People v. Taylor

2019 IL App (1st) 150628-UNo. 1-15-0628
Order filed December 13, 2019
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party 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. 07 CR 15069
)
CHRISTOPHER TAYLOR, ) Honorable
) Brian K. Flaherty,
Defendant-Appellant. ) Judge presiding.
JUSTICE HALL delivered the judgment of the court.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: This court affirmed defendant’s first degree murder conviction where: the evidence
proved beyond a reasonable doubt that at the time of the shooting defendant
intended or knew his acts would kill or cause great bodily harm to the victim; no
evidentiary errors were committed by the trial court; and defense counsel was not
ineffective. The statutory 25-year mandatory firearm enhancement was not
unconstitutionally vague.
¶2 Defendant Christopher Taylor was charged by indictment with multiple counts of first
degree murder in connection with the death of Derico Fitch (Rico). A jury found defendant guilty
No. 1-15-0628
of first degree murder, and he was sentenced to a term of 25 years’ imprisonment for first degree
murder and a consecutive 25-year term for personally discharging a firearm that caused Rico’s
death. Defendant appeals his conviction and sentence.
¶3 On appeal, defendant contends as follows: (1) his first degree murder conviction must be
reduced to involuntary manslaughter; (2) the State’s use of impermissible hearsay in a video-
recorded interview denied defendant a fair trial; (3) defendant was denied his constitutional right
to confront the witnesses against him; (4) defense counsel was ineffective for failing to request a
jury instruction on the mental state of knowledge; (5) the State’s closing argument denied
defendant a fair trial; (6) the 25-year mandatory firearm enhancement was unconstitutional; and
(7) defendant’s sentence was excessive.
¶4 BACKGROUND
¶5 The circumstances surrounding Rico’s death in the early morning hours of June 20, 2007,
are largely undisputed; defendant admitted that he had a gun in his possession, and the gun
discharged killing Rico.
¶6 I. Pretrial Proceedings
¶7 Defendant filed several motions in limine, two of which are at issue in this appeal.
¶8 A. Video-Recorded Interview
¶9 Defendant moved to have the jury view only the redacted version of the video recording of
his interview with assistant State’s Attorney Nick D’Angelo (ASA D’Angelo) on the ground that
during the interview, the ASA referred to statements by the eyewitnesses and other individuals
that might have been false or never made. The trial court denied the motion, finding the ASA’s
statements were a proper interrogation tactic and to redact them would remove their context and
-2-
No. 1-15-0628
render defendant’s interview nonsensical to the jury. The court rejected defense counsel’s
alternative request that the jury be instructed that they were not to consider the statements as
evidence and that the statements might contain inaccurate and intentional misstatements but agreed
to instruct the jury that the statements by other individuals referred to by ASA D’Angelo were not
evidence.
¶ 10 B. Confrontation Clause
¶ 11 Defendant filed a motion in limine seeking to bar the testimony of Dr. Eimad Zukariya, an
assistant Cook County medical examiner. Dr. Zukariya reviewed the reports prepared by Dr.
Valerie Arangelovich, the assistant Cook County medical examiner who performed the 2007
autopsy on Rico’s body. Dr. Arangelovich was no longer employed in the Cook County medical
examiner’s office. Defendant asserted that in order to disprove the State’s intentional murder
theory he needed to cross-examine the medical examiner who performed the autopsy. He
maintained that having a medical examiner who only reviewed the reports testify violated his
constitutional right of confrontation. The trial court denied the motion finding that Dr. Zukariya’s
testimony was nontestimonial in nature.
¶ 12 II. Jury Trial
¶ 13 The relevant trial testimony is summarized below.
¶ 14 A. For the State
¶ 15 1. Duane Jeffrey F. Smith
¶ 16 a. Direct Examination
¶ 17 Duane Jeffrey F. Smith (Duane) and Devon Patton (Devon) were childhood friends and
friends of Rico. Duane was acquainted with defendant who was Devon’s cousin.
-3-
No. 1-15-0628
¶ 18 Just after midnight on June 20, 2007, Duane, Devon and defendant were at Devon’s uncle’s
house on Lincoln Avenue, in Harvey. The three men were talking in the garage when Rico arrived.
Rico and defendant began to argue loudly enough that the group was asked to move. Devon and
Duane followed Rico across the street to the Lincoln Medical Center parking lot. Defendant
walked across the street but at an angle away from the group. Duane’s attention was on Rico
because he wanted to find out what the argument was about, and he lost sight of defendant. When
defendant returned to the group, he seemed quiet, but he got loud again as Rico and he continued
their argument.
¶ 19 Devon and Duane attempted to keep the argument between Rico and defendant from
becoming physical. As defendant approached Rico, Devon pushed defendant, and Duane jumped
in front of Rico. Rico pushed Duane out of the way, turning on an angle, and defendant pushed
Devon away. Duane heard a shot and saw defendant holding a gun. Duane began to run, afraid that
defendant was going to shoot Devon or him. He went about five feet and then turned back to where
Rico had fallen. Duane saw defendant run toward Lincoln Medical Center. Duane did not see him
drop the gun and did not know what he did with it.
¶ 20 While calling the police, Duane used a shirt to try to stop the bleeding from Rico’s wound.
After the police and an ambulance arrived, Devon and Duane accompanied a police officer to
Rico’s house to inform Rico’s family what had occurred. After returning to the scene, Devon and
Duane were placed in a squad car and driven to the Harvey police station. Duane did not know
where defendant was at that time. At the police station, Duane was separated from Devon and
placed in an interview room. During an interview with a detective, Duane stated that defendant
-4-
No. 1-15-0628
shot Rico. In a videotaped interview, Duane repeated that defendant shot Rico. He did not see the
gun until after the shot was fired. Defendant was the only person Duane saw with a gun.
¶ 21 b. Cross-Examination
¶ 22 According to Duane, Rico and defendant argued about Rico’s criticism of the group’s
failure to take security precautions. At one point, Rico and defendant took their shirts off to fight.
After Devon and Duane returned to where Rico had fallen, defendant returned and told Duane to
remove his shirt so that defendant and Duane could apply pressure to Rico’s wound.
¶ 23 2. Devon Patton
¶ 24 a. Direct Examination
¶ 25 At the time of defendant’s trial, Devon was on parole for an armed robbery conviction from
the State of Michigan.
¶ 26 On June 20, 2007, defendant and Devon were standing in front of his uncle’s house when
they were joined by Duane. The group was socializing when Rico arrived asking why they were
“slipping,” meaning they were not paying attention to their surroundings. At first Rico directed his
comments to the group, but it turned into an argument between defendant and Rico. The argument
grew so loud that the group was asked to move away from the house. They crossed the street to
the parking lot of the Lincoln Medical Center.
¶ 27 After crossing the street, defendant and Rico continued to argue loudly. Duane and Devon
tried to keep them apart so they would not get into a physical altercation, but neither man would
calm down. Defendant removed his shirt, but Rico did not remove any of his clothing. Devon was
holding Rico, who told him he was fine and to let him go. Devon then went over to defendant
telling him to calm down and holding his arms. Defendant shoved Devon away and faced Rico.
-5-
No. 1-15-0628
As Devon turned around, he saw defendant with a gun; his elbows were bent, and the gun was
pointed forward. Devon heard a shot and ran back toward his uncle’s house. He tried but failed to
gain admittance to the house or to the house next door. As Devon waited on the side of the house,
he did not see defendant.
¶ 28 Devon returned to where Rico had fallen; Duane was trying to apply pressure to the gunshot
wound. Rico was wearing a hoodie over two shirts, so it was hard to tell where the blood was
coming from. Neither Duane nor Devon had a gun that night, and Devon did not see Rico with a
gun.
¶ 29 After the police and the ambulance arrived, a police officer took Duane and Devon to
Rico’s house to tell his family what had occurred. When they returned to the scene, Devon saw
defendant talking to police officers. He heard defendant tell the officers that someone had walked
up and shot Rico. Devon was taken to the police station where he was interviewed by the police
and gave a videotaped statement. He was then released.
¶ 30 b. Cross-Examination
¶ 31 According to Devon, defendant removed his shirt, but Rico did not take his clothes off.
Devon admitted he had been drinking and thought he was intoxicated. Rico did not appear to be
intoxicated. Devon did not remember asking Rico if he was intoxicated. When Rico was arguing
with the group, everyone thought he was kidding.
¶ 32 Devon denied that he was distracted by the commotion resulting from the continuing
argument or by Rico shouting to the occupants of a van as it drove by. Devon acknowledged that
defendant was not extending his arm forward pointing the gun at Rico.
3. Eimad Zukariya, M.D.
-6-
No. 1-15-0628
¶ 33 At the time of trial, Dr. Zukariya was an assistant medical examiner in the Office of the
Cook County Medical Examiner. Over defendant’s objection, the trial court qualified Dr. Zukariya
as an expert in the field of forensic pathology.
¶ 34 a. Direct Examination
¶ 35 In 2015, Dr. Zukariya reviewed records of the June 20, 2007, autopsy performed on Rico’s
body by Dr. Arangelovich. According to the autopsy report, an external examination of the body
revealed a number of abrasions and two gunshot wounds. The first gunshot wound was on the right
side of the chest below the nipple. There was stippling around the wound indicating that the range
of fire was two to three feet from the body, and the course of the bullet was from front to back, left
to right and then downward. The bullet passed through the skin and soft tissue of the right side of
the chest striking the diaphragm on the right. It then struck the top of the liver, hit the middle and
lower lobe of the right lung and struck the spleen before exiting the body between the tenth and
eleventh ribs. There was an exit wound on the left side of the back. The wound caused a loss of
40% or two-fifths of the victim’s blood.
