People v. Morris

2013 IL App (1st) 111251

FIFTH DIVISION
SEPTEMBER 30, 2013

No. 1-11-1251

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 07 CR 1512
)
HERBERT MORRIS, ) Honorable
) Arthur F. Hill, Jr.,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Palmer concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Herbert Morris was convicted and sentenced to 55 years

in the Illinois Department of Corrections for the first-degree murder of Clinton Cavin, who was

found dead hours after engaging in an argument with defendant on the morning of November 15,

2006. At trial, witnesses testified that defendant’s then-girlfriend, Sharon Smith, left her home

early that morning to drive to Iowa, and before she left, she asked Cavin, who lived in the

basement, to watch her house while she was gone. This request angered defendant, who

frequently spent time at Sharon’s house. Defendant then slapped Sharon and demanded that

Cavin leave, and defendant later threatened to cut the throats of Sharon’s teenage son, Abel

Smith, and his friend, Harold Jackson, who also lived in the house.

¶2 Later that morning, Harold and his friend, William Alston, observed defendant leave the

house and return 15 minutes later with a knife. They locked the front door and left the house
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through the side door to walk to a nearby gas station, and when they returned two minutes later,

they observed defendant down the street walking away from the house. Inside, they observed a

bloody shovel leaning against the wall, and then discovered Cavin dead in the basement. William

called the police, and defendant was arrested at his parents’ house.

¶3 Upon his arrest, the police observed bloodstains on defendant’s clothing and boots, and

forensic scientists later tested samples of the bloodstains and determined that they matched

Cavin’s DNA profile. The blood recovered from the shovel also matched Cavin’s DNA profile,

and a palm print recovered from the handle of the shovel matched defendant’s prints. An expert

in forensic pathology examined Cavin’s autopsy files and opined that Cavin’s death was a

homicide, having died as a result of blunt-force trauma to the head.

¶4 On this direct appeal, defendant claims, first, that his conviction should be reversed and

remanded for a new trial because defendant was deprived of his right to due process and a fair

trial by three related chain-of-custody errors: (1) the trial court admitted defendant’s blood-

stained pants and boots into evidence despite the State’s failure to establish a chain of custody;

(2) that the assistant public defender provided ineffective assistance of counsel at trial by not

introducing defendant’s hospital belongings list into evidence to show that defendant’s boots

were not seized at that time; and (3) the trial court prohibited the defense from presenting a still

shot from a videotape of an unidentified officer seizing the boots in an interrogation room at the

police station. Second, defendant claims that the trial court committed reversible error when it

allowed the State to present testimony that defendant had made threatening remarks to Abel and

Harold the morning of the homicide. Third, defendant claims that his trial counsel was

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ineffective for not objecting to the State’s fingerprint analysis. Despite being represented by

counsel on appeal, defendant has also filed a pro se supplemental appellate brief raising

numerous additional claims of ineffective assistance of counsel and trial court errors at the

suppression hearing and at trial. For the following reasons, we affirm.

¶5 BACKGROUND

¶6 I. Pretrial Proceedings

¶7 Prior to trial, defendant was represented by the public defender. On October 7, 2008, the

defense filed a motion to quash arrest and suppress evidence due to a lack of probable cause. A

suppression hearing was held on March 30, 2009, and the trial court heard testimony from

defendant’s mother, Beverly Morris, and two arresting police officers, Daniel O’Connor and

Deronis Cooper. Beverly testified that, on November 15, 2006, one officer knocked on her door

and asked about her son, while another officer pushed past her and entered her house without her

consent and without a search or arrest warrant. The officers then went upstairs and arrested

defendant. Officers O’Connor and Cooper both testified that they had received a flash message1

that described defendant as a murder suspect and that he lived at his parents’ house, and that

Beverly had given them permission to enter her home. After arguments, the trial court denied

defendant’s motion, finding: (1) that defendant’s mother consented to the search of her house

prior to defendant’s arrest; (2) that the arresting officers had probable cause to arrest defendant

1
A flash message is a broadcast of updated information from the crime scene that is
transmitted to all responding officers.

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based on the information they had at the time; and (3) that the arresting officers were justified in

searching the home without a warrant due to exigent circumstances.

¶8 At the next hearing, on June 10, 2009, defendant informed the trial court that he wanted

to proceed pro se, and the trial court ordered a behavioral clinical examination, in which a doctor

opined that defendant was fit to represent himself. After a 30-day continuance, the trial court

found defendant fit to stand trial, admonished defendant of his rights to self-representation, and

allowed the assistant public defender to withdraw.

¶9 As a pro se litigant, defendant attempted to file a second motion to suppress evidence on

January 28, 2010. In his motion, defendant argued that, after he was arrested in his parents’

home, the police should have obtained a search warrant from a magistrate judge prior to seizing

two knives in the house along with defendant’s clothing. Defendant further argued that the

assistant public defender was ineffective for failing to make this argument at the prior

suppression hearing. The trial court advised defendant that he could not litigate the issue a

second time because the trial court already ruled on the merits of defendant’s motion to quash

arrest and suppress evidence. In response, defendant explained that the public defender “provided

ineffective assistance of counsel” because she “suppressed” evidence that showed that she

counseled the police officers to perjure themselves at defendant’s suppression hearing. The trial

court declined to consider defendant’s pro se motion, explaining that his allegations were

appellate issues and that defendant could raise those issues on appeal.

¶ 10 Afterward, defendant requested counsel, and the assistant public defender was

reappointed on March 3, 2010. Despite being represented by counsel, defendant filed a pro se

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motion in limine concerning ineffective assistance of this same counsel at the suppression

hearing. The trial court advised defendant that he may not file a motion when he is represented

by an attorney, and defendant requested to proceed pro se a second time. The trial court again

admonished the defendant and again excused the same assistant public defender. Defendant then

argued a pro se motion in limine, claiming that the police did not have probable cause to enter his

parents’ home and arrest him, and that the assistant public defender was ineffective because she

“suppressed” the arrest report and did not call the officer who issued the flash message to testify

at the suppression hearing. Following arguments, the trial court denied defendant’s pro se

motion, finding that the trial court had already ruled on the probable cause issue in defendant’s

motion to quash arrest and suppress evidence. Defendant noted for the record that he disagreed

with the trial court’s ruling.

¶ 11 At the next court date, on May 27, 2010, defendant filed a pro se “Motion in Limine

Regarding Knowing Use of False or Perjured Testimony Constituting a Denial of Due Process in

Response to Court Order Whether Pro-Se Defendant is Ready for Trial.” Defendant explained

that he had uncovered new evidence that the assistant State’s attorney violated defendant’s

constitutional due process rights when she knowingly presented false testimony from Officer

Cooper at the suppression hearing. Also, defendant’s pro se motion argues that the assistant

public defender provided ineffective assistance of counsel because she continued to ask Cooper

misleading questions, despite knowing that he had testified falsely.2 The case was continued so

2
The appellate record is silent concerning the disposition of defendant’s pro se motion.

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that defendant could file an answer to discovery, and at the next court appearance, defendant

requested counsel.

¶ 12 On June 30, 2010, the trial court reappointed the same assistant public defender a third

time. Defendant objected to the appointment and informed the trial court that he had a case

pending against this assistant public defender in federal court. The trial court asked defendant

about the nature of the federal case, and defendant explained that he had sued this assistant

public defender for “fabrication of statements in a sworn affidavit.” Specifically, defendant

alleged that, at the suppression hearing, his counsel fabricated the evidence in “the complaint that

was signed by the officer that made the 911 call” because the officer that wrote the complaint

was not called to testify. The assistant public defender explained that defendant may have

confused the arrest report with the general offense case report, which were prepared by different

police officers. The arresting officer testified at the suppression hearing that he was not aware of

certain facts that were reported in the general offense case report, which contained more detailed

information about defendant’s arrest. The assistant public defender explained that defendant’s

May 27, 2010, pro se motion also pointed to the arresting officer’s general progress report, which

contained information that the officer had learned only after defendant’s arrest. The trial court

then asked the assistant public defender if she had written the arrest report or any of the police

reports in defendant’s case, and she answered that she had not. Defendant then argued that, at the

suppression hearing, the assistant public defender claimed that evidence was in the arrest report

that is not there, to which his counsel responded that she merely impeached the officer by

omission when she elicited testimony from the officer that he did not state something in his

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police report. The trial court stated that it had just “conducted what we’ll term a Krankel, which

is usually posttrial, but call this a ‘mini-Krankel’ hearing,” and it found that the assistant public

defender would remain on defendant’s case, despite his pending action against her in federal

court.

