People v. Caraway

2021 IL App (1st) 180556-UNo. 1-18-0556
Order filed May 21, 2021
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 17 CR 4574
)
MICHAEL CARAWAY, ) Honorable
) Tommy Brewer,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Delort and Justice Cunningham concurred in the judgment.
ORDER
¶1 Held: Defendant’s convictions for attempt murder and aggravated battery are affirmed.
The court’s failure to question a juror regarding the principles of Illinois Supreme
Court Rule 431(b) does not rise to plain error. The court did not fail to conduct an
adequate Krankel inquiry where defendant’s claims of ineffective assistance were
meritless on their face. The defendant’s sentence is vacated, and the matter is
remanded for resentencing, including for a determination as to whether the
defendant inflicted severe bodily injury mandating the imposition of consecutive
sentences.
No. 1-18-0556
¶2 Following a jury trial, the defendant, Michael Caraway, was convicted of attempt first
degree murder (720 ILCS 5/9-1(a)(1) (West 2016); 720 ILCS 5/8-4(a) (West 2016)) and
aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2016)), and sentenced to
consecutive, respective terms of 37 and 7 years’ imprisonment. On appeal, the defendant argues
he was denied his right to a fair trial where the trial court failed to ask one of the jurors whether he
understood and accepted the principles set forth in Illinois Supreme Court Rule 431(b) (eff. July
1, 2012). He also argues his case should be remanded because the trial court failed to conduct a
preliminary inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984) into his posttrial claim
of ineffective assistance of trial counsel. Lastly, he argues that this case should be remanded for
resentencing due to the subsequent reversal of his convictions in an unrelates case which the trial
court relied upon in fixing his sentence in the instant matter and also for the trial court’s
determination of whether he inflicted severe bodily injury so as to require consecutive sentences.
We affirm in part, vacate in part, and remand for a new sentencing hearing.
¶3 After a February 20, 2017 shooting, the defendant was charged with six counts each of
attempt first degree murder of Claude Hawthorne, Darryl Williams, and Juane Taylor, one count
each of aggravated battery of Claude, Darryl, and Juane, and one count each of aggravated
discharge of a firearm in the direction of Claude, Darryl, and Juane. 1 The State proceeded to trial
on two counts of attempt first degree murder of Claude, two counts of attempt first degree murder
of Darryl, one count of aggravated battery of Darryl, and one count of aggravated battery of
Claude.
1
Because multiple witnesses share the same last names, we will refer to the lay witnesses by their
first names.
-2-
No. 1-18-0556
¶4 During voir dire, the trial court informed the prospective jurors, in pertinent part, that (1)
a defendant is presumed innocent until a jury determines that the person is guilty beyond a
reasonable doubt; (2) the State has the burden of proving the defendant guilty beyond a reasonable
doubt; (3) a defendant does not have to present any evidence at all and may rely on the presumption
of innocence; and (4) a defendant does not have to testify. For each of the first three statements,
the court asked the group “[d]oes anyone disagree with this rule of law?” For the last statement,
the court asked the group “[w]ould any of you hold the fact that a defendant did not testify at trial
against that person?” The court noted for the record that there were no hands showing in response
to the questions. After asking further questions to the group, the trial court commenced questioning
the prospective jurors individually. The court asked each individual whether he or she understood
and accepted each of the principles enumerated during group questioning. However, the court did
not ask that question of one juror, J.Z., who was subsequently chosen to sit on the jury.
¶5 At trial, Darryl testified that, on February 20, 2017, he was near an address in the 600 block
of Brookline Street in Chicago Heights. More than 10 people were at that location, including his
close friends Juane, Claude and Claude’s wife, Tamicca. When he arrived, he exited his car and
approached Claude to shake his hand, when “heard shots.” According to Darryl, he “got hit” in his
arm by two bullets and fell to the ground. He heard approximately 15 more shots, “probably more
than that.” He testified that he did not see the face of the person who shot him.
¶6 Darryl displayed where he had been shot in his right arm and explained that the first bullet
hit his right tricep area and the second bullet struck underneath his right armpit. The first bullet
shattered, and only one bullet exited his body. Fragments of the bullet remained in his arm at the
time of trial. He had deformation in his right bicep area due to the gunshot which resulted in his
-3-
No. 1-18-0556
“whole bone shatter[ing].” At the time of trial, he was still under the care of a physician and
planned on having surgery on that arm. Darryl identified photographs of himself at the hospital,
which showed a white bandage over the injury to his right arm. The State published the
photographs to the jury.
¶7 Darryl denied being armed on the date he was shot. He testified that he did not know who
shot him. According to Darryl, when he was on the ground, he saw two individuals wearing all
black clothing shooting from 25 feet away, but he could not see their faces because the street
lighting was very poor in the area. He stated that he was familiar with the defendant, whom he
knew as “MC,” and had known him “half [his] life.” Darryl denied seeing the defendant anywhere
near the address where the shooting occurred.
