People v. Daniel

2022 IL App (1st) 182604

SIXTH DIVISION
Filing Date March 31, 2022

No. 1-18-2604
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
) Cook County.
v. )
) No. 07 CR 25224
ALEX DANIEL, )
) The Honorable
Defendant-Appellant. ) Carl B. Boyd,
) Judge, Presiding.

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Alex Daniel was convicted of the first degree murder of

his wife, Brenda Daniel (decedent), and personal discharge of a firearm. He was sentenced to

an aggregate 65-year prison term, 40 years for murder with a 25-year enhancement for personal

discharge of a firearm. Defendant raises six issues on appeal: (1) he was not proven guilty

beyond a reasonable doubt where the State presented no competent evidence showing that he

was home when decedent was shot; (2) the trial court erred when it allowed the introduction
 No. 1-18-2604

of an audio recording obtained from the marital home found by decedent’s son after the

shooting; (3) he was denied a fair trial where the State argued facts not in evidence during

closing arguments and violated the trial court’s pretrial evidentiary rulings during trial by

eliciting prejudicial testimony; (4) the trial court abused its discretion where it allowed

evidence of a prior domestic violence incident under section 115-7.4 (725 ILCS 5/115-7.4

(West 2016)) of the Code of Criminal Procedure (Code) where the incident involved conduct

that was factually dissimilar to the charged offense and its prejudicial effect outweighed any

probative value; (5) the trial court violated defendant’s sixth amendment right to represent

himself when it forced him to choose between proceeding pro se and engaging an expert

witness that was necessary to his defense; and (6) the trial court erred when it failed to conduct

an inquiry into defendant’s pro se claim of ineffective assistance of counsel in his posttrial

motion for new trial, pursuant to People v. Krankel, 102 Ill. 2d 181 (1984). Oral argument was

held on March 10, 2022. For the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 The circumstances of this case stem from the May 23, 2007, shooting of decedent at the

parties’ residence located at 717 Oxford in Matteson. Police responded to a 911 hang-up call

made from the residence and found her lying unresponsive in the dining room at approximately

9:30 a.m. Decedent was transported to the hospital, where she died from her injuries the

following day. Defendant was subsequently arrested on October 17, 2007, after being located

in Milwaukee, Wisconsin.

¶4 A. Pretrial Proceedings

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¶5 Prior to trial, both sides filed motions seeking evidentiary rulings by the trial court. 1

¶6 The record indicates that defendant filed several motions to suppress an audio recording

that was allegedly found in the residence after decedent’s death. Defense counsel first filed a

motion to suppress the recording on June 11, 2009, on the basis that the State was unable to

lay a proper foundation for its admission. The trial court ordered the State to have the device

tested to determine when the recording was made and to proffer how it would satisfy the other

requirements necessary to lay a foundation for its admissibility. The State subsequently sent

the device to the Federal Bureau of Investigation (FBI) for testing, and a report was received

on September 30, 2011. The trial court made preliminary rulings on January 25, 2012, after

hearing the recording: (1) barring the State from eliciting testimony from decedent’s children

confirming that it was decedent’s voice on the recording; (2) finding that it was relevant; (3)

finding that the foundation for admissibility was established by the FBI’s indication that there

was no tampering with the device or the recording; and (4) ruling that the recording could be

presented for its weight. The trial court also indicated that the State must establish a proper

foundation as to how the police gained possession of the recording device and if that was not

presented sufficiently, the evidence would not come in.

¶7 On November 18, 2011, defense counsel filed a motion to suppress a spiral notebook

recovered from the residence on the basis that it was the product of an illegal search. The trial

court denied the motion, finding that it was subject to the inevitable discovery rule.

¶8 The next motion to suppress was filed by defense counsel on September 10, 2012, and

challenged the admissibility of the recording under the eavesdropping statute (720 ILCS 5/14-

1
Defendant’s case was originally assigned to Judge Zelezinski until January 2017, then to Judge
Boyd beginning in February 2017, who conducted defendant’s trial.

