therefore, I think that if you listen to the
facts, examine the facts, it’s going to show that based on the State’s own expert witnesses
they talked about, he couldn’t have done it. He was not in the area at the time that the
murder probably occurred.”
¶ 65 The defendant utilized portions of the AT&T records, and an exhibit he created therefrom,
with the help of Sergeant Wojtowicz. These were used to aid in proving his theory that the AT&T
records proved the defendant could not have committed the murder based on the timeline
established by Wyatt. During cross-examination, defense counsel admitted defendant’s group
exhibit 1, consisting of defendant’s exhibits 1A, 1B, 1C, and 1D. The defendant’s exhibit 1A was
a timeline that defense counsel made, with help from Sergeant Wojtowicz, plotting the times and
cellular tower locations of the defendant’s phone on the day of the murder. Defendant’s exhibit
1A was based on the AT&T records that the defendant now complains were admitted in error.
Defendant’s exhibits 1B, 1C, and 1D were identified as pages 6, 7, and 8 of the defendant’s AT&T
22
phone records, where defense counsel had highlighted specific phone activity. Defendant’s group
exhibit 1 was published to the jury.
¶ 66 During closing arguments, defense counsel relied on the AT&T records and Sergeant
Wojtowicz’s testimony to define a timeline that he asserted proved that his client could not have
committed the murder. Defense counsel pointed out that, according to Moore’s testimony and the
cellular tower data, Moore picked the defendant up at 3:23 p.m., at the intersection by Williams’s
house. Defense counsel then pointed to the State’s video exhibit from a camera mounted at the
intersection of 27th and Madison in Granite City, which showed the defendant and Moore traveling
in a direction that would be away from Williams’s house at 3:25 p.m. and 21 seconds. Defense
counsel argued that, based on traffic conditions at the time, and “hard times” confirmed by digital
technology, there was no way for the defendant to have committed the murder. As the defendant
used the AT&T records and concomitant testimony as a basis of his defense, any error in the
admission of the same was an invited error by the defendant. Because the admission of the
evidence was invited error, we need not entertain plain-error analysis. Harding, 2012 IL App (2d)
101011, ¶ 17.
¶ 67 A forfeited issue may also be addressed as a matter of ineffective assistance of counsel,
and the defendant requests that we do so here. While we found that the defendant invited the
alleged errors, his challenge may still be presented as a claim for the ineffective assistance of
counsel. People v. Bowens, 407 Ill. App. 3d 1094, 1101 (2011); People v. Villarreal, 198 Ill. 2d
209, 228 (2001).
¶ 68 To prevail on a claim of ineffective assistance of counsel, it must be shown both that
(1) counsel’s performance fell below an objective standard of competence, and (2) counsel’s
deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687
23
(1984). To establish prejudice, a defendant must show that there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694.
¶ 69 To show error, the defendant must overcome a presumption that counsel’s conduct was the
product of a sound trial strategy. People v. Bryant, 391 Ill. App. 3d 228, 238 (2009). Trial counsel’s
decision to object to testimony is generally a matter of trial strategy that is entitled to great
deference and does not necessarily establish deficient performance. People v. Perry, 224 Ill. 2d
312, 345 (2007). A reviewing court will be highly deferential to trial counsel on matters of trial
strategy, making every effort to evaluate counsel’s performance based on his perspective at the
time of trial, rather than through the lens of hindsight. Id. at 344.
¶ 70 In order to find that it was error to admit the AT&T records and Sergeant Wojtowicz’s
testimony regarding the same, we would have to conclude that their inclusion was not part of
defense counsel’s reasonable trial strategy. For the reasons discussed above, we believe that their
inclusion was trial strategy, and we further find that such strategy was reasonable.
¶ 71 Here, the State sought to introduce the AT&T evidence to establish that, despite the
defendant’s protestations during his police interviews, he was in Granite City, and traveled a
general route at certain times on the day Williams was murdered. Assuming that defense counsel
would have been successful in excluding the AT&T evidence and the concomitant testimony, other
evidence would have established that the defendant was located in Granite City, with Williams, at
the time of the murder. Evidence that was not excluded demonstrated that on the day of the murder,
Moore picked up the defendant and dropped the defendant off for a period of time near Williams’s
car and picked the defendant up at the same location thereafter. Both Aylexus and Taylor testified
that they saw the defendant in Granite City on the day that Williams was murdered, and neither
24
Taylor nor Aylexus could reach Williams after she was last seen speaking with the defendant. All
of this occurred between 3 p.m. and around 3:30 p.m.
¶ 72 The only additional evidence established by the AT&T records were times of various phone
calls and the locations of the cellular towers utilized for those phone calls. Defense counsel argued
to the jury that the timeline established by the AT&T evidence ruled out the defendant as the
perpetrator of Williams’s murder.