¶8 Darryl admitted that, when he went to the Chicago Heights police department on February
22, 2017, to retrieve his property, he was interviewed by Chicago Heights Detective Henderson
and an assistant state’s attorney (ASA) about the shooting. Darryl denied answering their questions
truthfully and stated that he “just wanted [his property].” He testified that he “didn’t lie” during
the interview, but rather said “what people wanted” him to say and what he was told happened. He
did not know whether he had a second video-recorded interview with Henderson and the ASA. He
did not remember saying that he saw “MC” walking toward him before the shooting and denied
knowing or remembering whether he stated that the defendant was standing “close,” approximately
20 feet away, “on the grass part.” He did not remember stating that the defendant pointed a gun at
him, demonstrating how defendant held the gun, or indicating how many shots the defendant fired.
Darryl denied remembering anything of the interview, stating that he was “off Norco” at the time.
He did not remember informing the investigators that he “[saw] MC’s face clear as day” and stated
-4-
No. 1-18-0556
that he was never asked whether the defendant was the person who raised his gun. He denied
telling the investigators that “[t]he man came on a mission.” He acknowledged that he had felony
convictions for possession of a controlled substance and armed robbery.
¶9 On cross-examination, Darryl stated that the shooting took approximately 10 seconds,
during which time he was on the ground. He did not remember whether he spoke with an
investigator at the hospital. He denied knowing who shot him and denied hearing anyone say who
shot him. He explained that the reason he agreed to speak with the investigators at the police station
was because they were holding his property. He repeated that he never saw the defendant shoot
him, Claude, or Juane.
¶ 10 ASA Ben Williams testified that, on February 22, 2017, he interviewed Darryl with
Detective Henderson present. According to ASA Williams, after this initial interview, he asked
Darryl whether he was willing to give a video statement, and Darryl consented.
¶ 11 In the video, which was published to the jury, Darryl stated he went to the Brookline
residence on February 20, between 8:00 and 9:00 p.m., where many people were standing outside.
When he arrived, he saw “MC” coming toward him. He identified and signed a photograph of MC,
whom he had known for approximately 20 years. Darryl stated that, as he was standing on the
driveway, MC was walking toward him from across the street, coming within about 20 feet. MC,
who was wearing a black hoody, pulled out a gun and fired “a lot” of shots. He stated that a man
named Randall and another man who he did not know were also firing shots at the crowd.
According to Darryl, he fell to the ground, and the men continued to shoot. He saw MC’s face
“clear as day;” “the man came on a mission.” Darryl explained that there were street and porch
lights with enough lighting that he could see faces. Darryl stated he had not been threatened nor
-5-
No. 1-18-0556
promised anything in exchange for giving the statement and that was speaking freely and
voluntarily. He admitted that he was taking pain medicine, but denied that it affected his memory
of the events.
¶ 12 On cross-examination, ASA Williams testified that he asked Darryl whether or not he was
under any medication that would affect his ability to remember the incident. Darryl did not tell
him that he had been taking Norco, which he knew to be a prescribed pain medication. Prior to the
interview, Darryl said “I ain’t saying anything until I get my s***.” ASA Williams stated that the
initial conversation with Darryl was voluntary, but that when he started the video, Darryl said he
would not talk anymore until he received his “stuff” at which point Detective Henderson retrieved
Darryl’s belongings.
¶ 13 Claude testified that, on February 20, 2017, in the early afternoon, he was playing a video
game with his cousins in Chicago Heights. Between 8:00 and 9:00 p.m., he went to his family’s
house on Brookline Street where “a lot of people,” including his wife, Tamicca, and Darryl were
“drinking [and] chilling.” Claude stated that he stood on the sidewalk in front of the residence, and
that Tamicca was “[s]omewhere by the driveway” on the same side of the street. According to
Claude, as soon as the shooting began, he ran to the side of another house to take cover and lay
down. It was then that he noticed that he had been shot in the chest. He sustained two shots to the
chest—one by his lung and one by his heart; he was also shot in the arm. He stated that he did not
know how many shots were fired.
¶ 14 Claude testified that he did not see the face of the person who shot him nor the gun that
was used because “[i]t was dark.” When the shots were fired, he turned and ran in a different
-6-
No. 1-18-0556
direction. According to Claude, he did not see the defendant at the Brookline Street address, but
had seen him “ride past” his cousin’s house, earlier in the afternoon.
¶ 15 Claude explained that, as a result of the shooting, he had one surgery on his arm and chest.
He stated that his arm aches a little “when it get[s] cold.” After he was shot, he went to the hospital
with his wife and friend. On the way, the police arrived and transferred him to an ambulance. In
the ambulance, he spoke with detectives who asked who shot him. According to Claude, he
responded by “repeating what everybody in the car was telling [him].” He told the detectives that
“MC” had shot him, “because that’s what they said.” Claude identified the defendant in court as
MC. He also identified photographs of himself at the hospital and of his injuries, which he testified
truly and accurately depicted how he looked after he was shot.
¶ 16 Claude admitted that he gave had a recorded interview at the hospital on February 22, 2017.
Present during that interview were two police detectives and an ASA. He stated that he signed a
photograph of the defendant during the interview and told the ASA that the defendant was the man
who shot him, but contended that he did so only because family members had told him that is what
happened. He also acknowledged that he told the investigator that, after his wife told him to “watch
out,” he saw “MC” approaching from the side of a nearby abandoned house and begin shooting.