¶ 13 On September 14, 2010, defendant attempted to file a pro se motion pursuant to Illinois

Supreme Court Rule 415 (eff. Oct. 1, 1971). Defendant attached to his pro se motion a written

request to the clerk of the circuit court of Cook County, Illinois, requesting a copy of his arrest

report. The trial court struck defendant’s pro se filing, finding that only his attorney may file

documents. Defendant then requested a third time to proceed pro se, and the trial court denied

this third request.

¶ 14 At a later proceeding, on November 5, 2010, defendant attempted to file an additional pro

se motion for substitution of judge for cause and to again reconsider the denial of his motion to

quash arrest and suppress evidence. Defendant’s pro se motion repeated his arguments that the

arresting officers lacked probable cause and that the assistant public defender provided

ineffective assistance of counsel, though defendant did not address his substitution of judge claim

in the body of his motion. Defendant’s counsel informed the trial court that she did not intend to

file defendant’s motion on his behalf. The trial court subsequently bifurcated the pro se motion

and denied defendant’s request for substitution of judge.

¶ 15 On November 29, 2010, defense counsel filed a motion in limine to bar evidence of other

crimes and bad acts, including evidence: (1) that defendant slapped his girlfriend the night before

the murder; and (2) that defendant threatened Harold Jackson and Abel Smith the next morning

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that he would cut their throats. The trial court denied defendant’s motion, finding that these

incidents described a “continuing course of conduct, which the jury could see, leads up to and

includes the murder of Mr. Clinton Cavin.”

¶ 16 A jury was selected on February 28, 2011, and the trial began the next day.

¶ 17 II. Trial

¶ 18 At trial, the State argued in its opening statement that, on November 15, 2006, defendant

beat Clinton Cavin to death with a shovel after Cavin refused defendant’s demand to leave

Sharon Smith’s home. The State presented 15 witnesses, including two arresting police officers,

forensic examiners that handled the evidence in the case, and defendant’s then-girlfriend, Sharon

Smith, and her three sons. Defendant exercised his right not to call witnesses or testify at trial.

¶ 19 A. Sharon Smith’s Testimony

¶ 20 Sharon Smith testified that, in November 2006, she lived in Chicago, Illinois, in a house

owned by Maurice Simmons, the father of one of her three sons. Sharon slept in the downstairs

bedroom, while her sons, Christopher Simmons, Abel Smith, and Dezell Smith, occupied the

bedrooms on the second floor. The victim, Clinton Cavin, lived in the basement. The front door

of the house opened into the living room, and a back door accessed the basement. Sharon’s

boyfriend of five years, defendant, lived in the house off and on, as well as three of Abel’s

friends, William Alston, Walter Alston, and Harold Jackson. At the time, Abel was 17 years old

and went to school, while his friends Harold and William were 19 and 20 years old, did not

attend school, and were unemployed. Defendant occasionally used various tools to do

maintenance work around the house.

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¶ 21 Sharon testified that, on November 14, 2006, she hosted a party at the house to celebrate

her birthday, in which her friend Renee Tate, Kenny Marshall, defendant, Maurice, and

Maurice’s friend Nakita Marshall attended. During the party, which continued past midnight,

Sharon and Renee smoked crack cocaine in her bedroom, while defendant, Cavin, Kenny, Nakita,

and Maurice drank alcohol and smoked crack cocaine in the basement. Sharon’s three sons and

their friends, William, Walter, and Harold, stayed upstairs in their bedrooms during the party.

¶ 22 Sharon testified that, at 2 a.m., she prepared to leave the party with Kenny and Renee to

drive to Iowa to attend an 11:30 a.m. public housing appointment. Sharon went into the basement

and asked Cavin to watch the house while she was in Iowa. After her conversation with Cavin,

defendant, who had been drinking and smoking crack cocaine, slapped Sharon across the face.

Sharon cried, ran back upstairs, and told her son Abel that defendant slapped her. She then went

outside, and defendant acted upset that she was leaving for Iowa. Sharon then asked defendant to

accompany her to Iowa, and defendant went inside the house to get his coat. Sharon waited for

defendant but he never came back out, so she, Kenny, and Renee left without him. Sharon did not

return to her home until 7:30 p.m. the next day.

¶ 23 On cross-examination, Sharon admitted that, when she returned home from Iowa, she told

detectives that she had left at 5 a.m., and not 2 a.m. as she had just testified.

¶ 24 B. Maurice Simmons’ Testimony

¶ 25 Maurice Simmons testified that, on November 14, 2006, he left work at 10:30 p.m. and

attended Sharon’s birthday party. Maurice smoked crack with the adults in the basement and on

the first floor, while the minors stayed in the upstairs bedrooms. Shortly before 2 a.m. the next

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morning, Maurice and Nakita observed defendant arguing in the basement with Cavin because

defendant wanted Cavin to leave the house. The argument was a “small, little thing,” and

Maurice thought it was “no big deal.” Sharon then left for Iowa at 2:30 a.m., and Maurice and

Nakita went to sleep in Sharon’s bedroom and awoke at 7 a.m. to send the kids off to school. At

that time, Maurice observed defendant in the house without blood on his clothes. Maurice went

back to sleep and was awakened at noon by Harold and William, who told him that Cavin was

dead in the basement. Maurice then went down into the basement and observed Cavin’s body.

Maurice then left the house and used a neighbor’s telephone to call 911, and the dispatcher told

him that someone had already called and the police were on their way. Maurice identified

defendant in court.

¶ 26 On cross-examination, Maurice testified that he did not remember if he left work at either

10:30 p.m. or 1 a.m. the next morning, and that it took him 30 minutes to drive from his job to

Sharon’s party. The defense asked Maurice whether he told the police that he observed Sharon

leave at 5 a.m., and he testified that he did not remember saying that to the police. Maurice also

testified that he did not speak with Abel at any point that morning.

¶ 27 C. Christopher Simmons’ Testimony

¶ 28 Christopher Simmons testified that, at the time of trial, he was 21 years old. On

November 14, 2006, he lived with his mother and he never left the house during her birthday

party. Christopher observed defendant at the party drinking and “having fun.” Christopher went

to sleep shortly after midnight, and he awoke at 1:30 a.m. to use the downstairs bathroom.

Christopher observed defendant downstairs but he did not speak to defendant before he went

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back to bed because defendant “looked kind of mad.” Christopher then went back upstairs to

sleep, and he and Abel left for school the next morning. Christopher also identified defendant in

court.

¶ 29 D. Renee Tate’s Testimony

¶ 30 Renee Tate testified that she and Sharon celebrated their birthdays together on November

15, 2006, at Sharon’s residence. Renee planned on accompanying Sharon and Kenny on a short

trip to Iowa. Before they left, Sharon asked defendant to join them and he went inside the house

to retrieve his jacket, but he never came back outside, so they left without him. Renee did not

remember what time they left, and she did not learn of Cavin’s death until she returned to

Chicago. Renee also identified defendant in court.

¶ 31 On cross-examination Renee testified that, though she did not remember when they left

for Iowa, she arrived at the party at 12:30 a.m. and stayed for two hours. When asked if she had

told the police that they left the party at 4:30 a.m., she stated, “If that’s what I told him, that’s

what happened.” Renee also testified they arrived at Sharon’s appointment late.

¶ 32 E. Abel Smith’s Testimony

¶ 33 Abel Smith testified that, at the time of trial, he was 22 years old, and he lived with his

mother, Sharon Smith, in November 2006. On November 15, 2006, Abel was in the house during

his mother’s birthday party, and he fell asleep on the couch in the living room at 1 a.m. He was

awakened later by the sound of Sharon arguing with defendant. Sharon then told Abel that

defendant had slapped her, and Abel asked defendant not to hit his mother. Sharon later left for

Iowa, and Abel attempted to go back to sleep, but he could not sleep because defendant was

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talking to himself and pacing in the kitchen. Abel asked defendant to leave because he was

disturbing the house, but defendant said that he refused to go unless Cavin left first. Abel

responded that Cavin was homeless and that he had nowhere to go, but defendant replied that he

would throw Cavin out of the house himself. Defendant then threatened to cut Abel’s throat.

¶ 34 Abel testified that he left the kitchen and went in the basement to check on Cavin, who

appeared to be fine. Abel next went upstairs to check on the other kids, and he told Maurice that

defendant was disturbing him. Maurice told Abel that he would check on it, so Abel went to an

upstairs bedroom and attempted to sleep, but he was kept awake by the sound of someone

punching the kitchen walls. Abel then heard defendant arguing in the basement with Cavin, who

told defendant that he was not going anywhere and “[i]f you hurt me, you’re not doing nothing

but hurting yourself.” Though he stated that he did not hear Cavin mention defendant’s name, he

acknowledged that he had previously testified before a grand jury that he had heard Cavin say,

“Herb, what are you doing in the basement with me.”

