People v. Boston

2018 IL App (1st) 140369

FOURTH DIVISION

December 31, 2018

No. 1-14-0369

) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No. 06 C6 60650
)
SYLVESTER BOSTON, )
) Honorable
Defendant-Appellant. ) Charles P. Burns,
) Judge Presiding.

JUSTICE REYES delivered the judgment of the court, with opinion.

Justice Gordon specially concurred, with opinion.

Justice Lampkin dissented, with opinion.

OPINION

¶1 Following a jury trial, defendant Sylvester Boston was convicted of first degree murder in

connection with the fatal stabbing of Steven Moore, Sr. (Moore) and sentenced to 50 years’

imprisonment. On appeal, defendant contends (1) the admission of preliminary hearing

testimony of a key eyewitness violated the confrontation clause of the sixth amendment to the

United States Constitution (U.S. Const., amend. VI) and the Illinois Rules of Evidence, (2) the

trial court erred in allowing the State to introduce defendant’s prior conviction for possession of

contraband in a penal institution, (3) the State’s improper comments on defendant’s postarrest

silence warrant a new trial, (4) defendant was denied his right to a properly instructed jury where
1-14-0369

the court failed to clarify Illinois law on self-defense in response to a jury note, (5) defendant’s

right to a unanimous jury verdict was violated where a juror expressly dissented during the

polling of the jury, and (6) defendant’s trial counsel was ineffective for failing to preserve certain

issues for appellate review.

¶2 This court initially filed an opinion affirming defendant’s conviction. Thereafter,

defendant filed a petition for rehearing, arguing that we misapprehended the law when

considering the jury polling issue. This court granted the petition, vacated the previous opinion,

and requested supplemental briefing from the parties not only in regards to the jury polling issue

but also in regard to the alleged prosecutorial misconduct. The parties filed supplemental briefs

addressing both issues. Upon review and consideration of those briefs, we continue to affirm the

judgment of the circuit court in its entirety.

¶3 BACKGROUND

¶4 Pretrial Matters

¶5 During a preliminary hearing on June 29, 2006, the State called Grace Sharp, Moore’s

mother, who testified as follows. On June 24, 2006, she was in her residence on the 14500 block

of University Avenue in Dolton with defendant and Moore. Defendant was a friend of Steven

Moore, Jr. (Steven), Sharp’s grandson and Moore’s son. Sharp had known defendant since he

was a teenager. Defendant had asked to stay with Sharp for a “couple of days” prior to

commencing Job Corps. He stayed in an upstairs bedroom in her raised ranch, and 51-year-old

Moore lived in the basement.

¶6 On the day of the incident, Sharp did not hear any “words of conflict” between Moore

and defendant. According to Sharp, “[t]hey were just talking about the job corp [sic] and things

like that.” In the early evening hours, she heard a “ruffling, scuffling noise” coming from the

2

1-14-0369

basement “as if kids were wrestling or playing or something.” As she headed downstairs toward

the basement to direct them to “stop the noise,” she heard her son say, “Ma, call the police, call

the police.” Moore was calling to her but was not screaming.

¶7 Sharp initially did not contact the police. She instead went downstairs, where she

observed defendant on top of Moore, stabbing him. She pulled defendant by the neck of his shirt

but was unable to “pull him off.” After defendant made eye contact with Sharp, he continued

stabbing Moore. Sharp attempted to strike him with a plastic milk crate. Defendant, however,

knocked the crate out of her hand and continued stabbing Moore. She then went upstairs and

dialed 911.

¶8 On cross-examination, Sharp testified that she was not aware that either Moore or

defendant had consumed alcohol. She indicated that her son had previously used drugs but

“didn’t anymore.” She did not notice any weapon near Moore, testifying, “I wasn’t looking

around. I was getting [defendant] off of my son.” According to Sharp, defendant had reflexively

swung at her to “get away or whatever,” but she did not recall seeing a knife in his hand. She was

scratched but was not cut. Sharp testified that defendant did not attempt to prevent her from

returning upstairs.

¶9 After Sharp’s testimony, the State called Detective Crudup from the Dolton police

department, who had attended Moore’s autopsy. Following the preliminary hearing, defendant

was charged by information with two counts of first degree murder.

¶ 10 In September 2013, defendant filed a motion in limine to bar the admission of the

preliminary hearing testimony of Sharp, who died in 2008. Defendant argued that he would be

deprived of his right to confront his accuser because “there was no meaningful cross-

examination” of Sharp. Defendant also filed a motion in limine to introduce evidence of Moore’s

3

1-14-0369

violent nature, including his guilty pleas to charges of domestic battery and resisting a police

officer. After a hearing, the circuit court denied the motion to bar Sharp’s preliminary hearing

testimony but permitted the defense to present certified copies of Moore’s convictions.

¶ 11 The State filed a motion in limine seeking, among other things, to introduce evidence

regarding defendant’s criminal history for impeachment purposes, i.e., his conviction for

possession of contraband in a penal institution. 1 After conducting a balancing test, the trial court

concluded that “the probative value does, in fact, outweigh any prejudicial effect.” The trial court

indicated its willingness to give a “limiting instruction immediately upon the introduction of the

certified copy of conviction or if [defendant] is going to front it first if he testifies.”

¶ 12 Trial Testimony

¶ 13 Steven testified that his childhood home was on University Avenue in Dolton, where he

had lived with his brother, Sharp, and Moore. In June 2006, 22-year-old Steven attended school

in DeKalb. When he periodically returned to Dolton, he would stay at the University Avenue

residence. According to Steven, Moore stayed in the basement.

¶ 14 Steven had known defendant since junior high school, and defendant spent significant

amounts of time at Steven’s home during their teenage years. At one point, Steven and defendant

had a dance group, and they frequently practiced in Steven’s basement. Steven characterized

defendant’s interactions with Moore as “[r]espectful,” and he never observed any physical or

verbal altercation between the two.

¶ 15 On the weekend of June 17, 2006, Steven had returned to Dolton and observed defendant

walking. Steven exited his vehicle and conversed with defendant. According to Steven,

defendant “seemed as if he was having some issues.” Steven suggested that defendant stay with

1
This court previously affirmed this conviction. See People v. Boston, 2016 IL App (1st)
133497.
4

1-14-0369

Sharp and Moore for a couple of days to “clear his head and figure out his next move.” The

following weekend, Steven hosted a barbecue in DeKalb, where his father and defendant were

expected but ultimately did not arrive. After receiving a telephone call from Sharp, who sounded

“[v]ery frightened,” Steven rushed to Dolton, where he discovered police at Sharp’s residence.

¶ 16 Steven testified that Moore had been using drugs, up to the time of his death. He

described his father’s demeanor after drug use as “[t]ypically relaxed” and “[c]alm” and never

violent. Prior to the weekend of June 17, 2006, Steven had not seen defendant in two or three

years. When asked whether defendant had maintained contact with Sharp and Moore, Steven

responded, “Not to my knowledge.” On cross-examination, Steven confirmed that defendant had

a good relationship with Sharp and called her “Granny.” During Steven’s time in high school, his

father would sporadically stay at the University Avenue residence. Steven testified that he did

not know what type of drugs his father used.

¶ 17 Officer Steven Curry of the Dolton police department testified that he was on duty with

his partner, Officer Timothy McPherson, on the evening of June 24, 2006. 2 Curry was in plain

clothes but was wearing body armor with his star. After receiving a call regarding a stabbing,

Curry and McPherson drove to the house on the 14500 block of University Avenue. The partners

exited their vehicle and walked to an open door on the side of the residence. Upon arriving at the

door, Curry observed an elderly woman standing on a landing with stairs leading up to the

kitchen and down to the basement. The woman did not speak to Curry.

¶ 18 The officers entered the home and heard “some commotion downstairs.” Curry walked in

front of McPherson down the stairs. As he reached the bottom of the stairs, Curry observed an

“entranceway to the basement but it was covered by a curtain or some kind of partition they had

2
The trial transcript refers to “June 4, 2006.” Such reference appears inaccurate.
5

1-14-0369

up against it or covering it.” Curry testified, “We stopped and we start listening and it sounded

like to me somebody was getting stabbed.” He described the sound as “a squishing, a repeatedly

[sic] like a chi, chi, chi, chi.” Curry did not hear anyone speaking. He drew his weapon and

instructed McPherson to pull back the curtain.

¶ 19 Curry then observed defendant straddled over Moore. Moore was laying on his back and

was not moving. Although defendant looked at Curry, he did not speak to the officers. Curry

raised his firearm, and defendant “immediately jumped up and ran around an area of the

basement where [Curry] couldn’t see.” Curry testified that “at that point, I told McPherson let’s

go back upstairs and call him out and that’s what we did.” Curry and McPherson walked

upstairs, returning to “the doorway, halfway in the door, halfway out in the driveway.” Another

police officer who had arrived, Officer Bankhead, walked downstairs with his firearm drawn.

Curry then viewed defendant, who he identified in court.

¶ 20 Bankhead walked up the stairs backwards, with his firearm pointed at defendant.

According to Curry, Bankhead “guided” defendant and “told him to come on.” Defendant’s

hands were covered in blood. When Bankhead was able to move out of the way, Curry and

McPherson grabbed defendant; Curry opined that defendant “looked like he might run or

something.” Defendant “fell down inside of the house,” and the officers dragged him outside.

After defendant “tussled” with the officers “a little bit,” they subdued and handcuffed him. Curry

testified that he noticed a knife on the ground in the driveway, “[r]ight there” where defendant

was placed under arrest. Curry also testified regarding various photographs, including one

depicting defendant’s sole injury: a cut on his right arm.

¶ 21 On cross-examination, Curry could not recall the number of stabs he heard. When he

pulled back the curtain at the bottom of the stairs, Curry neither noticed a weapon in defendant’s

6

1-14-0369

hand nor directed him to drop any weapon. He also testified that Sharp had a portable oxygen

tank but otherwise appeared uninjured.

¶ 22 Dr. Mitra Kalelkar, a retired medical examiner qualified as an expert in forensic

pathology, testified that Moore was dead on arrival at the hospital. While performing his

autopsy, Kalelkar observed that most of Moore’s injuries were “incised wounds,” i.e., “a

superficial slashing, cutting type of wound that is inflicted with a sharp instrument, such as a

knife or a razor blade.” She also observed a single stab wound to his chest, on his back, that

fatally perforated his right lung and his heart. Moore’s other injuries included blunt trauma to his

forehead, multiple wounds in and around his eyes and eyelids, human bite marks, and a suction

hematoma, i.e., “somebody sucking the skin.” Kalelkar characterized certain injuries as possible

defensive injuries that Moore may have sustained while attempting to ward off blows.

¶ 23 The assistant State’s Attorney (ASA) tendered to Kalelkar certain knives recovered from

the crime scene. Kalelkar testified that specific knives could have caused particular wounds on

Moore’s body. She opined that Moore died as a result of the stab wound to his chest and multiple

incised wounds and that the manner of death was homicide. A toxicology examination revealed

that Moore’s blood tested positive for cocaine and “very little” morphine. On cross-examination,

Kalelkar testified that cocaine is an “intoxicating compound,” and the presence of metabolized

cocaine in Moore’s system indicated that “he had been taking cocaine for awhile.” She also

confirmed that it was possible that certain injuries sustained by Moore could have resulted from

“getting scratched by a butter knife” while wrestling with another individual. Kalelkar

acknowledged that she did not definitively know which knife caused Moore’s injuries, although

one of the knives shown to her was consistent with his deep stab wound.

¶ 24 A sergeant from the Illinois State Police (ISP) who processed the crime scene testified, in

7

1-14-0369

part, regarding the recovery of three knives from the basement and one knife from the driveway.

He confirmed that there appeared to be a “struggle” as there was a blood-like substance “on a lot

of different places down in the basement.”

¶ 25 Two ISP forensic scientists testified regarding the testing of various stains from the

knives, the floor, and defendant’s clothing using Moore’s blood and defendant’s buccal sample.

Jaime Bartolotta, one of the scientists, testified that he was unable to make comparisons with

respect to stains on one of the knives. For a second knife, Moore could not be excluded from the

partial human male DNA profile found on the knife blade, whereas defendant could not be

excluded from the human male DNA profile found on the handle of the knife. Neither Moore nor

defendant could be excluded from the mixture of DNA profiles found on the remaining two

knives; Moore was identified as likely the “major profile,” or more significant contributor, with

respect to one of those knives.

¶ 26 When the bloodstains from defendant’s clothing were tested, Bartolotta found a “mixture

of two people.” The major profile matched Moore. Bartolotta further testified that Moore’s

profile matched swabs taken from three out of four locations in the residence. Defendant’s DNA

did not match any of the swabs taken from the residence, although he could not be excluded from

one minor type of one of the swabs. 3

¶ 27 Officer Anthony Bankhead testified that he was in uniform on June 24, 2006, when he

responded to a call. After speaking with McPherson and Curry, he entered the house and walked

down the stairs to the basement. He observed defendant—who he identified in court—and

ordered him to put his hands up. Defendant complied and walked toward Bankhead. Backing up

3
With respect to fingerprint analysis, the parties stipulated that “within a reasonable
degree of forensic scientific certainty there were no latent impressions suitable for comparison
on the four knives.”
8

1-14-0369

the stairs, Bankhead walked defendant up the stairs to the doorway. Bankhead testified that

defendant “had blood on him” and “it looked like it was blood on his hands dripping.”

¶ 28 At the landing, Bankhead stepped out of the house and encouraged defendant to “come

further out the door.” According to Bankhead, defendant fell on the landing and “McPherson and

Curry grabbed him by his hand and brought him out of the house and eventually cuffed him.”

Bankhead recalled that it “wasn’t easy to cuff” defendant. Bankhead testified that there was no

blood on the landing, stairs, or driveway when he first entered the residence.

¶ 29 The State’s next witness was the ASA who had conducted the preliminary hearing. She

testified that a preliminary hearing was conducted five days after Moore’s death because “it was

the practice” to preserve the testimony of elderly or ill witnesses through a preliminary hearing.

Sharp’s testimony from the preliminary hearing was published to the jury. On cross-examination

during the trial, defense counsel asked, “So it’s fair to say that much discovery or anything that

could have been developed from any investigation for you to decide hadn’t been developed yet,

is that correct?’ The ASA responded, “I don’t know what reports were prepared within the five

days.” A certified death certificate for Sharp was admitted into evidence. At the conclusion of

the State’s case-in-chief, the trial court denied defendant’s motion for a directed verdict.