¶ 36 The second gunshot wound was on the back of the left arm, above the elbow, where the
bullet entered. It did not strike any bone matter as it traveled back to front, left to right and upwards.
There was no stippling around the second gunshot wound. There was an exit wound as well.
¶ 37 Dr. Zukariya believed the bullet that exited from the first gunshot wound could not have
caused both wounds for several reasons. First, the bullet exited the body at 20 and 1/2 inches from
the top of the head and would have had to reenter the body 11 inches below the top of the head.
Second, the bullet would have had a different entrance and exit path opposite to what the report
showed. Third, the one bullet would have caused an atypical entry wound upon its second entry
-7-
No. 1-15-0628
because it would not be traveling in the same plane, i.e., rotating. The second wound entry looked
like a typical entry. Therefore, Dr. Zukariya did not believe the second gunshot wound resulted
from a reentry of the first bullet.
¶ 38 Based on his review of the autopsy records and the photographs and within a reasonable
degree of medical certainty, Dr. Zukariya opined that the cause of Rico’s death was multiple
gunshot wounds, and the manner of death was homicide.
¶ 39 b. Cross-Examination
¶ 40 The toxicology report indicated that while Rico had stopped drinking earlier in the evening,
he was still legally intoxicated at the time of his death. The number designation of the gunshot
wounds did not relate to the order in which the wounds were inflicted.
¶ 41 Dr. Zukariya explained that he relied on the body measurements Dr. Arangelovich had
taken. Had he performed the autopsy, he could have examined the internal organs to determine if
the bullet had tumbled as it passed through the body. The doctor did not review any x-rays; those
would have revealed fragments of the bullet if tumbling had occurred. Dr. Arangelovich’s report
did not mention any bullet fragments. The trajectory of the bullet as up or down in the body did
not always relate to how the person was standing or moving when they were shot. Even if he had
performed the autopsy himself, Dr. Zukariya would not have been able to tell how the bullet
entered Rico’s body. The doctor agreed that it would have been better to have been the individual
performing the original autopsy. Making his own observations, taking the measurements and
choosing which photographs to take would result in a more complete and accurate review. The
doctor acknowledged that he was relying on Dr. Arangelovich’s autopsy report and that the report
was subject to the possibility of human error. There had been one clerical error in the report; an
-8-
No. 1-15-0628
exit wound was transcribed as an entrance wound. Dr. Zukariya agreed that Rico’s clothing could
have blocked the stippling effect from appearing on his skin.
¶ 42 c. Redirect Examination
¶ 43 According to Dr. Zukariya, if Rico had been wearing a light tee shirt, the stippling could
have been seen on his skin. His review of the autopsy photographs supported the measurements
recorded by Dr. Arangelovich.
¶ 44 d. Re-Cross-Examination
¶ 45 Dr. Zukariya acknowledged that to be certain of the actual measurement, it was necessary
to have been present when the autopsy was performed. Mostly likely, any stippling would not have
penetrated through a hoodie and two shirts. 1
¶ 46 4. Manuel Escalante
¶ 47 a. Direct Examination
¶ 48 Prior to his retirement, Mr. Escalante was employed as a detective with the City of Harvey
police department.
¶ 49 On June 20, 2007, Detective Escalante was dispatched to the scene of a shooting at the
Lincoln Medical Center. He learned that there were three witnesses to the shooting; Duane, Devon
and defendant. Arriving on the scene, Detective Escalante spoke with all three men prior to having
them transported to the Harvey police station. Upon their arrival at the police station, defendant,
Duane and Devon were separated and were unable to talk to or see each other.
1
The autopsy report, People’s Exhibit No. 29, was admitted into evidence at the close of the
State’s case.
-9-
No. 1-15-0628
¶ 50 At 3:30 a.m. on June 20, 2007, Detective Escalante interviewed defendant, who was not
considered a suspect at that time. When asked what he witnessed at the scene of the shooting,
defendant told the detective that a male individual, dressed in blue jeans and a white T-shirt came
up to where Rico, Duane, Devon and he were standing. The individual, whose face was partially
covered, displayed a handgun and shot Rico. Defendant thought the handgun was a blue-steel
semiautomatic. The individual then ran from the scene in a northwest direction. The interview with
defendant lasted 15 to 20 minutes. After Detective Escalante conducted separate interviews with
Duane and Devon, defendant became a suspect in Rico’s death.
¶ 51 Around 3 p.m. on June 20, 2007, defendant was placed in the “green room” of the detective
area. The room contained sofas, a television set and a drinking fountain. Defendant was not
handcuffed; he was fed and allowed to watch television. He remained there until 7 a.m. the next
day. In the meantime, the area around the scene of the shooting was canvassed for the weapon
used in the shooting and to locate additional witnesses. No witnesses came forward, and the
weapon was never found.
¶ 52 By 8:30 a.m. on June 21, 2007, Detective Escalante had conducted second interviews with
Duane and Devon. When the detective went to tell defendant he would be returned to the lockup,
defendant asked what had happened to Duane and Devon. The detective responded that the
investigation was ongoing. Defendant stated he wished to talk. Detective Escalante verbally
advised defendant of his Miranda rights, and defendant was taken to an interview room, where a
video camera was set up to record his statement. Detective Crocker was also present in the
interview room. Detective Escalante advised defendant of his Miranda rights in writing. Defendant
changed his version of the shooting and stated that he shot Rico.
- 10 -
No. 1-15-0628
¶ 53 Prior to the jury viewing the video recording of his interview with Detective Escalante,
defendant renewed his objection to the recording being played for the jury. The trial court denied
defendant’s request to instruct the jury that Detective Escalante made intentional misstatements to
him during the interview, but the court did instruct the jury that what the detectives said on the
recording was not evidence. After the recording was played for the jury, defendant moved for a
mistrial based on the improper information contained in the recording. The trial court denied the
motion for mistrial.
¶ 54 b. Cross-Examination
¶ 55 Detective Escalante maintained that there was no communication between defendant,
Duane and Devon at the Harvey police station. Other than the interviews, the detective did not
discuss the case with defendant, until he stated he wished to talk to the detective.
¶ 56 5. Nick D’Angelo
¶ 57 a. Direct Examination
¶ 58 Beginning on the evening of June 21, 2007, and into the early hours of June 22, 2017, ASA
D’Angelo conducted separate interviews with Duane and Devon as part of the investigation into
Rico’s death. He then conducted a video-recorded interview with defendant.
¶ 59 Over defendant’s objection, the trial court allowed the State to present the unredacted video
recording of ASA D’Angelo’s interview with defendant. At the request of defendant, the trial court
instructed the jury as follows:
“[Y]ou will be watching and listening to a DVD recording of a conversation between
[defendant] and Mr. D’Angelo. This recording is being played solely for the purpose of
- 11 -
No. 1-15-0628
showing what [defendant] said about the incident. What Mr. D’Angelo said is not evidence
and must notten [sic] considered by you as any evidence in this case.”
¶ 60 b. Cross-Examination
¶ 61 ASA D’Angelo did not discuss the case with defendant prior to the commencement of the
recording. When the ASA finished asking questions, he stated that he was done, and the recording
was stopped. ASA D’Angelo acknowledged that defendant continued speaking after the recording
was turned off, saying something to the effect that he had not intended to shoot Rico.
¶ 62 6. Nicole Fundell
¶ 63 a. Direct Examination
¶ 64 Nicole Fundell, a forensic scientist specializing in firearm and tool mark examinations for
the Illinois state police, was qualified by the trial court as an expert witness.
¶ 65 Ms. Fundell examined a cartridge case and a fired bullet that had been recovered from the
scene of the shooting. The cartridge and the bullet could not have come from the same gun because
they were of two different calibers. Ms. Fundell could not identify the model of the gun that the
cartridge case was fired from though she could eliminate a Glock firearm because it had a different
firing pin shape than the one on the fired cartridge case. She could not identify the model gun that
the discharged bullet came from since the list of guns was too extensive. Ms. Fundell could
eliminate Glock, Agent-K and Kahr firearms because they were designed with polygonal rifling,
while the discharged bullet had cut-rifling.
¶ 66 Ms. Fundell was questioned about defendant’s statement to ASA D’Angelo on the video
recording that he used a “lemon squeezer” type of gun, which he maintained required only one
pull on the trigger to fire two shots. Ms. Fundell explained that “lemon squeezer” was a nickname
- 12 -
No. 1-15-0628
given to the Smith & Wesson hammerless revolver. Pulling the trigger required more force than a
single-action, but it would fire only one bullet for each pull of the trigger.
¶ 67 b. Cross-Examination,
¶ 68 While the recovered bullet was in good condition. Ms. Fundell could not determine how
long either the bullet or the cartridge had been in the area before they were recovered. Smith &
Wesson manufactured the “lemon squeezer” prior to World War II and then reintroduced it in the
1950’s. If an individual referred to a firearm other than the Smith & Wesson hammerless revolver
as a “lemon squeezer,” the term meant something different to that person.
¶ 69 B. For the Defendant
¶ 70 Defendant waived his right to testify and did not call any witnesses.
¶ 71 C. Verdict and Posttrial Motions
¶ 72 The jury was instructed on both first degree murder and involuntary manslaughter. The
jury deliberated and returned a verdict finding defendant guilty of first degree murder. Following
argument, the trial court denied defendant’s motion for a new trial.