¶ 73 Michaelesha Wyatt testified that she saw a large black man walking away from Williams’s
vehicle around the time that school got out, but trial counsel impeached her testimony, establishing
that when interviewed by police within days of the murder, she had stated that she saw the
individual at approximately 4:40 p.m. Using that time period along with the times established by
the AT&T evidence and the traffic camera, defense counsel argued that the defendant could not
have committed the murder in the time period he was in the area of Williams’s home. The timeline
from the AT&T records, and the exhibits and testimony created therefrom, provided defense
counsel’s basis to argue that the defendant would not have had time to commit the murder or have
been in the area when it was likely committed. Defense counsel’s failure to object to the admission
of the AT&T records and concomitant testimony was reasonable trial strategy, and thus, did not
constitute the ineffective assistance of counsel.
¶ 74 In addition to reasonable trial strategy, we find that the inclusion of Sergeant Wojtowicz’s
testimony did not result in prejudice to the defendant. Sergeant Wojtowicz testified regarding his
specialized knowledge interpreting phone records and cellular tower data. The defendant is correct
in the assertion that Sergeant Wojtowicz’s testimony regarding the AT&T records had to come
from his specialized training, rather than his personal observations of the AT&T records. See
People v. Loggins, 2019 IL App (1st) 160482, ¶ 100 (professional training is only a proper
25
foundation for expert testimony, and personal knowledge cannot be based on other people’s
statements). Sergeant Wojtowicz was not tendered as an expert witness, and thus, the admission
of his testimony as lay opinion would normally be error. Id. ¶ 106. However, Sergeant Wojtowicz
testified that he had received training in cellular phone forensics, computer forensics, and cellular
record analysis. He further testified that he was familiar with reviewing and analyzing cellular
phone records and cellular tower location information, and described in detail how the analysis
was done in the present case. When testimony is improperly admitted as lay opinion, the error is
harmless if the witness was, in fact, qualified as an expert, and thus would have been accepted as
an expert by the trial court if so tendered. Id. ¶ 110. Defense counsel’s performance is not deficient
where an objection would have surely prompted the State to remedy its error and tender Sergeant
Wojtowicz as an expert. Id. As Sergeant Wojtowicz was qualified, he would have been accepted
as an expert by the trial court if so tendered, and we find no prejudice resulted to the defendant
based on Sergeant Wojtowicz’s testimony.
¶ 75 2. Gun Testimony
¶ 76 Next, the defendant argues that the trial court erred in admitting evidence that he owned a
firearm that was not connected with Williams’s death. The defendant argues that he was denied a
fair trial because the gun evidence, elicited by the State, was not relevant and was highly
prejudicial.
¶ 77 At the trial court’s discretion, relevant evidence may be excluded if its prejudicial effect
substantially outweighs its probative value. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Eyler,
133 Ill. 2d 173, 218 (1989). “Relevant evidence means evidence having any tendency to make the
existence of any fact in issue more probable than it would be without the evidence.” People v.
Brewer, 245 Ill. App. 3d 890, 894 (1993).
26
¶ 78 Here, the defendant did not possess any firearms at the time of his arrest and no guns were
found in his residence. While a .22-caliber shell casing was found in the floorboard of Williams’s
vehicle, the shell casing was not matched to any gun that could have caused Williams’s death.
¶ 79 Nonetheless, the State was permitted to present evidence that the defendant owned a gun
in the past. The State presented this evidence through the defendant’s police interview, where he
admitted to shooting and possessing guns in 2009, and recounted an incident in 2011, where he
claimed that Taylor lied and told her school that he possessed guns to get him in trouble. Evidence
that the defendant had possessed a gun in the past was also admitted via the testimony of Aylexus
and Taylor, who testified that they had seen the defendant with a gun at their prior residence. Their
testimony, taken together, established that they had seen the defendant, at least four years prior to
the murder and at a prior residence, with a gun that was black and placed in a purple Crown Royal
bag.
¶ 80 Defense counsel failed to object to the admission of the gun evidence or include it in his
posttrial motion, and thus, this claim of error has been forfeited. Thompson, 238 Ill. 2d at 611.
Here again, as with the previous issue, the defendant requests that this issue be reviewed under the
plain-error doctrine and as a matter of ineffective assistance of counsel.
¶ 81 The plain-error doctrine, as noted above, provides a “narrow and limited exception” to the
general rule of forfeiture. People v. Reese, 2017 IL 120011, ¶ 72. The first step in plain-error
review is determining whether any error occurred. People v. Sargent, 239 Ill. 2d 166, 189 (2010).
¶ 82 The defendant argues that the evidence suggested that if he had possessed guns previously,
or was familiar with guns, he was more likely to commit a murder. Further, the defendant argues
that the gun evidence insinuated that the defendant was involved in additional criminal conduct
other than the shooting for which he was tried. The State argues that the gun evidence was
27
introduced to corroborate the legitimacy of the defendant’s internet research that involved the use
of a specific type of a firearm for the commission of a murder that, based on the recovered shell
casing and cause of death, suggested that the defendant was the gunman.