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1 et seq. (West 2012)) because defendant did not consent to recordings of his conversations

with the decedent. The trial court denied the motion.

¶9 Defendant’s jury trial was originally scheduled to begin on June 17, 2014. However,

on April 8, 2014, defendant filed a motion for the appointment of counsel other than the Public

Defender’s Office, which the trial court denied. On May 15, 2014, defendant presented a

written motion to proceed pro se. He also filed motions to suppress the recording and to inspect

the recording device, which were both denied by the trial court. The court admonished

defendant under Supreme Court Rule 401 (eff. July 1, 1984) and granted his request for self-

representation on June 3, 2014. On June 19, 2014, defendant requested to view the notebook

that was taken from the residence and additionally requested the recording device, tapes, and

batteries. He also requested transcripts of the audio recording and all court proceedings to date

on August 25, 2014, by filing a motion to compel the State’s Attorney’s Office to provide these

items to him. On August 27, 2014, defendant filed a second motion to suppress the audio

recording, which was denied on September 14, 2014. Meanwhile, on September 3, 2014,

defendant filed a motion for the assignment of a private investigator and an expert investigator

to analyze the capability of the recording device. The hearing on defendant’s various motions

was continued over several court dates.

¶ 10 The trial court admonished defendant that the case was seven years old and that a trial date

had been set prior to his decision to proceed pro se. The court stated that it was not a question

of his indigency but a matter of his choice to represent himself that placed him in the position

of having to prepare for trial and initiate discovery on his own. The trial court further

admonished defendant that his indigency entitled him to the services of an attorney who could

initiate discovery and investigate on his behalf, but because he chose to represent himself, he

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was responsible for securing those services on his own; there was no requirement that the court

provide any of those services for him just because he was pro se. The State indicated that it

would bring a computer and the discs to court so that defendant could listen to the audio

recording and view the photos. The State also indicated that it would order the transcript from

a previously argued suppression hearing and provide it to defendant. The State reiterated that

the entire case file from the Public Defender’s Office was tendered to defendant but if there

were any documents that defendant felt were not included, the State would make sure he

received them so the case could move forward to trial.

¶ 11 Defendant filed a motion to reconsider the denial of his motion for an expert investigator

and numerous additional pro se motions that were all denied. On April 2, 2015, defendant

asked for the public defender to be reappointed because he felt that he was not making any

progress in his self-representation. The record reflects that the Public Defender’s Office was

reappointed to represent defendant on April 10, 2015.

¶ 12 On June 24, 2016, the State filed a motion in limine to introduce evidence of a 2003

domestic violence incident between defendant and decedent to show knowledge, identity, and

propensity to commit domestic violence offenses pursuant to section 115-7.4 of the Code (725

ILCS 5/115-7.4 (West 2016)). In support of the motion, the State indicated that decedent called

the police in 2003, and when they arrived, she had head injuries. Defendant was questioned

and a Rossi .38-caliber revolver was found in the residence. Defendant was arrested and the

gun was returned to decedent. The State argued that the circumstances of the 2003 incident

were similar to the date of the 2007 shooting: the same parties, similar head injuries to

decedent, both calls were made in the morning, the same marital residence, and a 911 hang-up

call placed both times. The State also noted that the gun, previously found in the marital

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bedroom, was missing from the residence in 2007. Defendant challenged the motion, arguing

that no gun was found on him in 2003, only bullets, and that he was trying to keep the bullets

from decedent. Further, defendant argued that no gun was recovered in the instant case so there

was no way of knowing whether the same gun was involved. Defendant also claimed that the

motion was based on hearsay evidence from the officers as there were no witnesses besides

him and decedent to the prior incident. On July 22, 2016, the trial court ruled that evidence of

the prior incident was admissible to show identity and knowledge.

¶ 13 On March 24, 2017, defense counsel filed a motion in limine to exclude the audio recording

based on the State’s alleged discovery violation wherein the State failed to preserve the

recorder’s memory chip which would have allowed for independent testing by the defense.