¶ 73 III. Sentencing
¶ 74 At the sentencing hearing, the prosecutor pointed out that at age 18, defendant was
convicted of home invasion, a Class X felony and sentenced to the Illinois Department of
Corrections. The present offense took place when he was age 24, two years after he had completed
the mandatory supervised release (MSR) portion of his sentence. The prosecutor pointed out that
defendant was the only person at the scene armed with a gun, and even though his friends attempted
to restrain him, he chose to use his weapon to settle what had only been a verbal argument. The
- 13 -
No. 1-15-0628
prosecutor requested that the trial court impose a sentence close to the maximum term for first
degree murder.
¶ 75 Defense counsel pointed out that defendant never had a family life; by age three, he was in
the custody of the Department of Children and Family Services (DCFS), and he lived in a series
of group homes and with foster parents. His mother died, and he never met his siblings. After he
was released from prison, he got a job and tried to support his daughter as well as help his girlfriend
raise her two children. Defense counsel requested a 45-year sentence, which would demonstrate
to defendant the serious nature of his actions and give him time to realize the harm he caused.
¶ 76 In sentencing defendant, the trial court stated that it took into consideration defendant’s
social history, especially the lack of a family life. The court recognized that in effect no one was
raising defendant and teaching him, “as your counsel put it, how to act like a man, because you
did not act like a man that day.” The court also considered that defendant’s conduct caused serious
harm, and he had a history of prior criminality. The court found the sentence was necessary to
deter others from committing the same offense. The trial court sentenced defendant to 25 years for
first degree murder and imposed a consecutive 25-year firearm enhancement.
¶ 77 Defendant’s motion for reconsideration of his sentence was denied. This timely appeal
followed. 2
¶ 78 ANALYSIS
¶ 79 I. Sufficiency of the Evidence
2
This case was assigned to the authoring justice on September 13, 2018, but was not fully briefed
until October 2, 2018. The disposition was first circulated to the panel members on November 14, 2019. I
- 14 -
No. 1-15-0628
¶ 80 Defendant contends that his conviction for first degree murder must be reduced to
involuntary manslaughter because the State failed to prove beyond a reasonable doubt that he
intended to kill Rico or knew that his actions would result in Rico’s death or great bodily harm to
Rico. He maintains that the evidence established that his actions were reckless, and therefore, he
was guilty of involuntary manslaughter, not first degree murder.
¶ 81 A. Standard of Review
¶ 82 When reviewing a challenge to the sufficiency of the evidence, the reviewing court’s
function is not to retry the defendant. People v. Nere, 2018 IL 122566, ¶ 69. Rather, the court
considers whether, “viewing the evidence in the light most favorable to the State, ‘ “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’
(Emphasis in original.)” Nere, 2018 IL 122566, ¶ 69 (quoting People v. Collins, 106 Ill. 2d 237,
261 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
¶ 83 B. Discussion
¶ 84 “The basic difference between involuntary manslaughter and first degree murder is the
mental state that accompanies the conduct resulting in the victim’s death.” People v. DiVincenzo,
183 Ill. 2d 239, 249 (1998), abrogated on other grounds by People v. McDonald, 2016 IL 118882.
“The mental state for murder is knowledge, while the mental state for involuntary manslaughter is
recklessness.” People v. Jones, 404 Ill. App. 3d 734, 742 (2010).
¶ 85 A person knows or acts knowingly or with knowledge of: “(b) [t]he result of his conduct,
described by the statute defining the offense, when he is consciously aware that such result is
practically certain to be caused by his conduct.” 720 ILCS 5/4-5(b) (West 2006). “A person acts
recklessly when he ‘consciously disregards a substantial and unjustifiable risk that circumstances
- 15 -
No. 1-15-0628
exist or that a result will follow *** and such disregard constitutes a gross deviation from the
standard of care which a reasonable person would exercise in the situation.’ ” Jones, 404 Ill. App.
3d at 742 (quoting 720 ILCS 5/4-6 (West 2006)). In general, a person acts recklessly when he is
aware that his conduct might result in death or great bodily harm, although that result is not
substantially certain to occur. DiVincenzo, 183 Ill. 2d at 250. Typically, recklessness involves a
lesser degree of risk than conduct that creates a strong probability of death or great bodily harm.
DiVincenzo, 183 Ill. 2d at 250. “[R]ecklessness and knowledge are mutually inconsistent culpable
mental states.” People v. Fornear, 176 Ill. 2d 523, 531 (1997).
¶ 86 In this case, it is undisputed that defendant’s discharge of the gun resulted in Rico’s death.
Only his mental state at the time of the shooting is at issue. Since direct evidence of a defendant’s
mental state is usually lacking, it may be inferred from the surrounding circumstances, including
the character of the defendant’s acts and the nature of the victim’s injuries. Jones, 404 Ill. App. 3d
at 744. The question of whether a defendant acted intentionally, knowingly or merely recklessly
is generally a question for the trier of fact. Jones, 404 Ill. App. 3d at 744.
¶ 87 Defendant maintains that the uncontradicted evidence showed that Rico and he engaged in
an alcohol-fueled argument initiated by Rico, that defendant displayed the gun in order to reassure
Rico that the group would not be taken by surprise and that as Rico and he struggled for the gun it
discharged one time. Defendant points out that he remained at the scene and attempted to aid Rico
and consistently maintained that he did not intend to shoot Rico. He argues that these actions were
further proof that he did not possess the mental state for first degree murder.
¶ 88 That defendant’s mental state was one of knowledge rather than recklessness was
supported by the autopsy report, which stated that Rico died of multiple gunshots, and Dr.
- 16 -
No. 1-15-0628
Zukariya’s testimony explaining why Rico’s injuries could only have been the result of two gun
shots. In her testimony, Ms. Fundell, the expert in firearms, disputed defendant’s claim that the
gun he used fired two bullets for each trigger pull. She explained that a “lemon squeezer,” the term
defendant had used, was a nickname given to a Smith and Wesson revolver that took more effort
to fire but still only discharged one bullet at a time.
¶ 89 The State’s evidence as to defendant’s mental state was not limited to the two-shot theory.
There was other evidence, which if believed by the jury, established beyond a reasonable doubt
that defendant’s mental state at the time of the shooting was one of knowledge, not recklessness.
Defendant was the only person at the scene armed with a gun. Defendant’s claim that he was just
showing the gun to Rico and that it discharged during a struggle is contrary to the testimony of
Duane and Devon, who testified that prior to the shooting, they were trying to restrain defendant
when he pushed them out of the way and approached Rico. Neither witness testified that defendant
showed the gun to Rico nor that defendant and Rico struggled for the gun before it went off. While
defendant argues that it is mere speculation on the State’s part that Duane and Devon simply did
not hear a second gunshot, neither witness was questioned as to how many gun shots they heard.
Both witnesses ran a short distance from the scene after the first shot, and it is reasonable to infer
that they were focused on their own safety, rather than how many shots were fired.
¶ 90 Defendant’s claim that he remained at the scene to render aid to Rico after the shooting
was contradicted by Duane’s testimony that defendant initially fled the scene before returning to
where Duane was ministering to Rico. As for defendant’s claim that he consistently denied that he
intended to kill Rico, it is undisputed that defendant initially told police that another individual
approached the group and shot Rico. Defendant even provided a description of the shooter and the
- 17 -
No. 1-15-0628
type of gun the shooter used. Reviewing the evidence in the light most favorable to the State, there
was more than sufficient evidence establishing beyond a reasonable doubt that defendant knew
that his actions would result in death or great bodily harm to Rico.
¶ 91 Defendant relies on People v. Collins, 213 Ill. App. 3d 818 (1991). Similar to the present
case, Mr. Collins and the victim had been drinking heavily at the time of the shooting and the
State’s theory of guilt was that two shots were fired. Collins is otherwise distinguishable from the
present case. According to the eyewitness, Mr. Collins and the victim were on the floor struggling,
and the victim was on top of Mr. Collins when the gun discharged. Mr. Collins attempted to revive
the victim before realizing he was dead. He then called 911 to alert the police and requested an
ambulance. Mr. Collins gave his name and address and admitted he and his friend were wrestling
with the gun when it discharged. Collins, 213 Ill. App. 3d at 825.
¶ 92 Unlike the present case, in Collins, there was positive evidence that the gun discharged
during a struggle, and Mr. Collins immediately acted to aid the victim and to identify himself to
police. Further, unlike the present case, the physical evidence in Collins did not support the
testimony that two shots were fired, which was critical to the State’s theory in that case. While
noting the weaknesses and contradictions in Mr. Collins’ testimony, the reviewing court pointed
out that the State still had the burden to prove a mental state sufficient for a conviction for first
degree murder. Collins, 213 Ill. App. 3d at 825. The reviewing court reduced Mr. Collins’ first
degree murder conviction to second degree murder. Collins, 213 Ill. App. 3d at 827.
¶ 93 Defendant also relies on People v. Ellis, 107 Ill. App. 3d 603 (1982). In that case, Mr. Ellis
and the victim had been drinking when Mr. Ellis ordered the victim out of his apartment. When
the victim refused to leave, Mr. Ellis fired a warning shot. The victim lunged at Mr. Ellis, who
- 18 -
No. 1-15-0628
shot him in the head. The reviewing court found Mr. Ellis’ version of the shooting that he fired the
gun the first time to scare the victim and that he fired a second time when the victim came at him
was not contradicted by the State’s evidence. The lack of “tattooing” on the victim did not establish
that the gun was fired from a distance which would have established intent. It could have resulted
from a close-range discharge in which case the wound would have absorbed the gunpowder. While
rejecting Mr. Ellis’ self-defense claim, the reviewing court reduced his first degree murder
conviction to voluntary manslaughter. Ellis, 107 Ill. App. 3d at 612.
¶ 94 Other than an alcohol-fueled argument, the facts in Ellis distinguish it from the present
case. The evidence supported Mr. Ellis’ description of the events leading to the victim’s death, i.e.,
the warning shot and the struggle for the gun, and was not contradicted by the State’s evidence.