¶ 83 The defendant relies on several cases that held that the admission of the weapons
themselves, or testimony about weapons that were known not to be the murder weapon, was
erroneous. See People v. Wade, 51 Ill. App. 3d 721, 729-30 (1977) (testimony about a handgun
found on the defendant when arrested, but ruled out as the murder weapon by ballistics, was
reversible error); People v. Maldonado, 398 Ill. App. 3d 401, 422 (2010) (evidence of a shotgun
found in the defendant’s home, unrelated to the murder, could only suggest that the person
possessing it was more likely to commit murder than someone who did not, and was thus irrelevant
and inadmissible); People v. Tucker, 317 Ill. App. 3d 233, 241 (2000) (two guns that were totally
unrelated to the victims’ murders were offered to the jury and found to be harmless error). Those
cases, however, are distinguishable, because the weapons themselves were admitted into evidence,
whereas here, there was no weapon admitted into evidence. See People v. Ross, 2018 IL App (2d)
161079, ¶ 182. The defendant further cites cases where guns were admitted into evidence that were
sufficiently connected to the crime as to be admissible. See People v. Jones, 22 Ill. 2d 592 (1961)
(State admitted evidence of a revolver found in the automobile in which the defendant was riding);
People v. Ashley, 18 Ill. 2d 272 (1960) (expert testimony established that the revolver produced at
the trial was the weapon actually used in the robbery).
¶ 84 Testimony concerning a weapon may be admitted into evidence where there is proof that
it connected the defendant and the crime. Wade, 51 Ill. App. 3d at 729. Such a connection between
the weapon and the crime exists where the weapon is “suitable” for the commission of the offense.
People v. Jackson, 195 Ill. App. 3d 104, 112 (1990).
28
¶ 85 In People v. Ross, 2018 IL App (2d) 161079, the introduction of the defendant’s interview,
where he admitted to the possession of firearms, was deemed an abuse of discretion where the
guns referenced in the statements were insufficiently connected to the crime. Id. ¶¶ 178-188. The
reviewing court found that the evidence was irrelevant, highly prejudicial, and allowed the jury to
speculate and unreasonably infer that, because the defendant owned guns at some point, he was
more likely to be the killer. Id. ¶ 188. Further, the reviewing court was concerned that the evidence
could have played into certain jurors’ negative opinions concerning gun ownership. Id.Nonetheless, the reviewing court found that the error was harmless, as the evidence of the
defendant’s guilt was overwhelming. Id. ¶ 189.
¶ 86 In this case, a gun was used in Williams’s death, as the cause of death was a “gunshot
wound of the head and neck.” The State presented evidence that the shell casing recovered from
Williams’s vehicle was a Winchester brand and was either a “.22 long or a .22[-]long rifle caliber
discharged cartridge case.” None of the evidence presented demonstrated that the gun the
defendant possessed in the past was capable of firing a .22-caliber bullet or was connected to the
crime. Further, there was no evidence that the defendant possessed a gun on the day of the murder
or in any proximity of time to the murder. Therefore, it is difficult to see how this testimony was
relevant.
¶ 87 Moreover, we cannot credit the State’s argument that the evidence corroborated the
legitimacy of the defendant’s internet research regarding the use of a specific type of a firearm for
the commission of a murder that matched the recovered shell casing and cause of death. The gun
evidence introduced did not include any information that the gun the defendant possessed in the
past was suitable to the crime, i.e., was capable of shooting a .22-caliber bullet. As such, it did
29
nothing to corroborate the legitimacy of the defendant’s internet search history. Thus, we agree
with the defendant that the introduction of such evidence was error.
¶ 88 Since the defendant has met his burden of establishing that a clear error occurred, we move
to the next step of the plain-error analysis. The defendant argues that both prongs of plain-error
review apply. Under the first prong of the plain-error analysis, a reviewing court must decide
whether the defendant has shown that the evidence was so closely balanced that the error alone
severely threatened to tip the scales of justice. People v. Herron, 215 Ill. 2d 167, 187 (2005). What
makes an error prejudicial is the fact that it occurred in a close case where its impact on the result
was potentially dispositive. Id. The State argues that the evidence weighed strongly against the
defendant, and we agree.
¶ 89 In deciding whether the evidence is closely balanced, a reviewing court must make a
commonsense assessment of the evidence within the context of the circumstances of the individual
case. People v. Belknap, 2014 IL 117094, ¶ 52. While there were no eyewitnesses to the crime,
other evidence pointed to the defendant as the perpetrator and excluded any reasonable possibility
that anyone else inflicted Williams’s injuries. The State presented evidence that Williams was
involved in a violent relationship with the defendant before the relationship ended. On Valentine’s
Day, a few days prior to the murder, Williams told the defendant that she was over him, that she
wanted to be single, and that she was tired of his “shit.” Almost immediately thereafter, the
defendant engaged in a series of internet searches such as, (1) whether a murder weapon was
needed to make an arrest, and (2) what evidence the State would need to make an arrest for murder.