¶ 35 Abel testified that he eventually fell back asleep and woke up again at 4 a.m. He checked

on Cavin again, and he observed defendant drinking vodka and pacing in the kitchen. Abel went

back upstairs and went to sleep again. Abel woke up again at 7:30 a.m. to prepare for school. He

went downstairs and observed defendant pacing in front of the basement door, but he did not

observe a shovel or any blood on defendant. Abel then washed up, ironed his clothes, and left for

school with his brothers. Abel also identified defendant in court.

¶ 36 On cross-examination, Abel testified that he was convicted of robbery in 2006.

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¶ 37 F. William Alston’s Testimony

¶ 38 William Alston testified that he was 24 years old and that, in November 2006, he lived at

Sharon’s residence because he had problems with his father. After Sharon’s birthday party,

William went to sleep and was awakened in the morning by Maurice, who asked to use his

cellular telephone. That morning, William and Harold went downstairs to make some breakfast.

Defendant entered the kitchen and started breathing on Harold’s food. When Harold asked him to

stop, defendant threatened to cut Harold’s throat. Harold pushed defendant away, and defendant

left the home driving Maurice’s vehicle.

¶ 39 William testified that defendant returned 15 minutes later, and William observed him

standing by the vehicle in front of the house with a knife protruding from his jacket pocket.

Defendant attempted to conceal the knife as he approached the house, and William quickly

locked the front door before defendant reached it. Defendant then knocked on the door, while

William and Harold exited through a side door and walked to a nearby gas station to purchase

cigarettes. They did not lock the side door when they left, and Maurice and Nakita were still in

the house at the time.

¶ 40 William testified that, when he and Harold returned to the home two minutes later, he

observed defendant walking down the street seven houses away from them. Defendant was

wearing a leather coat, blue jeans, and construction boots. William did not observe any blood on

defendant’s clothing, nor did he observe defendant holding a shovel. William identified

defendant in court, and he identified the leather coat, jeans, and boots in court as the same clothes

that he observed defendant wearing on November 15, 2006.

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¶ 41 William testified that he and Harold reentered the home and William knocked over a

shovel and he picked it up and placed it back where it was leaning against the wall. The shovel

was usually kept in the basement, and William observed that it had blood on the back, but the

handle appeared to be dry. William identified the shovel in court. He then walked down into the

basement to check on Cavin, who lived in the basement with Sharon’s brother, Joey.3 William

observed bloody footprints on the basement stairs. In the basement he found Cavin’s body, and

he immediately returned upstairs and told Maurice and Harold what he had observed. William

then walked down the street to his father’s home to call the police. After the police arrived,

William rode in a police vehicle and directed the officers to where defendant lived.

¶ 42 G. Sergeant Daniel O’Connor’s Testimony

¶ 43 Chicago Police Sergeant Daniel O’Connor testified that, on November 15, 2006, he and

his partner, Officer Costello,4 were dressed in plain clothes when they responded to a homicide at

Sharon’s home at 11:30 a.m. Upon arriving at Sharon’s residence, he received a flash message

that described the suspect as a 40- to 50-year-old black male named Herb, who had been

observed leaving the house wearing a black leather jacket, dark-colored jeans, and boots, and

armed with a wood-handled knife. After receiving the flash message, O’Connor and his partner

drove to defendant’s residence and knocked on the front door. Defendant’s mother answered the

door and had a conversation with O’Connor before allowing him and his partner to enter the

house. O’Connor and his partner walked upstairs and observed defendant lying face-up on a bed.

3
This was the first and only mention of Joey during the trial. None of the other witnesses
mentioned that he lived in the basement with Cavin. William did not state Joey’s last name.
4
Officer Costello’s first name does not appear in the appellate record.

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Defendant stood up and O’Connor observed that he was wearing a denim shirt, black jeans, and

tan boots, and that defendant’s jeans and boots had reddish-brown stains on the front of them.

O’Connor also observed a leather jacket in the room with a knife protruding from the pocket, as

well as a second knife with a wooden handle. O’Connor photographed the room and the

photographs were admitted into evidence at trial. O’Connor identified defendant in court.

O’Connor also identified defendant’s denim shirt, black jeans, and tan boots, and pointed to

where he observed the blood stains on the clothing.

¶ 44 On cross-examination, O’Connor testified that, despite observing blood on defendant’s

clothes, O’Connor did not recover and seal defendant’s pants and boots prior to taking defendant

to the police station because he did not want to strip defendant naked of his clothes. O’Connor

noted that he did not observe bloodstains on the white bed sheets, on defendant’s skin, or under

defendant’s fingernails. O’Connor admitted that he did not write in his report that the flash

message informed him that defendant was armed with a knife.

¶ 45 H. Officer Deronis Cooper’s Testimony

¶ 46 Chicago Police Officer Deronis Cooper testified that, on November 15, 2006, he was

wearing civilian clothes and driving through the area near Sharon’s home. In the late morning, he

received a flash message that a black male suspect was observed in the vicinity, wearing a black

coat, black jeans, and work boots, and potentially covered in blood. Cooper drove through the

area but did not observe the suspect. He then drove to Sharon’s residence, where he spoke with

William and Nakita. After speaking with them, Cooper drove to defendant’s residence, while

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Cooper’s supervisor drove William and Nakita there.5 Officers O’Connor and Costello were

already at defendant’s home when Cooper arrived. Cooper entered the house and observed

defendant lying on a bed in a second floor bedroom. Defendant was wearing a blue denim shirt,

black jeans, and tan work boots, and he had dried red stains on his pants and boots. Cooper then

arrested defendant and transported him to an interrogation room at the Area 2 police station, and

he remained with defendant the entire time. Cooper identified defendant in court, and he

identified defendant’s pants and boots and noted that they were in the same or substantially the

same condition as when he observed defendant wearing them in the bedroom.

¶ 47 On cross-examination, Cooper testified that he did not recall removing defendant’s boots

while defendant was in the interrogation room. After Cooper brought defendant to the

interrogation room, other officers later transported defendant to a hospital to treat an injury

unrelated to the instant case. Cooper testified that he knew that defendant’s clothes were removed

at the hospital, but he did not state who removed them.

¶ 48 I. Victor Rivera’s Testimony

¶ 49 Forensic investigator Victor Rivera testified that, at 1 p.m. on November 15, 2006, he and

his partner, forensic investigator Eddie Perez, processed the evidence at the crime scene at

Sharon’s home. In the basement, Rivera observed Cavin’s body slumped over in a chair, and a

bloody shovel leaning against the wall. Cavin’s body was covered in blood, and there were

bloodstains on the walls. Rivera identified the shovel and several photographs of Cavin’s body in

court. Rivera then left Sharon’s home to process the evidence found at defendant’s residence,

5
Cooper did not state his supervisor’s name.

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which included a kitchen knife, a drywall knife, and a black leather jacket in defendant’s

bedroom. Rivera transported the evidence to the Area 2 police station where he assigned a unique

inventory number to each item. Rivera identified the knives and jacket in court.

¶ 50 Rivera testified that, while he was at the Area 2 police station, he “recovered” defendant’s

clothing, but did not explain how he came into possession of defendant’s clothes. Rivera

identified defendant in court. The State presented Rivera with a pair of brown boots, socks, black

jean pants, and a shirt, and he identified each article of clothing as the same one that he recovered

from defendant on November 15, 2006, and that each item was in the same or substantially the

same condition as when he recovered them.

¶ 51 On cross-examination, Rivera testified that he did not observe any bloody footprints on

the basement stairs, and that the shovel currently did not appear as bloody as it did when he

recovered it. He did not observe any blood on defendant’s leather jacket, and the knife protruding

from defendant’s jacket’s pocket appeared to have rust on it rather than bloodstains.

¶ 52 In the middle of Rivera’s cross-examination, the trial recessed an hour for lunch, and

when it resumed, the trial court stated outside the presence of the jury, “The defense has been

setting up audio/visual equipment as it relates to the cross-examination of Forensic Investigator

Rivera. Be sure that our motion to exclude is being adhered to.”6 The defense then informed the

trial court that it intended to present a still shot from a videotape that showed an unidentified

police officer removing defendant’s boots from his feet in an interrogation room at the Area 2

6
It is unclear which motion the trial court referred to because the appellate record does
not contain a motion to exclude that concerns the presentation of a videotape at trial.

