People v. Stewart

2018 IL App (3d) 160205

Opinion filed November 2, 2018
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2018

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-16-0205
v. ) Circuit No. 14-CF-340

)

BRANDON D. STEWART, ) Honorable

) Cynthia M. Raccuglia,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________

JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justices Lytton and O’Brien concurred in the judgment and opinion.
_____________________________________________________________________________

OPINION

¶1 Defendant, Brandon D. Stewart, appeals from his convictions for aggravated unlawful

use of a weapon (AUUW) and aggravated assault. Defendant argues that (1) the State’s

admission of a certificate attesting that defendant did not possess a valid Illinois Firearm Owners

Identification (FOID) card violated his constitutional right of confrontation and (2) the trial court

did not exercise its discretion when it responded to the jury’s request for transcripts. We affirm.
¶2 I. BACKGROUND

¶3 The State charged defendant with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5),

(a)(3)(C) (West 2014)) and aggravated assault (id. § 12-2(c)(2)). The AUUW charge alleged

defendant

“knowingly carried on his person an uncased, loaded, and immediately accessible

pistol, at a time when he was not on his own land, abode, legal dwelling, or fixed

place of business, and not on the land or legal dwelling of another person as an

invitee with that person’s permission, at a time when he had not been issued a

currently valid license under the firearm concealed carry act and had not been

issued a currently valid [FOID] card.”

The court appointed counsel to represent defendant. On the morning of February 22, 2016, the

case proceeded to a jury trial.

¶4 Betty Brown testified that on September 13, 2014, she was working at The Results

Companies (Results) call center in Streator. Brown left the building during her lunch break to

meet with her boyfriend, Darion. Darion had come to the call center to speak with defendant,

who was also employed by Results. At the time, Darion was having “some issues” with

defendant. Darion was unable to speak with defendant at that time, and Brown drove Darion to

his house. When Brown returned to the call center, she encountered the defendant outside of the

building. Defendant walked up to Brown, placed his arm around her, put a gun to Brown’s chest,

and said “you want to call him here.” Defendant thought Brown had called Darion to the call

center. Brown thought she was going to die. Eventually, defendant pushed Brown and fired the

gun over Brown’s head toward a house located across the street. Defendant then fled from the

scene.

¶5 David Vitos testified he was employed at Results. On September 13, 2014, toward the

end of Vitos’s lunch break, he heard a gunshot. Vitos turned to his left and saw defendant

holding what appeared to be a silver pistol. Defendant was standing near Brown and said “if he

comes back, I have eight more for him.” Vitos tried to direct everyone into the building and told

another employee to call the police.

¶6 William McCollum testified he was employed at Results on the date of the incident.

McCollum was outside smoking when he heard a commotion followed by the sound of a

gunshot. McCollum looked in the direction of the noise and heard glass break across the street.

McCollum noticed defendant was standing in the area where the argument and loud noise

originated from. Defendant was holding a silver handgun. McCollum saw defendant turn and run

toward the back of the building. Later, McCollum observed a broken window across the street

from the Results building.

¶7 Results employee Cassie Ingram testified that she was speaking with Brown when

defendant pushed Brown and started to argue with her. Ingram thought defendant was holding an

object that looked like a silver gun. During the argument, Ingram heard a gunshot.

¶8 Streator police officer Brian Wahl testified that he responded to a call of a shot fired at

Results on the date of the incident. While there, Wahl spoke with Brown about the incident.

Wahl described a photograph of a house located across the street from Results. According to

Wahl, one of the windows in the house had been damaged by a bullet.

¶9 Streator police detective Troy Dodge testified that he also responded to the report of a

shot fired at Results. Dodge photographed a house located across the street from the call center.

The photographs showed three damaged windows. Dodge opined that a bullet had passed

through two windowpanes located on the side of the house that faced Results. The bullet then

penetrated a third windowpane on the side of the porch before it bounced off a fourth

windowpane. Dodge collected the metal fragment from inside the porch that he described as a

“flattened, jagged bullet, lead and brass content.”