Later, on that same evening, the defendant searched for information relating to criminal
investigations, such as how long the police investigated a crime before it is considered a cold case.
The next day the defendant continued to search the internet for what types of evidence is needed
30
to convict a person of attempted murder, and what evidence the prosecutor would need to convict
someone of murder.
¶ 90 On the day of the murder, the defendant had been texting Williams with no response. The
defendant reached Williams by phone at around 1:30 p.m. and offered to bring her money that he
owed her, but she demurred. The defendant asked for, and was given, a ride by Moore to Granite
City and Williams’s residence. At 3:10 p.m., Williams’s daughter Taylor arrived home from school
and had heard Williams on the phone with the defendant discussing the money he was going to
drop off to her. Taylor saw the defendant standing near their residence by a stop sign after exiting
a cream-colored car with a “bubble” shape. Moore picked the defendant up shortly thereafter, and
they returned to Alton. At 3:25 p.m., Taylor and Aylexus tried to call Williams repeatedly without
success.
¶ 91 The defendant was questioned about his whereabouts on the day of the murder and denied
ever being in Granite City on numerous occasions. However, Taylor, Aylexus, and Moore all
testified that the defendant was in Granite City and in the area of Williams’s home near the time
of death. Video evidence from two locations additionally showed the defendant was located in
Granite City on the day of the murder during the times that would correspond with the last time
Williams was seen alive.
¶ 92 Williams was murdered by a single shot to the head with a firearm using .22-caliber
ammunition. The police issued a public statement regarding the murder but did not mention the
cause of death, and particularly did not mention that Williams died as a result of a .22-caliber
gunshot wound. Nonetheless, subsequent to the murder, while the evidence was still being
processed by the police, the defendant was engaged in additional internet searches. The defendant
searched or accessed, via web browser on his phone, what damage a .22-caliber gunshot would
31
cause at point-blank range. Other topics included whether a shot from a .22-caliber handgun would
kill someone, “[w]hat can I kill with a Ruger 10/22,” and “[c]an a .22[-]caliber pistol kill a person
with one shot to the head?”
¶ 93 The defendant’s theory of the case was that he was not in the area at the time of the murder,
based on the cellular tower time periods and video evidence of the defendant’s whereabouts, in
conjunction with Michaelesha Wyatt’s statement to the police during the initial investigation, that
she saw a large black man walking away from Williams’s vehicle at around 4:40 p.m. However,
at trial, Wyatt testified that she saw the person walking away from the vehicle earlier, around the
time that school got out. Using the time period of Wyatt’s initial statement, along with the times
established by the AT&T evidence and the traffic camera showing the defendant traveling away
from Williams’s house with Moore, defense counsel argued that the defendant could not have
committed the murder in the time period he was in the area of Williams’s home. The jury, however,
was free to credit Wyatt’s trial testimony over her initial statement. The remaining argument by
the defendant was that he denied committing the murder, and no physical evidence tied him to the
crime. The defendant’s credibility was damaged by his insistence during his interrogation that he
was never in Granite City on the day of the murder, and that he had not seen Williams at all that
day.
¶ 94 Viewing the evidence in a commonsense manner in the context of the totality of the
circumstances, we conclude that the evidence in this case was not closely balanced. Because the
evidence was not closely balanced, we cannot find that the trial court’s error in admitting the gun
evidence tipped the scales in favor of the State, and therefore, the defendant has failed to meet his
burden under the first prong of plain-error review.
32
¶ 95 The defendant also argues that the error falls under second-prong plain error. The defendant
argues that the gun and improper AT&T evidence interfered with the integrity of the judicial
process and violated the defendant’s right to be tried by an unbiased trial court. The defendant
cites People v. Ramos, 2018 IL App (1st) 151888, ¶¶ 1, 3, 12-25, for this proposition; however,
the Ramos case was reviewing the issue subject to harmless error analysis, not second-prong plain
error. Id. ¶ 24. Our supreme court has equated the second prong of the plain-error test with
structural error such that automatic reversal is only warranted when the error causes a trial that is
fundamentally unfair or unreliable. People v. Jackson, 2013 IL App (3d) 120205, ¶ 25. Such errors
are systemic, serving to erode the integrity of the judicial process and undermine the fairness of
the defendant’s trial. People v. Glasper, 234 Ill. 2d 173, 197-98 (2009). Examples of structural
errors include a complete denial of counsel, trial before a biased judge, racial discrimination in the
selection of the grand jury, denial of a public trial, and a defective reasonable doubt instruction.
Thompson, 238 Ill. 2d at 609. In such case, prejudice is presumed under the second prong of plain
error. People v. Sebby, 2017 IL 119445, ¶ 50.