Defense counsel argued that the FBI damaged the device when it removed the chip, and that

the chip later malfunctioned, making it impossible for further testing to be conducted.

According to defense counsel, the chip would have had information regarding the dates and

lengths of the recordings. Consequently, defense counsel sought to bar admission of the

recording as a sanction against the State, which the trial court denied, finding that there was no

bad faith by the State, that the recording itself was not the essence of the charge against

defendant, and further that no preservation order had been issued.

¶ 14 Defense counsel also filed a motion in limine on numerous issues on November 14, 2017.

After a hearing, the trial court ruled that the State was precluded from: (1) mentioning that

decedent intended to divorce defendant; (2) mentioning defendant’s use of alcohol or drugs;

(3) referencing any other incident of domestic violence with decedent or any other family

members outside of the 2003 incident when defendant was arrested; (4) mentioning that

defendant was featured on America’s Most Wanted in connection with the case; and, (5)

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introducing evidence of defendant’s character traits. The trial court reserved its ruling as to

whether the State would be allowed to introduce evidence of two 38-caliber live rounds of

ammunition found by police at the Gary, Indiana home of defendant’s friend, Leon Patterson.

Additionally, pursuant to a later motion, the State was precluded from eliciting testimony from

the 911 operator that there were multiple prior domestic calls from the residence, but the

operator could testify to a firearm on the premises during the 2003 incident.

¶ 15 Defendant subsequently filed a pro se motion to dismiss the indictment, which defense

counsel did not adopt. The trial court admonished defendant that he was represented by counsel

and inquired as to whether he intended to proceed on the motion and to represent himself going

forward. The motion was ultimately denied and resulted in defendant’s trial date being

rescheduled again.

¶ 16 B. Defendant’s Trial

¶ 17 Defendant’s jury trial ultimately commenced on August 7, 2018, after jury selection.

Defendant was initially charged with six counts of first degree murder, but the State nol-

prossed counts one through four.

¶ 18 Lisa Gryczewski testified that she was employed by SouthCom Dispatch, one of the

dispatch centers for Matteson, Park Forest, Olympia Fields, and Richton Park for 13 years. She

was working on May 23, 2007, and as part of her job, she took emergency and nonemergency

calls. The center where she worked had an enhanced 911 system, meaning that when a call

came in, if it was from a landline number, she could see the address, the resident’s name, and

the GPS coordinates. At approximately 9:25 a.m., Gryczewski received a 911 call from 717

Oxford in Matteson. When she asked what the emergency was, she heard a click. Gryczewski

stated that the policy was to “open a call or incident” with any address, so she “opened a

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dispatch” and was going to dispatch officers. However, she was unable to dispatch any officers

immediately because no one was available, so Gryczewski followed the office protocol and

notified the Matteson police supervisor that there was a 911 hang-up call holding, gave him

the address, and told him that there were previous calls from that address for domestic. Defense

counsel’s objection to the implication of multiple prior domestic calls was sustained after a

sidebar outside the presence of the jury, and the trial court admonished the jury to disregard

the last statement. Gryczewski then testified that some information related to a previous call

was associated with that address, and she notified the Matteson police supervisor that there

was a previous domestic with a gun. Defense counsel objected and there was a second sidebar

held in chambers. Defense counsel argued that the testimony was contrary to the motion in

limine. The State requested to ask Gryczewski a leading question to cure the error, which the

trial court allowed. In the presence of the jury, the trial court sustained the objection and

admonished the jury to disregard the last statement regarding a domestic call involving a gun.

The State then asked Gryczewski whether the previous domestic call involved a gun on the

premises, and she responded affirmatively.