But again he testified “that wasn’t what happened.” He stated that he never saw the defendant at
the Brookline address and “made up” seeing a “[c]hrome and black” gun. He acknowledged that
he never told the investigators that he identified the defendant as the shooter because that is what
other people had told him. Claude admitted taking Norco when he gave the interview,
¶ 17 The State then questioned Claude regarding a purported telephone conversation he had
with the defendant on November 2, 2017, the week before trial. When the State asked if he knew
-7-
No. 1-18-0556
who Sherry Newman was, Claude stated that the knew her to be the defendant’s wife. Claude
denied speaking with the defendant and using Sherry’s cellular telephone. He denied ever
promising the defendant that neither he nor his wife would testify against him or telling the
defendant that he would go to Las Vegas or his sister’s house in Minnesota.
¶ 18 On cross-examination, Claude stated he was in shock when he was shot and believed he
was going to die. He stated that he was initially transported to the hospital in a van with six other
people who were all discussing the shooting and stating who they believed participated in the
shooting. A police car pulled the van over, and he was then placed in an ambulance where he was
questioned about the shooting. According to Claude, he told the police “MC” shot him based on
the conversations he had while in the van and because he was “mad” that he had been shot. The
officers did not ask him to swear to tell the truth about who shot him when he made his statements.
¶ 19 Tamicca testified that she was married to Claude and lived on Brookline Street with her
grandmother and children. She stated that, on February 20, 2017, she and Claude were outside on
the street with “a lot of people” when Claude, Darryl, and Juane were all shot. According to
Tamicca, immediately before the shooting she was retrieving keys from Claude, and when she
“turned [her] back and stepped like two steps, the shots went off,” and she hid under her car.
¶ 20 Tamicca testified that she did not see anyone approach Claude with a gun before the
shooting. After the shooting, she saw a person “in all black” but did not see the person’s face. She
did not know how many shots were fired, but “[i]t sounded like it wasn’t going to stop.” After the
shooting, she heard Claude yelling that he was “hit,” so she got out from under the car and went
to where he was lying. As the group tried to take Claude to the hospital in a van, the police stopped
the vehicle and had Claude transported to the hospital in an ambulance.
-8-
No. 1-18-0556
¶ 21 Tamicca admitted that she had a conversation on February 22, 2017, at the hospital with a
police detective and ASA Kevin Sobczyk and that consented to having the interview video
recorded. She testified that she told the interviewers what happened during the shooting and
identified a photograph of the defendant which she signed during the interview. She initially stated
that she never told the investigators that the defendant was the shooter. Later, she acknowledged
that she told the interviewers that it was the defendant that shot her husband, because she “probably
wanted to get [the] interview over with.” She also stated that she “probably” told the interviewers
that she saw the defendant come down the driveway from a nearby house and warned Claude to
“watch out.” According to Tamicca, she did not see the defendant with a gun or see him shoot
anybody. She testified that she was not be able to see anybody’s face outside her home at night.
She did recall telling the interviewers that the only person she saw with a gun was the defendant.
She acknowledged that she had previously been convicted for theft, identity theft, and possession
of a controlled substance.
¶ 22 On cross-examination, Tamicca stated that, when she got into the van to take Claude to the
hospital, “everybody was panicking,” but there was no discussion in the van as to who might have
been the shooter. She testified that, when the police arrived and placed Claude in an ambulance,
she was not allowed to ride with him. Tamicca stated that she spoke with police officers at the
hospital who told her that “they heard Michael Caraway did the shooting.” According to Tamicca,
she informed the officers that she did not know who shot Claude but believed them when they told
her that the defendant was responsible. She stated that she gave a recorded statement the following
day.
-9-
No. 1-18-0556
¶ 23 ASA Sobczyk testified that, on February 22, 2017, he interviewed both Claude and
Tamicca and both consented to have their statements video recorded. Portions of both video-
recorded statements were played for the jury.
¶ 24 In his recorded statement, Claude identified a photograph of the defendant who he knew
as “MC” and signed and dated the photograph. He stated that he had known MC for six or seven
years. According to Claude, he was playing “Madden” at his cousin’s house in the early afternoon
of February 20, 2017, and saw MC “pull*** up” and try to run over his cousin. The defendant
exited the car with a gun for “like two minutes” before getting back in the car and driving away.
Later, Claude went to the Brookline address, where he stood outside the house with many other
individuals. His wife met him on the sidewalk and told him to “watch out,” at which point he saw
the defendant come from the direction of an abandoned house. Claude stated that the defendant
then shot him in the arm with a chrome and black gun from about 10 feet away. According to
Claude, he heard approximately 30 gunshots and was “hit” twice in the chest and once in the arm.
Claude stated that he had not been threatened or promised anything before giving his statement
and gave the statement freely and voluntarily. He admitted that he was taking medication for
nausea prior to giving the statement and denied that the medication affected his memory of the
incident.
¶ 25 On cross-examination, ASA Sobczyk stated that he asked another officer to be present at
the interview to serve as a “prover,” so that “it doesn’t necessarily have to come down to a situation
of he said/she said, or he said/he said.” Sobczyk explained that the statement was a “summarized
version of our conversations I had [sic] with him earlier about whether in some way his
identification was somehow compromised by outside sources.”