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police station. The defense would first ask Rivera if he did in fact remove defendant’s clothes

from his person, and if he said no, then the still shot would not be shown. If he Rivera said yes,

then the defense intended to show the still frame from the video and ask Rivera if any of the four

people depicted in the still frame was him, with his anticipated answer being no. The trial court

denied the defense’s request to show the frame from the video, finding that “the still [shot] says

nothing in terms of the entirety of the time that [defendant] was at the [police] station.” The

defense then informed the trial court that it intended to show the video without sound at some

later date. The trial court responded that it would reserve its ruling until that issue presented

itself, and the trial court again advised the defense that there would be no reference to the video

during Rivera’s cross-examination, even for the purposes of impeachment.

¶ 53 While the video was not played or admitted into evidence at trial, a DVD copy is

contained in the appellate record. The video shows that a white male officer in plain clothes

wearing a baseball cap led defendant into the interrogation room. Defendant was wearing a

button-down collared shirt, black jeans, and tan boots with visible marks on them. Shortly

afterward, a second dark-skinned male officer entered the room and emptied defendant’s pockets,

placing the contents on the table. This second officer was also not in uniform and was instead

wearing a blue shirt, blue jeans, and a white baseball cap. Defendant then sat down on a bench

and the second officer removed defendant’s boots. A third black male officer wearing a gray shirt

and pants, a black vest, and a flat cap entered the room holding a clear plastic bag. The second

officer, while holding defendant’s boots in his right hand, placed the contents of defendant’s

pockets into the bag and then left the room with the boots. The second officer returned to the

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room five minutes later without the boots in hand, and the boots do not appear on the rest of

video. Defendant was then taken to the hospital, and the video recording system was shut off.

The video recording resumed when defendant returned from the hospital, and the video shows

that defendant reentered the interrogation room wearing hospital scrubs without shoes rather than

his previous clothing.

¶ 54 When the cross-examination resumed, Rivera testified that he could not recall if

defendant was still wearing his original clothes and boots or new hospital scrubs when Rivera

observed him in the interrogation room. Rivera also did not remember whether he personally

removed defendant’s clothing and boots, or if they were already removed from defendant before

Rivera arrived at the Area 2 police station.

¶ 55 J. Steven White’s Testimony

¶ 56 Dr. Steven White of the Cook County Medical Examiner’s Office testified as an expert in

forensic pathology concerning the autopsy performed on Cavin by Dr. Michelle Jordan, who had

since moved out of state. White testified that he reviewed Dr. Jordan’s case protocol,

photographs, and toxicology results to formulate his own opinion regarding Cavin’s death. White

identified multiple lacerations on Cavin’s head and face, though he noted that Cavin’s body

lacked any signs of defensive wounds. Cavin had a comminuted fracture of the skull, which was

broken into many pieces. White opined that Cavin died from multiple craniocerebral injuries

resulting from blunt-force trauma to his head due to an assault. White opined that Cavin’s death

was a homicide, and that Cavin was alive and breathing when he sustained the injuries because

there was blood found in his lungs and stomach. White was unable to determine a time of death.

19
No. 1-11-1251

¶ 57 K. Lynette Wilson’s Testimony

¶ 58 Lynette Wilson testified that she is a forensic biologist at the Illinois State Police Crime

Lab, and that she analyzed the stains found on the shovel, the wood-handled knife, and

defendant’s boots, jeans, and denim shirt. Her tests revealed that all of these items contained

blood on them. Wilson preserved each of the samples and sealed them in a vault for DNA

analysis.

¶ 59 On cross-examination, Wilson testified that there is a possibility of a false positive test

result. The jeans had many dirt-like stains on them, and the majority of the stains on the boots

were scuffmarks and paint stains. While the boots have several blood-like stains on them, Wilson

only tested one area.

¶ 60 After Wilson’s testimony, the defense again informed the trial court that it intended to

play the video without sound during its case-in-chief to show that someone other than forensic

investigator Rivera recovered defendant’s boots from the Area 2 interrogation room. The State

argued that the video was inadmissible because the defense could not lay a proper foundation,

and the trial court stated that, though the issue was not before the trial court at that time, it

“probably would not” allow the video to be shown later.

¶ 61 The next morning, the defense requested the trial court that it recall Rivera to clarify

whether he personally removed defendant’s clothes. The defense also intended to question Rivera

about the evidence inventory form that he completed, in which he left blank the portion of the

20
No. 1-11-1251

form indicating where the items were recovered or seized.7 The trial court denied the defense’s

request to recall Rivera, finding that he testified that he was “not sure about how the clothes got

to his possession,” and that playing either a still or the entire interrogation video would not

advance the defense’s case either way. Afterwards, the defense did not request or attempt to play

the video throughout the duration of the trial.

¶ 62 L. Christopher Webb’s Testimony

¶ 63 Christopher Webb testified that he is a DNA scientist at the Joliet Science Laboratory of

the Illinois State Police, and that he tested the DNA samples found on the clothing, boots, and the

shovel, and compared them to the DNA profiles of defendant and Cavin. A blood sample

recovered from the cuff of defendant’s shirt matched defendant’s DNA profile, while blood

samples recovered from defendant’s jeans, boots, and the shovel matched Cavin’s DNA profile.

¶ 64 M. William Kovacs’ Testimony

¶ 65 William Kovacs testified that he took defendant’s fingerprints and palm prints on May

22, 2007, and forwarded them to the Illinois State Police latent print unit for comparison.

¶ 66 N. Anastasia Petruncio’s Testimony

¶ 67 Anastasia Petruncio testified that she is a fingerprint examiner, and that she examined the

shovel and located four sets of prints on it: two on the plastic handle, and two on the metal base.

One of the prints on the handle was suitable for comparison, and she identified the print as

defendant’s to the exclusion of all other individuals in the world. Petruncio demonstrated that the

7
While the inventory form was not admitted into evidence at trial, it appears in the
appellate record. The portion of form designated “recovered/seized from:” is left blank.

21
No. 1-11-1251

print on the handle corresponded to defendant gripping the shovel with his left hand. Petruncio

identified the shovel at trial. Petruncio also examined the brown-handled knife, but found no

prints suitable for comparison.

¶ 68 On cross-examination, Petruncio testified that one of the prints found on the shovel’s

metal base excluded both defendant and Cavin as the source. She did not compare the other two

prints after she identified the palm print on the handle as defendant’s. Petruncio did not receive

print cards from any other individual for comparison. She acknowledged that it was impossible to

tell when the prints were left on the shovel, and that they possibly could have been left days,

weeks, or months before the crime.

¶ 69 Defense counsel never requested a Frye hearing concerning the validity of latent palm

print analysis, which is an issue defendant’s counsel raises on appeal.

¶ 70 O. Jennifer Acosta’s Testimony

¶ 71 Jennifer Acosta testified that she is a forensic scientist at the Illinois State Police Forensic

Science Center, and that she tested the DNA recovered from the wood-handled knife. She

determined that the DNA sample contained a mixture of at least three profiles that she could not

sort out. She compared the mixed profile to the DNA profiles of defendant and Cavin and

determined that neither could be excluded as a possible match.

¶ 72 On cross-examination, Acosta testified that the DNA sample from the wood-handled

knife was a degraded sample and that she did not know whether it came from blood or skin cells.

Though defendant and Cavin cannot be excluded as a match, there are millions of potential

combinations of DNA profiles that could yield the mixture found on the knife.

22
No. 1-11-1251

¶ 73 After Acosta’s testimony, the State sought to admit defendant’s boots, jeans, and shirt

into evidence. The defense objected, arguing that the State failed to establish a sufficient chain of

custody because Officer Rivera’s testimony did not sufficiently explain how he came into

possession of the clothing. The trial court overruled the defense’s objection and admitted the

clothing into evidence. The State rested, and the trial court denied defendant’s motion for a

directed verdict.

¶ 74 Defendant exercised his right not to testify or call witnesses at trial. The defense

presented stipulated testimony from Chicago Police Detective Madden8 to impeach Abel Smith.

It was stipulated that, if called to the stand, Madden would testify that Abel told him on

November 15, 2006, that Cavin had asked Abel to close the basement door when Abel checked

up on him later that night. After speaking with Cavin, Abel went to go to sleep in his bedroom

and he turned the volume up on his stereo so that it was loud. Madden would also testify that

Abel did not mention that he observed defendant pacing in front of the kitchen door in the

morning. The defense then rested.

¶ 75 During closing arguments, the State argued that defendant threatened to kill Cavin

because he was jealous that Sharon, his girlfriend at the time, had asked Cavin to take care of her

house while she was away. In response, the defense criticized the State’s evidence and argued

that the State did not prove defendant guilty beyond a reasonable doubt. Over the defense’s

objection, the jury was allowed to view the shovel and defendant’s clothing during their

deliberations. The jury later found defendant guilty of the first-degree murder of Clinton Cavin.