¶ 10 Before the conclusion of the State’s case-in-chief, the State introduced into evidence a

certification letter from the Illinois State Police, indicating that the defendant did not possess a

valid FOID card. The court asked defense counsel if he had “[a]ny objection.” Counsel

responded “I think it’s self-authenticating.” The court replied “[i]t is and you know that” and

admitted the certification letter into evidence. The certification letter stated:

“Based on the following name and date of birth information provided by the

La Salle County State’s Attorney’s Office, I, Public Service Administrator Beth

Kiel, Firearms Services Bureau (FSB), Illinois State Police, do hereby certify,

after a careful search of the FSB files, the information below to be true and

accurate for Brandon D. Stewart whose date of birth is February 28, 1986, has

never been issued a [FOID] Card as of February 19, 2016.”

The bottom of the certification letter bears Kiel’s signature and notarization.

¶ 11 At the close of the State’s case, the defense moved for a directed verdict. The court

denied the motion. Thereafter, defense counsel introduced and published to the jury the video

surveillance footage from outside the Results call center. The video showed defendant leave,

return, and then leave the area a second time. The defense rested after it introduced the video.

¶ 12 In his closing argument, defense counsel claimed that the State had presented no evidence

to prove defendant shot a gun on the date of the incident. Specifically, Brown did not see

defendant holding a gun, McCollum heard what he thought was a gunshot, but did not see

defendant shoot a gun or see a shell casing, Vitos did not see defendant shoot a gun or observe a

shell casing on the ground, and Ingram did not see a gun or hear a gunshot.

¶ 13 At 3:09 p.m., the jury retired to deliberate. Around 4:15 p.m., the jury sent a note to the

court that said, “[w]here on Betty Brown’s chest did she feel the gun?” The court read the jury’s

note and its proposed response to the parties. Neither of the parties objected to the court’s

response. The court’s response said “[l]adies and gentlemen, you have the evidence that you

received at trial and no further evidence can be presented at this time. You must base your

decision on the evidence you received in open court.” At 4:55 p.m., the jury sent another note to

the court. The note read “[i]s it possible to receive a transcript of witness testimony?” The court

read the note to the parties and proposed the following response:

“Now, I can only assume from the last question, while they didn’t say whose, that

they’re probably looking for Miss Brown’s. Now, what I’m doing is this trial was

just today. It’s not like it was a two-week trial and it would take too long and their

job is to remember things. It was just a couple hours ago. So I’m responding as

follows and let me know if you have any objection. ‘Ladies and gentlemen, since

you just heard the testimony today and the testimony is not transcribed yet, you

must rely on your recollection of the testimony today in open court. Sincerely.’

And that’s just telling them because it’s today, it’s not transcribed yet and I’m

sending this.”

The parties did not object, and the court sent the response to the jury. Around 6:45 p.m., the jury

returned verdicts of guilty on both charges. After hearing the evidence and arguments on the

sentencing alternatives and aggravating and mitigating factors, the court sentenced defendant to a

total of two years’ imprisonment.

¶ 14 II. ANALYSIS

¶ 15 A. Confrontation Rights

¶ 16 Defendant’s first argument, that the admission of a “certification” letter from a

nontestifying witness violated his constitutional right to confront the witness, has not been

properly preserved for appellate review. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (issue

preservation requires both a contemporaneous objection at trial and a written posttrial motion

raising that issue). Defendant seeks to avoid this forfeiture by arguing this issue is either

reversible plain error or the result of ineffective assistance of counsel. We address each of these

independent bases for review in turn.

¶ 17 1. Plain Error

¶ 18 Defendant argues that the admission of the certification letter is reversible plain error

because the error threatened to tip the scales of justice against him. The State argues defendant

cannot show error occurred because defendant acquiesced to the admission of the certification

letter. The parties’ arguments require that we determine whether this issue is reviewable under

the plain-error doctrine or is the result of acquiescence.