¶ 30 Defendant testified that he did not complete 11th grade due to the death of his mother. He

instead went to barber college and was working as a barber in June 2006. He considered Sharp—

who he called “Granny”—to be “like a second mother.” Defendant periodically helped Sharp

with chores; he testified she moved slowly because she was on an oxygen machine.

¶ 31 On June 23, 2006, defendant went to Sharp’s residence. He was leaving for Job Corps in

early July and wished to spend time with her and help around the house. He stayed over at her

house in an upstairs guest room on the night of June 23. Moore—the father of defendant’s friend

9

1-14-0369

Steven—and Sharp’s grandson, Nicholas, were also in the home. Defendant testified that he had

never “really talk[ed] to” Moore and “didn’t know him personally.”

¶ 32 Defendant was awaken on the morning of June 24, 2006, by the noise Moore was making

when he was “fumbling” and “messing with” his bags. Defendant’s bags contained clothing and

his professional clippers. Defendant told Sharp what had transpired earlier and then proceeded to

prepare breakfast for her. While he was cooking, Moore came upstairs behind defendant.

Defendant testified, “He told me you going to do what I want to you do [sic], you’re going to

give me what I want[.]” Defendant characterized Moore’s tone as “mildly aggressive,” and

defendant “shielded” himself after Moore’s remarks.

¶ 33 Sharp then asked defendant to inspect her vehicle and check the fluids. While defendant

worked on the vehicle, Moore instructed defendant to move, pushed him, and stated, “I don’t

need you to do anything.” Defendant testified that he felt “kind of shocked” and “rejected.” After

defendant again spoke with Sharp, she and Moore “got into an altercation” regarding the keys of

the vehicle. According to defendant, Moore took the keys from his mother’s hands and “told her

to give it to him.”

¶ 34 Defendant also observed Moore shoving Sharp. As defendant picked up the telephone to

dial 911, Moore “snatched” the telephone and took it downstairs into the basement. Defendant

decided to “leave out so to let the tension calm down rather than to get into what was going on

with [Moore] and [Sharp].” Defendant went to the basement to retrieve clothes from the washing

machine.

¶ 35 As defendant gathered his clothes, Moore ran upstairs to the kitchen. Upon returning to

the basement, Moore swung a knife at defendant. Defendant raised his hands to “shield it and

block it.” A photograph of a stab wound on defendant’s right arm under his lower wrist was

10

1-14-0369

published to the jury, and defendant displayed the mark on his wrist to the jury. Defendant

testified that the two then “got into a tussle.”

¶ 36 Defendant testified that he cut his own hand as he grabbed the knife from Moore’s hand.

According to defendant, after he took one knife, Moore pulled out another knife. Defendant did

not know from where Moore retrieved the second knife. Defendant grabbed the second knife

from Moore. While defendant held him down and the two struggled, Moore grabbed defendant in

his groin area. Defendant described his pain as “excruciating.” Defendant bit Moore two or three

times to force him to release the pressure on defendant’s testicles.

¶ 37 Defendant testified that Moore kept aggressively “charging” at him. Moore had a third

knife, which defendant again wrestled away from him. Defendant then used the knife to

“protect” and “defend” himself. Defendant was unable to stop Moore from coming at him.

According to defendant, Moore continued to hold a knife.

¶ 38 Sharp came downstairs and stated “stop it” and “break it up.” Defendant testified that

Moore continued to come after him, attempting to “hit” defendant with the knife. According to

defendant, Moore did not acknowledge his mother’s presence. Defendant noticed that Sharp

returned upstairs. He testified that when the police officers arrived, he complied with their

direction to “come up with your hands up.” Defendant further testified that he was trying to

defend himself, he feared for his life, and he did not intend to kill Moore.

¶ 39 On cross-examination, defendant testified that although he had spent a significant amount

of time at Sharp’s residence during his years of friendship with her grandson, he had only “seen”

Moore “once.” Before his stay on June 23 and 24, 2006, he had not been to Sharp’s home for

approximately 1½ to 2 years and had “seen” Steven once “a couple months ago.” Defendant

denied speaking with Moore about Job Corps on June 24, 2006. At the time of the stabbing,

11

1-14-0369

defendant was 21 years old.

¶ 40 Defendant testified that although his confrontation with Moore regarding the vehicle

occurred between 10:00 a.m. and noon, defendant did not leave at that time. He acknowledged

that there were other telephones in Sharp’s residence. After Moore took one telephone, defendant

did not use another telephone to contact 911. Defendant also testified that Moore shoved his

mother before defendant went out to check on Sharp’s vehicle.

¶ 41 Defendant testified that between 3:00 p.m. and 4:00 p.m., he had decided to leave Sharp’s

residence. He had planned to drive to Steven’s home in DeKalb. Defendant then testified that, at

1:00 p.m. or 2:00 p.m., Moore offered to “smoke something” with him in the basement.

Defendant declined and started gathering his clothes. According to defendant, Moore “came at

[him] with a knife” before 3:30 p.m.

¶ 42 During cross-examination, defendant was questioned in detail regarding the physical

altercation between him and Moore. On recross-examination, the ASA asked, “When you saw

the police, you didn’t say to them, ‘I had to defend myself,’ did you?” Defendant responded,

“Actually when I came up—yes, I said that yes.”

¶ 43 After defendant’s testimony, the defense presented certified copies of Moore’s

misdemeanor convictions for resisting a police officer and for domestic battery. The State called

Curry as a rebuttal witness. Curry testified that defendant was placed under arrest in the

driveway area of the 14500 University Avenue residence. When defendant’s hands were cuffed,

Curry observed that they “were so full of blood” that Curry was unable to determine whether he

had sustained any knife wounds to his hands. When Curry observed a “cleaned up” defendant the

day after the incident, he did not have any wounds on his palms or on the back of his hands.

Curry also testified that defendant did not evidence any limping or other difficulty walking when

12

1-14-0369

he walked up the stairs from the basement.

¶ 44 Moore’s son Steven was also called as a rebuttal witness. Steven estimated that while he

was a freshman in high school, his father and defendant interacted “[a]t least once or twice a

week.” Steven testified that Moore and defendant “would joke around, hey, Mr. Moore, what’s

going on, Sylvester, that would pretty much be it.” After Steven graduated from high school, he

did not witness any interaction between his father and defendant.

¶ 45 After Steven’s rebuttal testimony, the trial court read a jury instruction: “Evidence of

defendant’s previous conviction of an offense may be considered by you only as it may affect his

believability as a witness and must not be considered by you as any evidence of his guilt of the

offense with which he is charged.” The ASA then presented a certified copy of defendant’s

conviction for possession of contraband in a penal institution.

¶ 46 During closing arguments, defendant’s counsel argued that he acted in self-defense and

sought a finding of not guilty. During rebuttal closing argument, the ASA commented on

defendant’s silence during his interactions with Sharp and the police. The ASA continued to

comment on his silence after the trial court overruled a defense objection.

¶ 47 The jury retired at 6:24 p.m. for deliberations after receiving jury instructions. At

approximately 8:13 p.m., the trial judge received a note from the jury stating, “Can self-defense

be a mitigating factor? (Definition of mitigating factor is unclear on sheet).” After a colloquy

between counsels and the court, the trial judge instructed, “you heard the evidence, you have the

instructions of law. Please continue to deliberate.”

¶ 48 The jury reached a verdict when they reconvened the following morning. The clerk

published the verdict: defendant was found guilty of first degree murder. The twelve jurors,

including Mr. Greco, signed the jury verdict finding defendant guilty of first degree murder. The

13

1-14-0369

trial court inquired whether the defense wished to have the jury polled, and defense counsel

responded affirmatively. The trial court then informed the jury, “I’m going to ask the question

and the question is: Was this then and is this now your verdict, and all of you will have to answer

out loud.” According to the original version of the transcript, 4 Greco—the fifth juror polled—

responded, “No.” The other eleven jurors responded in the affirmative. The trial court then

stated, “Okay. Has anyone not been asked that question? Okay. The jury has been polled. I’ll

enter judgment on the verdict.” Neither counsel nor the trial judge questioned or commented

upon Greco’s response, and the jury was discharged.

¶ 49 Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, a

new trial. At the hearing, defense counsel argued, among other things, that the admission of the

preliminary hearing transcript constituted reversible error. The trial court denied the motion.

Defendant was sentenced to 50 years’ imprisonment. The trial court denied his motion to

reconsider sentence, and defendant filed this timely appeal.

¶ 50 ANALYSIS

¶ 51 Defendant raises six primary challenges on appeal. We address each argument in turn.

¶ 52 Admission of Preliminary Hearing Testimony

¶ 53 Defendant contends that the admission of Sharp’s testimony from the preliminary hearing

violated the confrontation clause and Illinois law where the defense did not have a “meaningful”

opportunity to cross-examine Sharp. As the Illinois Supreme Court has recognized, the

requirement of a prior, adequate opportunity to cross-examine the absent witness “is at once both

an evidentiary and constitutional requisite for admission of former testimony.” (Emphasis in

original.) People v. Torres, 2012 IL 111302, ¶ 52. See U.S. Const., amend. VI; 725 ILCS 5/115­

4
As discussed herein, the transcript was subsequently corrected in accordance with
Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006).
14

1-14-0369

10.4(d) (West 2012) (providing that a prior statement of a deceased witness that is sought to be

admitted pursuant to this section “must have been made by the declarant under oath at a trial,

hearing, or other proceeding and been subject to cross-examination by the adverse party”).

¶ 54 “[T]he requirements for admission of former testimony are twofold: the witness from the

prior hearing must be unavailable at trial and the defendant must have had an adequate

opportunity to effectively cross-examine the witness at the prior hearing.” Torres, 2012 IL

111302, ¶ 53. “[P]rior testimony from a preliminary hearing may be admissible at a subsequent

trial so long as the two requirements for admission are met.” (Emphasis in original.) Id. In the

instant case, there is no dispute that Sharp was unavailable at the time of trial. The parties’

disagreement centers on the second requirement for admission of her preliminary hearing

testimony: whether defendant had an adequate opportunity to cross-examine Sharp.

“Whether ample opportunity to cross-examine existed must be decided on a case-by-case basis.”

People v. Sutherland, 223 Ill. 2d 187, 273 (2006).

¶ 55 Citing People v. Barner, 2015 IL 116949, ¶ 39, defendant contends that claims of

evidence admitted in violation of the confrontation clause are “properly reviewed de novo.”

Defendant further asserts that “[w]hether the admission violates Illinois evidence law is reviewed

for an abuse of discretion.” See People v. Starks, 2012 IL App (2d) 110273, ¶ 20 (noting that

“[a]s a general rule, a trial court’s ruling on a motion in limine regarding the introduction or

exclusion of evidence is reviewed under an abuse of discretion standard”). The State appears to

argue that an abuse of discretion standard applies to both the constitutional and evidentiary

challenges. We agree. See Torres, 2012 IL 111302, ¶ 47 (noting that “constitutional

considerations are inextricably intertwined with the question of admissibility”); People v. Lard,

2013 IL App (1st) 110836, ¶¶ 15-16 (applying abuse of discretion standard where defendant

15

1-14-0369

raised arguments regarding the confrontation clause and Illinois evidence law). “A trial court has

abused its discretion only when its decision is arbitrary, fanciful, or unreasonable or when no

reasonable person would take the court’s view.” Starks, 2012 IL App (2d) 110273, ¶ 20. Under

either standard of review, however, we reach the same result.

¶ 56 Rule 804 of the Illinois Rules of Evidence provides that testimony given by an

unavailable witness is not excluded by the hearsay rule if, among other things, “the party against

whom the testimony is now offered *** had an opportunity and similar motive to develop the

testimony by direct, cross, or redirect examination.” Ill. R. Evid. 804 (eff. Jan. 1, 2011). See also

People v. Rice, 166 Ill. 2d 35, 41 (1995) (noting that “[f]or an opportunity to cross-examine to be

considered meaningful, and therefore adequate and effective, the motive and focus of the cross-

examination at the time of the initial proceeding must be the same or similar to that which guides

the cross-examination during the subsequent proceeding”). “As our supreme court stated in

Torres, defense counsel at a preliminary hearing may not have all the information discovery may

later disclose; what matters is that defense counsel had a ‘fair opportunity’ to inquire into a

witness’s observation, interest, bias, prejudice, and motive.” Lard, 2013 IL App (1st) 110836,

¶ 21 (citing Torres, 2012 IL 111302, ¶ 66).

¶ 57 Defendant contends that, in his case, “the motive and focus differed because the central

question at the preliminary hearing—was there enough evidence that [defendant] killed Moore to

bind him over for trial?—was far removed from the questions ultimately before the jury—did

[defendant] act in self-defense, whether reasonable or not, when he killed Moore?” Under the

circumstances of this case, however, we do not view the motive and focus of the preliminary

hearing as “far removed” from defendant’s theories at trial. “The purpose of a preliminary

hearing is to determine probable cause that a crime has been committed by the defendant so as to

16

1-14-0369

warrant further proceedings.” Lard, 2013 IL App (1st) 110836, ¶ 18. “However, the questioning

of witnesses in a preliminary hearing and at trial focus on the same issue, namely, ‘whether the

evidence supports a finding that the defendant committed the charged crime.’ ” Id. (citing

Torres, 2012 IL 111302, ¶ 59). Cf. People v. Brown, 374 Ill. App. 3d 726, 734 (2007) (holding

that defense counsel did not have a similar motive for cross-examining the victim at the

defendant’s bond hearing as he would have had for cross-examination at trial).

¶ 58 Defendant argues on appeal that there was “no incentive to develop the facts that might

ultimately lead the jury to a verdict of second-degree murder” and that “futilely press[ing] the

self-defense theory” would have provided the State a “dry run” at the case. In the instant case,

defense counsel cross-examined Sharp regarding a variety of issues aligned with the self-defense

theory ultimately asserted by defendant at trial. For example, defense counsel questioned Sharp

regarding, among other things: whether defendant and Moore consumed alcohol; whether Moore

used drugs; Sharp’s ability to hear a conversation between defendant and Moore prior to their

physical confrontation; and her understanding of defendant’s whereabouts prior to the

altercation.