8
Detective Madden’s first name does not appear in the appellate record.

23
No. 1-11-1251

¶ 76 III. Posttrial Proceedings

¶ 77 Prior to sentencing on April 7, 2011, defendant filed a pro se posttrial motion for a new

trial based on ineffective assistance of counsel. The trial court held a Krankel hearing, and

defendant argued that the boots admitted into evidence at trial did not belong to him. Defendant

claimed that the police returned his boots and he wore his boots to the hospital, which the police

would not have done had the boots been covered in blood. As proof, defendant claimed that the

video of his interrogation at the Area 2 police station showed an officer taking defendant’s boots

and giving them back to him, and that the hospital inventory list reflected the seizure of his pants,

shirt, and socks at the hospital.9 Defendant further argued that his counsel was ineffective

because she did not use this information to impeach Officer Cooper, and that she did not call

Harold Jackson as a defense witness. The trial court then questioned defendant’s counsel, who

explained that Harold had given a handwritten statement to the police and testified before a grand

jury that defendant had threatened to cut his throat, and that Harold was generally not a favorable

witness for the defense. Defendant’s counsel also explained that she tried to admit the

interrogation video or a still photo from the video during trial but the trial court denied her

requests. The trial court denied defendant’s pro se motion, finding that it would have applied its

ruling denying the use of the interrogation video or still to Officer Cooper’s testimony as well.

9
While the hospital inventory list was not admitted into evidence at trial, it appears in the
record on appeal. The list indicates that defendant’s shirt, pants, and socks were given to a police
officer, while the “Shoes/Boots/Slippers” category is crossed off, indicating that no such items
were recovered. Defendant did not sign the bottom of the list acknowledging that “the indicated
items and disposition are correct and complete.” However, the list is signed by “Sgt. E. Boone
1964” as the “Accepting Person,” and another signature that is illegible appears below that as a
“Witness.”

24
No. 1-11-1251

The trial court further found that the pro se motion “lacked merit” and that it did not justify the

appointment of new counsel.

¶ 78 On April 18, 2011, the defense filed a posttrial motion for a new trial, alleging that the

trial court erred when it: (1) denied defendant’s pretrial motion to quash arrest; and (2) denied

defendant’s motion in limine to bar evidence of other acts of defendant. Among the claims in the

motion for a new trial, the defense argued that the trial court: (1) improperly denied the use of the

interrogation video to impeach Rivera at trial; and (2) erred when it admitted defendant’s boots,

pants, shirt, and socks into evidence despite a broken chain of custody. The trial court denied the

defense’s motion, and defendant then advised the trial court that he had filed a pro se motion for

“obstruction of justice” against the assistant public defender.10 The trial court advised defendant

that it had already ruled on these issues before, but it nevertheless held another “Krankel-type

hearing” and denied defendant’s pro se motion, finding that the assistant public defender offered

a tactical reason for not calling Harold Jackson as a witness and that defendant did not need new

counsel.

¶ 79 The trial court then held a sentencing hearing, and the State noted defendant’s 1985

convictions for armed robbery and residential burglary. The State called three correctional

officers from Cook County Jail to testify to three separate instances of defendant’s

insubordination and confrontation during the pendency of his case. The defense called Eric

Morris, defendant’s younger brother, who testified that defendant worked with their father as a

plumber, that he had moved in with his parents as they were becoming older, and that defendant

10
Defendant’s motion does not appear in the appellate record.

25
No. 1-11-1251

had taken care of Eric’s son when Eric was too irresponsible to do so. Defendant then addressed

the trial court and again claimed: (1) that the assistant public defender provided ineffective

assistance of counsel; (2) that the police entered his parents’ home without probable cause or a

warrant; and (3) that there was a break in the chain of custody of his clothes. Following

defendant’s allocution, the State argued in aggravation that the way in which defendant murdered

Cavin was especially heinous, and that defendant had a long history of criminal behavior that

continued even after he was incarcerated. In mitigation, the defense argued that the murder was

the result of defendant’s continuing struggle with substance abuse, and that defendant’s actions

in jail were actually minor relative to the environment that he lived in.

¶ 80 After considering the factors in aggravation and mitigation, the trial court considered that

the manner in which defendant struck Cavin’s head warranted a sentence “closer to the

maximum as opposed to the minimum.” The trial court sentenced defendant to 55 years’

imprisonment, with 1,587 days of presentence custody credit against his sentence, and a $925

fine. The trial court denied defendant’s motion to reconsider, and defendant appealed.

¶ 81 The Office of the State Appellate Defender, appointed on April 28, 2011, represents

defendant on appeal. On July 25, 2012, appointed counsel filed a brief and argument on behalf of

defendant. Defendant then filed a pro se brief and argument on March 20, 2013, entitled

“Supplemental Breif [sic] and Argument For Defendant-Appellant Pursuant to Supreme Court

Rule 341(b).” In his pro se brief, defendant makes numerous additional claims of trial court

errors and ineffective assistance of counsel at the suppression hearing and at trial. Defendant

states that his pro se brief is intended to supplement the briefs filed by his appellate counsel

26
No. 1-11-1251

because his counsel chose not to raise these additional issues on appeal. Since defendant is

represented by counsel and has made no request to proceed pro se, we will consider only the

claims raised by counsel. People v. McDonald, 168 Ill. 2d 420, 435 (1995); People v. Thompson,

331 Ill. App. 3d 948, 951 (2002).

¶ 82 ANALYSIS

¶ 83 On appeal, defendant’s counsel argues, first, that his conviction should be reversed and

remanded for a new trial by three related chain-of-custody errors: (1) the trial court improperly

admitted defendant’s bloodstained pants and boots into evidence despite a deficient chain of

custody; (2) the assistant public defender provided ineffective assistance of counsel at trial when

she did not introduce the hospital belongings list into evidence to show that defendant’s boots

were not seized at the hospital; and (3) the trial court denied the defense’s request to show a still

shot from a video of an unidentified officer removing defendant’s boots in an interrogation room

at the police station. Second, counsel argues that the trial court erred when it denied the defense’s

motion in limine to bar testimony that defendant threatened to cut Abel Smith’s and Harold

Jackson’s throats the morning of the homicide. Third, defendant’s appellate counsel argues that

the trial counsel was ineffective for not objecting to the State’s latent fingerprint analysis. For the

following reasons, we affirm.

¶ 84 I. Chain of Custody

¶ 85 The first claim is that the trial court erred when it admitted defendant’s bloodstained

pants and boots into evidence despite a break in the chain of custody. The admissibility of

evidence lies within the sound discretion of the trial court, and the trial court's decision may not

27
No. 1-11-1251

be overturned on appeal absent an abuse of discretion. People v. Becker, 239 Ill. 2d 215, 234

(2010). “An abuse of discretion occurs where the trial court's decision is arbitrary, fanciful, or

unreasonable, or where no reasonable person would take the view adopted by the trial court.”

Becker, 239 Ill. 2d at 234.

¶ 86 When the State seeks to introduce bloodstained clothing into evidence, it must lay an

adequate foundation either “ ‘through its identification by witnesses or through a chain of

possession.’ ” People v. Woods, 214 Ill. 2d 455, 466 (2005) (quoting People v. Stewart, 105 Ill.

2d 22, 59 (1984)). “Where an item has readily identifiable and unique characteristics, and its

composition is not easily subject to change, an adequate foundation is laid by testimony that the

item sought to be admitted is the same item recovered and is in substantially the same condition

as when it was recovered.” Woods, 214 Ill. 2d at 466.

¶ 87 In the case at bar, the State sufficiently established a foundation because defendant’s

pants and boots were readily identifiable by unique characteristics that were not easily subject to

change. Woods, 214 Ill. 2d at 466. At trial, four witnesses identified the pants and boots as

defendant’s. First, the State presented the jeans and boots to William Alston, who identified

them, along with defendant’s leather jacket, as the clothing that he observed defendant wearing

the morning of the crime. Next, Sergeant Daniel O’Connor identified defendant’s jeans and boots

as the same clothing that defendant was wearing at the time of his arrest. O’Connor also pointed

out where he observed the bloodstains on defendant’s pants. After that, Officer Deronis Cooper

identified the black jeans and tan boots as the clothes that defendant was wearing at the time of

his arrest. And lastly, forensic investigator Victor Rivera identified defendant’s black jeans and

28
No. 1-11-1251

boots as the items he recovered at the police station. Rivera testified that, besides the markings

made by the crime lab, the items were in the same or substantially the same condition as when he

recovered and inventoried the clothing.