Moreover, like Mr. Collins, Mr. Ellis’ conduct after the shooting was consistent with his lack of
intent in shooting the victim; he immediately roused his neighbors telling them a man had been
shot and asked for help to save his life. Ellis, 107 Ill. App. 3d at 606. That contrasts with the
behavior of defendant in the present case who initially fled the scene and then returned to the scene
to help Devon stop Rico’s bleeding and later claimed to police that Rico had been shot by an
unknown assailant.
¶ 95 This court must reverse a conviction where, after reviewing the evidence and giving due
consideration to the fact that the trial court had the opportunity to see and hear the witnesses, we
are of the opinion that the evidence was insufficient to prove the defendant guilty beyond a
reasonable doubt. Jones, 404 Ill. App. 3d at 744. In the present case, after viewing the evidence in
the light most favorable to the State, we find that a rational trier of fact could have found that
defendant’s conduct in shooting Rico established that he knew his acts would result in death or
- 19 -
No. 1-15-0628
great bodily harm to Rico. We conclude that defendant was found guilty of first degree murder
beyond a reasonable doubt.
¶ 96 II. Admission of the Unredacted Video Recording
¶ 97 Defendant contends that the failure to redact the hearsay statements of ASA D’Angelo
from the video recording of his interview with defendant was reversible error.
¶ 98 Over defendant’s objection, the jury viewed the unredacted video recording of
defendant’s interview with ASA D’Angelo. The interview contained the following exchange.
The complained-of statements are set forth in italics:
“[DEFENDANT]: I wasn’t planning to shoot [Rico] at all.
ASA D’ANGELO: Now, let’s talk a little bit about *** a couple of things. There was
[sic] two shots that came out of the gun, okay. We know that from the autopsy that took
place today. So you had to pull the trigger twice.
DEFENDANT: That’s why I said it’s a lemon squeezer. What it is, it’s like, a lemon
squeezer, it’s like when you pull the trigger on the gun instead of it be one shot, it be two.
ASA D’ANGELO: But that can’t happen. We talked to the people at the lab, okay, and
they say it can’t happen, okay. And the bullet wounds on Rico don’t line up. *** So you
had to pull the trigger twice.
DEFENDANT: No, I pulled the trigger once.
ASA D’ANGELO: You pulled the trigger once. You sure?
DEFENDANT: Positive.”
ASA D’Angelo then questioned defendant about the gun as follows:
- 20 -
No. 1-15-0628
“I know you said you dropped [the gun], but I talked to [Duane Smith] and I talked
to your cousin [Devon Patton] and they said you ran with it.
DEFENDANT: I didn’t run with it. I dropped the gun and then I ran, and then I came
back ***” 1
¶ 99 A. Standard of Review
¶ 100 The parties agree the trial court's admission of evidence is generally reviewed for an abuse
of discretion. People v. Dunmore, 389 Ill. App. 3d 1095, 1104 (2009). Defendant maintains that
whether a statement qualifies as hearsay is a question of law and as a question of law is subject to
de novo review. See People v. Hall, 195 Ill. 2d 1, 21 (2000) (courts apply the de novo standard of
review to questions of statutory interpretations and other questions of law).
¶ 101 Defendant’s argument was rejected in Dunmore 389 Ill. App. 3d at 1104 (applying the
abuse of discretion standard to whether the trial court correctly excluded testimony as inadmissible
hearsay); see People v. Hammonds, 409 Ill App. 3d 838, 400 (2011) (the appellate court applies
an abuse of discretion standard to a trial court’s determination of whether a statement is hearsay
and if so, whether an exception applies to render it admissible).
¶ 102 Therefore, we will review this issue for an abuse of discretion. “An abuse of discretion
will be found only where the trial court’s decision is arbitrary, fanciful, or unreasonable or where
no reasonable man would take the view adopted by the trial court.” Dunmore, 389 Ill. App. 3d at
1105; see People v. Bryant, 391 Ill. App. 3d 228, 245 (2009) (trial court did not abuse its discretion
by allowing the jury to view the video recordings of the defendants’ interviews with investigators).
¶ 103 B. Discussion
- 21 -
No. 1-15-0628
¶ 104 Defendant contends that the complained-of statements were hearsay and therefore
inadmissible. Hearsay is an out-of-court statement offered to establish the truth of the matter
asserted. People v. Theis, 2011 IL App (2d) 091080, ¶ 33. If the statement is offered for a reason
other than to prove the truth of the matter asserted, it is not hearsay. Dunmore, 389 Ill. App. 3d at
1106. An out-of-court statement offered to prove the effect on the listener’s mind or to show why
the listener later acted as he did is not hearsay and is admissible. People v. Gonzalez, 379 Ill. App.
3d 941, 954 (2008). In this case, defendant changed his version of the shooting by an unknown
assailant to admitting he shot Rico but maintaining it was unintentional. ASA D’Angelo told
defendant what he had been told by the lab personnel and the eyewitnesses for the purpose of
seeing how defendant would respond to information contradicting his claim that the shooting was
unintentional. We agree with the State that ASA D’Angelo’s statements were not offered for their
truth and therefore, they were not hearsay.
¶ 105 Defendant further contends that the statements by Duane and Devon were prior
inconsistent statements. Prior inconsistent statements are normally inadmissible hearsay.
Gonzalez. 379 Ill. App. 3d at 956. Defendant argues that the failure to redact the video recording
allowed the State to present statements by Duane and Devon to the jury that differed from their
trial testimony and that bolstered the State’s case on the mental-health element.
¶ 106 We disagree. The statements were not hearsay as they were not admitted for their truth.
Moreover, the trial court instructed the jury that ASA D’Angelo’s statements during the interview
with defendant were not evidence, should not be considered as evidence and that the video
recording was played solely for the purpose of showing what defendant said about the incident.
- 22 -
No. 1-15-0628
¶ 107 Contrary to defendant’s contention, in People v. Whitfield, 2018 IL App (4th) 150948,
People v. Hardimon, 2017 IL App (3d) 120772, and Theis, our courts have addressed the
admissibility of an interviewer’s statements. In both Hardimon and Theis, the courts found
statements by the investigating officers to be admissible where they were necessary to show the
effect on the defendant or explain his subsequent actions. See Hardimon, 2017 IL App (3d)
120772, ¶ 35; Theis, 2011 IL App (2d) 091080, ¶ 33.
¶ 108 In Whitfield, the reviewing court set forth the following factors for a trial court to consider
in determining whether or which questions or statements by the interviewer during an interrogation
of the defendant are admissible: (1) whether the questions would be helpful to the jury so as to
place the defendant’s responses or failure to respond into context, and if so, (2) whether the
prejudicial effect of the interviewer’s questions or statements substantially outweighs their
probative value. Whitfield, 2018 IL App (4th) 150948, ¶ 48.
¶ 109 Defendant disputes the trial court’s finding that his answers would have been rendered
“nonsensical” without the complained-of statements. See Theis, 2011 IL App (2d) 091080, ¶ 33
(failure to redact interviewer’s statements from a videotape of an interview was not error where
without the statements defendant’s answers would have been “nonsensical”). We do not believe
that in every case a defendant’s responses must be reduced to a level of the illogical or the
ridiculous to allow the interviewer’s statements to be admissible. The court in Whitfield found that
interviewers’ statements “may still possess probativeness where they are simply helpful, although
not essential or ‘necessary’ to a jury’s understanding of the defendant’s responses or silence.”
Whitfield, 2018 IL App (4th) 150948, ¶ 48 (disagreeing with higher probability requirement set
forth in Hardimon and Theis). In the present case, ASA D’Angelo’s statements provided context
- 23 -
No. 1-15-0628
and were helpful in understanding defendant’s responses to the information contradicting his claim
that the shooting was unintentional.
¶ 110 Defendant maintains that the unredacted video recording was unduly prejudicial. See
Whitfield, 2018 IL App (4th) 150948, ¶ 47 (even relevant evidence may be excluded where its
probative value is substantially outweighed by it prejudicial effect). In Hardimon, the reviewing
court found defense counsel ineffective for failing to move to redact portions of a videotaped
interview of the defendant by two detectives. Hardimon, 2017 IL App (3d) 120772, ¶ 39. The court
found the portion of the video recording in which the detectives challenged the defendant’s
protestations of innocence, made threats as well as promises of leniency if he confessed and told
him that he would definitely be found guilty was unnecessary in that it was not relevant and was
highly prejudicial. Hardimon, 2017 IL App (3d) 120772, ¶¶ 36-37.
¶ 111 In contrast, ASA D’Angelo’s statements were relevant to defendant’s claim that he did
not intend to shoot Rico. The ASA did not use the statements to disparage defendant but to ask
him to explain why the physical evidence did not support his version that the shooting was
unintentional. Defendant was not accused of lying, and he was not threatened by ASA D’Angelo.
Moreover, unlike the present case, the court in Hardimon found that its finding of prejudice was
supported by the lack of evidence directly connecting the defendant to the crime. Hardimon, 2017
IL App (3d) 120772, ¶ 39.
¶ 112 Defendant argues that ASA D’Angelo’s comments were far more prejudicial than those in
Theis. In that case, during an interview with the defendant, the following colloquy occurred:
- 24 -
No. 1-15-0628
“DETECTIVE NACHMAN: I know some things happened between you and [the
victim]. Alright. I want to know why. *** *** You have to be honest with me about it,
what am I supposed to think?
DEFENDANT: That I did it.