¶ 59 Defendant contends that, “[h]ad Sharp’s testimony come at trial,” she would have been

questioned regarding “the escalating tension and disputes between [defendant] and Moore

throughout the day.” Sharp testified during direct examination, however, that she did not hear

any conflicts between defendant and her son throughout the day on June 24, 2006. She again

answered during cross-examination that she heard “nothing” prior to hearing the two men

wrestling in the basement. Although defense counsel had an opportunity and motive to inquire

regarding possible conflict earlier in the day—as counsel would have presumably done at trial—

Sharp’s responses suggest that she was unaware of “the escalating tension and disputes.”

17

1-14-0369

¶ 60 The Illinois Supreme Court in Torres, 2012 IL 111302, ¶ 60, held that, depending on the

circumstances, “the motive-and-focus test cannot be our sole guide to a resolution.” (Emphasis in

original.) Our supreme court also considered whether the defendant had the benefit of unlimited

cross-examination at the prior proceeding. Id. ¶ 61. In the instant case, defense counsel asked

Sharp 34 questions. There is no indication in the record that the court placed any time constraints

or other limitations on counsel’s ability to cross-examine Sharp. We note that the court sustained

the State’s sole objection to a question posed by defense counsel: “And as far as you know, had

Sylvester been washing his clothes in that area?” Given Sharp’s earlier testimony that she

thought defendant was in her living room—and in the context of the remainder of the cross­

examination—we do not view the sustained objection as having curbed defense counsel’s

questioning in any significant manner.

¶ 61 The Torres court further observed that “what counsel knows while conducting the cross-

examination may, in a given case, impact counsel’s ability and opportunity to effectively cross-

examine the witness at the prior hearing.” (Emphasis in original.) Id. ¶ 62. Although defendant

accurately observes that certain evidence was “undisclosed” at the time of the preliminary

hearing, we do not share his view regarding the impact of such incomplete discovery.

¶ 62 For example, defendant notes that the toxicology report that established Moore’s drug use

shortly before his death was not available until the spring of 2007, months after Sharp’s

testimony in June 2006. During cross-examination, Sharp acknowledged that her son previously

used drugs but testified that “he didn’t anymore.” Although defense counsel presumably would

have pressed Sharp on this response if counsel had then received the toxicology report, the fact

remains that Sharp apparently believed—albeit incorrectly—that her son no longer used drugs.

We further note that the jury heard the medical examiner’s trial testimony regarding the presence

18

1-14-0369

of cocaine and morphine in Moore’s blood, which concretely refuted Sharp’s mistaken, but

presumably candid, response.

¶ 63 Defendant also contends that Sharp’s description of defendant “stabbing and stabbing”

Moore “did not match up with the medical evidence, where the medical examiner described a

single fatal stab wound to Moore’s chest, but several other, ‘incised,’ slashing wounds.” Defense

counsel had the opportunity during the preliminary hearing, however, to cross-examine Detective

Crudup, who had attended the autopsy. During cross-examination of Crudup, defense counsel

asked, in part: “And you said that the cause of death was a stab wound to the chest; is that

correct?” Crudup answered affirmatively. Nothing in the record indicates that defense counsel’s

cross-examination of Crudup regarding the autopsy was constrained in any respect. But cf. id.

¶ 64 (opining that “it is clear from the record that counsel would have done more with the

witness at the preliminary hearing if he had felt free to do so”).

¶ 64 Defendant cites Starks, 2012 IL App (2d) 110273, wherein the defendant was convicted

of aggravated criminal sexual assault and other offenses. Approximately 20 years after the

original trial, the appellate court reversed the trial court’s dismissal of the defendant’s

postconviction petition and remanded the cause for a new trial. Id. ¶ 3. Prior to the

commencement of the retrial, the complainant died. Id. ¶ 16. The trial court then granted the

defendant’s motion in limine to preclude the admission of the complainant’s prior testimony. Id.

¶¶ 16-18.

¶ 65 In affirming the judgment of the trial court, the Starks appellate court noted, in part, that

the “defendant did not have an adequate opportunity or similar motive to cross-examine

complainant,” because the defendant had been “provided with incorrect serology test results, did

not know about the exculpatory DNA tests, and, based on the ‘offensive use of the rape shield

19

1-14-0369

statute,’ was improperly barred from asking complainant about her prior sexual contact.” Id. ¶ 28

(citing People v. Starks, 365 Ill. App. 3d 592, 600 (2006)). The court thus concluded that “the

inability of defendant to cross-examine complainant regarding her prior sexual conduct or the

exculpatory DNA and serology test results precluded defendant from exposing facts from which

the fact finder could have drawn inferences about complainant’s reliability and credibility.” Id.

¶ 28. Unlike in Starks, the record in this case does not suggest defense counsel’s questioning of

Sharp was limited by the court or that counsel was provided any incorrect or misleading

information. As our supreme court has observed, “ ‘the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.’ ” (Emphasis in original.) People v. Harris,

123 Ill. 2d 113, 144-45 (1988) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). See also

People v. Williams, 139 Ill. 2d 1, 19 (1990) (noting that “effective advocacy is not measured by

the number of objections raised or the number of pages of cross-examination”).

¶ 66 Defendant further argues that the proper method for the State to preserve Sharp’s

testimony was an evidence deposition in accordance with Rule 414 of the Illinois Supreme Court

Rules. Rule 414(a) provides:

“If it appears to the court in which a criminal charge is pending that the deposition

of any person other than the defendant is necessary for the preservation of

relevant testimony because of the substantial possibility it would be unavailable at

the time of hearing or trial, the court may, upon motion and notice to both parties

and their counsel, order the taking of such person’s deposition under oral

examination or written questions for use as evidence at a hearing or trial.” Ill. S.

Ct. R. 414(a).

20

1-14-0369

Defendant has not provided any support for the proposition that Rule 414(a) provides the sole

proper method for preserving Sharp’s testimony. Furthermore, based on defendant’s own

testimony that “Granny” moved slowly because “she was on an oxygen machine,” her advanced

age and poor health appears to have been readily apparent. We are unaware of any reason that

the defense could not have sought an evidence deposition of Sharp prior to her passing in 2008.

¶ 67 We also view defendant’s reliance on People v. Weinke, 2016 IL App (1st) 141196, as

misplaced. In Weinke, the trial court granted the State’s request for a Rule 414 deposition of the

77-year-old alleged victim—who claimed her son pushed her over a railing—after the ASA

represented that she might not survive an impending surgery. Id. ¶¶ 1, 2, 10. At the defendant’s

bench trial, the State offered the evidence deposition in evidence which was admitted by the trial

court, and the defendant was convicted of first degree murder. Id. ¶¶ 25, 28. The Weinke

appellate court found, in part, that the ASA had misrepresented the nature and extent of the

deponent’s injuries. Id. ¶ 51. The appellate court opined, “In these circumstances—where the

State is making an extraordinary request and [defense] counsel is at an extraordinary

disadvantage—granting the deposition without proof was reversible error.” Id. ¶ 53. In the

instant case, unlike in Weinke, defendant does not suggest that the ASA made any express

misstatements or misrepresentations that influenced the existence or conduct of the preliminary

hearing. Furthermore, the Weinke evidence deposition was taken within hours of the court

hearing, leaving defense counsel with no time to review the documentation provided by the State

or view the crime scene. Id. ¶¶ 61-63. While the preliminary hearing in this case occurred five

days after Moore’s death, there is no indication that defense counsel lacked an opportunity to

visit the crime scene or otherwise learn the key available facts.

¶ 68 Finally, after reviewing the trial court’s comments during the hearing on defendant’s

21

1-14-0369

motion in limine to bar Sharp’s preliminary hearing testimony, the trial court appears to have

thoroughly and thoughtfully reviewed the hearing transcript and considered defendant’s

arguments. We neither view the trial court’s decision as “arbitrary, fanciful, or unreasonable” nor

find that “no reasonable person would take the court’s view.” Starks, 2012 IL App (2d) 110273,

¶ 20. The trial court did not abuse its discretion in admitting Sharp’s testimony from the

preliminary hearing.

¶ 69 Introduction of Prior Conviction

¶ 70 Over defense objection, the State was permitted to introduce defendant’s conviction for

possession of contraband in a penal institution. See 720 ILCS 5/31A-1.1(b) (West 2010).

Defendant contends on appeal that “[u]nlike most offenses in the Criminal Code, a conviction for

possession of contraband in a penal institution informs the jury that the accused was incarcerated

at the time of his conduct.” He thus asserts that “its admission carries a uniquely acute kind of

unfair prejudice akin to telling jurors that the accused is currently jailed.”

¶ 71 The State initially responds that defendant forfeited this claim by failing to include it in

his posttrial motion. See People v. Thompson, 238 Ill. 2d 598, 611-12 (2010) (noting that “[t]o

preserve a claim for review, a defendant must both object at trial and include the alleged error in

a written posttrial motion”). Rule 615(a) of the Illinois Supreme Court Rules provides, in part,

that “[p]lain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the trial court.” Ill. S. Ct. R. 615(a). The “plain-error doctrine allows a

reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the

evidence is so closely balanced that the error alone threatened to tip the scales of justice against

the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred

and that error is so serious that it affected the fairness of the defendant’s trial and challenged the

22

1-14-0369

integrity of the judicial process, regardless of the closeness of the evidence.” People v.

Piatkowski, 225 Ill. 2d 551, 565 (2007). Defendant argues that “[b]ecause this was a closely

balanced case where the accused’s credibility was at issue, this Court should not enforce any

forfeiture,” i.e., defendant invokes the “first prong” of plain-error review. See Thompson, 238 Ill.

2d at 613.

¶ 72 We begin plain-error review by determining whether there was, in fact, an error. See id.

Pursuant to People v. Montgomery, 47 Ill. 2d 510, 519 (1971), evidence of a witness’s prior

conviction is admissible to attack his credibility where: “(1) the prior crime was punishable by

death or imprisonment in excess of one year, or involved dishonesty or false statement regardless

of the punishment, (2) less than 10 years has elapsed since the date of conviction of the prior

crime or release of the witness from confinement, whichever is later, and (3) the probative value

of admitting the prior conviction outweighs the danger of unfair prejudice.” People v. Atkinson,

186 Ill. 2d 450, 456 (1999). See Ill. R. Evid. 609(a) (eff. Jan. 1, 2011) (noting that the court must

determine “that the probative value of the evidence of the crime is substantially outweighed by

the danger of unfair prejudice”). When reviewing a trial court’s decision to admit a defendant’s

prior conviction for impeachment purposes, we apply an abuse of discretion standard. Atkinson,

186 Ill. 2d at 463; People v. Williams, 173 Ill. 2d 48, 81 (1996).

¶ 73 In the instant case, there is no dispute that the first two prongs of the Montgomery test

were satisfied. See, e.g., People v. Mullins, 242 Ill. 2d 1, 17 n.2 (2011). The last prong “requires

the trial judge to conduct a balancing test, weighing the prior conviction’s probative value

against its potential prejudice.” Atkinson, 186 Ill. 2d at 456. “In conducting this balancing test,

the trial judge should consider, inter alia, the nature of the prior conviction, its recency and

similarity to the present charge, other circumstances surrounding the prior conviction, and the

23

1-14-0369

length of the witness’ criminal record.” Id. The evidence of the prior conviction must be

excluded if the trial judge determines that the prejudice outweighs the probative value of

admitting the evidence. Id.

¶ 74 As noted in our earlier decision, the indictment in case number 10 CR 14728 alleged that

defendant possessed a shank that was discovered in his waist band while in the Cook County

department of corrections. Boston, 2016 IL App (1st) 133497, ¶ 1. Defendant was found guilty

and sentenced to five years’ imprisonment. Id. During the hearing on the State’s motion in limine

to introduce this conviction, the court and counsel engage in an extended colloquy regarding,

among other things, the exact name of the offense. After determining that the charge was

“possession of contraband in a penal institution,” the court stated, in part:

“Okay. Well, you know, that’s a lot different than possession of a shank,

particularly when the defendant is charged with a stabbing here. I mean, because

then I would agree [defense counsel] has a pretty strong argument that this could

be considered by the jury for propensity purposes.

Contraband is kind of a generic term. They could envision someone being

caught with marijuana or some type of paraphernalia in the institution. Obviously,

if you are seeking to introduce it as possession of a weapon—contraband; to wit,

knife or weapon, then I believe the *** prejudicial effect would outweigh any

probative value.”

Prior to granting the motion, the trial court observed:

“This is one conviction. This is not several convictions. This is not for a

crime that’s similar, as I am told, to the charge against defendant. I do believe the

probative value of allowing that outweighs any prejudicial effect.”

24

1-14-0369

¶ 75 Based on our review of the record, the trial court engaged in a balancing test and properly

considered the factors set forth by our supreme court. See, e.g., Atkinson, 186 Ill. 2d at 456. The

trial court also issued a limiting instruction prior to the State’s presentation of defendant’s

conviction. “Absent some indication to the contrary, we must presume that jurors follow the law

as set forth in the instructions given them.” People v. Wilmington, 2013 IL 112938, ¶ 49. See,

e.g., Mullins, 242 Ill. 2d at 16 (noting that the similarity to the charged crime did not mandate

exclusion of a prior conviction, “especially *** when the jury is instructed to consider the

evidence of the defendant’s prior convictions for the limited purpose of impeachment, which

ensures that the jurors understood the narrow reason for which the convictions were admitted”).

¶ 76 Defendant nevertheless contends that a “robust body of law condemns such evidence

suggestive of past criminality or jailing.” We initially observe that any prior conviction is

suggestive of past criminality. In any event, the cases defendant cites in support of this

proposition are distinguishable from the instant case. For example, in People v. Nelson, 193 Ill.

2d 216, 224 (2000), the jury was “informed in a not-so-subtle manner that defendant had had

mug shots taken on three different occasions, with enough time in between to affect how he

looked in the photos.” The trial testimony also “implied that the most recent photograph was

taken at a time proximate to the commission of the underlying incident.” Id. In holding that the

admission of the mug shot evidence was reversible error, our supreme court opined that “jury

speculation as to what might have led to three separate arrests (including one near the time of the

underlying crime) could have been the difference between conviction and acquittal.” Id. at 224­

25.