¶ 88 As a result, the State established a sufficient foundation for defendant’s pants and boots

because four witnesses identified the articles of bloodstained black jeans and tan boots as

defendant’s. Woods, 214 Ill. 2d at 466. Because the State sufficiently laid a foundation for the

pants and boots, it was not required to establish a chain of custody for the evidence to be

admissible, and the trial court did not err when it allowed the items into evidence over the

defense’s objection. Woods, 214 Ill. 2d at 466. See People v. Gilyard, 124 Ill. App. 2d 95, 105

(1970) (the State established a sufficient foundation for hat and gloves found at the crime scene

where witnesses identified the items as those worn by defendant during the crime); People v.

Kristovich, 32 Ill. App. 3d 979, 985 (1975) (foundation sufficient where witness identified

clothing exhibits as her own).

¶ 89 Defendant’s counsel argues that since the pants and boots contained bloodstains, the State

needed to establish a sufficient chain of custody, rather than witness identification, for the items

to be admissible. Counsel argues that courts have found that blood is a highly fungible, highly

transferrable substance that requires a chain of custody to ensure that the evidence is preserved

and cites three cases: (1) People v. Winters, 97 Ill. App. 3d 288, 295-96 (1981) (discussing chain-

of-custody requirements for admitting a blood sample); (2) People v. Shiflet, 125 Ill. App. 3d

161, 178-79 (1984) (chain of custody established for admission of a vial victim’s blood); and (3)

People v. Bradney, 170 Ill. App. 3d 839, 864-65 (1988) (same). See also 725 ILCS 5/116-3

29
No. 1-11-1251

(West 2012) (procedure for securing postconviction DNA testing requires defendant to establish

a chain of custody for physical items to be tested).

¶ 90 Defendant’s counsel also points to two 30-year old cases where courts applied a chain-of-

custody analysis to clothing exhibits that contained biological material. In People v. Gholston,

124 Ill. App. 3d 873, 890-91 (1984), the appellate court analyzed the chain of custody of the

defendant’s pants and underwear that were later shown to contain mucus and spermatozoa. In

People v. Rogers, 42 Ill. App. 3d 499, 501 (1976), the appellate court examined the chain of

custody for bloody shorts admitted at trial. Counsel argues that, while foundation may have been

proper for the articles of clothing alone, the fact that they contained visible samples of blood

meant that the State was required to show a sufficient chain of custody to establish a foundation

for the evidence.

¶ 91 However, the Winters, Shiflet, and Bradney cases cited by defendant’s counsel concerned

vial or samples of blood rather than bloody clothing. Winters, 97 Ill. App. 3d at 295-96; Shiflet,

125 Ill. App. 3d at 178-79; Bradney, 170 Ill. App. 3d at 864-65. While a sample of blood in itself

may require a sufficient chain of custody for admissibility, the blood in the instant case was

contained on unique articles of clothing that were identified by several witnesses at trial. Once

the blood samples were recovered from the clothing, then they were subject to the chain of

custody procedures used for samples of biological material. However, the defense never raised a

challenge to the chain of custody of the blood after the samples were removed from the clothing.

¶ 92 Furthermore, while the appellate court in the Gholston and Rogers cases analyzed the

chain of custody for clothing exhibits that contained biological material, neither case states that

30
No. 1-11-1251

such an analysis is required or that the State must prove a chain of custody in such instances.

Gholston, 124 Ill. App. 3d at 890-91; Rogers, 42 Ill. App. 3d at 501. Rather, our supreme court in

Woods held that a chain of custody is not required where an item has readily identifiable and

unique characteristics, and its composition is not easily subject to change. Woods, 214 Ill. 2d at

466. Since the composition of the pants and boots were not easily subject to change, and several

witnesses identified the items through unique characteristics, the State did not need to establish a

chain of custody. The State laid a sufficient foundation for the exhibits, and the trial court did not

err when it admitted the pants and boots into evidence at trial.

¶ 93 Even if the State failed to establish a sufficient foundation, the trial court’s error was

harmless beyond a reasonable doubt. People v. Thurow, 203 Ill. 2d 352, 272 (2003) (citing

United States v. Olano, 507 U.S. 725, 734 (1993)). The evidence at trial showed that defendant

was angered by Sharon’s comments, and that he acted aggressively toward Cavin throughout the

morning. Defendant was then observed approaching the house with a knife in his pocket, and

then observed leaving the home shortly before Cavin was discovered dead in the basement. The

police recovered a bloody shovel at the home, which contained defendant’s fingerprints. Even if

the clothing had been excluded at trial, there was still overwhelming evidence that defendant was

guilty beyond a reasonable doubt.

¶ 94 II. Hospital Belongings List

¶ 95 The second claim is that the assistant public defender provided ineffective assistance at

trial when she did not present defendant’s hospital belongings list to challenge the chain of

custody of the clothing exhibits. “ ‘The sixth and fourteenth amendment of the United States

31
No. 1-11-1251

Constitution guarantee the fundamental right of a defendant in a criminal case to be effectively

assisted by counsel.’ ” People v. Young, 347 Ill. App. 3d 909, 927 (2004) (quoting People v.

Spann, 332 Ill. App. 3d 425, 429 (2002) (citing U.S. Const., amends. VI, XIV)). A successful

claim of ineffective assistance of counsel requires a two-pronged showing: (1) that counsel's

representation falls below an objective standard of reasonableness; and (2) that there is a

reasonable probability that, but for counsel’s deficient performance, the result of the trial would

have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); People v. Albanese,

104 Ill. 2d 504, 525 (1984). If we can dismiss on the second prong for failure to show prejudice,

we need not discuss the first prong. Albanese, 104 Ill. 2d at 527.

¶ 96 With respect to the second prong, defendant’s appellate counsel argues that the assistant

public defender failed to present the hospital belongings list at trial to attack the chain of custody

of defendant’s pants and boots. The list shows that defendant’s pants, shirt, and socks were

removed at the hospital and given to a police officer, presumably Sergeant Boone, who then

signed the form. Counsel argues that the list would have had had the effect of proving a gap in

the chain of custody, since forensic investigator Rivera testified that he recovered the clothes at

the Area 2 police station and did not state Boone obtained possession of the items first.

¶ 97 However, the assistant public defender’s performance did not prejudice defendant

because, as discussed in section I, the State was not required to prove a chain of custody for

defendant’s clothing. Woods, 214 Ill. 2d at 466. Even if the hospital belongings list were

presented at trial, it would have had no effect on the outcome of the case because the State laid a

32
No. 1-11-1251

proper foundation for defendant’s pants and boots through witness identification. Woods, 214 Ill.

2d at 466.

¶ 98 Also, as previously stated in section I, even if the clothing had been excluded at trial,

there was still overwhelming evidence that defendant was guilty beyond a reasonable doubt. The

evidence at trial showed that defendant acted aggressively toward Cavin and threatened him, that

defendant was observed in the house near the time of the murder, and that defendant’s

fingerprints were on a bloody shovel found at the crime scene. Since defendant was not

prejudiced by his counsel’s failure to present his hospital belongings list, the assistant public

defender did not provide ineffective assistance of counsel, and we need not consider counsel’s

performance with respect to the first prong. Strickland, 466 U.S. at 690; Albanese, 104 Ill. 2d at

527.

¶ 99 III. Exclusion of the Interrogation Video

¶ 100 The third claim is that the trial court erred when it barred the defense from showing a still

frame from a video recording of defendant in an Area 2 interrogation room. A trial court’s

finding concerning whether evidence is relevant and admissible will not be reversed absent a

clear abuse of discretion. People v. Morgan, 197 Ill. 2d 404, 455 (2001) (citing People v. Hayes,

139 Ill. 2d 89, 130 (1990)). As stated, “[a]n abuse of discretion occurs where the trial court's

decision is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the

view adopted by the trial court.” Becker, 239 Ill. 2d at 234.

¶ 101 The federal constitution guarantees the right of an accused to present a defense, including

evidence to rebut the State’s version of events. U.S. Const., amend. VI; Washington v. Texas, 388

33
No. 1-11-1251

U.S. 14, 19 (1967); People v. Manion, 67 Ill. 2d 564, 576 (1977). “Evidence is admissible if it is

relevant to an issue in dispute and its prejudicial effect does not outweigh its probative value.”

People v. Ross, 395 Ill. App. 3d 660, 678 (2009) (citing People v. Patterson, 192 Ill. 2d 93, 114-

15 (2000)). “Evidence is considered relevant if it has any tendency to make the existence of any

fact that is of consequence to the determination of an action either more or less probable than it

would be without the evidence.” Morgan, 197 Ill. 2d at 455-56 (citing People v. Illgen, 145 Ill.