DETECTIVE NACHMAN: No, I know you did it. I’m going to think that you’re a
stone-cold predator. *** I’m saying something happened one time. It’s overwith [sic]. And
I am not saying I believe it’s ever going to happen again. But you have to prove that to me.
You have to tell me why things happened that day. I am not asking you if things happened.
I know things happened. That’s not an issue.
DEFENDANT: You’ve already accused me of doing it when I have no clue what I’ve
done or anything else.
DETECTIVE NACHMAN: Things happened between you and [the victim] and Valorie
(the defendant’s wife).
***
DETECTIVE NACHMAN: I know things have happened without either of you telling
me. Because there’s physical evidence. Period. Right now all you got is what I know and
what Valorie is telling me and you telling me nothing happened makes you look not so
good.
DEFENDANT: Of course she’s saying that I did it or did this or she did this or whatever,
she’s crazy because she didn’t do nothing and I didn’t do nothing so however you’re going
to —
- 25 -
No. 1-15-0628
DETECTIVE NACHMAN: I already know that’s not true, John. We came to your door
because we have been working this investigation for quite some time. [The victim] was
honest with me about what happened. We didn’t come talk to you for no reason.” Theis,
2011 IL App (2d) 091080, ¶ 31.
¶ 113 Defendant claims that in Theis, the detective told the defendant only that his investigation
revealed inculpatory physical evidence and that there was a witness’ statement, omitting any
details as to what the evidence was or what the witness stated. However, in both Theis and the
present case, the interviewer made statements alluding to the existence of evidence and statements
challenging the defendants’ denials of their actions or intent. If anything, Detective Nachman’s
statements to the defendant in Theis were more prejudicial, telling the defendant that not only that
there was the evidence establishing his guilt, but the detective knew the defendant was lying when
he denied his guilt.
¶ 114 Defendant’s reliance on People v. Musser, 494 Mich. 337 (2013) is misplaced. In Musser,
the Michigan supreme court found that a detective’s statement had no probative value where it
provided context to the response of another detective rather than to the defendant’s statements.
The court further found that a number of other statements by the detective could have been redacted
without harming the probative value of the defendant’s responsive statement. Musser, 494 Mich.
at 360. The court then found that even if there was some probative value to certain of the
unredacted statements, the minimal probative value was outweighed by the danger of unfair
prejudice to Musser in a child sex abuse case. Musser, 494 Mich. at 362-63 (noting that courts
needed to protect innocent defendants in such cases given the suggestibility and the prejudicial
- 26 -
No. 1-15-0628
effect an expert’s testimony may have on a jury and finding that the detective’s expertise and
knowledge gave him the aura given to expert witnesses).
¶ 115 Musser is distinguishable. The present case does not involve allegations of child sex abuse,
which the court in Musser found to be a significant factor in evaluating the prejudice to the
defendant factor. There the court found the defendant was entitled to a new trial where the evidence
was not overwhelming, and the limiting instruction that the jury was not to consider the detectives’
questions and statements in the interview with defendant as evidence was not sufficient to satisfy
the court that the error in admitting the unredacted videotape did not undermine the verdict.
Musser, 494 Mich. at 363-65.
¶ 116 The fact that the trial court in Musser gave the limiting instruction only after the jury was
shown the videotape is significant. The instruction was given after the recording was presented to
the jury and after an hour-long recess. The reviewing court in Musser observed that:
“[T]he jury viewed the recording with the unqualified instruction in mind that the recording
was evidence only to later be informed that all of the recording’s contents could not be
considered as such. [Citation.] ***[T]he risk that the jury accepted the contents of the
recording as substantive evidence was heightened by the lack of a limiting instruction
before the improperly admitted statements were presented to the jury. Accordingly,
although an appropriate limiting instruction may reduce prejudice to a defendant, the lack
of a timely limiting instruction in this case reinforces our conclusion that an error-
requiring reversal occurred.” (Emphasis ours.) Musser, 494 Mich. at 365.
In contrast, prior to viewing the videotape of defendant’s interview with ASA D’Angelo, the jury
was instructed that the ASA’s comments on the videotape were not evidence and were to be
- 27 -
No. 1-15-0628
considered solely for the purpose of what defendant said about the incident. Additionally, unlike
Musser, the evidence in the present case was more than sufficient for the jury to find defendant
guilty of first degree murder.
¶ 117 In sum, ASA Angelo’s statements to defendant during their interview were not hearsay and
were necessary as well as helpful to the jury. Telling defendant that individuals and the physical
evidence contradicted his claim that he only pulled the trigger one time served to ascertain
defendant’s reaction to information that disputed his claim that he did not intend to kill Rico. ASA
D’Angelo’s statements were relevant and did not prejudice defendant. Moreover, the trial court’s
instruction to the jury prior to the playing of the video recording that the statements, other than
defendant’s, were not evidence was sufficient in this case to eliminate any prejudice to defendant.
¶ 118 Finally, we find no abuse of discretion in the trial court’s refusal to instruct the jury that
ASA D’Angelo’s statements may have been false. Defendant acknowledges that law enforcement
may lie to a defendant during a custodial interrogation. See People v. Melock, 149 Ill. 2d 423, 450
(1992) (a confession obtained by deception does not invalidate a confession as a matter of law). In
this case, defendant did not deny shooting Rico, but despite what ASA Angelo told him the
witnesses had stated, defendant never wavered from his position that he did not intend to kill him.
¶ 119 Defendant’s reliance on People v. Jackson 331 Ill. App. 3d 279 (2002) is misplaced. In
Jackson, the reviewing court determined that it was insufficient for the trial court to instruct the
jury that the evidence of the defendant’s prior crimes was to be considered only for the purpose of
determining the defendant’s modus operandi, where the instruction it received did not define the
term, and the court refused to give the defendant’s proposed instruction defining it. Jackson, 331
Ill. App. 3d at 282-83. The reviewing court refused to assume that jurors would be familiar with a
- 28 -
No. 1-15-0628
term that had its origins in a foreign language, and the defendant’s instruction correctly defined
the term. Jackson, 331 Ill. App. 3d at 291.
¶ 120 In the present case, the trial court’s instruction contained no words borrowed from a foreign
language for the jurors to decipher their meaning. The jury was instructed that ASA D’Angelo’s
statements were not evidence and were not to be considered as evidence. The jury is presumed to
follow the instructions given to it by the trial court. People v. Mims, 403 Ill. App. 3d 884, 897
(2010).
¶ 121 For all of the foregoing reasons, we conclude that the trial court’s denial of defendant’s
motion to redact the complained-of statements by ASA D’Angelo from the video recording was
not an abuse of discretion. We further conclude that the trial court’s refusal to instruct the jury that
ASA D’Angelo’s statements in his interview with defendant may have been false was not an abuse
of discretion.
¶ 122 III. Confrontation Clause Violation
¶ 123 Defendant contends that his sixth amendment right to confront the witnesses against him
was violated when he was not permitted to cross-examine Dr. Arangelovich, the assistant medical
examiner who conducted the autopsy on Rico’s body and prepared the written report. He further
contends that the error was not harmless beyond a reasonable doubt.
¶ 124 A. Standard of Review
¶ 125 A defendant’s claim that his sixth amendment right of confrontation was violated
constitutes a question of law, and our review is de novo. People v. Barner, 2015 IL 116949, ¶ 39.
¶ 126 B. Discussion
- 29 -
No. 1-15-0628
¶ 127 In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that
the confrontation clause bars the admission of testimonial statements of a witness who does not
testify unless the witness is unavailable, and the defendant had a prior opportunity to cross-
examine the witness. Crawford, 541 U. S. at 68.
¶ 128 Defendant contends it was error to admit Dr. Zukariya’s testimony and the written autopsy
report. He argues that Dr. Arangelovich’s description of Rico’s injuries in the written autopsy
report was the sole basis for Dr. Zukariya’s opinion that there were two gunshot wounds on Rico’s
body. Defendant maintains that the State used the autopsy report and Dr. Zukariya’s testimony to
establish that defendant fired two gunshots into Rico, which evidenced his intent to kill Rico.
Defendant insists that the error in admitting ASA D’Angelo’s reference to the autopsy report in
his interview with defendant, the autopsy report and Dr. Zukariya’s testimony could not be
harmless since the State’s evidence of defendant’s intent to kill or knowledge that his actions
would cause death or great bodily harm to Rico was far from overwhelming.
¶ 129 If an autopsy report is properly admitted into evidence, the testimony of the expert witness
cannot have violated the confrontation clause even if it had the effect of offering the report for the
truth of the matter asserted. People v. Leach, 2012 IL 111534, ¶ 57. Therefore our focus is on
whether the admission of the autopsy report violated the confrontation clause because it was
testimonial.
¶ 130 In determining whether a document is testimonial, the court makes an objective
determination of the primary purpose for the statement’s creation. Leach, 2012 IL 111534, ¶ 120.
In Leach, our supreme court determined that where an autopsy report was not prepared for the
- 30 -
No. 1-15-0628
primary purpose of accusing a targeted individual or for the primary purpose of providing evidence
in a criminal case, the report was not testimonial. Leach, 2012 IL 111534, ¶ 122.
¶ 131 Defendant points out that the court in Leach acknowledged that an autopsy report could be
testimonial. The court in Leach held that autopsy reports “should be deemed testimonial only in
the unusual case in which the police play a direct role (perhaps by arranging for the exhumation
of a body to reopen a ‘cold case’) and the purpose of the autopsy is clearly to provide evidence for
use in a prosecution.” Leach, 2012 IL 111534, ¶ 133. Defendant’s contention that his case falls
into those exceptions is not supported by the record.