¶ 19 Underlying both the plain-error doctrine and acquiescence is the principle of “procedural

default.” See People v. Naylor, 229 Ill. 2d 584, 593 (2008); In re Detention of Swope, 213 Ill. 2d

210, 217 (2004). Acquiescence is a form of procedural default. Swope, 213 Ill. 2d at 217. The

plain-error doctrine provides “ ‘ “a narrow and limited exception to the general [rule of

procedural default].” ’ ” (Emphasis added.) Naylor, 229 Ill. 2d at 593 (quoting People v. Szabo,

113 Ill. 2d 83, 94 (1986), quoting People v. Pastorino, 91 Ill. 2d 178, 188 (1982)). However,

acquiescence is not subject to the plain-error doctrine. People v. Bowens, 407 Ill. App. 3d 1094,

1101 (2011); see also People v. Bates, 2018 IL App (4th) 160255, ¶ 74; People v. McGuire, 2017

IL App (4th) 150695, ¶ 29; People v. Dunlap, 2013 IL App (4th) 110892, ¶ 12. This is because a

party who acquiesces in proceeding in a given manner cannot show he was prejudiced by the

proceeding. People v. Schmitt, 131 Ill. 2d 128, 137 (1989). Stated another way,

“a party cannot complain of error which that party induced the court to make or to

which that party consented. The rationale behind this well-established rule is that

it would be manifestly unfair to allow a party a second trial upon the basis of error

which that party injected into the proceedings.” Swope, 213 Ill. 2d at 217.

In contrast, the plain-error doctrine is founded upon prejudice. Under the first prong, defendant

bears the burden to establish prejudice, and under the second prong, prejudice will be presumed

where the error is sufficiently serious. See People v. Herron, 215 Ill. 2d 167, 187 (2005).

Therefore, our determination of whether the plain-error doctrine applies in this case turns on

whether defendant can properly allege prejudice.

¶ 20 In the instant case, the State introduced into evidence a certification letter that stated

defendant did not possess a valid FOID card. The court then expressly asked defendant if he had

any objection to the certification letter. Defense counsel voiced no objection, and instead,

responded “I think it’s self-authenticating.” Defense counsel’s statement is not a direct

agreement to the introduction of the certification letter. However, the combination of defense

counsel’s response and lack of objection establishes that defense counsel acquiesced to the

admission of the certification letter. See, e.g., People v. Cox, 2017 IL App (1st) 151536, ¶ 76

(defense counsel invited error by not objecting to the admission of a certification letter that stated

defendant did not possess a FOID card). This acquiescence, in turn, functioned as a waiver of

defendant’s right to confront this witness by acquiescing to the admission of the certification

letter. Defense counsel was empowered to make such a waiver because defendant did not object

and the decision was a matter of trial tactic and strategy. People v. Rowell, 229 Ill. 2d 82, 102

(2008). This “waiver” is not the same as “forfeiture.” Forfeited errors may be subject to plain-

error review, but waiver forecloses review of a claim predicated upon the waived right. People v.

Williams, 2015 IL App (2d) 130585, ¶ 6.

¶ 21 Defense counsel’s acquiescence to the admission of the certification letter effectively

waived defendant’s right to confront the witness and any associated claim of error. Therefore,

defendant’s challenge is limited to a claim of ineffective assistance of counsel. McGuire, 2017 IL

App (4th) 150695, ¶ 29.

¶ 22 In Cox, 2017 IL App (1st) 151536, ¶ 1, the State had charged Jesse Cox with AUUW

based on his failure to possess a FOID card. At trial, the State introduced a letter, similar to the

instant case, documenting that Cox did not possess a FOID card. Id. ¶ 22. The court asked

defense counsel twice if she had any objection to the admission of the letter into evidence.

Twice, defense counsel responded in the negative. Id. ¶¶ 24-25. On appeal, Cox argued that the

court violated his constitutional right to confront the witness who signed the letter. Id. ¶ 47. The

First District concluded “the defense invited the trial court to admit the certification [letter] by

affirmatively responding to the trial court’s questions that it had no objection to its admission,”

and therefore, the admission of the letter did not violate Cox’s right to confront the authoring

witness. Id. ¶ 76. The Cox court differentiated the facts in People v. Diggins, 2016 IL App (1st)

142088, the case that defendant relies on in this appeal, because defense counsel did not object to

the introduction of the letter. Cox, 2017 IL App (1st) 151536, ¶ 82. Therefore, in Cox, the court

found defense counsel “waived the opportunity for prior cross-examination by stating

affirmatively that he had no objection to admitting the document.” (Emphasis in original.) Id.