¶ 77 Unlike in Nelson, the trial court in the instant case explicitly considered that defendant

had a single prior conviction. Furthermore, we view the State’s presentation of a certified copy

25

1-14-0369

of defendant’s conviction—together with a limiting instruction—as substantially different from

the potentially inflammatory mug shot evidence of the defendant provided to the jury in Nelson.

We also reject defendant’s comparison of the court’s admission of defendant’s prior conviction

as akin to forcing a defendant to wear shackles or prison attire in court. See, e.g., Deck v.

Missouri, 544 U.S. 622, 624 (2005); Estelle v. Williams, 425 U.S. 501, 504 (1976); People v.

Boose, 66 Ill. 2d 261, 268 (1977). Based on the foregoing, we conclude that the trial court did

not abuse its discretion in permitting the State to introduce defendant’s conviction for possession

of contraband in a penal institution.

¶ 78 Rebuttal Closing Argument

¶ 79 Defendant next contends that his conviction should be reversed and the cause remanded

for a new trial because the State improperly commented during rebuttal closing argument on his

postarrest silence. Defendant acknowledges that he did not preserve this error for review, but

maintains that under both prongs of the plain-error doctrine the matter warrants reversal. To that

end, defendant maintains that the evidence was not closely balanced and that the prosecutor’s

improper remarks deprived him of his substantial right to a fair trial. The State responds that no

error occurred because the majority of the comments were directed at defendant’s silence prior to

his arrest. The State further contends that the error, if any, did not rise to the level of plain error.

¶ 80 We again engage in plain-error review, as defendant failed to include this issue in his

posttrial motion. See, e.g., Thompson, 238 Ill. 2d at 611-12. As previously observed, defendant

has the burden of establishing either that (1) a clear or obvious error occurred and the evidence is

so closely balanced that the error alone threatened to tip the scales of justice against the

defendant, regardless of the seriousness of the error, or (2) a clear and obvious error occurred and

that error is so serious that it affected the fairness of the defendant’s trial and challenged the

26

1-14-0369

integrity of the judicial process, regardless of the closeness of the evidence.” People v.

Piatkowski, 225 Ill. 2d 551, 565 (2007). As noted above, we must initially consider whether an

error occurred. Thompson, 238 Ill. 2d at 613.

¶ 81 Generally, a prosecutor is given wide latitude in closing arguments, although his or her

comments must be based on the facts in evidence or upon reasonable inferences drawn

therefrom. People v. Page, 156 Ill. 2d 258, 276 (1993). “The prosecutor has the right to comment

on the evidence and to draw all legitimate inferences deducible therefrom, even if they are

unfavorable to the defendant.” People v. Simms, 192 Ill. 2d 348, 396 (2000). “Whether a

prosecutor’s comments or arguments constitute prejudicial error is evaluated according to the

language used, its relation to the evidence, and the effect of the argument on the defendant's right

to a fair and impartial trial.” Id. “In reviewing comments made at closing arguments, this court

asks whether or not the comments engender substantial prejudice against a defendant such that it

is impossible to say whether or not a verdict of guilt resulted from them.” People v. Wheeler, 226

Ill. 2d 92, 123 (2007). “Prosecutorial misconduct warrants reversal only if it ‘caused substantial

prejudice to the defendant, taking into account the content and context of the comment[s], its

relationship to the evidence, and its effect on the defendant's right to a fair and impartial trial.’ ”

People v. Love, 377 Ill. App. 3d 306, 313 (2007), quoting People v. Johnson, 208 Ill. 2d 53, 115

(2004). “If the jury could have reached a contrary verdict had the improper remarks not been

made, or the reviewing court cannot say that the prosecutor’s improper remarks did not

contribute to the defendant’s conviction, a new trial should be granted.” Wheeler, 226 Ill. 2d at

123.

¶ 82 Although defendant contends “improper commentary on an accused’s silence is to be

reviewed de novo” (e.g., People v. Dameron, 196 Ill. 2d 156, 162 (2001)), this court has “noted

27

1-14-0369

confusion regarding the appropriate standard of review regarding alleged errors occurring during

closing arguments”(People v. Johnson, 2015 IL App (1st) 123249, ¶ 39). Such confusion

“originates from our supreme court’s apparent conflicting holdings” in Wheeler (applying de

novo standard), and People v. Blue, 189 Ill. 2d 99, 128 (2000) (employing an abuse of discretion

standard). Johnson, 2015 IL App (1st) 123249, ¶ 39. We need not resolve the issue, however,

because we reach the same conclusion under either standard.

¶ 83 We begin our consideration of the claimed error with a historical overview of the law in

Illinois regarding the prohibition of the use of pre-Miranda silence, including the silence

following a defendant’s arrest but before receiving Miranda warnings, as stated in this court’s

opinion People v. Quinonez, 2011 IL App (1st) 092333:

“[T]he United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 617-20 (1976),

that it was a violation of the due process clause of the fourteenth amendment for the State

to impeach a defendant using evidence that defendant was silent following his arrest,

after he was advised of his Miranda rights. The Court reasoned that since Miranda

warnings carry the implicit assurance that his silence will carry no penalty, it would be

fundamentally unfair to allow a defendant’s post-Miranda silence to impeach his trial

testimony. Doyle, 426 U.S. at 612. However, the Supreme Court later held that the

prohibition applies only to a defendant’s silence after being advised of his Miranda

rights. Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam). In doing so, it found that

states were free to formulate their own rules with respect to [a] defendant’s silence before

arrest [citation], as well as after arrest but before receiving Miranda warnings [citation].”

Quinonez, 2011 IL App (1st) 092333, ¶ 25 (citing Jenkins v. Anderson, 447 U.S. 231, 238

(1980); Fletcher, 455 U.S. at 607).

28

1-14-0369

¶ 84 In this case, defendant does not argue that the prosecutor’s rebuttal arguments referenced

defendant’s silence after he received his Miranda warnings. Accordingly, federal constitutional

law prohibiting the State from impeaching defendant by referring to his silence at that point in

time is not invoked. See id. ¶ 26. What is at issue are the comments made by the prosecutor

prior to defendant receiving his Miranda warnings. Illinois evidence law prohibits impeachment

of a criminal defendant with his or her postarrest silence, regardless of whether the silence

occurred before or after the defendant was given Miranda warnings. Id. (citing People v. Clark,

335 Ill. App. 3d 758, 762-63 (2002). As set forth by our supreme court in People v. Lewerenz,

“an accused is within his rights when he refuses to make a statement [at the time of his arrest],

and the fact that he exercised such a right has no tendency to prove or disprove the charge

against him, thus making evidence of his refusal neither material or relevant to the issue being

tried.” Lewerenz, 24 Ill. 2d 295, 299 (1962) (citing People v. Rothe, 358 Ill. 52, 57 (1934)). “The

language of relevancy and materiality utilized by our supreme court in Lewerenz and Rothe

indicates that the Illinois rule which prohibits impeachment with defendant’s postarrest silence is

based on evidentiary principles, rather than constitutional law. [Citation.] Therefore, the rule is

unaltered by federal constitutional cases which found that the use of a defendant’s postarrest,

pre-Miranda silence does not violate due process.” Quinonez, 2011 IL App (1st) 092333, ¶ 26.

Accordingly, “the Illinois evidentiary rule generally prohibits impeachment of a criminal

defendant with his postarrest silence, regardless of whether it occurred before or after he was

given Miranda warnings, because under those circumstances, that silence is not considered

relevant or material.” Id. Such references are improper because they are “intended to invite the

jury to infer from the defendant’s silence that his [] defense is a recent fabrication.” People v.

Ridley, 199 Ill. App. 3d 487, 492 (1990). A prosecutor’s comments on prearrest silence,

29

1-14-0369

however, are proper. See People v. Manley, 222 Ill. App. 3d 896, 909 (1991); People v. Graves,

142 Ill. App. 3d 885, 890 (1986).

¶ 85 With this law in mind, we now turn to consider the statements made by the ASA during

rebuttal closing argument:

“The defendant doesn’t say to her, I mean, you know, in his lie, but in reality, he never

says I need help, and, in fact, the police told you that when Curry comes with McPherson,

the defendant says nothing. If you’re killing someone in self-defense, aren’t you shouting

it from the toppist [sic], highest mountain you can find. Wait a minute, thank God you’re

here[.]”

After the court overruled a defense objection, the prosecutor stated:

“Drop the knife, police, I was attacked, it’s not what it looks like, I have blood on me, it’s

not—I’m cut, I was defending myself, I was attacked, he attacked me. He said nothing to

the police. He runs in the back, and then Lieutenant Bankhead comes, and he comes out,

and he’s got his hands up, does he say then, listen, it’s a mistake, I am not the one, I am a

victim, I was attacked, I had to do it, or to granny, call an ambulance, this is a horrible

event. Yeah, if you were truly justified, if you were truly not guilty, that’s what you

would do, and that’s not what he did, and that’s how you know.”

¶ 86 These comments can be broken down to reference three distinct periods in time (1) when

Sharp appeared in the basement; (2) when Curry and McPherson came in contact with defendant;

and (3) when Bankhead was on the basement stairs. Therefore, in order to determine whether the

prosecutor’s comments were improper, we must first determine at what point defendant was

arrested. See Quinonez, 2011 IL App (1st) 092333, ¶ 30.

¶ 87 “An arrest occurs when a person’s freedom of movement is restrained by physical force

30

1-14-0369

or a show of authority.” People v. Surles, 2011 IL App (1st) 100068, ¶ 23. Factors that may be

indicative of an arrest include “(1) the threatening presence of several officers; (2) the display of

a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the use

of language or tone of voice indicating that compliance with the officer’s request might be

compelled.” People v. Luedemann, 222 Ill. 2d 530, 553 (2006). We determine whether a person

is under arrest based on whether an objective reasonable person, innocent of any crime, would

conclude that he is not free to leave under the circumstances. Id. The record here demonstrates

that defendant was not arrested until Bankhead pointed his weapon at defendant, commanded

defendant to ascend the staircase, and guided defendant up the staircase while continuing to point

his weapon at defendant. Although Bankhead was the only officer on the stairs at that time,

defendant was aware of the presence of at least three officers on the scene. In addition, Bankhead

approached defendant with his weapon drawn, gave defendant an order to come with him up the

stairs, and continued to point his weapon in defendant’s direction as they ascended the stairs.

Under the totality of these circumstances, we conclude that any interaction defendant had with

police officers from that point forward is considered postarrest.

¶ 88 Thus it follows that the prosecutor’s comments regarding the points in time prior to

defendant’s arrest by Bankhead were proper. While Curry and McPherson did enter the

basements with their weapons drawn, upon viewing them defendant retreated. See People v.

Beall, 42 Ill. App. 3d 452, 454 (1976) (the defendant’s flight after he was confronted by police

officers who informed him he was “under arrest” contradicted any claim of submission to arrest);

People v. Tribett, 98 Ill. App. 3d 663, 672 (1981) (“the fact that the officers had their guns drawn

does not necessarily indicate an arrest). The officers’ intent not to arrest defendant at that time

was evident when Curry and McPherson decided to exit the basement without confronting

31

1-14-0369

defendant further. See People v. Washington, 363 Ill. App. 3d 13, 24 (2006) (one factor to

consider to determine whether a defendant is arrested includes the intention of the officers). At

this point, the totality of the circumstances indicates that defendant was not arrested; in fact,

there was no evidence presented there was an arrest affected at that time by Curry and

McPherson. It also goes without saying that when Sharp descended the basement stairs defendant

was not under arrest, as the police had not even been called at that time. Thus, the prosecutor’s

comments regarding defendant’s silence during these two periods of time were proper.

¶ 89 Regarding the prosecutor’s comment on defendant’s silence after his arrest, the State

maintains that the comment falls within one of the exceptions to the general rule that postarrest

silence is considered irrelevant and immaterial and thus it was proper.

¶ 90 Illinois courts have held that there are two exceptions to the general rule, where postarrest

silence will be considered relevant. People v. McMullin, 138 Ill. App. 3d 872, 877 (1985). A

defendant’s postarrest silence may be used to impeach his trial testimony when: (1) the defendant

testifies at trial that he made an exculpatory statement to the police at the time of his arrest; or (2)

the defendant makes a postarrest (pretrial) statement that is inconsistent with his exculpatory trial

testimony. Quinonez, 2011 IL App (1st) 092333, ¶ 27.

¶ 91 Despite the State’s request, we decline to consider whether defendant’s postarrest silence

falls within one of the exceptions to the general rule. First, the facts of this case are nuanced and

the State cites no case wherein it was allowed to impeach a defendant with his or her silence

where the State itself elicited the testimony it purports to impeach. See Ill. S. Ct. R. 341(i), (h)(7)

(eff. May 25, 2018). Second, even if it did not fall within one of the exceptions, defendant cannot

demonstrate plain error.

¶ 92 Regarding first-prong plain error, defendant asserts that the evidence was closely

32

1-14-0369

balanced where the jury had before it sufficient evidence that he acted in self-defense and thus

could have found him guilty of second-degree murder. Defendant points to his testimony that he

acted out of “fear[] for his life” and that he “slashed at” Moore to protect and defend himself.

Defendant further notes that the State failed to offer any eyewitness testimony regarding how the

fight ensued and thus his testimony that Moore attacked him first was unrebutted. This evidence,

along with the evidence of Moore’s criminal record and the presence of cocaine in his system at

the time of the fight, could lead a jury to conclude that he acted in self-defense.

¶ 93 Where a defendant claims first-prong plain error, a reviewing court must decide whether

the defendant has demonstrated that the evidence was so closely balanced the error alone

severely threatened to tip the scales of justice. People v. Sebby, 2017 IL 119445, ¶ 51. If the

defendant carries that burden, prejudice is not presumed; rather, “[t]he error is actually

prejudicial.” Herron, 215 Ill. 2d at 193; accord Piatkowski, 225 Ill. 2d at 566, 312 Ill.Dec. 338,

870 N.E.2d 403 (“defendant must meet his burden to show that the error was prejudicial—in

other words, he must show that the quantum of evidence presented by the State against the

defendant rendered the evidence ‘closely balanced’ ”). In determining whether the evidence

adduced at trial was close, a reviewing court must evaluate the totality of the evidence and

conduct a qualitative, commonsense assessment of it within the context of the case. Belknap,

2014 IL 117094, ¶¶ 52-53. A reviewing court’s inquiry thus “involves an assessment of the

evidence on the elements of the charged offense or offenses, along with any evidence regarding

the witnesses’ credibility.” Sebby, 2017 IL 119445, ¶ 53.