¶ 132 The autopsy on Rico’s body was not performed at the direction of the police. It was
conducted in accordance with Illinois law, which required that the county coroner or medical
examiner conduct a preliminary investigation into the circumstances of a sudden and violent death,
whether the death appears to be the result of suicide, homicide or accident. Leach, 2012 IL 111534,
¶ 126; see 55 ILCS 5/3-3013(a) (West 2012). The autopsy was conducted by Dr. Arangelovich
later in the morning of Rico’s death on June 20, 2007. Although following the shooting, defendant
was taken to the Harvey police station and held there, Detective Escalante testified that he was not
originally a suspect. ASA D’Angelo’s interview of defendant in which he referred to the autopsy
report took place on June 22, 2007, two days later. The autopsy report did not refer to defendant
or otherwise link him to Rico’s death.
¶ 133 In People v. Crawford, 2013 IL App (1st) 100310, the reviewing court determined that the
primary purpose of the autopsy in the case before it was to determine the cause of death and not to
accuse a targeted individual of criminal conduct or to provide evidence at a criminal trial.
Crawford, 2013 IL App (1st) 100310, ¶ 151. The defendant was not targeted in the autopsy report,
- 31 -
No. 1-15-0628
and the court found no evidence in the record that the police provided information to the assistant
medical examiner who did the autopsy or the chief medical examiner who testified as to the results
of the autopsy at trial that the defendant murdered the victim. Crawford, 2013 IL App (1st) 100310,
¶ 152. Likewise, in the present case, there was no evidence that the autopsy report targeted
defendant. While the State was able to use the autopsy report to support its two-shot theory as to
defendant’s intent to kill, there is no evidence the autopsy report was created for any other purpose
than to report the results of the examination of Rico’s body in compliance with state law.
Moreover, it was not error to have Dr. Zukariya testify in place of Dr. Arangelovich who performed
the autopsy. See People v. Brewer, 2013 IL App (1st) 072821, ¶ 43; Crawford, 2013 IL App (1st)
100310, ¶ 151.
¶ 134 Defendant maintains that neither Leach nor its progeny dealt with a situation in which the
State used the autopsy report authored by a witness who was not available for questioning to prove
a disputed fact, i.e., that he fired more than one shot. He directs this court to State v. Navarette,
294 P.3d 435 (N.M. 2013). In that case, the New Mexico supreme court held that statements in an
autopsy report where the individual suffered a violent death were testimonial. Navarette, 294 P.3d
at 441. The court determined that because the autopsy was performed as part of a homicide
investigation, the statements in the report were primarily intending to establish some facts or
opinions with the understanding that they may be used in a homicide investigation. The court
further noted that under New Mexico law, cases of violent, sudden or untimely death must be
reported to law enforcement and that medical examiners were required to report their findings
directly to the district attorney in all cases they have investigated. Navarette, 294 P.3d at 440-41.
- 32 -
No. 1-15-0628
¶ 135 Navarette does not aid the defendant’s argument since that court held that all autopsy
reports in violent death cases were testimonial. Moreover, the court in Leach acknowledged the
split of opinion regarding the application of the primary purpose test to reports of forensic
testing. Nonetheless, the court in Leach concluded that “autopsy reports prepared by a medical
examiner’s office in the normal course of its duties are nontestimonial. Further, an autopsy report
prepared in the normal course of business of a medical examiner’s office is not rendered
testimonial merely because the assistant medical examiner performing the autopsy is aware that
police suspect homicide and that a specific individual might be responsible.” Leach, 2012 IL
111534, ¶ 136.
¶ 136 Applying the primary purpose test set forth in Leach, we conclude that in the present case
the autopsy report was nontestimonial and was properly admitted into evidence. In addition,
there was no error in permitting Dr. Zukariya to testify to the autopsy report authored by Dr.
Arangelovich. Since we have found no error, we need not conduct a harmless error analysis.
¶ 137 IV. Ineffective Assistance of counsel
¶ 138 Defendant contends that he was denied the effective assistance of counsel where his trial
attorney failed to request that the trial court instruct the jury on the mental state of “knowingly.”
¶ 139 A. Standard of Review
¶ 140 “Where the facts surrounding the ineffective assistance claim are undisputed and the
claim was not raised below, this court’s review is de novo.” People v. Wilson, 392 Ill. App. 3d
189, 197 (2009).
¶ 141 B. Discussion
- 33 -
No. 1-15-0628
¶ 142 In determining whether a defendant was denied the effective assistance of counsel, the
reviewing court applies the two-prong test set forth in Strickland v. Washington, 466 U.S. 668(1984), and adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984). People
v. Falco, 2014 IL App (1st) 111797, ¶ 14. “To prevail on a claim of ineffective assistance of
counsel, a defendant must show that counsel's performance was deficient and that the deficient
performance prejudiced the defendant such that he was deprived of a fair trial.” Falco, 2014IL
App (1st) 111797, ¶ 14. “The performance prong is satisfied if ‘counsel’s performance was
objectively unreasonable under prevailing professional norms,’ and the prejudice prong is
satisfied if there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ (Internal quotation marks omitted.).” People
v. McGhee, 2012 IL App (1st) 093404, ¶ 11 (quoting People v. Petrenko, 237 Ill. 2d 490, 496
(2010)). Both prongs of the Strickland test must be satisfied, or the claim fails. People v. Simms,
192 Ill. 2d 348, 362 (2000).
¶ 143 In Illinois, counsel's choice of jury instructions, and the decision to rely on one theory of
defense to the exclusion of others, is a matter of trial strategy. Falco, 2014 IL App (1st) 111797,
¶ 16. “ ‘Such decisions enjoy a strong presumption that they reflect sound trial strategy, rather
than incompetence,’ and therefore, are ‘generally immune from claims of ineffective assistance
of counsel.’ ” Falco, 2014 IL App (1st) 111797, ¶ 16 (quoting People v. Enis, 194 Ill. 2d 361,
378 (2000)). However, the failure to request a particular jury instruction may be grounds for
finding ineffective assistance of counsel if the instruction was so critical to the defense that
counsel’s failure to request denied the defendant his right to a fair trial. Falco, 2014 IL App (1st)
111797, ¶ 16.
- 34 -
No. 1-15-0628
¶ 144 The jury was instructed on involuntary manslaughter (Illinois Pattern Jury Instructions,
Criminal, Nos. 7.07 and 7.08) (4th ed. 2000) (hereinafter IPI Criminal 4th)) and the definition of
“recklessness,” the mental state for that offense (IPI Criminal 4th, Nos. 5.01). Defendant
maintains that the since his mental state at the time of the shooting was the central issue in this
case, the jury should have been instructed on “knowingly,” the mental state for first degree
murder so the jury would understand the difference between “knowingly” and “recklessness.”
Defendant further maintains that had the jury been instructed on the definition of “knowingly,” it
would have found him guilty of involuntary manslaughter rather than first degree murder. We
disagree.
¶ 145 “[T]he jury need not be instructed on the terms knowingly and intentionally because
those terms have a plain meaning within the jury's common knowledge.” People v. Powell, 159
Ill. App. 3d 1005, 1013 (1987); see IPI Criminal 4th, Nos. 5.01B, Committee Note (Committee
took no position as to whether the definition should be given routinely in the absence of a
specific jury request). Illinois courts have found that the term “knowing” “has a plain and
ordinary meaning within the jury’s common knowledge, and no instruction need be given absent
the jury’s request for a definition or expression of confusion.” People ex rel. City of Chicago v.
Le Mirage, Inc., 2013 IL App (1st) 093547, ¶ 94 (collecting cases).
¶ 146 Defendant relies on People v. Griffin, 351 Ill. App. 3d 838 (2004). In that case, the jury
was instructed on first degree murder and manslaughter as well as on the definition of
recklessness. During deliberations, the jury sent a note to the trial court asking for clarification as
the difference between knowledge and intent. The court gave the first paragraph of IPI Criminal
4th, Nos. 5.01B, requested by the State, which dealt with knowledge in terms of the prohibited
- 35 -
No. 1-15-0628
conduct. Griffin, 351 Ill. App. 3d at 852. The court refused to give the second paragraph of IPI
Criminal 4th, Nos. 5.01B, requested by the defendant, which dealt with knowledge in terms of
the prohibited result. Griffin, 351 Ill. App. 3d at 852. On appeal, the reviewing court determined
that the failure to give the second paragraph of IPI Criminal 4th, Nos. 5.01B constituted plain
error because (1) the defendant’s mental state at the time she performed the acts resulting in
death was the only contested issue; (2) the evidence as to her mental state was closely balanced;
and (3) especially in light of the jury’s request for clarification of the mental-state issue, the
failure to correctly instruct the jury regarding the mental state of knowledge denied the defendant
a fair trial. Griffin, 351 Ill. App. 3d at 855.
¶ 147 In the present case, while defendant’s mental state was the only contested issue, unlike
Griffin, the evidence as to defendant’s mental state was not closely balanced. In Griffin, the
defendant was holding her infant son trying to calm him but squeezed him too tightly and he
suffocated. Other than her two-year child, the defendant was the only one present at the time of
the infant’s death. Griffin, 351 Ill. App. 3d at 847. In contrast, in the present case, Duane and
Devon were present at the time of the shooting. Both men testified that they struggled to keep
defendant away from Rico and that Rico did not possess a weapon. Both Duane and Devon
testified that defendant had a gun, but neither of them confirmed that defendant had pulled out
the gun just to show Rico that he was armed for security purposes nor that there was a struggle
for the gun. Significantly, unlike the jury in Griffin, the jury in the present case did not ask for
clarification of the term “knowingly.”