¶ 96 Here, the defendant does not argue any of the presumed prejudicial errors above and
provides little argument in his brief why the introduction of the gun evidence, or even the gun
evidence in combination with the AT&T evidence, was so serious that it rendered the defendant’s
trial fundamentally unfair or unreliable and challenged the integrity of the judicial process. Under
the circumstances of this case, we conclude that the defendant failed to carry his burden of
persuasion to satisfy the second prong of the plain-error doctrine.
¶ 97 The defendant also argues that the error in admitting the gun evidence constitutes
ineffective assistance of counsel. As the defendant’s failure to satisfy either the deficiency prong
or the prejudice prong of the Strickland test precludes a finding of ineffective assistance of counsel,
33
it is not necessary to first evaluate whether counsel’s performance was deficient if a defendant is
unable to show sufficient prejudice. Strickland, 466 U.S. at 697. “In assessing prejudice under
Strickland, the question is not whether a court can be certain counsel’s performance had no effect
on the outcome or whether it is possible a reasonable doubt might have been established if counsel
acted differently.” Harrington v. Richter, 562 U.S. 86, 111 (2011). Instead, Strickland asks
whether it is reasonably likely the result would have been different. Id.¶ 98 Here, we do not find that the defendant has established prejudice. Considering the balance
of evidence above, we do not find that the omission of the gun evidence would have resulted in a
different outcome. As such, the defendant’s failure to satisfy the prejudice prong of the Strickland
test precludes a finding of ineffective assistance of counsel on this issue.
¶ 99 3. Footwear Comparison
¶ 100 The defendant next argues that the State failed to establish a proper foundation for the
admission of Thomas Gamboe’s footwear comparison conclusions. The defendant argues that
forensic scientist Gamboe did not explain the basis for his opinion; however, the defendant fails
to specifically point out what foundational element was lacking. The defendant simply argues that
Gamboe’s testimony about the “class characteristics” that he observed, without explaining the
basis for his opinion, lacked the appropriate foundation, and was thus, reversible error.
¶ 101 While the defendant asserts that he raised an appropriate pretrial and posttrial objection to
Gamboe’s testimony regarding the foundational argument made on appeal, we do not agree. The
defendant filed a motion in limine on February 21, 2017, wherein he objected to the admission of
Gamboe’s shoeprint identification testimony as more prejudicial than probative. The trial court
ruled that it was not and was thus admissible.
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¶ 102 The defendant did not make any argument that the State would not be able to lay an
adequate foundation during the pretrial hearing, nor did he make a contemporaneous objection to
foundation during trial. In fact, the record reveals that after the State made its offer to qualify
Gamboe as an expert in the field of shoeprint identification, the trial court asked defense counsel
if he wanted to question Gamboe regarding his expertise. Defense counsel responded, “No.” The
trial court then asked defense counsel if he had an objection to the State’s offer to certify Gamboe
as an expert. Again, defense counsel said, “No.” In his posttrial motion, the defendant alleged that
the trial court erred in allowing Gamboe to testify that shoes seized from the defendant were similar
to shoeprints in the snow around the victim’s car and house. The posttrial motion makes no
reference to the lack of foundation for the admission of the evidence, and defense counsel stood
on his argument from the pretrial motion hearing.
¶ 103 As noted previously, to preserve an issue for review, the defendant must object at trial and
raise the matter in a written posttrial motion. Thompson, 238 Ill. 2d at 611. “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.”
People v. Woods, 214 Ill. 2d 455, 470 (2005). As the defendant did neither, he forfeited this issue
for review. Thompson, 238 Ill. 2d at 611.
¶ 104 Once again, the defendant argues that we should review this issue under the plain-error
exception to the general forfeiture rule. We decline to do so. As noted above, the forfeiture rule is
particularly appropriate where a defendant fails to object to a foundation issue at trial. Here, the
defendant not only failed to object at trial, but also failed to raise the issue in a posttrial motion.
The defendant further cites no specific deficiency in the foundation for Gamboe’s opinion that the
35
shoes recovered from the defendant’s home shared class characteristics that could have made a
few of the prints that had been photographed in the snow, and thus, could not be ruled out as the
shoes in evidence. The plain-error doctrine does not direct a reviewing court to consider all
forfeited errors, as it is not a general savings clause to preserve for review all errors affecting
substantial rights whether or not they have been brought to the attention of the trial court. Herron,
215 Ill. 2d at 177. The defendant’s failure to raise this issue in the lower court deprived the State
of the opportunity to correct any alleged deficiency in the foundational proof of Gamboe’s
testimony, and as such, we decline to review this issue under the plain-error exception to the
forfeiture rule. We also note that defense counsel may have intentionally decided not to challenge
the foundation for admitting the footwear comparison evidence. The defendant had maintained
that he was not present at the scene of the crime. During cross-examination of Gamboe, defense
counsel elicited testimony that Gamboe could not make a true identification of the defendant’s
shoes with the photographic images. Moreover, there was a print that was “absolutely dissimilar”
when compared to the defendant’s Nike shoes, thus suggesting that the shoe print came from
someone else who had been near the victim’s car. Therefore, the defendant’s forfeiture of this issue
for review stands.