¶ 94 Here, defendant was found guilty of first degree murder under section 9-1(a)(1) of the

Criminal Code of 1961 (720 ILCS 5/9-1(a)(1) (West 2006)). That section provides:

“(a) A person who kills an individual without lawful justification commits first

33

1-14-0369

degree murder if, in performing the acts which cause the death:

(1) he either intends to kill or do great bodily harm to that individual or another,

or knows that such acts will cause death to that individual or another[.]” Id.

¶ 95 Defendant here also raised the affirmative defense of self-defense. Once the affirmative

defense of self-defense is raised, the State has the burden of proving beyond a reasonable doubt

that the defendant did not act in self-defense, in addition to proving the elements of the charged

offense. People v. Lee, 213 Ill. 2d 218, 224 (2004). Self-defense includes the following elements:

(1) unlawful force threatened against a person, (2) the person threatened was not the aggressor,

(3) the danger of harm was imminent, (4) the use of force was necessary, (5) the person

threatened actually and subjectively believed a danger existed that required the use of the force

applied, and (6) the beliefs of the person threatened were objectively reasonable. 720 ILCS 5/7-1

(West 2006); accord Lee, 213 Ill. 2d at 225 (enumerating elements). If the State negates any one

of these elements, the defendant’s claim of self-defense necessarily fails. Lee, 213 Ill. 2d at 225.

Of course, the State does not have the burden to disprove an affirmative defense unless sufficient

evidence is present on it. People v. Smith, 237 Ill. App. 3d 901, 907-08 (1992).

¶ 96 Here, the evidence defendant committed first degree murder was overwhelming. Sharp’s

testimony established that upon hearing a “scuffling noise” in the basement, she went towards

the basement stairs and directed those in the basement to “stop the noise.” Sharp further testified

her son, Moore, directed her to “call the police, call the police.” Instead of calling the police

directly, Sharp went downstairs into the basement where she observed defendant on top of

Moore, stabbing him. She attempted to pull defendant off of Moore, and at one point attempted

to strike him with a milk crate, but she was unsuccessful in stopping the attack. Sharp then went

upstairs and dialed 911. Some amount of time passed between when Sharp called 911 and the

34

1-14-0369

police arrived and the evidence established that when Curry and his partner arrived in the

basement defendant was not only still on top of Moore, but was continuing to stab him. See

People v. Kibayasi, 2013 IL App (1st) 112291, ¶ 42 (intent to kill may be inferred from the

circumstances surrounding the incident, defendant’s conduct, and the nature and severity of the

victim’s injuries).

¶ 97 The physical evidence corroborated the State’s theory of the case. When defendant was

discovered in the basement, Curry and Bankhead testified that they did not recall him holding a

weapon. When Bankhead ordered defendant to put his hands up defendant still was not observed

with a weapon. It was not until after defendant resisted being detained by “tussling” with the

officers that a knife was discovered on the driveway “[r]ight there” where defendant was placed

under arrest. From this evidence the jury could infer that defendant had hidden at least one knife

on his person. The DNA evidence also established that the blood on defendant’s clothing and

certain of the recovered knives contained Moore’s DNA.

¶ 98 In addition, the medical examiner testified Moore suffered numerous incised wounds and

one fatal wound as well as blunt trauma to his forehead, multiple wounds in and around his eyes,

human bite marks, and a suction hematoma. The medical examiner also testified that some of

these injuries were possible defensive injuries that Moore may have sustained while attempting

to ward off blows. In contrast, defendant testified he received two knife wounds; one when he

raised his arms to initially protect himself and another when he cut his own hand as he grabbed

the knife from Moore’s hand. The evidence at trial, however, established that defendant only

suffered from the one wound to his arm, as Curry testified that the day after defendant was

arrested there were no wounds on the palms or on the tops of his hands. The photographs,

autopsy results, and medical examiner’s testimony revealed Moore’s extensive injuries, whereas

35

1-14-0369

the photographs of defendant—coupled with Curry’s testimony— demonstrated that defendant

was almost completely unscathed. In further support that defendant was the aggressor, Bankhead

testified that as defendant walked up the basement stairs he observed that defendant’s shirt, while

blood-stained, was not ripped. Our review of the evidence indicates the evidence against

defendant was overwhelming and was not closely balanced, so any alleged errors made by the

prosecutor during closing arguments cannot be reviewed under the first prong of a plain error

review. See Sebby, 2017 IL 119445, ¶ 48.

¶ 99 Defendant maintains, citing Sebby, that where a defendant’s testimonial account was

“plausible,” the evidence is closely balanced. In Sebby, the defendant was charged with resisting

a police officer. Sebby, 2017 IL 119445, ¶ 54. On appeal before our supreme court, the defendant

asserted the trial court committed a Rule 431(b) violation and that the error rose to the level of

plain error under the first prong of the plain-error doctrine. Id. ¶ 52. In considering whether the

evidence in the case was closely balanced, our supreme court laid out the evidence presented and

concluded that it involved a contest of credibility where both the testimony of the State’s

witnesses and the testimony of defendant’s and his witnesses was plausible and neither were

supported by corroborating evidence. Id. ¶¶ 61-62 (citing Naylor, 229 Ill. 2d at 606-07 (“Given

these opposing versions of events, and the fact that no extrinsic evidence was presented to

corroborate or contradict either version, the trial court’s finding of guilt necessarily involved the

court’s assessment of the credibility of the two officers against that of defendant.”).

¶ 100 This case is does not represent an instance where the evidence turned solely on the

credibility of the testimony as it did in Sebby. Not only did Curry and McPherson come upon

defendant while the act was being committed, there was also physical evidence that

demonstrated defendant’s involvement in the crime. As discussed above, the State’s theory of the

36

1-14-0369

case was supported by not only the testimony of its witnesses, but by the physical and DNA

evidence. In addition, defendant’s testimony was inconsistent. Defendant could not accurately

recall the timeline of events on June 24, 2006, and his testimony that Moore “came at [him] with

a knife” before 3:30 p.m. appears to conflict with the testimony of Officers Curry and Bankhead

that the incident was continuing at approximately 6:20 p.m. Furthermore, defendant’s repeated

denial or minimization of his prior interactions with Moore was contradicted by Steven’s

testimony. Accordingly, we conclude that defendant has not carried his burden under the closely

balanced prong of the plain-error doctrine. See Sebby, 2017 IL 119445, ¶ 50.

¶ 101 As to second-prong plain error, defendant sets forth five reasons why “the unfairness of

his case rose to the level of a substantial violation” of defendant’s due process rights: (1) the

State’s injection of the issue of silence into trial; (2) its “thin foundation in the evidence actually

elicited;” (3) the prosecutor’s “repeated and hyperbolic exploitation of silence in rebuttal closing

argument imploring jurors to treat Boston’s silence as substantive proof of guilt;” (4) the lack of

“meaningful corrective action by the court;” and (5) the record’s “suggestion that the references

to Boston’s silence in closing were part of an ambush strategy pursued by the State.”

¶ 102 We initially observe that we have not found that all of the reasons put forth by defendant

constitute error. Defendant did not frame his argument on appeal as an attack on the impropriety

of the State’s questioning of him during recross-examination. See Ill. S. Ct. R. 341 (h)(7) (eff.

May 25, 2018) (forfeiture). Nor did defendant challenge the admissibility of this testimony. Id.

Furthermore, as explained previously, not all of the prosecutor’s comments regarding

defendant’s silence were improper. In fact, a majority of those comments went to defendant’s

prearrest silence. See Manley, 222 Ill. App. 3d at 909 (a prosecutor’s comment on a defendant’s

prearrest silence is not error).

37

1-14-0369

¶ 103 Additionally, defendant testified that he was not silent, yet the prosecutor argued

otherwise in closing argument. Despite the trial court’s failure to sustain the objection by defense

counsel that this line of argument was improper, the jury was still advised on multiple occasions

that it was only to consider the evidence. “[I]mproper arguments can be corrected by proper jury

instructions, which carry more weight than the arguments of counsel.” People v. Willis, 409 Ill.

App. 3d 804, 814 (2011). “Moreover, any possible prejudicial impact is greatly diminished by

the court's instructions that closing arguments are not evidence.” Id. A trial court’s instructions

that closing arguments are not evidence protect defendant against any prejudice caused by

improper comments made during closing arguments. People v. Quiroz, 257 Ill. App. 3d 576, 585

(1993). It is presumed that jurors follow the instructions provided by the trial court. People v.

Taylor, 166 Ill. 2d 414, 438 (1995). Here, prior to closing arguments the trial court informed the

jury that argument from counsel was not evidence. Subsequently, the trial court provided the jury

with Illinois Pattern Jury Instruction No. 1.03, which states:

“Opening statements are made by the attorneys to acquaint you with the facts they

expect to prove. Closing arguments are made by the attorneys to discuss the facts and

circumstances in the case and should be confined to the evidence and to reasonable

inferences to be drawn from the evidence. Neither opening statements nor closing

arguments are evidence, and any statement or argument made by the attorneys which is

not based on the evidence should be disregarded.” Illinois Pattern Jury Instructions,

Criminal, No. 1.03 (approved July 18, 2014).

Accordingly, the jury was aware that the prosecutor’s statements were not evidence and that they

were only to consider the evidence when deciding the verdict.

¶ 104 Defendant cites to numerous cases in an attempt to support his position that improper

38

1-14-0369

comments by the prosecutor constitute second-prong plain error. See People v. Blue, 189 Ill. 2d

99, 138 (2000); People v. Smith, 2017 IL App (1st) 143728, ¶ 45; People v. Jackson, 2017 IL

App (1st) 151779, ¶ 20; People v. Green, 74 Ill. 2d 444, 450 (1979); and People v. Dameron,

196 Ill. 2d 156, 164 (2001). These cases, however, do not support that position. Blue, Green, and

Dameron involved the court engaging in a harmless error analysis while Smith and Jackson set

forth the general proposition that forfeiture is a limitation on the parties and not the reviewing

court. Instead, the relevant question here is whether the alleged error was “so serious that it

affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.”

(Internal quotation marks omitted.) People v. Clark, 2016 IL 118845, ¶ 42.

¶ 105 We further observe that while defendant states that his substantial right to a fair trial was

violated for these five reasons and thus constituted second-prong plain error, defendant fails to

offer any argument as to how the complained of error, namely the improper comment of the

prosecutor during rebuttal closing argument, was so serious that it challenged the integrity of the

judicial process. See id.

¶ 106 We do not believe that any alleged error was “so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process.” (Internal quotation marks

omitted.) Clark, 2016 IL 118845, ¶ 42. Second-prong plain error is not restricted to the six types

of structural error that have been recognized by the United States Supreme Court. See id. ¶ 46

(holding that second-prong plain error is not limited to structural error); Thompson, 238 Ill. 2d at

609 (stating that the United States Supreme Court has recognized structural error to include “a

complete denial of counsel, trial before a biased judge, racial discrimination in the selection of a

grand jury, denial of self-representation at trial, denial of a public trial, and a defective

reasonable doubt instruction”). But to rise to the level of second-prong plain error, “the error

39

1-14-0369

nevertheless must be of a similar kind: an error affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself.” (Internal quotation marks

omitted.) People v. Johnson, 2017 IL App (2d) 141241, ¶ 51 (quoting Neder v. United States,

527 U.S. 1, 8 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).

The claimed error here did not affect the framework within which defendant’s trial proceeded

and it did not challenge the integrity of the judicial process. Instead, it merely resulted in

inaccurate commentary not based on the evidence. The record discloses that the jury had before

it defendant’s testimony that he was not silent; indeed in response to the prosecutor’s question on

recross-examination, “When you saw the police, you didn’t say to them, ‘I had to defend

myself,’ did you?” defendant responded, “Actually, when I came up—yes, I said that yes.” It is

well established that a prosecutor’s statements during closing argument are not evidence, and the

jury was so advised of this point by the trial court. See People v. Nicholas, 218 Ill. 2d 104, 123

(2005). Moreover, the comments were limited to rebuttal closing argument, and they “did not

add their weight” to any “cloud of prejudice formed by a wider array of prosecutorial

misconduct.” Nicholas, 218 Ill. 2d at 123. We conclude defendant has not met his burden to

demonstrate the error was so serious it affected the fairness of the trial and challenged the

integrity of the judicial process. See Sebby, 2017 IL 119445, ¶ 50.

¶ 107 Jury Note

¶ 108 During deliberations, the jury sent a note to the judge stating, “Can self-defense be a

mitigating factor? (Definition of mitigating factor is unclear on sheet).” After a discussion with

counsel, the trial court replied, “[Y]ou heard the evidence, you have the instructions of law.

Please continue to deliberate.” Defendant contends on appeal that “[b]ecause how the jury would

consider self-defense in relation to first- and second-degree murder was the decisive issue in the

40

1-14-0369

case, the failure to clarify the issue for the jury was reversible, plain error.”

¶ 109 Plain-error review is forfeited, however, when the defendant invites the error. See People

v. Patrick, 233 Ill. 2d 62, 77 (2009) (declining to address the defendant’s plain-error claim

because he invited any error by submitting the challenged jury instruction); People v. Villareal,

198 Ill. 2d 209, 228 (2001). The State invokes the invited-error doctrine, arguing that defendant

“acquiesced” to the trial court’s response “because it substantially conveyed the response he

proposed.”

¶ 110 After reading the jury note to the parties, the following exchange occurred:

“[ASA]: You have the evidence, continue to deliberate.

[DEFENSE COUNSEL]: Or you can instruct them on the law, please

continue your deliberations. You have all the evidence and the instructions under

the law.

THE COURT: I just want to look at the instructions real quick. We’re

told if we can answer a question, we should. Let me see if I could refer them to a

particular instruction

***

THE COURT: I don’t know exactly how to answer this. I mean I could

refer them to the definition of mitigating factor, but I think they know about it. I

mean I don’t want to give them an answer that’s going to infer a verdict.