¶ 148 Defendant’s reliance on People v. Howard, 232 Ill. App. 3d 386 (1992), is misplaced. In
that case, the defendant claimed he was denied the effective assistance of counsel when counsel
- 36 -
No. 1-15-0628
failed to request an instruction defining “recklessness.” On appeal, the reviewing court agreed
and reversed for a new trial. The court acknowledged that “[a] term which is employed in a
general, nontechnical context need not be defined as long as nothing in the instruction obscures
its meaning. This is especially true where the applicable Illinois instruction does not instruct that
an additional definition is necessary.” Howard, 232 Ill. App. 3d at 392. The court noted that IPI
instruction on involuntary manslaughter “specifically refers to the definitional instruction of
‘recklessness,’ which should accompany it.” Howard, 232 Ill. App. 3d at 392. Because
recklessness to an individual might mean no more than ordinary negligence, a juror may have
chosen murder, which was the only alternative presented in that case. Howard, 232 Ill. App. 3d
at 392.
¶ 149 Unlike the IPI instruction on involuntary manslaughter, the IPI instruction on first degree
murder does not mandate that the IPI instruction defining “knowingly,” should accompany it. In
fact, the committee note to IPI Criminal 4th, Nos. 5.01B states that no position was taken as to
whether the definitional instruction should be given “in the absence of a specific jury request.”
IPI Criminal 4th, Nos. 5.01B, Committee Note. Moreover, in Howard, the reversal and remand
for a new trial were based on the cumulative effect of the State’s improper closing argument and
the failure of the trial court to define the mental state of recklessness for the jury. Howard, 232
Ill. App. 3d at 392-93.
¶ 150 We conclude that defense counsel’s failure to request that the jury receive an instruction
defining the term “knowingly” was not error. Since defendant failed to satisfy the first prong of
the Strickland test, his claim of ineffective assistance of counsel fails.
¶ 151 V. Closing Argument
- 37 -
No. 1-15-0628
¶ 152 Defendant contends that the State’s remarks in closing and rebuttal argument denied him
a fair trial. He maintains that the prosecutor misstated the mental state for first degree murder
when he told the jury that the fact that defendant armed himself with a gun was a knowing and
intentional act. He also argues that the prosecutor’s statement equating recklessness with the
scenario of a gun discharging while children were playing with it was improper argument, which
prejudiced him.
¶ 153 A. Standard of Review
¶ 154 Our supreme court has not yet addressed the tension between its decisions in People v.
Wheeler, 226 Ill. 2d 92, 123 (2007) and People v. Blue, 189 Ill. 2d 99 (2000) as to whether the
de novo standard or the abuse of discretion standard applied to review of alleged errors in closing
arguments. The lack of clarity has resulted in diverse holdings by Illinois Appellate Court
Districts as to the appropriate standard of review. See People v. Anaya, 2017 IL App (1st)
150074, ¶ 46. Different divisions of this district have applied the de novo standard, the abuse of
discretion standard, or have resolved the issue by concluding that the holding would be the same
under either standard. See Anaya, 2017 IL App (1st) 150074, ¶ 46; People v. Sandifer, 2016 IL
App (1st) 133397; People v. Kelley, 2015 IL App (1st) 132782; People v. Anderson, 407 Ill.
App. 3d 662 (2011).
¶ 155 More recently, in People v. Phagan, 2019 IL App (1st) 153031, 3 the Second Division of
this court concluded that the abuse of discretion standard of review applied to alleged errors in
closing argument. Phagan, 2019 IL App (1st) 153031, ¶ 48. Examining the case law as far back
as 1892, the court determined that there was historical support for choosing the abuse of
3
No. 125249 People v. Phagan, leave to appeal pending, November 1, 2019 term.
- 38 -
No. 1-15-0628
discretion standard over the de novo standard. Phagan, 2019 IL App (1st) 153031, ¶¶ 49-54. We
are persuaded by the analysis in Phagan, and therefore, we will apply the abuse of discretion
standard of review to defendant’s allegations of error by the prosecutor in closing argument.
¶ 156 B. Discussion
¶ 157 The prosecutor has wide latitude during closing argument and may comment on the
evidence and any reasonable inference from that evidence. People v. Land, 2011 IL App (1st)
101048, ¶ 154. A prosecutor may not misstate the law or attempt to shift the burden of proof to
the defense. People v. Carbajal, 2013 IL App (2d) 111018, ¶¶ 31, 34. Nonetheless, the
prosecutor’s closing argument requires reversal only if the remarks created substantial prejudice
to the defendant. People v. Donahue, 2014 IL App (1st) 120163, ¶ 114. Reversal and a new trial
are warranted if the improper remarks constituted a material factor in a defendant’s conviction.
People v. Smith, 402 Ill. App. 3d 538, 542 (2010). “If the jury could have reached a contrary
verdict had the improper remarks not been made, or the reviewing court cannot say that the
prosecutor’s improper remarks did not contribute to the defendant’s conviction, a new trial
should be granted.” Smith, 402 Ill. App. 3d at 542. Remarks may be improper without creating
substantial prejudice to the defendant. Donahue, 2014 IL App (1st) 120163, ¶ 114. The
reviewing court considers the complained-of remarks in the context of the entire closing
arguments of both parties. Land, 2011 IL App (1st) 101048, ¶ 154.
¶ 158 In the present case, the prosecutor argued to the jury:
“I submit to you, ladies and gentlemen, that is when he took a step, and he took a step to
arm himself. Even if you can’t come to that conclusion, he still had - - we know that he had
the gun on him. Either way, ladies and gentlemen, he was armed that night. That is
- 39 -
No. 1-15-0628
intentional, and that is a knowing act. That is another piece that shows you when he was
out there, he is acting with knowledge, and he is acting intentionally.”
[DEFENSE ATTORNEY]: Objection. Misstating the law.
THE COURT: Overruled.”
¶ 159 During the State’s rebuttal argument, the prosecutor told the jury that the State was not
required to prove that defendant had a premeditated plan to kill Rico in order to establish first
degree murder and reminded them to read the jury instructions. The prosecutor continued:
“Great bodily harm - - well, seriously, folks, when you pull out a gun and point a gun
at an individual, especially an individual who is around guns, you know your actions could
cause death or great bodily harm.
[DEFENSE ATTORNEY]: Objection, Judge. That misstates the law.
THE COURT: Ladies and gentlemen, please disregard - - overruled. Excuse me,
overruled.”
¶ 160 Defendant argues that the fact he was in possession of a gun and pointed it at Rico was
insufficient to convict him of first degree murder. See People v. Ephraim, 323 Ill. App. 3d 1097,
1110 (2001) (“evidence that the defendant fired a gun, coupled with nothing more, is generally not
sufficient to prove a specific intent to kill”); People v. Banks, 192 Ill. App. 3d 986, 996-97 (1989)
(the defendant was entitled to an involuntary manslaughter instruction where he fired three shots
into the ground that ricocheted upwards and struck the victim); DiVincenzo, 183 Ill. 2d at 252 (a
defendant may act recklessly when he commits a deliberate act but disregards the risk).
¶ 161 Nonetheless, the specific intent to kill may be inferred so long as the surrounding
circumstances show that the defendant intended the willfully committed act, which had the direct
- 40 -
No. 1-15-0628
and natural tendency to destroy another's life. Ephraim, 323 Ill. App. 3d 1110. Here, the prosecutor
did not rely solely on defendant’s possession of a gun and the fact that it went off to convince the
jury that defendant’s act of shooting Rico was more than reckless. The prosecutor’s argument
strove to convince the jury that the sum of defendant’s actions, i.e. carrying a gun, pulling it out,
his anger at Rico and his struggle to break free of Devon and Duane, belied his story that the gun
accidently discharged while he was showing it to Rico. The argument highlighted the evidence
supporting the State’s theory that defendant acted either intentionally or knowingly to kill Rico or
cause him great bodily harm. We find no abuse of discretion by the trial court in overruling
defendant’s objections to the complained-of statements in closing argument.
¶ 162 Defendant acknowledges that his trial attorney did not object to the following argument by
the prosecutor on rebuttal:
“This is first-degree murder. This isn’t reckless and involuntary manslaughter. I mean,
kids playing around with guns, you hear it in the news all the time, when they are playing
around with guns, a gun accidently goes off and shoots someone, that’s reckless.”
¶ 163 Defendant argues that the prosecutor’s statements led the jury to equate recklessness with
carelessness, which gave the jury no choice but to find him guilty of first degree murder. He
requests that we consider it as either plain error, ineffective assistance of counsel, or considering
the other statements properly objected to. See Wheeler, 226 Ill. 2d at 123 (statements not objected
to may add context to properly objected-to ones). To some extent, each of the analyses requested
by defendant requires error to have occurred. Therefore, we address that question first.
¶ 164 Defendant maintains that his case is very similar to People v. Buckley, 282 Ill. App. 3d 81(1996). In Buckley, the defendant was charged with involuntary manslaughter when her infant
- 41 -
No. 1-15-0628
daughter died from an overdose of medication. During closing argument and again on rebuttal, the
prosecutor told the jury that recklessness meant carelessness. The reviewing court found the
prosecutor misstated the law as to the mental state for the commission of involuntary manslaughter,
noting that an act performed accidently, carelessly or even negligently was insufficient to prove or
sustain a conviction for involuntary manslaughter. Buckley, 282 Ill. App. 3d at 89. While the claim
of error had not been preserved for review, the court found the evidence closely balanced and that
while error in closing argument was not usually reversible error, in this case, the court could not
state with any degree of certainty that the misstatement did not contribute to the guilty verdict. The
defendant’s conviction was reversed and the case remanded for a new trial. Buckley, 282 Ill. App.
3d at 90-91.