2d 353, 356-66 (1991)). A trial court may bar evidence on the grounds of relevancy if the

evidence is remote, uncertain, or speculative. Morgan, 197 Ill. 2d at 456 (citing People v.

Cloutier, 156 Ill. 2d 483, 501 (1993)).

¶ 102 Defendant’s counsel argues in its brief that the defense twice sought to present a “short

video clip depicting an unnamed officer seizing [defendant’s] boots at Area 2 before [defendant]

was taken to the hospital,” and that the trial court barred this evidence both times. This is an

incorrect statement of the facts because the appellate record shows that the defense never

attempted to play a video clip at trial. Rather, during the cross-examination of forensic

investigator Rivera, the defense informed the trial court that it intended to present a still frame

from the video, and the trial court denied the request. Afterwards, before the State rested, the

defense twice informed the trial court that it intended to play a clip of the video in the future

during its case-in-chief, but both times the trial court stated that the issue was not yet before the

trial court, though it “probably would not” allow the video to be presented later. The defense

never actually attempted to play the video at any other time at trial.

34
No. 1-11-1251

¶ 103 As a result, our review is limited to the trial court’s decision to bar the defense from

presenting a still frame of the video during Rivera’s cross-examination. Rivera testified on direct

examination that he “recovered” defendant’s boots. During the cross-examination, the defense

informed the trial court that it intended to show a single frame from the video, which would show

three police officers in an Area 2 interrogation room with defendant. The defense stated that it

would first ask Rivera if he personally removed defendant’s boots, and if Rivera said no, the still

video would not be presented. If Rivera said yes, then the defense would present the still shot and

ask Rivera if he was one of the officers depicted in the frame, with his anticipated answer being

no. The trial court barred the presentation of a still frame, and when the cross-examination

resumed, Rivera explained that, although he recovered defendant’s boots at the Area 2 police

station, he did not recall who personally removed defendant’s boots. On appeal, defendant’s

counsel argues that the trial court improperly barred the presentation of a still video frame

because it would have impeached Rivera, who had just testified that he recovered defendant’s

boots. Vancil v. Fletcher, 90 Ill. App. 2d 277, 284 (1967) (finding defendant may impeach a

witness’ equivocal answers); Edward Don Co. v. Industrial Comm’n, 344 Ill. App. 3d 643, 652

(2003) (finding impeachment proper where witness denies making prior inconsistent statement or

gives unequivocal answers to question concerning prior statement); People v. Preston, 341 Ill.

407, 419 (1930) (same). Additionally, counsel argues that the still video is relevant because it

attacks the weight of the evidence by showing that the police’s handling left a break in the chain

of custody for defendant’s boots.The trial court did not err when it barred the defense from

showing a still shot from the video because it was not impeaching Rivera’s testimony. Although

35
No. 1-11-1251

Rivera testified that he “recovered” defendant’s boots at the Area 2 police station, he did not state

that he actually removed the boots from defendant’s feet. When asked on cross-examination to

clarify how he came into possession of defendant’s boots, Rivera stated that he did not recall if

he personally removed defendant’s boots or if another police officer had removed them before

Rivera arrived at the police station. Since Rivera testified that he only recovered the boots and

did not personally remove them from defendant, video evidence of another police officer

removing defendant’s boots does not impeach or contradict Rivera’s testimony.

¶ 104 Furthermore, as the trial court correctly noted, the still image shows only one moment

from the entire time that defendant was in custody, which is inconclusive to the question of who

removed the boots from defendant’s feet. A still video image would not impeach Rivera because

the presentation of a single moment in time would not be determinative of whether he recovered

defendant’s boots. Also, presenting a still image would not undermine the boots’ chain of

custody because it would be impossible to determine who actually removed the boots, which

police officers handled the boots, and how the boots were inventoried. As we explained in

section I, four witnesses identified the boots as belonging to defendant, and the State was not

required to demonstrate a chain of custody to lay a sufficient foundation. Woods, 214 Ill. 2d at

466. Thus, the trial court did not err when it barred the defense from presenting a still video shot

that neither impeached Rivera nor undermined the State’s evidence.

¶ 105 Also, the trial court’s error was harmless beyond a reasonable doubt because, as discussed

in sections I and II, the evidence against defendant was overwhelming. Thurow, 203 Ill. 2d at 272

(citing Olano, 507 U.S. at 734). The evidence at trial showed that defendant had a motive and

36
No. 1-11-1251

opportunity to kill Cavin, and that his palm prints were discovered on the murder weapon. Even

if the defense had impeached Rivera, there was still overwhelming evidence that defendant was

guilty beyond a reasonable doubt.

¶ 106 IV. Verbal Threats Against Abel Smith and Harold Jackson

¶ 107 The fourth claim is that the trial court erred when it allowed the State to present evidence

that defendant verbally threatened to cut Abel Smith’s and Harold Jackson’s throats the morning

of the crime. The admissibility of evidence, including other crimes evidence, is left to the trial

court’s discretion and will not be overturned absent a clear abuse of discretion. Illgen, 145 Ill. 2d

at 364. As stated, “[a]n abuse of discretion occurs where the trial court's decision is arbitrary,

fanciful, or unreasonable, or where no reasonable person would take the view adopted by the trial

court.” Becker, 239 Ill. 2d at 234.

¶ 108 Other crimes evidence is admissible if it is relevant to a proper issue, “such as motive,

intent, identity, absence of mistake or accident, modus operandi, or the existence of a common

plan or design.” People v. Norwood, 362 Ill. App. 3d 1121, 1128 (2005) (citing People v. Wilson,

214 Ill. 2d 127, 135-36 (2003)). Evidence of other crimes is admissible to prove any material fact

relevant to the case, but is inadmissible if only relevant to demonstrate a defendant’s propensity

to engage in criminal activity. Norwood, 362 Ill. App. 3d at 1128 (citing People v. Donoho, 204

Ill. 2d 159, 170 (2003), and People v. Hendricks, 137 Ill. 2d 31, 52 (1990)). The trial court may

exclude evidence of other crimes evidence if its prejudicial effect substantially outweighs its

probative value. Illgen, 145 Ill. 2d at 365. When the prior conduct is intrinsic to the matter being

charged as a “continuing course of conduct,” other crimes evidence may be admitted if it is

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relevant to establish a material issue, and the general principles of relevance apply. Manuel, 294

Ill. App. 3d at 123-24. Generally, threats by a defendant against a third party are not admissible

unless “ ‘the connection between them and the deceased is such that under certain circumstances

the threat would import harm to or hostility toward the deceased.’ ” People v. Szudy, 262 Ill.

App. 3d 695, 706 (1994) (quoting People v. Williams, 85 Ill. App. 3d 850, 856 (1980) (citing

People v. Scott, 284 Ill. 465, 474-75 (1918) (“The general rule also is that a threat by the accused

to kill or injure a person other than the deceased, or a mere idle threat of a general nature not

direct to any particular person, is not admissible to show malice towards the deceased.”))). “The

threat must in some way be linked to the victim.” Williams, 85 Ill. App. 3d at 856 (citing People

v. Watkins, 34 Ill. App. 3d 369, 374 (1975)).

¶ 109 In the case at bar, defendant’s counsel argues that defendant’s threats to Abel Smith and

Harold Jackson were inadmissible because they were not directed toward Cavin and bore no

connection to his death. At trial, Abel testified that defendant threatened to cut his throat the

morning of the crime, and William Alston testified that defendant confronted Harold and

similarly threatened to cut Harold’s throat. Counsel argues that Cavin was not present during

either incident, and that the State did not establish a connection between defendant’s threats and

a threat of harm to Cavin.

¶ 110 However, whereas evidence of other crimes may be admissible to show, among other

things, motive, intent, identity, absence of mistake or accident, modus operandi, or the existence

of a common plan or design (Norwood, 363 Ill. App. 3d at 1128 (citing Wilson, 214 Ill. 2d at

135-36)), relevant evidence merely tends to “ ‘make the existence of any fact that is of

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consequence to the determination of the action more probable or less probable than it would

without the evidence.’ ” People v. Stewart, 105 Ill. 2d 22, 54 (1984) (quoting Fed. R. Evid. 401).

Here, defendant’s threats to Abel and Harold constituted a continuing “course of conduct” that

led up to Cavin’s murder. Manuel, 294 Ill. App. 3d at 124.