¶ 105 B. Jury Instructions
¶ 106 The defendant’s final argument concerns the instructions given to the jury. The defendant
argues that separate instructions should have been given regarding the presumption of innocence
for the sentencing enhancement, a definition of “personally discharged,” a definition of “proximate
cause,” and a separate verdict form for the sentencing enhancement. 2 In this case, the applicable
sentencing enhancement was that the defendant personally discharged a firearm that caused the
2
See IPI Criminal 28.01 et seq. (approved July 18, 2014).
36
death of Williams. The defendant argues that the improper, non-standard jury instructions did not
ensure that the jury found the sentencing enhancement beyond a reasonable doubt.
¶ 107 The defendant concedes that he did not include these contentions of error in a posttrial
motion, and we separately note that he did not object to the jury instructions as tendered. Together,
these two failures mean that he has forfeited the claim of error for review. See Thompson, 238 Ill.
2d at 611 (“To preserve a claim for review, a defendant must both object at trial and include the
alleged error in a written posttrial motion.”).
¶ 108 Nonetheless, the defendant correctly argues that, under Illinois Supreme Court Rule 451(c),
“substantial defects” in jury instructions “are not waived by failure to make timely objections
thereto if the interests of justice require.” Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). When a defendant
invokes review under Rule 451(c), we utilize the plain-error doctrine to review the claim of error.
People v. Durr, 215 Ill. 2d 283, 296-97 (2005). The State, however, asserts that plain-error review
is inapplicable because the defendant affirmatively acquiesced to the State’s tendered instructions
and failed to offer any additional instructions on behalf of the defendant. We agree.
¶ 109 Under the invited-error doctrine, a party cannot complain of error that it brought about or
participated in. People v. Villarreal, 198 Ill. 2d 209, 227-28 (2001). The supreme court “has
recognized that ‘a defendant forfeits review of any putative jury instruction error if the defendant
does not object to the instruction or offer an alternative instruction at trial and does not raise the
instruction issue in a posttrial motion.’ ” People v. Patrick, 233 Ill. 2d 62, 76 (2009) (quoting
Herron, 215 Ill. 2d at 175). The forfeiture principle encourages the defendant to raise issues before
the trial court, allowing the court to correct its own errors before the instructions are given, and
thus disallowing the defendant to obtain a reversal through inaction. Herron, 215 Ill. 2d at 175.
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¶ 110 Because defense counsel affirmatively acquiesced to the court’s instructions, under the
invited-error doctrine, the defendant cannot object to the instructions on appeal. People v. Curry,
2013 IL App (4th) 120724, ¶ 88. In such circumstances, a defendant’s only challenge may be
presented as a claim for ineffective assistance of counsel. People v. Bowens, 407 Ill. App. 3d 1094,
1101 (2011).
¶ 111 We review the defendant’s claim of ineffective assistance of counsel under the standard set
forth in Strickland. Strickland, 466 U.S. at 694. The defendant’s failure to satisfy either the
deficiency prong or the prejudice prong of the Strickland test precludes a finding of ineffective
assistance of counsel. Id. at 697. When conducting a Strickland analysis, the defendant must
overcome the strong presumption that the challenged action or inaction of counsel was the product
of sound trial strategy and not of incompetence. People v. Barrow, 133 Ill. 2d 226, 247 (1989). It
is well settled in Illinois that counsel’s choice of jury instructions is a matter of trial strategy.
People v. Douglas, 362 Ill. App. 3d 65, 75 (2005). In assessing prejudice under Strickland, the
question is whether it is “reasonably likely” the result would have been different. Harrington, 562
U.S. at 111. “Satisfying the prejudice prong necessitates a showing of actual prejudice, not simply
speculation that defendant may have been prejudiced.” People v. Patterson, 2014 IL 115102, ¶ 81.
We review a claim of ineffective assistance of counsel de novo. People v. Hale, 2013 IL 113140,
¶ 15.
¶ 112 The jury found the defendant guilty of first degree murder. Both the indictment and Illinois
Pattern Jury Instructions, Criminal, No. 7.02 (approved July 18, 2014) (IPI Criminal No. 7.02)
included the enhancement language that the defendant personally discharged a firearm, causing
the death of Williams. The trial court imposed a 50-year sentencing enhancement for discharging
38
a firearm that proximately caused death to another person pursuant to section 5-8-1(a)(1)(iii) of
the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2014)).