- 10 -
No. 1-18-0556
¶ 26 In her video-recorded statement, Tamicca stated that, on February 20, 2017, she lived on
Brookline Street in Chicago Heights. She identified a photograph of the defendant, whom she
knew as “MC,” and stated that he shot her husband and his two friends on February 20, 2017.
According to Tamicca, she was outside her house talking with “a bunch of” Claude’s friends just
before 9:40 p.m. when she saw the defendant approach from a vacant house nearby. She was
standing next to Claude and told him to “watch out.” She stated that. when the shooting started,
both she and Claude “took off running.” She saw that the defendant had a gun but did not see what
it looked like. Tamicca stated that the defendant was the only person she saw with a gun. She heard
approximately 10 gunshots, which sounded like “it didn’t stop.” She hid under her car and only
got out when she heard Claude yelling that he had been shot. She stated that no one threatened or
promised her anything in exchange for her statement, which she gave freely and voluntarily.
¶ 27 On cross-examination, ASA Sobczyk stated he had a prior non-recorded interview with
Tamicca which lasted approximately ten to fifteen minutes. He never asked her if a police officer
had told her that they arrested the defendant because he was the shooter. ASA Sobczyk stated that
he spoke with Detective Henderson prior to Tamicca’s interview, and Henderson told him that
Claude had identified the defendant as the shooter.
¶ 28 Detective William Henderson testified that he was a member of the Chicago Heights police
department, working for the South Suburban Major Crimes Task Force, and had responded to the
scene of the shooting. He testified that when he arrived he saw Claude, whom he had met on
previous occasions, in an ambulance. Detective Henderson stated that he asked Claude who shot
him, and Claude responded “MC shot me.” Claude stated MC was Michael Caraway. According
- 11 -
No. 1-18-0556
to Detective Henderson, he asked Claude about his his condition, and Claude responded “I think
I’m going to die.”
¶ 29 On cross-examination, Detective Henderson stated that he first saw Claude inside the
ambulance and did not see him transferred from a van. He admitted that he never asked Claude
whether he personally saw the defendant shoot him or whether anyone else told him that the
defendant shot him. During his interview of Claude at the hospital, he never inquired who, if
anyone, told Claude that the defendant was the shooter.
¶ 30 On redirect examination, Detective Henderson testified that he was present during the
video-recorded interview of Claude, during which he heard Claude state that he saw MC approach
and open fire. He stated that he did not ask Claude whether anybody told him that the defendant
was the shooter. On recross examination, he stated that he assumed that Claude told him the truth
about the shooting.
¶ 31 Detective Dennis Karner testified that he was a member of the Flossmoor police
department and responded to the scene of the shooting on February 20, 2017. As part of the
investigation, he went to Stroger Hospital to check on the status of the victims and interview
witnesses. He attempted to interview “JeJuan Taylor,” one of the victims, but he was “very
uncooperative.” He stated that he also interviewed Darryl and asked him who had shot him. Darryl
responded that he did not know.
¶ 32 Kimberly Hofsteadter testified that she worked for the Cook County Department of
Corrections in the telephone monitoring unit. She was trained in the Securus System which allows
inmates to call their family and friends after they have been registered in the system. She stated
that all calls by inmates are recorded and maintained on a server in Texas. Each phone call placed
- 12 -
No. 1-18-0556
by an inmate includes a prompt at the beginning which informs the parties that the phone call is
being recorded and monitored.
¶ 33 According to Hofsteadter, she reviewed phone calls made by the defendant, including a
phone call placed on November 2, 2017. She also reviewed the call detail reports which contain
information about the caller and duration of the phone call. Defendant’s call detail report indicated
that a call was placed on November 2, 2017, starting at 4:41 p.m. and ending at 5:11 p.m.
¶ 34 The State played portions of the November 2 phone call recording for the jury. In that
recording, the defendant stated that he was getting ready to go to trial “on Monday.” The other
man said he “didn’t want to be in their presence period,” and was not “worried about catching a
warrant” because he had a “crib” to go to. The man said he was going to go to Minnesota with his
sister. The defendant discussed “the last payment” and stated that he was going to tell the “girl to
grab that tomorrow” but “we go Monday.” The man said “you got my word” that neither I nor “the
missus” would be there “on Monday.”
¶ 35 On redirect examination, Hofsteadter testified that the conversations in the recordings were
from a call registered to the defendant. On recross examination, she admitted that she did not know
who the parties to the conversations were.
¶ 36 Detective Blake Naylor testified that he was a member of the Chicago Heights police
department and was assigned to the South Suburban Major Crimes Task Force. During the early
morning hours of February 21, 2017, he was at a location in Sauk Village, Illinois in an undercover
vehicle when he received instructions to curb a particular vehicle with a passenger identified in
court as the defendant. According to Detective Naylor, when the vehicle in which the defendant
- 13 -
No. 1-18-0556
was riding stopped, the defendant exited the vehicle, looked “straight” at the officers, and then ran
northbound. Officers called for him to stop and then gave chase.
¶ 37 The officers called for assistance from a canine unit to locate the defendant. Detective
Naylor testified that, with help from the dog, the defendant was found in the backyard of a house
in between a shed and a fence, lying face down on the ground. He was then taken into custody.