[ASA]: I mean you have all the evidence and instructions on the law,

please keep deliberating.

THE COURT: I mean the only thing I would say, and I don’t know if this

is necessary, I understand the standard response, refer them to [Illinois Pattern

41

1-14-0369

Jury Instructions, Criminal Nos. 7.03, 7.05 (4th ed. 2000) (hereinafter, IPI

Criminal 4th], definition of murder and definition of mitigating factor.

[DEFENSE COUNSEL]: And what about self-defense?

[ASA]: Which would be [IPI Criminal 4th No. 7.06].

THE COURT: I could refer them to—you’re right, I mean I could refer

them to [IPI Criminal 4th No. 24-25.06].

[ASA]: I think they’re saying they’re aware of the instructions, that

they’re find [sic] it confusing.

THE COURT: Well, I find them confusing, and I’ve been doing this for

you know, 30 years I guess. Okay, I will—you heard the evidence, you have the

instructions of law. Please continue to deliberate.”

¶ 111 Defendant contends, and we agree, that his trial counsel’s statements were “somewhat

unclear.” For example, defense counsel appears to have both suggested additional instructions

and accepted the State’s position that the jury had received the necessary instructions. In the

absence of clear invited error, we apply plain-error review. See also Ill. S. Ct. R. 451(c) (eff.

Apr. 8, 2013) (providing that substantial defects in jury instructions “are not waived by failure to

make timely objections thereto if the interests of justice require”); People v. Cacini, 2015 IL App

(1st) 130135, ¶ 42 (noting that “Rule 451(c) is coextensive with the plain-error clause of Illinois

Supreme Court Rule [615](a)”). Although we are aware that defendant’s posttrial motion stated

that the trial court had “replied appropriately” to the jury note “and admonished the jury [to]

resume deliberations,” we do not view such posttrial statements as having “invited” any alleged

error that had previously occurred.

¶ 112 Citing People v. Downs, 2015 IL 117934, ¶ 15, defendant contends that “[t]he propriety

42

1-14-0369

of a court’s response to a question of law from the jury is reviewed de novo.” We note that the

Downs court cited People v. Pierce, 226 Ill. 2d 470, 475 (2007), wherein our supreme court

stated: “Although the giving of jury instructions is generally reviewed for an abuse of discretion,

when the question is whether the jury instructions accurately conveyed to the jury the law

applicable to the case, our review is de novo.” See also People v. Reid, 136 Ill. 2d 27, 38-39

(1990) (holding that the circuit court did not abuse its discretion in its response to the jury);

People v. Gray, 346 Ill. App. 3d 989, 993-94 (2004) (stating the “court’s decision to answer or

refrain from answering will not be disturbed absent an abuse of discretion” but “[w]hether the

court misstated the law” in its response to a jury question “is naturally a question of law” subject

to de novo review). Although we apply an abuse of discretion standard herein, our result would

be the same under de novo review.

¶ 113 “Generally, a trial court must provide instruction when the jury has posed an explicit

question or asked for clarification on a point of law arising from facts showing doubt or

confusion.” People v. Averett, 237 Ill. 2d 1, 24 (2010). “This is true even though the jury was

properly instructed originally.” People v. Childs, 159 Ill. 2d 217, 228-29 (1994). Accord People

v. Landwer, 279 Ill. App. 3d 306, 314 (1996). In the instant case, the jury was provided with

Illinois Pattern Instructions (IPI) regarding, among other things, first degree murder, second

degree murder, the definition of a mitigating factor, and the use of force in self-defense.

¶ 114 “A trial court may, nevertheless, exercise its discretion to decline answering a question

from the jury under appropriate circumstances.” Averett, 237 Ill. 2d at 24. Accord People v.

McSwain, 2012 IL App (4th) 100619, ¶ 26. “Appropriate circumstances include when the jury

instructions are readily understandable and sufficiently explain the relevant law, when additional

instructions would serve no useful purpose or may potentially mislead the jury, when the jury’s

43

1-14-0369

request involves a question of fact, or when giving an answer would cause the trial court to

express an opinion likely directing a verdict one way or the other.” Averett, 237 Ill. 2d at 24.

¶ 115 Defendant contends that “where the court failed to clarify how self-defense can be a

mitigating factor, the prejudice to [defendant] was the equivalent of leaving the jury without a

second-degree instruction at all, when such an instruction was due.” He cites cases wherein the

reviewing courts have held that a trial court’s refusal to provide a second degree murder

instruction may constitute reversible error. E.g., People v. Washington, 2012 IL 110283, ¶¶ 58­

60; People v. Edmondson, 328 Ill. App. 3d 661, 665-66 (2002). Such error, however, did not

occur herein. Furthermore, we do not consider the trial court’s answer to the jury’s note to be the

“equivalent” of no second degree murder or self-defense instruction.

¶ 116 Our supreme court has stated that an appropriate circumstance for declining to answer a

jury question is when “giving an answer would cause the trial court to express an opinion likely

directing a verdict one way or another.” Averett, 237 Ill. 2d at 24. The trial court in the instant

case expressed concern about this very issue. The trial court’s comments regarding the

“confusing” instructions also suggest its concern that “additional instructions would serve no

useful purpose or may potentially mislead the jury.” Id. “Illinois pattern instructions were

‘painstakingly drafted with the use of simple, brief and unslanted language so as to clearly and

concisely state the law,’ and, for that reason, ‘the use of additional instructions on a subject

already covered by IPI would defeat the goal that all instructions be simple, brief, impartial and

free from argument.’ ” People v. Pollock, 202 Ill. 2d 189, 212 (2002), (quoting People v.

Haywood, 82 Ill. 2d 540, 545 (1980)). In this instance—where the trial court had provided the

relevant IPI—we cannot conclude that it abused its discretion by determining that any additional

“clarification” could confuse or sway jurors, particularly where the court explicitly

44

1-14-0369

acknowledged its obligation to answer jury questions, if possible.

¶ 117 Even assuming that the trial court committed clear or obvious error in its handling of the

jury note, the evidence was not closely balanced under first-prong plain error, for the reasons

discussed above. Furthermore, the cases defendant cites regarding second-prong plain error are

inapposite.

¶ 118 For example, in People v. Ogunsola, 87 Ill. 2d 216, 222 (1981), the Illinois Supreme

Court concluded that the challenged jury instruction completely omitted a portion of the

definition of the crime. In remanding the cause for a new trial, our supreme court observed that

“[t]he failure to correctly inform the jury of the elements of the crime charged has been held to

be error so grave and fundamental that the waiver rule should not apply.” Id. Similarly, in People

v. Ulloa, 2015 IL App (1st) 131632, ¶ 25, the appellate court concluded that “[t]he misstatement

of the applicable law here, including a misstatement of the elements of the offense of conspiracy,

is a grave error, affecting the fundamental fairness of the trial and the integrity of the judicial

process.” Unlike in Ogunsola and Ulloa, the jury instructions in the instant case did not omit a

central issue or incorrectly define an offense or defense. But cf. Cacini, 2015 IL App (1st)

130135, ¶ 55 (finding that “the trial court’s omission of the self-defense instruction on the three

offenses before the jury” was “second-prong plain error because the error was of such a

magnitude as to have denied defendant a fair trial”). While “fundamental fairness requires that

the jury be instructed on the elements of the offense charged,” (People v. Hale, 2012 IL App

(4th) 100949, ¶ 22), the instructions in the instant case satisfied such requirement. We also reject

defendant’s contention that “the jury was especially likely to be confused where it received the

instructions on self-defense in relation to first and second degree murder out of sequence.” See,

e.g., People v. Anderson, 2012 IL App (1st) 103288, ¶ 45 (concluding that “[a]lthough the

45

1-14-0369

instructions were not read to the jury in the precise order directed by the drafting committee, the

trial court clearly conveyed the applicable law and proper instructions to the jury”).

¶ 119 We thus conclude that there was no plain error vis-à-vis the trial court’s answer to the

jury note. Defendant contends, in the alternative, that his trial counsel was ineffective “for not

ensuring the jury’s question was properly answered.” Under Strickland v. Washington, 466 U.S.

668 (1984), “to prevail on a claim of ineffective assistance of counsel, a defendant must show

both that counsel’s performance was deficient and that the deficient performance prejudiced the

defendant.” People v. Cherry, 2016 IL 118728, ¶ 24.

¶ 120 Defendant cites People v. Lowry, 354 Ill. App. 3d 760, 762 (2004), wherein the jury

question involved the definition of “knowingly.” With the agreement of “[a]ll attorneys,” the

court instructed the jurors: “You have heard the evidence and been instructed on the law. Please

keep deliberating.” (Internal quotation marks omitted.) Id. The appellate court held that defense

counsel provided deficient representation by failing to offer the IPI that expressly defines

“knowingly” and related terms. Id. at 766-67. The appellate court further held that defense

counsel’s failure “prejudiced defendant regarding an issue critical to the aggravated battery

charge and rendered the proceeding fundamentally unfair.” Id. at 768. Unlike in Lowry, there

was no additional IPI in the instant case to provide to the jury. Any attempt at elucidation by the

trial court regarding whether “self-defense” could be a “mitigating factor” could have

exacerbated any juror confusion. But cf. People v. Coots, 2012 IL App (2d) 100592, ¶¶ 53-54

(concluding that defense counsel was ineffective where counsel failed to tender, and the trial

court failed to give, two IPI that would have clarified the term “deliver”). Even assuming

arguendo that defense counsel’s performance was deficient, there is no indication that defendant

was prejudiced by such performance, i.e., that there was a reasonable likelihood that the result of

46

1-14-0369

his trial would be different. See People v. Hicks, 2015 IL App (1st) 120035, ¶ 59.

¶ 121 Jury Polling

¶ 122 In his appellate briefs, defendant contends that “[w]here a juror expressly dissented from

the guilty verdict during polling and the court failed to question him, [defendant’s] right to a

unanimous jury verdict was violated.” We initially observe that defendant has forfeited appellate

review of this claim by failing to object during the trial or assert the claim in a posttrial motion.

See Thompson, 238 Ill. 2d at 611 (noting that “[t]o preserve a claim for review, a defendant must

both object at trial and include the alleged error in a written posttrial motion”). The plain-error

rule, however, bypasses normal forfeiture principles and allows a reviewing court to consider

unpreserved claims of error in specific circumstances. Id. at 613. The first step of plain-error

review is determining whether any error occurred. Id. For the reasons discussed below, we find

no error.

¶ 123 The purpose of a jury poll is to determine whether the verdict has been freely reached and

is unanimous. People v. Wheat, 383 Ill. App. 3d 234, 237 (2008). “Through a jury poll, jurors

may freely assent or dissent to the verdict without the fear, errors, or coercive influences that

may have prevailed in the jury’s private collective deliberations.” Id. See also United States v.

Shepherd, 576 F.2d 719, 725 (7th Cir. 1978) (noting that “[t]he purpose of affording a right to

have the jury polled is not to invite each juror to reconsider his decision, but to permit an inquiry

as to whether the verdict is in truth unanimous”).

¶ 124 In Illinois, after a guilty verdict is returned but before it is accepted and recorded, a

criminal defendant has an absolute right to poll the jury regarding whether each individual

agreed with the pronounced verdict. Wheat, 383 Ill. App. 3d at 237. The opportunity for jurors to

express their assent or dissent to a verdict is basic to our system which requires unanimity among

47

1-14-0369

the jurors and if any juror dissents from the verdict, it cannot be recorded. People v. Rehberger,

73 Ill. App. 3d 964, 968 (1979). See also 725 ILCS 5/115-4(o) (West 2006) (requiring the

“unanimous verdict of the jury”); Martin v. Morelock, 32 Ill. 485, 487-88 (1863) (stating that a

“case is not at an end until the verdict is recorded and the jury discharged, and it would be unjust

to record a verdict from which the jury, in the presence of the court, dissent”).

¶ 125 In the original version of the transcript of the jury polling, juror Greco answered “[n]o”

when asked, “Was this then and is this now your verdict[?]” After oral arguments in this appeal,

the State filed in the trial court a “Motion Pursuant to Supreme Court Rule 329 to Make the

Record on Appeal Conform to the Truth.” The motion provided, in part, that the “transcript

regarding Juror Greco’s answer to the jury poll is incorrect and must be corrected.” The State

represented that after Ellen Dusza, the court reporter, reviewed her notes, “she found that the

‘no’ answer incorrectly reflected Juror Greco’s answer which should have been transcribed as

‘yes.’ ” Defendant responded, in part, that the State’s motion was facially insufficient because it

failed to provide a copy of Dusza’s original stenographic notes.

¶ 126 Rule 329 provides, in pertinent part:

“The record on appeal shall be taken as true and correct unless shown to

be otherwise and corrected in the manner permitted by this rule. Material

omissions or inaccuracies or improper authentication may be corrected by

stipulation of the parties or by the trial court, either before or after the record is

transmitted to the reviewing court, or by the reviewing court or a judge thereof.

Any controversy as to whether the record accurately discloses what occurred in

the trial court shall be submitted to and settled by that court and the record made

to conform to the truth.” Ill. S. Ct. R. 329 (eff. Jan. 1, 2006).

48

1-14-0369

¶ 127 During proceedings before the trial court on February 16, 2017, Dusza testified that she

used a steno machine to take notes in machine shorthand on the day of the verdict, but did not

have an audio recording. Her notes reflected that juror Greco said “no.” After an ASA contacted

Dusza regarding the jury polling issue on January 19, 2017, she reviewed her notes.

¶ 128 According to Dusza, a juror may respond “no” because he does not understand the

question. In such case, the judge or counsel will ask the juror to repeat his answer and the judge

will repeat the question. In the instant case, Dusza testified that her notes did not indicate any

follow-up or reflect any unusual occurrences. She also testified that she would have written

herself a note if “something out of the ordinary” had occurred, but she apparently did not write

any note. Dusza believed juror Greco answered “yes,” because nothing transpired after his

answer. She testified that the “no” answer was her mistake.

¶ 129 During cross-examination, Dusza testified that the combination of keys used to create the

word “yes” are on a different row of a steno machine than the key combination for the word

“no.” She further testified that in her twenty-eight years of court reporting that she had “never

had a ‘no’ go unnoticed.” She agreed, however, that “[s]ometimes attorneys don’t object.” In

response to questioning by the court, Dusza also testified that the defense attorney was present

when the jury was polled.