¶ 113 Generally, where Illinois Pattern Jury Instructions (IPI) are in place and are appropriate,
the IPI must be used. People v. Pollock, 202 Ill. 2d 189, 212 (2002). Nonpattern instructions may
be used; however, they must not confuse or mislead the jury. Id. Whether jury instructions
accurately conveyed the law is an issue subject to de novo review. People v. Smith, 233 Ill. 2d 1,
15 (2009).
¶ 114 The relevant portions of the standard first degree murder issues instruction, IPI Criminal
No. 7.01 (approved July 18, 2014), state:
“To sustain the charge of first degree murder, the State must prove the following
propositions:
First Proposition: That the defendant performed the acts which caused the death of
another,
and
Second Proposition: That when the defendant did so, he intended to kill or do great
bodily harm to _____.”
¶ 115 The relevant portion of the Illinois Pattern Jury Instructions, Criminal, No. 28.01 (approved
July 18, 2014) (IPI Criminal No. 28.01), states:
“The State has also alleged that during the commission of the offense of ______ the
defendant personally discharged a firearm that proximately caused death to another
person.”
¶ 116 Illinois Pattern Jury Instructions, Criminal, No. 28.02 (approved July 18, 2014) (IPI
Criminal No. 28.02) states that the State must prove the instructed sentencing enhancement beyond
39
a reasonable doubt, and the Illinois Pattern Jury Instructions, Criminal, No. 28.03 (approved July
18, 2014) (IPI Criminal No. 28.03) states:
“To sustain the allegation made in connection with the offense of ______, the State
must prove the following proposition:
That during the commission of the offense of ________ the defendant personally
discharged a firearm that proximately caused death to another person. A person is
considered to have ‘personally discharged a firearm’ when he, while armed with a firearm,
knowingly and intentionally fires a firearm causing the ammunition projectile to be
forcefully expelled from the firearm.”
¶ 117 A jury instruction conference was held on the State’s tendered instruction number 14,
labeled as IPI Criminal No. 7.02, which was a modified version of IPI Criminal No. 7.02, and
stated:
“To sustain the charge of first degree murder, the State must prove the following
propositions:
First Proposition: That the defendant personally discharged a firearm and shot
Stacie Williams which caused the death of Stacie Williams; and
Second Proposition: That when the defendant did so, he intended to kill or do great
bodily harm to Stacie A. Williams; or he knew that the acts created a strong probability of
death or great bodily harm to Stacie A. Williams.” (Emphasis added denoting
modification.)
¶ 118 Upon noting that the instruction was modified, the trial court had the following exchange
with the parties:
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“[THE STATE]: Yes, Your Honor. I believe that case law is very clear that the
State will be seeking the firearm enhancement and therefore a part of the finding from the
jury is that the defendant personally discharged a gun, therefore, we included that language
in the first proposition so that should the jury find that based on the proposition the
defendant is guilty of first-degree murder they would have made a finding that it was by
personally discharging a firearm.
[DEFENSE COUNSEL]: I wish they would have forgotten it.
THE COURT: Right. I would note for the record normally—normally what
happens is it’s a separate finding that the jury makes. It all goes back at one time. They
either find that he committed the offense of first-degree murder or did not, and then they
find—and then they’re instructed that if they did they then go on to deliberate whether he
personally discharged a firearm. In the Court’s opinion I think by the State adding this
language to actually add an onus to the State showing that he personally discharged the
firearm which would not be required for the jury to convict [the defendant] of first-degree
murder. So by adding that they have actually added a burden to themselves by doing so,
but given the evidence in this case I understand why the [S]tate has made the decision to
go forward in that matter. So if the defendant does not object the Court does not find that
it is in any way confusing to the jury or takes away any of the findings that they would
have to make and still meets the requirements that they find that [the defendant] committed
the offense of first-degree murder and that he personally discharged a firearm, if they wish
to seek a firearm enhancement.”
The defendant argues that it was objectively unreasonable for his counsel to fail “to demand that
the State afford [the defendant] the protections of Apprendi—separate IPI instructions about the
41
presumption of innocence for the enhancement, a definition of the enhancement, a definition of
proximate cause, and a separate verdict form for the enhancement.” The defendant argues that he
was denied the effective assistance of counsel based on the alleged defects in the jury instructions.
¶ 119 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held
that a fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt. Id. at 490. An Apprendi violation may occur where the defendant is given an enhanced
sentence based on a fact that was not submitted to the jury, or where the jury failed to find that the
sentence enhancing factor existed beyond a reasonable doubt. Id.¶ 120 The tendered jury instructions included a modified version of IPI 7.02, which included the
language “personally discharged a firearm.” The jury instructions did not include the sentencing
enhancement instructions. 3 Finally, the jury was not provided with a separate set of verdict forms
that included the ability to find the defendant guilty or not guilty of the sentencing enhancement.
We find that the jury instructions that were given properly informed the jury of the burden of proof
and the factual findings required for the sentencing enhancement, and as such, did not violate
Apprendi. In People v. Sharp, 2015 IL App (1st) 130438, rev’d on other grounds by People v.