¶ 38 Detective Naylor also testified that he knew Claude and had previous conversations with
him. Detective Naylor listened to the recording of the November 2, 2017 phone call and testified
that he recognized Claude’s voice from the recording. On cross-examination, Detective Naylor
stated that his most recent contact with Claude was “maybe a month and a half” prior to trial, and
he admitted that was never trained in voice recognition.
¶ 39 After the State rested, the defendant called Chicago police officer Sean Grosvenor as a
witness. Officer Grosvenor testified that, on February 20, 2017, he was employed as a crime scene
investigator for the South Suburban Major Crimes Task Force. As part of his duties, Officer
Grosvenor located and secured evidence for examination by the Illinois State Police. He identified
photographs of the Brookline residence with markings for spent shell casings and a discarded
firearm, as well “an area of blood-like stain.” According to Officer Grosvenor, the “grip and
trigger” of the gun were swabbed with a cotton swab to collect any possible latent material that
might lead to a DNA identification. Officer Grosvenor identified a bloodlike substance in the
driveway of the Brookline residence and inside a white minivan parked across the street.
¶ 40 In closing, the State argued inter alia that the defendant shot Claude and Darryl, causing
great bodily harm. The State pointed out that Darryl’s arm bone was shattered between his shoulder
- 14 -
No. 1-18-0556
and elbow and “didn’t heal properly and it looked like it was bent the wrong way,” and Claude
was shot three times with one bullet puncturing his lung, and another just missing his heart.
¶ 41 Defense counsel argued in closing that the witnesses were not credible and that no physical
evidence linked the defendant to the crime scene despite the firearm and shell casings being
recovered by the police.
¶ 42 The jury found defendant guilty of attempt first degree murder of Claude during which he
personally discharged a firearm causing great bodily harm, and guilty of aggravated battery with
a firearm of Claude and Darryl. The jury found defendant not guilty of either count of attempt first
degree murder of Darryl.
¶ 43 The defendant subsequently filed a motion for judgment notwithstanding the verdict or in
the alternative for a new trial. The motion contained a handwritten paragraph, stating: “The
defendant, Michael Caraway, alleges ineffective assistance of counsel in that defense counsel did
not exclude from the jury certain jurors who expressed they could not be fair based upon members
of their families having been shot.” The paragraph was signed by the defendant. When arguing the
motion, defense counsel informed the court that he “had [defendant] sign that and [counsel would]
make the argument for him.” Counsel argued that the defendant remembered “a few jurors,” who
indicated that they could not be fair or impartial because members of their family had been shot.
Counsel also informed the court that the defendant also recalled counsel asking to exclude one of
the jurors for cause “and that didn’t occur,” which the defendant believed was prejudicial to his
case. The State responded to all the issues raised in the defendant’s motion, asserting that all jurors
indicated “that they could be fair.” The court denied the motion without addressing the defendant
or expressing its reasoning on the record.
- 15 -
No. 1-18-0556
¶ 44 The case proceeded to sentencing. In aggravation, the State argued the following:
“[T]here is mandatory consecutive sentencing as to the charges. And that’s because
under D1 one of the offenses the defendant was convicted of is a class X felony and the
defendant inflicted severe bodily harm. The jurors found that there was great bodily harm.”
The State further argued “the attempt murder personally discharging, cause great bodily harm
that’s 6 plus 25 so 31 minimum to life. So the minimum would be 37.” Defense counsel did not
contest the consecutive sentencing but disagreed as to the sentencing range described by the State.
¶ 45 The court sentenced the defendant to a total of 44 years’ imprisonment. In pronouncing
sentence, the court merged the counts related to Claude (Counts III & VII) into the attempt murder
count (Count IV) and sentenced the defendant to 37 years’ imprisonment on that count. The court
also sentenced the defendant to a consecutive term of seven years’ imprisonment for the aggravated
battery with a firearm of Darryl (Count XIV). In imposing sentence, the court indicated it
considered the factors in aggravation, including the defendant’s prior convictions, and also
considered the factors in mitigation. The trial court made no specific findings on the record. The
court denied the defendant’s oral motion for reconsideration. This appeal followed. Subsequent to
the filing of the instant appeal, the defendant’s prior convictions in an unrelated matter were
reversed on appeal. See People v. Caraway, 2021 IL App (1st) 172412-U.
¶ 46 We first consider the defendant’s argument that he should receive a new trial because the
trial court erred when it failed to ask one of the jurors whether he understood and accepted the
principles set forth in Illinois Supreme Court Rule 431(b). The defendant concedes that he neither
objected to the trial court’s failure to comply with Rule 431(b) nor did he raised the issue in a
motion for a new trial. See People v. Thompson, 238 Ill. 2d 598, 611-612 (2010) (“To preserve a
- 16 -
No. 1-18-0556
claim for review, a defendant must both object at trial and include the alleged error in a written
posttrial motion.”). Nevertheless, the defendant argues that we should review the error under the
first prong of the plain error doctrine. See People v. Sebby, 2017 IL 119445, ¶¶ 51-52 (Rule 431(b)
violations are reviewed under the first prong of the plain error doctrine). The initial consideration
in this analysis is whether a clear and obvious error occurred. Thompson, 238 Ill. 2d at 613.