¶ 165 Buckley does not aid defendant. In the present case, neither of the prosecutors told the jury
that defendant could only be convicted of involuntary manslaughter if his conduct was accidental
or careless. Moreover, we consider the complained-of statement in the context of the argument in
which it appeared. The prosecutor followed the complained-of statement as follows:
“Maybe shooting at the ground and then hitting the individual and killing them, that may
be reckless. But pointing a gun at somebody when you are upset, when you are ticked off,
and again, I mean this is how ticked off he was, you heard that from Duane. Everybody
walking across the street, he goes out of his way from the group, before they go across the
street, and as my partner stated, clearly gets the gun and then comes back. He knows he
means business in this case. He is going to show that he is the tough guy in this case. He is
going to show that he is the man in this case. This is intentionally, knowingly, playing with
- 42 -
No. 1-15-0628
guns, not an accident, not kids playing with guns, not a gun accidently going off. This is
first-degree murder.”
¶ 166 We find no error in the prosecutor’s argument. The prosecutor’s argument illustrated for
the jury the difference between reckless acts and defendant’s act in shooting Rico. Considering
the complained-of statement in the context of the entire closing argument, we are satisfied that the
reference to children playing with a gun did not contribute to the defendant’s conviction for first
degree murder rather than involuntary manslaughter.
¶ 167 VI. Vagueness Challenge
¶ 168 Defendant contends that the mandatory enhancement sentencing provision set forth in
section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West
2012)) is unconstitutionally vague on its face because it provides no objective criteria to guide trial
courts in imposing sentences. According to defendant, the failure to provide criteria in imposing
the sentencing add-ons ensures that trial courts will rely on the same aggravating factors to
determine the sentence for both the underlying murder and for the firearm enhancement, which
encourages improper double enhancements at sentencing. Defendant acknowledges that this court
previously rejected vagueness challenges to section 5-8-1(a)(1)(d)(iii) in People v. Butler, 2013 IL
App (1st) 120923 and People v. Thompson, 2013 IL App (1st) 113105. However, he maintains
that Butler and Thompson “fundamentally misinterpreted the statute” and that Butler did not
resolve the question in the present case, i.e., whether the statute is unconstitutionally vague because
once the enhancements are triggered, it fails to provide objective standards necessary to avoid
arbitrary sentencing.
- 43 -
No. 1-15-0628
¶ 169 All statutes are presumed to be constitutional. In re R.C., 195 Ill. 2d 291, 296 (2001). As
the issue of considering the constitutionality of a statute is one of law, our review is de novo.
People v. Jung, 192 Ill. 2d 1, 4 (2000). A vagueness challenge is actually a contention that the
statute violates due process because due process requires that a statute give a person of ordinary
intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.
People v. Sharp, 2015 IL App (1st) 130438, ¶ 138. A statute is unconstitutionally vague if its
terms are so ill-defined that their meaning will ultimately be determined by the opinions and whims
of the trier of fact rather than any objective criteria. Sharp, 2015 IL App (1st) 130438, ¶ 138.
¶ 170 Public Act 91-404 amended the penalty provisions of several statutes, including the
provisions for first-degree murder, by adding what have been referred to as the “‘15/20/25-to-life’”
provisions. People v. Sharpe, 216 Ill. 2d 481, 484 (2005 (citing Pub. Act 91-404, § 4 (eff. Jan. 1,
2000)); People v. Walsh, 2016 IL App (2d) 140357, ¶ 19. Under those provisions, a mandatory
enhancement is added to a defendant’s sentence if the defendant used a firearm in the commission
of the offense. Walsh, 2016 IL App (2d) 140357, ¶ 19. The length of the enhancement depends
on how the firearm was used. Walsh, 2016 IL App (2d) 140357, ¶ 19.
¶ 171 Our supreme court concluded in Sharpe that there was no double-enhancement problem
with the sentencing add-on, noting that while it agreed with the defendant that the degree of harm
required to invoke the 20-to-life enhancement was inherent in the crime of murder, the
enhancement required that the harm be caused by the firearm. Sharpe, 216 Ill. 2d at 528-29.
Additionally, the court noted that the general rule against double enhancement was “merely a rule
of construction established by the court, which arises from the presumption that the legislature
considered the factors inherent in the offense in setting the initial penalty for that offense.
- 44 -
No. 1-15-0628
[Citations]. But where the legislature has made clear an intention to enhance the penalty for a
crime, even in a way which might constitute double-enhancement, this court will not overrule the
legislature.” Sharpe, 216 Ill. 2d at 530. Accordingly, we reject defendant’s claim that the
sentencing add-on is an impermissible double-enhancement of his sentence.
¶ 172 Moreover, as defendant notes, this court has previously considered and rejected the same
vagueness arguments raised in the present case, concluding that there was a clear and definite
scope of the sentencing range, 25-to-life, and the trial court had no discretion concerning whether
to apply the enhancement. Butler, 2013 IL App (1st) 120923, ¶ 41; Thompson, 2013 IL App
(1st) 113105, ¶ 120; Sharp, 2015 IL App (1st) 130438, ¶ 141. We also held that the standards
for imposing the enhancement were clearly defined; it must be applied when a defendant
commits first degree murder and discharges a firearm that proximately causes great bodily harm,
permanent disability, permanent disfigurement or death. Id. The trial court’s discretion only
applies to the range of the sentence (Butler, 2013 IL App (1st) 120923, ¶ 41), and the court may
consider any relevant sentencing factors in imposing a firearm add-on. Walsh, 2016 IL App (2d)
140357, ¶ 28. The wide range of the sentence enhancement is appropriate because it is
“impossible to predict every type of situation that may fall under the purview of the statute.”
Butler, 2013 IL App (1st) 120923, ¶ 41.
¶ 173 In accord with the decisions in Butler and followed in Thompson and Sharp, we hold that
the 25-years-to-life sentence enhancement is not unconstitutionally vague. See also People v.
Brown, 2017 IL App (1st) 142197, ¶ 80 (we have reviewed these very same arguments and
determined that the 25-to-life sentence enhancement is not unconstitutionally vague, and we
continue to follow those cases).
- 45 -
No. 1-15-0628
¶ 174 VII. Excessive Sentence.
¶ 175 Finally, defendant contends that where he made what the State agreed was a “rash decision”
during an argument between friends who had been drinking, his 50-year sentence was excessive.
Defendant, who was 24 years old at the time of the offense, contends that his sentence was a de
facto term of natural life imprisonment.
¶ 176 A. Standard of Review
¶ 177 A reviewing court will not reverse the trial court’s sentencing decision absent an abuse of
discretion. People v. Sharp, 2015 IL App (1st) 130438, ¶ 134. Where the trial court has imposed a
sentence within the prescribed statutory limits, the reviewing court will not find an abuse of
discretion unless the sentence is greatly at variance with the purpose and spirit of the law or is
manifestly disproportionate to the offense. People v. Means, 2017 IL App (1st) 142613, ¶ 14.
¶ 178 B. Discussion
¶ 179 Defendant was convicted of first degree murder, which carried a sentence between 20 and
60 years imprisonment (730 ILCS 5/5-4.5-20(a) (West 2012)). Because he personally discharged
a firearm resulting in Rico’s death, a mandatory sentencing enhancement ranging from 25 years to
a term of natural life imprisonment (730 ILCS 5/5-8-1(d) (iii) (West 2012)) was to be added to his
sentence for first degree murder. Defendant was sentenced to 25 years for first degree murder, five
years over the minimum sentence for that offense, and the minimum mandatory enhancement of
25 years.
¶ 180 Defendant acknowledges that his 50-year sentence is within the statutory limits. He argues
the trial court failed to consider that he was young and immature, that he was not beyond
rehabilitation, he had only one prior conviction and that the shooting, while tragic, was not so
- 46 -
No. 1-15-0628
heinous as to require the imposition of a sentence, which amounted to a de facto life sentence. He
requests that this court reduce his sentence for first degree murder to 20 years, the minimum
sentence for that offense, which would require him to serve an aggregate sentence of 45 years.
¶ 181 “A sentence must reflect both the seriousness of the offense and the objective of restoring
the offender to useful citizenship.” People v. Vega, 2018 IL App (1st) 160619, ¶ 68. “The
seriousness of the offense, and not the mitigating evidence, is the most important sentencing
factor.” Vega, 2018 IL App (1st) 160619, ¶ 68. “The trial court is in the superior position to
determine an appropriate sentence because of its personal observation of defendant and the
proceedings.” Vega, 2018 IL App (1st) 160619, ¶ 68.
¶ 182 In imposing the 50-year sentence, the trial court took special note of defendant’s social
history, particularly defendant’s lack of family relationships. The court agreed with trial counsel’s
statement that defendant had no one to teach him how to act like a man. However, the court was
troubled by the circumstances of the offense, one of “senseless, senseless violence,” and telling
defendant that he “acted like a coward as far as I am concerned.” In addition to the serious harm
caused by defendant’s conduct, the court considered defendant’s criminal history, which began
when he was age 14 with juvenile arrests for aggravated battery and assault. At age 18, defendant
was convicted of home invasion for which he received a six-year sentence and was age 22 when
he was released from mandatory supervised release. Two years later at age 24, defendant was
charged with murder in the present case. The court concluded that the sentence was necessary to
deter others from committing the same crime.
- 47 -
No. 1-15-0628
¶ 183 The imposition of a sentence only five years more than the mandatory minimum for first
degree murder reflects that the trial court gave proper consideration to the mitigating factors and
the seriousness of the offense. The trial court’s sentence was not an abuse of discretion.
¶ 184 CONCLUSION
¶ 185 For all the foregoing reasons, we affirm defendant’s conviction and sentence.
¶ 186 Affirmed.
- 48 -