¶ 83.

¶ 23 Defendant argues Cox was wrongly decided and Diggins dictates the outcome of this

appeal. In Diggins, over defendant’s objection, the State introduced a letter that attested Shawan

Diggins did not possess a valid FOID card. Diggins, 2016 IL App (1st) 142088, ¶¶ 6-7. The trial

court overruled counsel’s objection, stating “ ‘[i]f you want an opportunity to subpoena and

cross-examine the witness and bring that person in as a witness on behalf of the [d]efense, I will

give you that opportunity.’ ” Id. ¶ 7. On appeal, Diggins argued that the admission of the letter

violated his constitutional right to confrontation. Id. ¶ 11. The First District found that the

introduction of the letter, over defense counsel’s objection, violated Diggins’s right to confront

the witness, the author of the letter. Id. ¶ 16.

¶ 24 Here, the instant case is more analogous to Cox because defense counsel did not object to

the admission of the letter in this case, when directly asked by the court for an objection. In both

the instant case and Cox, defense counsel’s response to the court’s question regarding an

objection to the evidence constitutes waiver of defendant’s constitutional right to confront this

witness. See Cox, 2017 IL App (1st) 151536, ¶¶ 24-25; supra ¶ 10. Therefore, like Cox,

defendant’s confrontation claim is not subject to review under the plain-error doctrine. Cox, 2017

IL App (1st) 151536, ¶ 76.

¶ 25 2. Ineffective Assistance of Counsel

¶ 26 Defendant argues that defense counsel was ineffective for failing to object to the

admission of the certification letter. We find defense counsel’s performance was not rendered

deficient by his decision not to object to the certification letter.

¶ 27 To prevail on a claim of ineffective assistance of counsel, defendant must show (1) his

attorney’s performance fell below an objective standard of reasonableness and (2) a reasonable

probability exists that, but for counsel’s errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Generally, decisions

regarding “what matters to object to and when to object” are matters of trial strategy. People v.

Pecoraro, 175 Ill. 2d 294, 327 (1997). We afford counsel’s strategic decisions a high degree of

deference and evaluate counsel’s “performance from his perspective at the time, rather than

through the lens of hindsight.” People v. Perry, 224 Ill. 2d 312, 344 (2007).

¶ 28 In the instant case, the only way defense counsel’s decision not to object to the admission

of the certification letter could be said to be the result of ineffective assistance is if defendant

actually possessed a valid FOID card. See Cox, 2017 IL App (1st) 151536, ¶ 88. If defendant

possessed a valid FOID card at the time of the offense, the certification letter introduced would

be erroneous, and the State could not prove an essential element of the AUUW charge that was

based on the theory that defendant did not possess a valid FOID card. See 720 ILCS 5/24

1.6(a)(3)(C) (West 2014). The record is devoid of any indication that defendant actually

possessed a valid FOID card at the time of the incident. Therefore, defense counsel’s

performance was not deficient for failing to object. Moreover, counsel’s inaction was consistent

with his trial strategy that defendant did not shoot a gun. Accordingly, we conclude defense

counsel’s decision not to object to the admission of the certification letter was not the result of

ineffective assistance of counsel.

¶ 29 B. Jury Questions

¶ 30 Defendant argues that the trial court erroneously denied the jury’s request for transcripts

before ascertaining the reason for the jury’s request. Defendant specifically contends that the

court’s failure to investigate which transcript or transcripts the jury desired, before responding to

the inquiry, constitutes an abuse of discretion.

¶ 31 During deliberations, the jury asked the court “[i]s it possible to receive a transcript of

witness testimony?” The jury’s question did not specify which witness’s testimony the jury

sought to review. After conferring with both attorneys, the court responded to the jurors by

instructing the jurors that they must rely on their own recollection of the testimony. The court

advised the jury that a transcript would not be forthcoming at that time because (1) the trial had

occurred earlier that same day and (2) the transcripts were not yet transcribed.