¶ 47 Supreme Court Rule 431(b) provides that, during voir dire examination of prospective
jurors, a trial court shall ask each potential juror, individually or in a group, whether the juror
understands and accepts that: (1) the defendant is presumed innocent of the charges against him;
(2) the State must prove the defendant guilty beyond a reasonable doubt before the defendant can
be convicted; (3) the defendant is not required to offer any evidence on his own behalf; and (4) if
a defendant does not testify, it cannot be held against him. Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
Each of these specific questions “goes to the heart of a particular bias or prejudice which would
deprive defendant of his right to a fair and impartial jury.” People v. Zehr, 103 Ill. 2d 472, 476
(1984). Although the rule mandates a specific question and response process, where the trial court
asks each juror whether he or she understands and accepts each of the principles in the rule, it is
not required to use the specific language of the rule in instructing the prospective jurors. People v.
Kidd, 2014 IL App (1st) 112854, ¶ 36. The issue as to whether the trial court violated Rule 431(b)
involves construction of the rule, controlled by the same principles applicable to the construction
of statutes. Thompson, 238 Ill. 2d at 606. “The proper interpretation of our supreme court rules is
reviewed de novo.” Id.¶ 48 The defendant asserts that the trial court in this case failed to question juror J.Z. about
whether he understood and accepted any of the principles outlined in Rule 431(b). We agree that
- 17 -
No. 1-18-0556
from the record before us, each juror except J.Z. was individually questioned as to whether he or
she understood and accepted each of the principles set forth in Rule 431(b). Prior to individual
questioning, the group was informed of each of the principles outlined in the Rule. The court asked
whether the potential jurors “disagreed” with the principles or, with the statement that defendant
did not have to testify. The trial court asked “[w]ould any of you hold the fact that a defendant did
not testify at trial against that person?” These statements were equivalent to asking about potential
jurors’ acceptance of the enumerated principles. See People v. Wilmington, 2013 IL 112938, ¶ 32.
However, the trial court failed to ask the jurors during group questioning whether they understood
the principles. See id. Although the court questioned each juror individually about whether he or
she understood and accepted the principles, the record indicates the court did not question juror
J.Z. about whether he understood the principles. Accordingly, error occurred.
¶ 49 That said, we find the error did not rise to the level of plain error because the evidence
against the defendant was not closely balanced. See Sebby, 2017 IL 119445, ¶ 68. Here, three
separate witnesses (Darryl, Claude, and Tamicca) provided police with recorded statements shortly
after the incident, identifying the defendant, with whom they were familiar, as the shooter. These
statements were consistent regarding the sequence of events during the shooting. Although each
witness recanted these statements, the State impeached each witness with his or her prior recorded
statements which were then admitted as substantive evidence.
¶ 50 Even in the absence of corroborative evidence, recanted prior inconsistent statements can
support a conviction. See People v. Armstrong, 2013 IL App (3d) 110388, ¶ 23; People v. Craig,
334 Ill. App 3d 426, 438 (2002). Further, the State presented evidence regarding a telephone
conversation between the defendant and Claude where Claude informed the defendant he was
- 18 -
No. 1-18-0556
planning to stay with his sister in Minnesota, and that he and his wife would not “be there” on
“Monday.” The defendant also mentioned “payment” in this phone call. Additionally, Detective
Naylor testified that defendant fled from the police who gave chase using a police dog to capture
him. Flight is “generally considered some evidence of a guilty mind,” and when considered with
all the other evidence, “is a circumstance that a factfinder may consider as tending to prove guilt.”
People v. Aljohani, 2021 IL App (1st) 190692, ¶ 64. In sum, we find the evidence presented was
not so closely balanced that the court’s error in questioning juror J.Z alone may have tipped the
scales in favor of the State and, therefore, any error by the trial court in that regard does not rise to
the level of plain error. See Sebby, 2017 IL 119445, ¶ 78. Consequently, we reject defendant’s
argument that the trial court’s failure to properly question J.Z is grounds for reversal of his
convictions and remandment for a new trial.
¶ 51 The defendant next contends that his case should be remanded for a preliminary Krankel
inquiry into his allegations of ineffective assistance of counsel. Specifically, he argues that the trial
court failed to conduct such an inquiry when it ruled on his motion for a new trial, which included
his pro se allegation of counsel’s ineffectiveness based on counsel’s failure to exclude jurors who
indicated they could not be fair or impartial because members of their family had been shot. The
defendant points out that the court denied the motion without commenting or inquiring into his
claim of ineffective assistance.
¶ 52 The State responds that it has “no quarrel with the legal authority cited in defendant’s brief,
however, [that authority is] simply inapplicable to the facts of this case where no pro se claim was
never made, contrary to defendant’s claim.” In support of that argument, the State maintains that
the law is clear that only a pro se claim of ineffective assistance of counsel requires an inquiry into
- 19 -
No. 1-18-0556
the claim and there is no legal authority to support defendant’s claim that a preliminary Krankel
inquiry is required for an assertion included in a motion for a new trial filed by counsel. Under the
circumstances in this case, we disagree with the State’s argument.