¶ 111 The evidence at trial showed that defendant spent the night drinking alcohol and smoking

crack cocaine, and then argued and slapped his girlfriend when she asked Cavin to watch her

house while she was in Iowa. Maurice heard defendant arguing with Cavin that night about Cavin

leaving the house, and Abel asked defendant not to put his hands on his mother. Abel also

observed defendant talking to himself and pacing in the kitchen, and defendant told Abel that

Cavin had to leave and that he would not leave unless Cavin left first. Defendant became

increasingly hostile and threatened to cut Abel’s throat. Abel later heard defendant confront

Cavin in the basement, and Cavin responded that if defendant hurt him, then defendant would

only be hurting himself. Later that morning, Williams Alston also observed defendant’s temper

flare when he started breathing on Harold’s food, to which Harold insisted that defendant back

away. Defendant responded that he would cut Harold’s throat, and Harold pushed him.

Defendant then left the house in Maurice’s vehicle and returned 10 to 15 minutes later with a

knife in his pocket. William and Harold quickly left to visit a nearby gas station, and when they

returned a few minutes later, William observed defendant walking away from the house. Inside,

William discovered a bloody shovel and Cavin dead in the basement.

¶ 112 These facts demonstrate defendant’s increased agitation and escalating hostility, the focus

of which was Cavin’s refusal of defendant’s demands to leave the house. The incident began

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when Sharon asked Cavin to watch the house. Defendant’s anger or jealousy continued

throughout the night as he argued with Cavin several times, demanding that he leave. Also,

defendant became increasing more violent, as he first slapped Sharon, and then later threatened

to cut the throats of her son and his friend. This course of events culminated in defendant beating

Cavin to death with a shovel in the basement. As such, the trial court did not abuse its discretion

when it allowed the testimony that defendant had threatened Abel and Harold the morning before

the murder. Illgen, 145 Ill. 2d at 364.

¶ 113 Even if the testimony concerning defendant’s threats should have been excluded, the trial

court’s error was harmless beyond a reasonable doubt. Thurow, 203 Ill. 2d at 272 (citing Olano,

507 U.S. at 734). The evidence at trial showed that defendant was with Cavin, and that defendant

was observed approaching the home with a knife shortly before Cavin was discovered dead in the

basement. Defendant’s prints were discovered on the bloody shovel, and defendant’s clothes

contained bloodstains, which matched Cavin’s DNA profile. There was overwhelming evidence

to convict defendant beyond a reasonable doubt even in the absence of the testimony that he

threatened Abel and Harold.

¶ 114 V. Latent Fingerprint Analysis

¶ 115 The final claim is that the assistant public defender provided ineffective assistance of

counsel when she did not request a Frye hearing concerning the admissibility of Illinois State

Police print examiner Anastasia Petruncio’s testimony that a palm print recovered from the

bloody shovel found at the crime scene matched defendant’s left palm print. Frye v. United

States, 293 F. 1013, 1014 (1923); Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d

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63, 77 (2002). A defendant is denied effective assistance of counsel when: (1) his counsel's

representation falls below an objective standard of reasonableness; and (2) there is a reasonable

probability that, but for his counsel’s deficient performance, the result of the trial would have

been different. Strickland, 466 U.S. at 688; Albanese, 104 Ill. 2d at 525.

¶ 116 The decision whether to file a pretrial motion is considered trial strategy, and trial counsel

enjoys a strong presumption that the failure to file such a motion was proper. People v. Spann,

332 Ill. App. 3d 425, 432 (2002) (citing People v. Rodriguez, 312 Ill. App. 3d 920, 925 (2000)).

To overcome that presumption, the defendant must demonstrate: (1) that the motion had a

reasonable probability of success; and (2) that the outcome of the trial would have been different.

Spann, 332 Ill. App. 3d at 432-33. A reasonable probability is defined as a probability sufficient

to undermine confidence in the outcome. Spann, 332 Ill. App. 3d at 437 (citing Strickland, 466

U.S. at 694). The question then, is not whether the defendant would more likely than not have

received a different verdict absent the deficiency, but whether in light of the deficiency, he

received a fair trial resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. 419,

434 (1995). Since the facts surrounding trial counsel’s performance are not in dispute and the

claim was not raised in trial court, this court’s review is de novo concerning assessment of the

ultimate legal issue of whether counsel’s omission supports an ineffective assistance claim.

People v. Berrier, 362 Ill. App. 3d 1153, 1166-67 (2006) (citing People v. Davis, 353 Ill. App. 3d

790, 794 (2004)). De novo consideration means we perform the same analysis that a trial judge

would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

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¶ 117 Illinois follows the test outlined in Frye, commonly called the “general acceptance” test,

which dictates that “scientific evidence is only admissible at trial if the methodology or scientific

principle upon which the opinion is based is ‘sufficiently established to have gained general

acceptance in the particular field in which it belongs.’ ” Central Illinois Public Service Co., 199

Ill. 2d at 77 (quoting Frye, 293 F. at 1014). “A court may determine the general acceptance of a

scientific principle or methodology in either of two ways: (1) based on the results of a Frye

hearing; or (2) by taking judicial notice of unequivocal and undisputed prior judicial decisions or

technical writings on the subject.” People v. McKown, 266 Ill. 2d 245, 254 (2007).

¶ 118 Defendant’s appellate counsel argues that there is a long-standing debate in the scientific

community concerning the validity of latent print identification. In support, counsel cites a 2009

National Research Council (NRC) report, which opined that latent fingerprint analysis, as well as

other forensic identification methods, has not “been rigorously shown to have the capacity to

consistently and accurately demonstrate a connection between evidence and a specific individual

source.” National Research Council of the National Academies, Strengthening Forensic Science

in the United States: A Path Forward 137 (2009). Counsel also cites an unpublished Maryland

trial court order, Maryland v. Rose, No. K06–0545 (Cir. Ct. Baltimore Co. Oct. 19, 2007), which

excluded fingerprint analysis from evidence after the trial court conducted a Frye hearing.

¶ 119 However, over 100 years ago, our supreme court found that there is a scientific basis for

fingerprint identification and that courts are justified in admitting this class of evidence. People

v. Jennings, 252 Ill. 534, 549 (1911). Since then, federal and state appellate courts have

uniformly rejected challenges to latent fingerprint analysis. People v. Luna, 2013 IL App (1st)

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072253, ¶ 68. Though defendant’s appellate counsel claims that the unpublished Maryland trial

court order rejected the “general acceptance” of latent fingerprint analysis, we are unaware of the

trial court’s standing on that issue. After the prosecution withdrew the case in state court, the

federal district court considered the issue on the same record and rejected the challenge to the

fingerprint analysis. United States v. Rose, 672 F. Supp. 2d 723, 725 (D. Md. 2009). After the

district court’s finding in Rose, the Maryland appellate court noted that the defendant had

provided only a “sole citation *** to a circuit court decision excluding fingerprint evidence,” and

it rejected the defendant's argument that latent print analysis was not a generally accepted

methodology within the scientific community. Markham v. State, 984 A.2d 262 (Md. Ct. App.

2009). Accordingly, there is no authority in Illinois, or in any other state, to support the claim that

it is error for a circuit court to not hold a Frye hearing concerning the admissibility of latent

fingerprint analysis. People v. Mitchell, 2011 IL App (1st) 083143, ¶ 31.

¶ 120 Also, even if the assistant public defender erred in failing to request a Frye hearing,

defendant did not suffer prejudice because there was still overwhelming evidence that he was

guilty beyond a reasonable doubt. The evidence at trial showed that defendant was angry and

acted aggressively toward Cavin, that defendant was observed leaving the house just prior to the

discovery of the murder, and that the blood on defendant’s clothing matched Cavin’s DNA

profile. Since defendant was not prejudiced by his counsel’s failure to object to the latent

fingerprint analysis, the assistant public defender did not provide ineffective assistance of

counsel. Strickland, 466 U.S. at 690.

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¶ 121 CONCLUSION

¶ 122 For the foregoing reasons, we affirm defendant’s conviction and sentence. First, the trial

court did not err when it admitted defendant’s bloodstained pants and boots into evidence

because the State established a sufficient foundation through witness identification. Second, the

assistant public defender did not provide ineffective assistance of counsel at trial for not

introducing the hospital belongings list since the State was not required to prove a chain of

custody. Third, the trial court did not err when it denied the defense’s request to show a still shot

from the Area 2 interrogation video because doing so would not impeach forensic investigator

Rivera. Fourth, the trial court did not err in denying the defense’s motion in limine to bar

testimony that defendant threatened to cut Abel Smith’s and Harold Jackson’s throats the

morning of the homicide because it established defendant’s continuing course of conduct of

anger and jealousy that culminated in Cavin’s murder. And last, the assistant public defender was

not ineffective for not objecting to the State’s latent fingerprint analysis since such methods have

been generally accepted in the scientific community for over 100 years. Also, we will not

consider defendant’s pro se supplemental motion because defendant is represented by counsel on

appeal and has made no request to proceed pro se.

¶ 123 Affirmed.

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