¶ 19 Officer Beck testified that he worked for the Matteson Police Department for 12 years as a

patrol officer. On May 23, 2007, he was on patrol when he heard a dispatch call regarding a

911 hang-up at 717 Oxford at approximately 9:29 a.m. Another officer indicated that he was

going to that residence, but subsequently requested assistance, so Beck also went to the

residence. As Officers Beck and Puklo approached the front door, Puklo told him that the door

was unlocked, and they entered the residence. Beck saw a woman lying face down in the dining

room. The officers announced their presence and office. When the woman did not respond,

Beck radioed for paramedics and other units to assist. He and Puklo stood in the doorway until

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assistance arrived to make sure there were no threats inside the residence. Officer Wilson

arrived shortly thereafter, and the three officers entered the residence and searched for any

other people in the house before paramedics were allowed in. They determined that no one was

there besides the victim, who he later learned was decedent. There were no signs of forced

entry. Other officers also arrived at the residence, as well as the paramedics, who transported

decedent to the hospital. Beck saw no firearm or shell casings near decedent’s body or

anywhere in the house.

¶ 20 On cross examination, Beck clarified that he never searched the garage although one of the

other officers did. He never saw anyone run out of the garage with a gun or anyone speeding

past him as he approached the residence. Beck stated that when he entered the residence, he

heard decedent moaning. He also stated that he remained at the scene for more than an hour,

protecting it until he was relieved by detectives, although he could not recall which detectives

arrived first.

¶ 21 Sergeant Robert Wilson testified that he worked with the Matteson Police Department for

23 years, and he was a patrol officer on May 23, 2007, when he responded to the call for backup

at 717 Oxford. When he arrived, he entered the residence with Officers Beck and Puklo. He

saw decedent lying on the floor with blood around her head and he attempted to communicate

with her, but she was unresponsive. Decedent was moving one leg and gasping slightly. When

the ambulance arrived, decedent was taken from the residence. Wilson did not see any firearm

or shell casings around decedent’s body, nor did he see any guns in the residence. He stated on

cross examination that he did not search or secure the garage, and that he directed other officers

to secure other parts of the premises. Wilson recalled that Officer Brady rode in the ambulance

with decedent to the hospital.

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¶ 22 Steven Smith testified that in May 2007, he worked as a floor installer for Kingston Tile at

Kennedy King College. Defendant was working with him at that time, and he identified

defendant in court. Smith was defendant’s immediate supervisor and defendant had been

working with him for approximately six weeks on that project. He previously worked with

defendant off and on several times over the past 10 to 15 years, and defendant called him

“Smitty.” Smith stated that on May 22, 2007, defendant was going to pick up his check for him

and bring it to work the next day. Defendant was scheduled to work at 6 a.m. on May 23, 2007,

but he did not show up. Smith called defendant just after 7 a.m. to find out whether he was

coming to work. Defendant told him that he would be at work in about an hour, but he never

arrived for work that day. Smith stated that he never saw or spoke with defendant again until

that day in court. Smith also testified that workers in their field typically had their own tools

which were kept at the worksite, and defendant left his tools at the worksite on May 22, 2007.

To his knowledge, defendant never came back for his tools, nor did he ever bring Smith’s

paycheck. Smith subsequently requested a new check. Smith recalled that defendant worked

on May 21 and May 22, 2007, and that defendant had recently purchased a green Mountaineer

SUV that was giving him trouble. Defendant told Smith that his wife was mad that he

purchased the vehicle and told him to take it back. Smith also stated that defendant mentioned

that his wife was talking about getting a divorce. During a sidebar outside the presence of the

jury, defense counsel objected that Smith’s statement regarding divorce violated the motion in

limine. The trial court sustained the objection and admonished the jury to disregard it. Smith

subsequently testified that defendant told him that he was having marital problems. Smith also

identified a photo of a green Mountaineer as defendant’s SUV.

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¶ 23 On cross examination, Smith testified that he called defendant on his cell phone on May

23, 2007. On recross examination, Smith stated that defendant answered his cell phone and

that they had a conversation.

¶ 24 Michael Fisher, a computer scientist with the FBI in the Milwaukee field office, testified

that he worked for the FBI for 14 years and that he had previously testified in court as an expert

in the field of computer data retrieval. The parties stipulated that Fisher was an expert, and the

trial court declared him as a computer expert of computer data retrieval.