Veach, 2017 IL 120649, ¶ 39, the court considered a similar comingled instruction in a case for
attempted first degree murder. The court found no error in the instruction, where upon viewing the
instruction as a whole, the instructions fairly, fully, and comprehensively informed the jury of the
proper legal principles. Sharp, 2015 IL App (1st) 130438, ¶ 105.
¶ 121 In People v. Aguilar, 396 Ill. App. 3d 43, 59 (2009), the defendant similarly argued that
the imposition of a 25-year sentence enhancement violated the principles articulated in Apprendi,
3
See IPI Criminal 28.01 et seq. (approved July 18, 2014).
42
because the verdict form returned by the jury did not contain a finding that defendant personally
discharged a firearm during the offense. Id. The Aguilar court found that the fact that the defendant
caused the death while “personally discharging a firearm” was included as a fact that the
instruction required the State to prove to the jury beyond a reasonable doubt. Id. at 60. In returning
its verdict finding the defendant guilty of first degree murder, the court found that the jury also
found beyond a reasonable doubt that the defendant discharged a firearm, and thus, there was no
Apprendi violation. Id.¶ 122 Similarly, in People v. Hopkins, 201 Ill. 2d 26, 28-29, 36 (2002), the defendant was
sentenced to an extended term in prison after being convicted of first degree murder, armed
robbery, aggravated battery, and home invasion. In its analysis, the court in Hopkins noted that the
jury returned a verdict of guilty for the charged offense of aggravated battery and the charge
included the fact of the victim’s age, the enhancing factor, as an element of the offense. Id. at 39.
Accordingly, the age of the victim was an element proven beyond a reasonable doubt which
permitted the trial court to sentence defendant to an extended term sentence. Id. at 39-40. We find
that here, the general verdict form finding the defendant guilty was sufficient to satisfy Apprendi.
¶ 123 Further, there was overwhelming evidence that a firearm was personally discharged during
the murder, as Williams was killed by a “gunshot wound of the head and neck.” There was no
other cause of death, and the fact that Williams was necessarily killed by a person who personally
discharged a firearm was not in dispute; rather, the identity of the shooter was at issue. Given that
the evidence that a murder by personal discharge of a firearm was undisputed, and the jury found
that the defendant committed the murder by personally discharging a firearm beyond a reasonable
doubt, the failure to tender a separate jury instruction on whether the defendant personally
discharged a firearm did not prejudice the defendant in any way. See People v. Mister, 2016 IL
43
App (4th) 130180-B, ¶ 98 (failure to tender a jury instruction on whether the defendant was armed
with a firearm as opposed to a dangerous weapon, a fact not in dispute, did not prejudice the
defendant). We do not see how the jury could have been confused under these facts regarding the
findings they were required to make, that is, whether the defendant was guilty beyond a reasonable
doubt of both the charge and the sentencing enhancement.
¶ 124 The tendered instructions would not have changed the outcome of the trial, except that they
created the potential for the defendant to have been found not guilty of murder had the jury found
that the defendant did not personally discharge a firearm, a reality that leads us to believe that the
failure to object was the product of reasonable trial strategy. Following a review of the record as a
whole, we conclude that the defendant has not affirmatively proven that his convictions of first
degree murder and the sentencing enhancement would have been different but for the claimed
errors regarding the jury instructions as given.
¶ 125 The defendant’s final jury instruction argument is that the jury was not instructed regarding
proximate cause; however, the defendant does not comment on how such a defect was prejudicial
error, and as such, it has been forfeited. See Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 804
(2009) (the failure to assert a well-reasoned argument supported by legal authority is a violation
of Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020), resulting in forfeiture). Even so, we
cannot see how in a case such as this, premised solely on direct causation, that there was any way
the jury would have been confused in determining proximate cause. Had IPI Criminal No. 28.03
been tendered, the jury would have been instructed that to find the defendant guilty of the
sentencing enhancement, they would have had to find that the defendant’s personal discharge of a
firearm proximately caused the death of Williams. As instructed, the jury found that the defendant
directly caused the death of Williams. Nonetheless, this issue was forfeited. Accordingly, the
44
defendant has failed to demonstrate ineffective assistance of counsel with regard to the tendered
jury instructions.
¶ 126 III. CONCLUSION
¶ 127 For the foregoing reasons, we conclude that the defendant invited the error regarding the
introduction of the AT&T evidence and any error stemming from the jury instructions.
Additionally, there was no error in the jury instructions that were given under the doctrine of
invited error. We also find that the defendant forfeited any potential error in the introduction of
footwear comparison evidence. While the introduction of the gun evidence was in error, we find
that there was no plain error. We further find that the defendant did not receive the ineffective
assistance of counsel. Therefore, we affirm the judgment and sentence of the circuit court of
Madison County.
¶ 128 Affirmed.
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