¶ 53 Under Krankel and its progeny, when a defendant raises a pro se posttrial claim of
ineffective assistance of counsel, the trial court must conduct an inquiry into the underlying factual
basis of defendant’s claim. People v. Moore, 207 Ill. 2d 68, 77-78 (2003); People v. Ayres, 2017
IL 120071, ¶ 11. “[A]n attorney can raise the issue of his own ineffectiveness only if he does so
clearly and at the direction of the defendant,” and he must alert the court that he is raising the issue
at the defendant’s direction. People v. Bates, 2019 IL 124143, ¶ 33. The trial court need not appoint
new counsel every time a defendant raises a pro se posttrial claim of ineffective assistance of
counsel but should first examine its factual basis. People v. Jackson, 2020 IL 124112, ¶ 97. If the
defendant’s claim indicates possible neglect by trial counsel, the trial court must appoint new
counsel to argue the claim of ineffective assistance. Moore, 207 Ill. 2d at 78. However, if the
defendant’s claim lacks merit or concerns solely trial strategy, the court may deny the motion and
need not appoint new counsel. Id.¶ 54 “The operative concern for the reviewing court is whether the trial court conducted an
adequate inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.” Id.A brief discussion between the trial court and defendant may suffice, and the court may base its
evaluation of the claim on its knowledge of defense counsel’s performance at trial and the
insufficiency of the defendant’s claims on their face. Id. at 78-79. To trigger a Krankel inquiry, “a
defendant need only bring his claim to the court’s attention.” Ayres, 2017 IL 120071, ¶ 19. Whether
- 20 -
No. 1-18-0556
defendant sufficiently alleged ineffective assistance of counsel to warrant a Krankel inquiry is a
question of law that we review de novo. People v. Taylor, 237 Ill. 2d 68, 75 (2010).
¶ 55 Here, the record shows that the defendant raised an ineffectiveness claim sufficient to
trigger a preliminary Krankel inquiry. In Bates, the supreme court explained that:
“the trial court is requited to inquire into counsel’s effectiveness only upon a clear claim
of ineffective assistance by a pro se defendant or by an attorney at the defendant’s direction.
Thus, an attorney can raise the issue of his own ineffectiveness only if he does so clearly
and at the direction of the defendant. He must also alert the court that he is raising the claim
at the defendant’s direction.” 2019 IL 124143, ¶ 33.
In this case, the defendant’s motion for a new trial included a handwritten paragraph at the end of
the motion, describing the ineffective assistance of counsel claim and which was signed by the
defendant, indicating that he was raising that claim pro se. Defense counsel informed the court
that the defendant signed the handwritten portion of the motion and that he agreed “to make the
argument for him.” As such, although counsel raised the issue of his own ineffectiveness it was
clearly done at defendant’s direction which, under Bates, was sufficient to trigger a preliminary
inquiry into defendant’s pro se claim of ineffective assistance of counsel. 2019 IL 124143, ¶ 33;
see also People v. Downing, 2019 IL App (1st) 170329, ¶¶ 26-28 (a Krankel inquiry is triggered
when the defendant “speak[s] through counsel either by drafting a written post-trial motion and
asking counsel to submit it, or by directing counsel to raise the issue orally.”) (citations omitted);
People v. Rhodes, 2019 IL App (4th) 160917, ¶¶ 16-20 (remanding for a Krankel inquiry where
defense counsel raised an ineffective assistance of counsel claim on behalf of defendant).
- 21 -
No. 1-18-0556
¶ 56 The trial court did not engage in any colloquy with defendant or defense counsel
concerning the defendant’s ineffective assistance claim and did not address it in its ruling on the
posttrial motion. In this case, however, the court’s failure to do so was not error. See People v.
Tolefree, 2011 IL App (1st) 100689, ¶ 22 citing Moore, 207 Ill. 2d at 78-79. A trial court may base
its Krankel decision on: (1) the trial counsel’s answers and explanations; (2) a brief discussion
with the defendant; or (3) the trial court’s own knowledge of defense counsel’s performance at
trial and the insufficiency of the defendant’s allegations. Id. Here, the defendant’s pro se allegation
of ineffective assistance is positively rebutted by the record.
¶ 57 The record in this case establishes that the trial court heard counsel’s argument regarding
defendant’s claim of ineffectiveness and was in a position to evaluate the insufficiency of the claim
on its face. Defendant claimed that trial counsel failed to “exclude from the jury certain jurors who
expressed they could not be fair based upon members of their families having been shot.”
However, the assertion is positively rebutted by the record of the trial court’s voir dire of the jury
venire and trial counsel’s actions. Although several potential jurors indicated that they knew
someone who had been shot, all except prospective juror S.S., indicated that they could be fair and
impartial. S.S. indicated that the fact that she knew someone who had been shot “could” affect her
ability to be impartial and answered “I just don’t know” when asked if it would enter into her
decision making. Contrary to defendant’s assertion, however, defense counsel did not fail to
“exclude” this potential juror. Rather, defense counsel moved that S.S. be excluded for cause; and
when that motion was denied, he used a peremptory challenge to strike the prospective juror. The
trial court, which presided over jury selection, was obviously aware of these circumstances and
could determine that defendant’s claim was meritless on its face. The trial court which observed
- 22 -
No. 1-18-0556
trial counsel’s performance during jury selection was well positioned to rule on defendant’s claim
of ineffectiveness without additional inquiry. Moore, 207 Ill. 2d at 78-79 (a trial court may base
its evaluation of a defendant’s claim of ineffectiveness on its knowledge of defense counsel’s
performance at trial). Likewise, we find the record rebuts defendant’s claim of ineffective
assistance. Accordingly, we reject defendant’s claim that the trial court failed to conduct an
adequate Krankel inquiry.