¶ 25 Fisher received a voice recorder from the Matteson police department while he was

working at the FBI lab in Quantico, Virginia (Quantico). He checked it for identifying features

before examining it. The recorder had no batteries, so he put new batteries in it. When the unit

powered on, “CHK” flashed on the screen, which indicated a memory malfunction, and the

unit could not access the data itself. Fisher decided to open the device and physically remove

the memory chip from it. He identified in court the Olympus VN 4100 voice recorder that he

examined in connection with the case based on the FBI evidentiary markings. Fisher also

identified the memory chip that was removed from the device in court, which was housed in

an electrostatic bag, based on the FBI markings. In examining the memory chip, Fisher placed

it into an electronic device and recovered its data. He explained that the data on the chip came

out in a large bin file which he then ran through a tool he and other engineers at Quantico

developed to read such files. Fisher was then able to recover 10 recordings and place them onto

a compact disc (cd) that could be played through any recording playing tool. Fisher identified

the cd containing the converted recordings in court and stated that he listened to the recordings

earlier that day. He opined that the recorder was functioning properly when it made the

recordings, and that the memory chip and audio recordings were not tampered with or altered

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in any way. Fisher made a duplicate copy of the cd to be analyzed by the audio section of the

FBI lab and it was forwarded to Kenneth Marr at the lab. Fisher also testified about how the

voice recorder functioned. He indicated that it could capture recordings in three ways: by

pressing the record button; through voice activation; and by a preset timer. He stated that he

did not know what mode was used to capture the recordings, but it was his opinion that when

they were made, the recorder was functioning properly, and the files were untampered with.

Fisher also stated that besides the chip that he removed from the recorder, the chip and device

were in substantially the same condition a when he last worked on them.

¶ 26 Fisher testified on cross examination that he received the recorder in October 2010 from

Matteson Officer Arvin and that the scope of his work was to examine the recorder and the

recordings and to determine if any tampering took place. Before examining the subject device,

Fisher obtained an identical device to test its functionality, its capabilities and what happens

when the chip was removed. He stated that there were no timestamps on any of the recordings

he retrieved from the subject device, nor was he able to determine the volume level used to

activate automatic recording on the device because the device malfunctioned, and he was

unable to review its settings. Fisher testified that the particular device allowed for a recording

to have its own track or add to a previously-recorded track by starting it again, and also allowed

a user to move files around on the device into folders. He decided to open the device and

remove the memory chip as the best way to avoid accidentally damaging any data inside of it.

The device did not have a port to connect to a computer; an audio jack would have to be

plugged into the earphone jack of the recorder and then that cord plugged into a microphone

jack on a computer. Files could also be copied in the same manner and files could be spliced

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together on the computer and then uploaded to the device. He further stated that he could not

tell time intervals between recordings.

¶ 27 On redirect, Fisher testified that while it was possible to upload files to the recorder from

a computer, the user would need a sufficient level of electronic expertise to do so. He again

opined that the files from the data chip were not tampered with in any way and that the recorder

was functioning properly when it made those recordings. On recross, Fisher stated that the

recordings appeared to come from the device; however, if they came from a computer, he

would have no way of knowing.

¶ 28 Defense counsel requested a side bar when the State sought admission of its exhibits related

to the device and the recordings. Defense counsel argued that there was no foundation laid for

admission of those exhibits, while the State argued that the foundation was laid through the

silent witness doctrine. The trial court found that the exhibits were admissible under the silent

witness doctrine and that defense counsel’s objections went to the weight of the evidence, not

to its admissibility. The court then admitted them into evidence.

¶ 29 Kenneth Marr testified that he was a forensic audio examiner with the FBI in Quantico and

had worked for the FBI for 22 years. He stated that he had previously testified as an expert in

the field of audio signal analysis, and the parties stipulated that Marr was an expert in the field.

Accordingly, the trial court allowed Marr to testify as an expert witness in audio signal analysis

with his notes.