¶ 130 An ASA who prosecuted the case against defendant testified that she and her partner

were in the courtroom when the jury returned its verdict. Defense counsel objected to the ASA’s

testimony, arguing that such testimony was not relevant without any kind of documentary

evidence. The trial court permitted the ASA to continue to testify. She testified that juror Greco

had “said the word ‘yes’ ” when asked “was this then and is this now your verdict.”

¶ 131 The judge observed that he was not “looking over somebody else’s verdict” but was

49

1-14-0369

instead “looking over a verdict that I took myself.” He specifically remembered defendant’s trial

counsel and also recalled specific details of defendant’s various proceedings, which were on his

call for several years. The judge noted that he was “very cognizant” of his procedure and

protocol when conducting jury polling and that he listened clearly when he polled the jury. He

also noted that neither he nor any of the attorneys present at the verdict responded to Greco’s

answer. Finally, the judge found Dusza’s testimony to be credible and consistent with his own

recollection and the recollection of the ASA. Stating that “common sense should rule,” the court

concluded that it was clear that “at no time did Juror Greco ever answer no when he was polled.”

The court granted the State’s Rule 329 motion.

¶ 132 In accordance with the trial court’s ruling pursuant to Rule 329, the record has been

corrected to reflect that Greco’s response was “yes.”

¶ 133 Defendant has argued in both the trial court and this court that under Rule 329, any

alteration that impeaches or contradicts the record must be based on contemporaneously-

produced documentary evidence, such as the court reporter’s stenographic notes. According to

defendant, the testimony of the participants or the recollection of the trial court alone is

insufficient. See, e.g., People v. Allen, 109 Ill. 2d 177, 184 (1985); People v. Vincent, 165 Ill.

App. 3d 1023, 1030 (1988) (relying on Allen).

¶ 134 We observe, however, that certain principles articulated by the Illinois Supreme Court in

Allen were derived from cases with significantly different facts than those of Allen or the instant

case. For example, in Hartgraves v. Don Cartage Co., 63 Ill. 2d 425, 427 (1976), an in-chambers

discussion was held after one of the 12 jurors was injured and could not continue to serve on the

jury. After this off-the-record discussion, the defendant’s counsel moved for a mistrial in open

court, which the trial court denied. Id. In his posttrial motion, the defendant challenged the denial

50

1-14-0369

of his motion for a mistrial. Id. Prior to the hearing on the defendant’s posttrial motion, the

plaintiff’s counsel submitted an affidavit in opposition to the motion. Id. The affidavit stated that

during the in-chambers discussion, defense counsel had indicated that he would formally object

to proceeding with less than 12 jurors but requested that the judge overrule his objection, and

indicated he was willing to proceed with 11 jurors. Id. The defendant’s counsel submitted an

affidavit denying that he had consented to proceeding with less than 12 jurors. Id. At the hearing

on the posttrial motion six months after the trial, the trial judge stated that he had a clear

recollection of the in-chambers discussion. Id. The trial judge stated that the defendant’s counsel

had suggested he overrule the motion for mistrial and agreed that the trial court proceed. Id. The

trial court denied the defendant’s posttrial motion. Id.

¶ 135 The Illinois Supreme Court in Hartgraves affirmed the judgment of the appellate court,

which had reversed and remanded the matter for a new trial. Id. at 432. In so holding, our

supreme court stated that “any corrections of or additions to the record which contradict the clear

and unambiguous contents of the record must be supported by something other than the ‘clear

memory’ of the trial judge.” Id. Our supreme court noted that there was no disagreement

regarding whether the record accurately disclosed what occurred in court. Id. at 429.

¶ 136 In Allen, 109 Ill. 2d at 184, the Illinois Supreme Court—citing Hartgraves and another

civil case—stated that “[i]t is well established that a party may not prove an inaccuracy in the

record merely by presenting oral testimony.” Our supreme court in Allen concluded that the trial

court’s correction of a transcript was proper where, among other things, the State presented the

original stenographic notes which supported its contention that the transcript of proceedings was

incorrect. Id. Although the stenographic notes in the instant case do not support the finding of an

inaccuracy as was the case in Allen, we do not view Rule 329 as mandating that any alteration

51

1-14-0369

which contradicts the record must be based on contemporaneously-produced physical evidence.

¶ 137 Approximately one year after the Hartgraves decision, the Illinois Supreme Court in

People v. Chitwood, 67 Ill. 2d 443 (1977), approved a correction of the record based on an

affidavit presented by the State and the trial judge’s verification of the accuracy of the affidavit.

In the affidavit, the State averred that the defendant, through his counsel, waived the right to a

jury trial in open court but that waiver was inadvertently omitted from the record. Id. at 446.

Distinguishing Hartgraves, our supreme court held that the State’s motion to amend should have

been allowed. Id. at 448. The Illinois Supreme Court in Chitwood stated that the “question in

Hartgraves was *** not whether the record could be amended, but whether it could be

impeached by showing that a party had made an off-the-record representation inconsistent with

the position which he assumed in the courtroom as shown by the record.” Id. at 447.

¶ 138 We respectfully submit that the facts of the instant case are more akin to Chitwood than

Hartgraves, and that the evidence presented at the Rule 329 proceeding—including the

testimony of the court reporter and the ASA and the detailed recollection of the trial judge—was

sufficient. Rule 329 is a “sweeping provision” that makes it “possible to supply omissions,

correct inaccuracies or improper authentication, or settle any controversy as to whether the

record on appeal accurately discloses what occurred at the trial by the procedure that will most

appropriately solve the particular problem.” Ill. S. Ct. R. 329, Committee Comments (revised

May 1982).

¶ 139 We also find useful guidance in People v. Rockman, 144 Ill. App. 3d 801, 811 (1986),

wherein the State filed a motion to amend the transcript of a witness’s testimony to read “can”

rather than “can’t” with respect to the witness’s ability to see the defendant at the shooting. The

trial court granted the motion based upon the judge’s personal recollection that the witness had

52

1-14-0369

stated “can.” Id. On appeal, the defendant argued that a court may allow an amendment of the

record of proceedings solely based on its own recollection provided that the amendment does not

impeach or contradict the record. Id. Rejecting this “narrow perspective,” the appellate court

stated that “the proper perspective is to view the amendment in the context of the entire record to

determine if it contradicts the evidence as a whole.” Id. In affirming the judgment, the appellate

court discussed other testimony from the witness that supported the conclusion that he could see

the defendant. Id. at 811-12. The appellate court also noted the trial court’s observation that the

witness spoke “ ‘in a broken tongue,’ easily misinterpreted by the court reporter.” Id. at 812.

¶ 140 As in Rockman, the amendment of the record herein “resolves, rather than creates,”

contradictions. Id. at 811. Absent the amendment, the record would reflect that juror Greco

signed the verdict form finding defendant guilty, but then disagreed with the verdict during jury

polling, yet no one in the courtroom—including the trial judge, the defense attorneys, the ASAs,

and any court staff—noticed or reacted in any manner. We further note that the trial court

inquired during voir dire whether Greco, an immigrant to the United States, “had any trouble

with the English language.” Such inquiry suggests that Greco—like the Rockman witness— may

have a distinctive accent that could have been misinterpreted by the court reporter. We find that

the correction of the record was not contradictory to the record and the trial court properly

granted the motion to correct the record.

¶ 141 For the foregoing reasons, we conclude that there was no error, and thus there was no

plain error. Thompson, 238 Ill. 2d at 611. “An appellate issue is moot when it is abstract or

presents no controversy.” People v. Brown, 204 Ill. 2d 422, 425 (2002). The correction of the

record to reflect that juror Greco answered “yes” during the jury polling has rendered the jury

polling issue moot, and thus we need not consider the issue further. See id. (noting that “[a]n

53

1-14-0369

issue can become moot if circumstances change during the pendency of an appeal that prevent

the reviewing court from being able to render effectual relief”). Finally, the parallel Rule 329

motion filed with this court and taken with the case is hereby denied as moot.

¶ 142 Ineffective Assistance of Counsel

¶ 143 Defendant contends that his trial counsel “unreasonably omitted three meritorious issues

from his [posttrial] motion: the improper use of [his] post-arrest silence, the juror’s dissent

[from] the verdict, and the improper admission of [his] prior conviction.” In determining whether

a defendant was denied the effective assistance of counsel, we ordinarily “apply the familiar two-

prong test established in [Strickland v. Washington, 466 U.S. 668 (1984)].” Cherry, 2016 IL

118728, ¶ 24. To prevail on a claim of ineffective assistance of counsel under Strickland, a

defendant must show both that counsel’s performance was deficient and that the deficient

performance prejudiced the defendant. Id.

¶ 144 We have rejected defendant’s contentions regarding the State’s use of his silence during

rebuttal closing argument. We have further concluded that the trial court did not err in admitting

defendant’s conviction for possession of contraband in a penal institution for impeachment

purposes. Defendant’s trial counsel was not ineffective for failing to preserve these claims.

“ ‘Defense counsel is not required to make futile motions or objections in order to provide

effective assistance.’ ” People v. Smith, 2014 IL App (1st) 103436, ¶ 64, (quoting People v.

Glass, 232 Ill. App. 3d 136, 152 (1992)). See also Anderson, 2012 IL App (1st) 103288, ¶ 53

(stating that “[g]iven that the deviation from [the] drafting committee’s directives was not

erroneous, it was not objectively unreasonable for defense counsel to fail to address this issue

through objection or a posttrial motion”). Furthermore, as discussed above, juror Greco did not

dissent from the verdict—as is now reflected in the corrected record—and thus defense counsel

54

1-14-0369

was not ineffective vis-à-vis jury polling.

¶ 145 CONCLUSION

¶ 146 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

The State’s request for fees and costs is denied.

¶ 147 Affirmed.

¶ 148 JUSTICE GORDON, specially concurring:

¶ 149 I concur in the judgment and with the majority's opinion. I write separately because I

must respectfully disagree with the majority's finding that the invited error doctrine does not

apply to the jury-note issue.

¶ 150 At 6:24 p.m., the jurors began their deliberations. At 8:13 p.m., less than two hours later,

the jurors sent out a note, stating: "Can self-defense be a mitigating factor? (Definition of

mitigating factor is unclear on sheet)." After discussing the note with the attorneys from both

sides, the trial court sent back a response stating, "you heard the evidence, you have the

instructions of law. Please continue to deliberate." The following morning, after the jurors had

reconvened, they reached a verdict, finding defendant guilty of first degree murder.

¶ 151 On appeal, defendant claims that the trial court committed plain error when it failed to

clarify further the law of self-defense in response to the jury's note. Defendant argues that "how

the jury would consider self-defense in relation to first- and second-degree murder was the

decisive issue in the case."

¶ 152 The jurors were properly instructed on the law of self-defense, and how it related to first

and second degree murder, before they retired to deliberate, and defendant does not claim on

appeal that the original instructions were improper.

¶ 153 After receipt of the note, the ASA observed that "they're aware of the instructions, that

55

1-14-0369

they're find[ing] it confusing." The trial court agreed, stating that it found the pattern instructions

on this issue "confusing, and I've been doing this for you know, 30 years." Thus, further

explanation would have required the trial court to go outside of the pattern instructions, and

neither the State nor the defense sought or tendered a non-pattern instruction. The trial court

observed that, while it "could refer them to the definition of mitigating factor,” they already

"kn[e]w about it." The jury note itself indicated that the jurors were well aware of the

"[d]efinition of mitigating factor" that was "on [the] sheet" given to them. The trial court

expressed the concern that giving them more than the pattern instructions was tantamount "to

giv[ing] them an answer that's going to infer a verdict."

¶ 154 Defense counsel suggested the following response: "you can instruct them on the law,

please continue your deliberations. You have all the evidence and the instructions under the

law." When the trial court observed that "the standard response" would be to refer them to the

pattern instructions defining murder and mitigating factor, defense counsel stated: "And what

about self-defense?" That is when the ASA observed that the jurors were clearly aware of the

pattern instructions that they had received and had found the pattern instructions confusing. The

trial court then decided to give, in essence, the response that the defense had originally proposed:

"you heard the evidence, you have the instructions of law. Please continue to deliberate."

Neither attorney objected.

¶ 155 On appeal, defendant does not argue that the pattern instructions on these issues were

improper, and he did not ask to provide the jurors with the non-pattern explanation that they

were seeking. The trial court's response echoed, almost word-for-word, what defense counsel

had proposed.

¶ 156 A party cannot invite an error by the trial court and then use it as a basis for appeal.

56

1-14-0369

"Under the invited-error doctrine, a party cannot acquiesce to the manner in which the trial court

proceeds and later claim on appeal that the trial court's actions constituted error." People v.

Manning, 2017 IL App (2d) 140930, ¶ 16. See also People v. Cox, 2017 IL App (1st) 151536, ¶

73; People v. Hughes, 2015 IL 117242, ¶ 33 ("the invited error rule" states that "a party cannot

complain of error that it brought about or participated in"); People v. Bush, 214 Ill. 2d 318, 332

(2005) (when a party "procures, invites or acquiesces" to a trial court's evidentiary ruling, even if

the ruling is improper, he cannot contest the ruling on appeal). "Simply stated, a party cannot

complain of error which that party induced the court to make or to which that party consented."

In re Detention of Swope, 213 Ill. 2d 210, 217 (2004).

¶ 157 Even if we were to find that the invited error doctrine did not apply and we considered

the issue under the plain error doctrine, I agree with the majority, for the reasons stated in its

opinion, that the alleged error did not rise to the level of plain error. As the majority already

discussed in its opinion, the evidence at trial was overwhelming, and therefore did not constitute

first-prong plain error. Supra ¶¶ 96-98. The victim's mother testified that she observed defendant

repeatedly stabbing her son and the police testified that, when they arrived, defendant was still

stabbing him. Specifically, Officer Curry testified that, as he reached the bottom of the stairs, he

observed that the entryway to the basement "was covered by a curtain or some kind of partition"

and he heard what "sounded like to" him was someone "getting stabbed." Curry described the

sound as "a squishing, a repeatedly [sic] like a chi, chi, chi." After Curry drew his weapon and

instructed another officer to pull back the curtain, he observed defendant straddled over the

victim, who was not moving. Supra ¶¶ 18-19. It is hard to argue self-defense in the face of such

evidence. Similarly, the alleged error does not rise to second-prong plain error, as the majority

explains (supra ¶ 118), where the jury instructions were complete and proper.