¶ 32 It is well settled that the court has the discretion to allow or refuse a jury’s request to

review trial testimony. People v. Pierce, 56 Ill. 2d 361, 364 (1974). We will not disturb the

court’s decision unless the record establishes that the court abused its discretion. Id. The

determination of whether the court abused its discretion turns on the facts and circumstances of

each case. People v. Burnett, 73 Ill. App. 3d 750, 753 (1979). The court errs if it refuses to

exercise its discretion due to its mistaken belief that it has no discretion regarding the request for

information posed by the jury. People v. Queen, 56 Ill. 2d 560, 565 (1974).

¶ 33 Defendant relies on People v. Bryant, 176 Ill. App. 3d 809 (1988), to support the view

that the trial court erred. In Bryant, the facts were unique and unlike those in the case at bar.

Specifically, the jury in Bryant generically requested a copy of the trial testimony “after some

time in deliberation.” Id. at 812. Neither Bryant nor defense counsel were present when the court

received the jury’s request. Id. The court discussed the jury’s request only with the prosecutor

before informing the jury that “ ‘[t]here’s not a transcript available for you. You should rely on

your collective memories of the testimony as you heard it.’ ” Id.

¶ 34 Here, the parties did not object to the response suggested by the court. In other words, the

record supports the view that both sides agreed, at the time, that the court’s approach was the

correct approach. No abuse of discretion arises when the court confers with the prosecutor and

defense counsel before adopting an approach to the jurors’ question. For this reason, Bryant is

not on point.

¶ 35 Moreover, in Bryant, the First District reasoned “[t]he discretionary process is facilitated

where the trial court knows what specific testimony the jury desires. Failure to determine the

specific evidence or testimony desired by a jury making a general request has *** been treated as

a signal of the trial court’s erroneous belief that it lacked discretion to grant the jury’s request.”

Id. at 812-13 (citing People v. Jackson, 26 Ill. App. 3d 618 (1975); People v. Autman, 58 Ill. 2d

171, 176 (1974); People v. Tansil, 137 Ill. App. 3d 498, 503 (1985)). We respectfully disagree

with this holding.

¶ 36 It should not make a difference to the trial court, or a reviewing court, whether the jury

requested a written or recorded copy of the testimony of a prosecution witness or defense

witness. Neutrality is insured if the court is unaware of the reason for the jury’s request for more

information or the idemnity of the witness concerning the request. On this basis, we decline to

follow Bryant.

¶ 37 In this case, several factors are relevant to the trial court’s exercise of its discretion to

provide a neutral explanation advising the jury that a transcript of any part of the trial was not

available at that time. Those factors include (1) whether the trial took place over a significant

time span, (2) whether the issues were complex, or (3) whether the testimony was technically

detailed, particularly confusing, or beyond the realm of information readily processed by a juror

with a typical attention span.

¶ 38 Moreover, it is undisputed that the jury’s request for a transcript took place in a relatively

short period of time, just two hours after deliberations began and a foreperson was selected by

the jurors. This suggests to our court that shortly after the deliberation process began, it became

apparent that the collective memories of all jurors may not have been uniform. This is the nature

of jury deliberations. Debate and discussion are a necessary part of the process.

¶ 39 In spite of the prevalence of instant replays and booth review in the world of sports, a

jury should not have the same expectation of instant review available for televised, nonjudicial

proceedings. Rather, the jury has a duty to pay very close attention to the unfolding process in a

courtroom setting. As this experienced trial judge stated, the jury has a job to observe and

remember what each juror witnessed in the courtroom. If a request for a transcript of recorded

testimony becomes automatic, jurors have little incentive to concentrate on the evidence,

exhibits, and arguments of counsel presented to the jury while seated in the jury box.

¶ 40 In the case at bar, the record reveals that the parties agreed with the content of the court’s

response. In addition, this trial was a one-day proceeding, the issues were not complex, and the

subjects addressed during the testimony of each witness were fairly simple and were not beyond

the realm of information readily processed by a juror. Based on these circumstances, we

conclude that the court properly exercised its discretion by encouraging the jurors to rely on their

own recollection of the evidence.

¶ 41 III. CONCLUSION

¶ 42 The judgment of the circuit court of La Salle County is affirmed.

¶ 43 Affirmed.