¶ 58 In a supplemental brief filed by the defendant in this appeal with leave of court, he argues
that his sentences of 37 years’ imprisonment for attempt murder and seven years’ imprisonment
for aggravated battery with a firearm must be vacated and the case remanded for resentencing on
both convictions due to the trial court’s consideration in aggravation his convictions in an unrelated
case which were subsequently reversed on appeal. See Caraway, 2021 IL App (1st) 172412-U. On
this issue, we agree. As the defendant correctly argues, sentences resting in part on subsequently
reversed convictions in an unrelated case must be vacated and the case remanded for resentencing.
See United States v. Tucker, 404 U.S. 443, 447-49, 92 S. Ct. 589, 30 L. Ed. 592 (1972).
¶ 59 In his initial brief filed in this appeal, defendant also argued that the trial court’s order that
his sentences run consecutively must also be vacated and the matter remanded for a determination
of the propriety of consecutive sentences due to the trial court’s failure to make an explicit finding
of severe bodily injury for either the attempt murder of Claude or the aggravated battery with a
firearm of Darryl. The defendant concedes that he did not raise this sentencing issue before the
trial court or in a post-trial motion. Nevertheless, he requests we review his claim under either
prong of the plain error doctrine or, in the alternative, as an ineffective assistance of counsel claim.
- 23 -
No. 1-18-0556
¶ 60 Sentencing issues raised for the first time on appeal may be reviewed under the plain-error
doctrine. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Sauseda, 2016 IL App (1st) 140134, ¶
11. In the sentencing context, a reviewing court may address a forfeited claim if a clear and obvious
error occurred and either (1) the evidence at the sentencing hearing was closely balanced, or (2)
the error was so serious that it deprived the defendant of a fair sentencing hearing. People v. Hillier,
237 Ill. 2d 539, 545 (2010). A trial court’s improper imposition of consecutive sentences is plain
error under the second prong of the plain error doctrine, because it affects a defendant’s substantial
rights. People v. Lashley, 2016 IL App (1st) 133401, ¶ 68. Again, the initial consideration in this
analysis is whether a clear and obvious error occurred at all. Hillier, 237 Ill. 2d at 545. Here, we
find the court erred in imposing consecutive sentences without a finding of severe bodily injury.
¶ 61 Under the Unified Code of Corrections, when a court imposes multiple sentences at the
same time, generally the sentences must run concurrently. 730 ILCS 5/5-8-4(a) (West 2016).
Relevant here is an exception to this rule which mandates that a court impose consecutive
sentencing when one of the offenses for which the defendant has been convicted was a Class X or
Class 1 felony and the defendant inflicted severe bodily injury. 730 ILCS 5/5-8-4(d)(1) (West
2016). In this case, the defendant was convicted of attempt first degree murder and aggravated
battery with a firearm, both Class X offenses. See 720 ILCS 5/8-4(c)(1) (West 2016); 720 ILCS
5/12-3.05(e)(1), (h) (West 2016). However, the trial court never made a specific finding of severe
bodily injury necessary to support consecutive sentences. Absent such a finding, “we must not
engage in our own assessment of the facts and the evidence to determine whether consecutive
sentences were required under section 5-8-4(d)(1) of the Code.” People v Alvarez, 2016 IL App
(2d) 140364, ¶ 28 (citing People v. Deleon, 227 Ill. 2d 322, 332 (2008).
- 24 -
No. 1-18-0556
¶ 62 We are not persuaded by the State’s argument that consecutive sentences in this case is
appropriate based upon the jury’s determination that the victims suffered great bodily harm. The
terms “great bodily harm” and “severe bodily injury” are not synonymous. “Great bodily harm”
defines the offense of aggravated battery; whereas, “severe bodily injury” is a prerequisite to
consecutive sentencing. Alverez, 2016 IL App (2d) 140364, ¶ 23; People v. Williams, 335 Ill. App.
3d 596, 599-600 (2002). “[S]evere bodily injury” requires a degree of harm to the victim that is
“something more” than that required for the offense of aggravated battery. Id. A finding of “great
bodily harm” does not necessarily or automatically result in a finding of “severe bodily injury.”
Alvarez, 2016 IL App (2d) 140364, ¶ 24. We find that, because the trial court did not make a factual
finding of severe bodily injury, defendant has established plain error under the second prong of
the analysis, and the matter must be remanded for the trial court’s determination as to whether the
defendant inflicted severe bodily injury requiring the imposition of consecutive sentences.
¶ 63 Based upon the foregoing analysis, we affirm defendant’s convictions for attempt murder
and aggravated battery with a firearm, vacate the defendant’s sentences on both convictions, and
remand the case to the circuit court for resentencing and a determination of whether the defendant
inflicted severe bodily injury requiring the imposition of consecutive sentences.
¶ 64 Affirmed in part and vacated in part; cause remanded.
- 25 -