57

1-14-0369

¶ 158 In addition, I cannot find that defense counsel's performance constituted ineffective

assistance of counsel. First, "what instructions to tender" is generally a matter of trial strategy.

People v. Lowry, 354 Ill. App. 3d 760, 766 (2004); People v. Mims, 403 Ill. App. 3d 884, 890

(2010) (" 'Defense counsel's choice of jury instruction is considered a tactical decision, within

the discretion of defense counsel.' " (quoting People v. Bobo, 375 Ill. App. 3d 966, 977 (2007))).

Our supreme court has instructed its appellate courts to "be highly deferential to trial counsel on

matters of trial strategy, making every effort to 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). "[A] mistake in trial strategy" will not, by itself, render representation

constitutionally defective. People v. Peterson, 2017 IL 120331, ¶ 80.

¶ 159 Second, even if we were to assume that counsel's performance was deficient, defendant

cannot establish the second prong of the Strickland test: that, but for counsel's unprofessional

errors, the result of the proceeding would have been different. People v. Domagala, 2013 IL

113688, ¶ 36 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). Since a defendant

must satisfy both prongs of the Strickland test in order to prevail, a court may dismiss the claim

on the prejudice prong alone. People v. Peterson, 2017 IL 120331, ¶ 79; People v. Cherry, 2016

IL 118728, ¶ 24; People v. Flores, 153 Ill. 2d 264, 283 (1992). In the case at bar, defendant

cannot establish prejudice where the evidence was overwhelming that he stabbed the victim

repeatedly, while remaining virtually unscathed. Supra ¶ 98.

¶ 160 In addition, I am not persuaded by the dissent concerning the State's remarks in its

rebuttal closing. As the majority opinion explains, the complained-of remarks primarily

concerned defendant's prearrest silence (supra ¶ 102), and, to the extent that some remarks can

be construed as referring to postarrest silence, they did not rise to the level of plain error, for the

58

1-14-0369

reasons already explained in the majority opinion. Supra ¶¶ 96-106. In addition, defendant

testified that he told the police that he was acting in self-defense and counsel's remarks may have

been for impeachment purposes.

¶ 161 For the foregoing reasons, I concur with the majority opinion.

¶ 162 JUSTICE LAMPKIN, dissenting.

¶ 163 I respectfully dissent. I disagree with the majority’s summary of the evidence and plain

error analysis regarding the issue of the prosecutor’s improper use of defendant’s postarrest

silence for impeachment purposes. I disagree with the majority’s conclusion that defendant has

not met his burden to show that the prosecutor’s use of defendant’s postarrest silence constituted

a clear error that was so serious as to deny him a fair trial and challenge the integrity of the

judicial process. Furthermore, I reject the State’s assertion on appeal that its challenged remarks

fall within an exception to the general rule that questions and remarks by a prosecutor regarding

a defendant’s postarrest silence are improper. I also disagree with the majority’s conclusion that

a general jury instruction given here—i.e., that closing arguments are not evidence but merely

summaries of how the attorneys think the evidence can be interpreted—preempted the jury from

considering the improper comments as evidence. I would find that the State’s improper recross-

examination of defendant and extensive commentary during rebuttal closing argument about his

postarrest silence and failure to tell the police that he acted in self-defense were substantial errors

that require reversal and a new trial.

¶ 164 Whether statements made by a prosecutor at closing argument were so egregious that

they warrant a new trial is a legal issue subject to de novo review. People v. Wheeler, 226 Ill. 2d

92, 121 (2007). In reviewing a defendant’s claims of prosecutorial misconduct in closing

argument, the court considers closing arguments in their entirety in order to place the challenged

59

1-14-0369

remarks in context (People v. Johnson, 385 Ill. App. 3d 585, 604 (2008)), and “asks whether or

not the comments engender substantial prejudice against a defendant such that it is impossible to

say whether or not a verdict of guilt resulted from them.” Wheeler, 226 Ill. 2d at 123.

“Misconduct in closing argument is substantial and warrants reversal and a new trial if the

improper remarks constituted a material factor in a defendant’s conviction.” Id. “If the jury could

have reached a contrary verdict had the improper remarks not been made, or the reviewing court

cannot say that the prosecutor’s improper remarks did not contribute to the defendant’s

conviction, a new trial should be granted.” Id.

¶ 165 I disagree with the majority’s belief that a conflict exists concerning whether a reviewing

court should apply an abuse of discretion analysis or de novo review to allegations challenging a

prosecutor’s remarks during closing argument. A careful review of supreme court precedent

establishes that no such conflict exists and the supreme court has applied the two standards of

review separately to the appropriate issue addressed on appeal. Specifically, in People v. Blue,

189 Ill. 2d 99, 128–34 (2000), the court held that the trial court abused its discretion by

permitting the jury to hear the prosecutor’s arguments that the jury needed to tell the police it

supported them and tell the victim’s family that he did not die in vain and would receive justice.

In contrast, in Wheeler, 226 Ill. 2d at 121–31, the supreme court reviewed de novo whether a

new trial was warranted based on the prosecutor’s repeated and intentional misconduct during

closing argument, which involved vouching for police credibility, attacking defense counsel’s

tactics and integrity, disparaging former defense counsel, and persistently stating that the

prosecution was representing the victims. Whereas a reviewing court applies an abuse of

discretion analysis to a trial court’s determinations about the propriety of a prosecutor’s remarks

during argument (Blue, 189 Ill. 2d at 128), a court reviews de novo the legal issue of whether a

60

1-14-0369

prosecutor’s misconduct, like improper remarks during argument, was so egregious that it

warrants a new trial (Wheeler, 226 Ill. 2d at 121). Our supreme court has not created any conflict

about the appropriate standard of review to be applied to these two different issues.

¶ 166 According to the record, Officer Curry testified that his gun was drawn when Officer

McPherson pulled the curtain open and Curry observed defendant straddled over a motionless

Moore. Neither Moore nor defendant said anything to Curry. Curry did not see a weapon in

defendant’s hand. When Curry raised his gun, defendant and Curry “kind of just looked at each

other” and then defendant jumped up and went around to a side of the basement outside of

Curry’s view. The officers went back up the stairs. Curry’s testimony did not mention

defendant’s silence after Curry raised his gun. Furthermore, Officer Bankhead’s testimony did

not mention defendant’s silence when Bankhead, with his gun pointed at defendant, guided him

up the basement stairs.

¶ 167 Defendant testified that he acted in self-defense because Moore had attacked him. Also,

defendant said he told Sharp, after she came down to the basement to break up the fight, that she

should call the police. Defendant claimed that the police officers never came down the basement

stairs and he immediately complied when they told him to come up the stairs.

¶ 168 When the assistant State’s Attorney (ASA) began her recross-examination of defendant,

she asked:

“Q. When you saw the police, you didn’t say to them, ‘I had to defend

myself,’ did you?

A. Actually when I came up—yes, I said that yes.

THE COURT: I’m sorry?

A. Yes.

61

1-14-0369

Q. [ASA MS. WARD] The first time you’re actually saying that is today

in this court, isn’t that correct?

A. As far as I mean—

Q. That you had to defend yourself?

A. No.

MR. TYSON [defendant’s attorney]: Objection, Judge.

THE COURT: Objection will be sustained.”

¶ 169 During rebuttal closing argument, the ASA argued that only Moore asked Sharp for help,

defendant’s testimony that he asked Sharp for help was a lie, and defendant said nothing when

Officers Curry and McPherson came. The ASA argued that a person who killed an attacker in

self-defense would shout it from the highest mountain and thank God when the police arrived.

Although defense counsel objected, the trial court overruled the objection. The ASA continued,

arguing that if the police told a person acting in self-defense to drop the knife, the person would

explain to the police that he was defending himself from the attacker but, here, defendant “said

nothing to the police” and ran toward the back of the basement. Even after Officer Bankhead

arrived and defendant had exited the basement and had “his hands up,” defendant did not say

“listen, it’s a mistake, I am not the one, I am a victim, I was attacked, I had to do it.” Nor did

defendant tell Sharp to call an ambulance due to this horrible event. The ASA stated, “Yeah, if

you were truly justified, if you were truly not guilty, that’s what you would do, and that’s not

what [defendant] did, and that’s how you know.”

¶ 170 Due process precludes a prosecutor from impeaching a defendant’s exculpatory

testimony, offered for the first time at trial, by cross-examining the defendant regarding his

failure to inform the police of his explanation after he was arrested and had received Miranda

62

1-14-0369

warnings. Greer v. Miller, 483 U.S. 756, 761–62 (1987); Doyle v. Ohio, 426 U.S. 610, 619

(1976). Although federal law permits impeachment of a defendant with evidence that he was

silent anytime before receiving Miranda warnings (Fletcher v. Weir, 455 U.S. 603, 605-07

(1982)), Illinois evidence principles prohibit impeachment of the defendant with his postarrest

silence either before or after receiving Miranda warnings (People v. Quinonez, 2011 IL App

(1st) 092333 ¶ 26). This Illinois rule is based on our supreme court’s pre-Miranda decisions in

People v. Lewerenz, 24 Ill. 2d 295, 299 (1962), and People v. Rothe, 358 Ill. 52, 57 (1934),

which held that an accused’s silence at the time of his arrest is neither relevant nor material

because his exercise of his right to remain silent has no tendency to prove or disprove the

charges against him. Because this Illinois rule is based on evidentiary principles rather than

constitutional law, the rule is unaltered by the holdings in federal cases that the use of a

defendant’s pre-Miranda silence is not a constitutional violation of the defendant’s due process

rights. See Fletcher, 455 U.S. at 607; People v. Homes, 274 Ill. App. 3d 612, 619-20 (1995).

¶ 171 There are limited situations where a defendant’s postarrest silence may be used for

impeachment purposes. If the defendant testifies at trial to an exculpatory version of events and

also claims to have told the police the same version upon arrest, then the State may impeach him

with evidence that he did not do so. Doyle, 426 U.S. at 619 n.11; People v. Rehbein, 74 Ill. 2d

435, 441-42 (1978). Similarly, if a defendant’s exculpatory testimony at trial is manifestly

inconsistent with voluntary statements he made after his arrest, then comment or evidence about

his failure to give the same statement at that time does not violate the Doyle rule. People v.

Frieberg, 147 Ill. 2d 326, 353-54 (1992); People v. Beller, 74 Ill. 2d 514, 522-23 (1979).

¶ 172 Here, the prosecutor improperly questioned defendant regarding his postarrest silence and

her questions did not fall within an exception to the rule against using a defendant’s postarrest

63

1-14-0369

silence against him. Defendant did not testify on direct examination that he told the police he

acted in self-defense, so the prosecutor was not attempting to elicit impeachment when she asked

him on recross-examination, “When you saw the police, you didn’t say to them, ‘I had to defend

myself,’ did you?” and “The first time you’re actually saying that [you had to defend yourself] is

today in this court, isn’t that correct?” Furthermore, there was no evidence that defendant spoke

to the authorities before trial, so the State possessed no statements manifestly inconsistent with

his trial testimony that could properly be used for impeachment purposes. Arguably, the

prosecutor’s first question does not fit neatly within the category of a Doyle violation because it

may refer to a time before defendant received the Miranda warnings. I believe, however, that the

prosecutor’s follow-up question clearly constitutes a Doyle violation because it refers to a time

period that includes defendant’s formal arrest, during which he would have received the Miranda

warnings.

¶ 173 Although the trial court sustained defense counsel’s late objection to this questioning, the

jury was never given a curative instruction. Furthermore, the improper recross-examination of

defendant was later compounded by the prosecutor’s extensive comments during rebuttal closing

argument about defendant’s postarrest silence. Although defense counsel timely objected to the

prosecutor’s initial improper remark, the trial court overruled the objection and the prosecutor

continued her line of argument by impersonating what a person who acted in self-defense would

have said to the police at the scene. The prosecution is given wide latitude in closing arguments,

but this latitude is not so wide as to encompass these improper comments regarding defendant’s

postarrest silence. People v. Simmons, 293 Ill. App. 3d 806, 813 (1998).

¶ 174 Defendant forfeited review of this issue by failing to both timely object and include the

issue in his posttrial motion (see People v. Enoch, 122 Ill. 2d 176, 186 (1988)); however, he

64

1-14-0369

seeks review under both prongs of the plain error doctrine or, alternatively, as a claim of

ineffective assistance of counsel. Although I would not find that the evidence in this case was

closely balanced, I would find that a clear error occurred and defendant met his burden to show

the error was so serious as to deny him a fair trial and challenge the integrity of the judicial

process. See People v. Herron, 215 Ill. 2d 167, 187 (2005). In People v. Dameron, 196 Ill. 2d

156, 163–66 (2001), the court, in the context of determining whether a Doyle violation was

harmless error, considered (1) the party who elicited the testimony about the defendant’s silence;

(2) the intensity and frequency of the references to the defendant’s silence; (3) the use that the

prosecution made of the defendant’s silence; (4) the trial court’s opportunity to grant a mistrial

motion or to give a curative jury instruction; and (5) the quantum of other evidence proving the

defendant’s guilt. I believe these same factors are helpful in the context of plain error analysis.

¶ 175 Here, the prosecution elicited the testimony about defendant’s silence and made frequent

and forceful references to his silence to damage his credibility and undermine his claim of self-

defense, factors which were critical to his defense. The issue of second degree murder, which is a

lesser mitigated offense of first degree murder, was before the jury, so the jury had to decide

whether defendant thought he was defending himself during the struggle with Moore even if

defendant’s belief was unreasonable. Furthermore, the jury never received any curative

instruction about the improper use of defendant’s postarrest silence. Accordingly, the jury may

have deemed it appropriate to consider defendant’s postarrest silence during the jury’s

deliberations because the trial court overruled defense counsel’s objection to the prosecutor’s

improper remarks during rebuttal closing argument about defendant’s postarrest silence. Under

these circumstances, the State’s improper cross-examination and rebuttal argument about

defendant’s postarrest silence impinged upon his substantial right to remain silent. Accordingly,

65

1-14-0369

defendant should not be held to his forfeiture of this issue.

66