¶ 30 Marr explained that an audio signal analysis examination included four separate types of

analysis: (1) critical listening and audio review, where he would listen to the foreground and

background sounds in the recording and write down what he heard; (2) narrow band signal

analysis, where the recording is put into the computer to generate a display, which he watched

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for tones or periodic sounds that were steady in the background and would appear as a spike

on the display; (3) high resolution waveform analysis, which generated a computer display as

he listened to the audio through headphones, thus looking at the sound while listening to it;

and (4) spectrographic analysis, which analyzed the frequency content of the sound, and which

was advantageous when listening to voices. Marr identified the FBI cd he received from Fisher

and stated that he was asked to examine the recording on the cd for a loud impulse noise and

to possibly determine if the impulse sound at a certain time in the recording was a gunshot. He

performed the four-part examination on the recording, listing the sounds he heard but he could

not find a gunshot impulse that sounded and behaved like a normal gunshot sound that he had

analyzed in the past. Marr stated that he could not determine whether the sound was a gunshot

because the quality of the sound did not support a definitive finding. He testified that while the

Olympus 4100 worked great for recording the frequency band for human voices, it was not the

type of recorder that would work well or be able to record very loud impulse sounds.

Additionally, the recorder had a voice-activated feature, and he noted several instances where

it appeared that a voice-activated event took place during the recording, so he could not say

for certain if that was the reason why the recording was of insufficient quality, but it was a

possibility.

¶ 31 On cross examination, Marr stated that the recording was of insufficient quality to

determine if there was a gunshot present due to the excessive distortion and the lack of

resolution. He was also unable to conduct a voice comparison examination because the

recording was of insufficient quality and duration. Marr testified that this information came

from the report of another examiner in his lab, which was common practice when the recording

was analyzed back in 2011. He also familiarized himself with the functionality of the device,

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noted that there were no timestamps and that he could not determine the time intervals of

recording because when a voice-activated feature was used, it turned on and off and only

recorded what was loud enough to activate it. Marr further testified that his notes reflected that

authenticity of the recording was not possible due to an unknown original audio format.

¶ 32 On redirect, Marr testified that the microphone on the recorder was not designed to pick up

loud impulse sounds and further that the particular recorder used was designed to compress the

quality factors in the recording to allow for more recording time.

¶ 33 Officer Amy Lillibridge testified that she was employed with the Cook County Sheriff’s

Police for 26 years, and on May 23, 2007, she was working as an evidence technician. She

attended decedent’s autopsy and took photos during the autopsy. Lillibridge identified a

medium caliber deformed projectile that she received after decedent’s autopsy and delivered it

to the Matteson Police Department. She identified various photos of decedent’s body as it

appeared at the morgue, noting the bullet hole behind her left ear which had been stapled during

decedent’s medical care.

¶ 34 Viedell Stewart, decedent’s son, testified that he was 46 years old and lived in Phoenix,

Arizona. He stated that he had another brother and two sisters and identified a photo of

decedent in court. According to Stewart, decedent worked for the United States Postal Service

(post office) for approximately 28 years. She married defendant in 2003, who Stewart

identified in court, and they lived at 717 Oxford for a few years prior to the date of the shooting.

He visited decedent at her home about once per year and last saw her on March 7, 2007, when

she came to Las Vegas for his wedding. Stewart last spoke to decedent on the Thursday prior

to the shooting and explained that decedent called him weekly on Thursdays just to check in.

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¶ 35 On May 23, 2007, Stewart was living in St. Paul, Minnesota. Between 4 p.m. and 5 p.m.

on that date, Stewart was visited by officers from the St. Paul Police Department, who told him

to call an officer at the Matteson Police Department, but they did not tell him why. He called

and spoke to a detective, who verified his identity before telling him that decedent had been

shot and was in the hospital. Stewart called his siblings, and they began the seven and one-half

hour drive to Illinois. They went directly to the hospital, where they saw decedent, who was

intubated, and her head was wrapped in a bandage. Other family members and friends who

lived in Illinois were already present, but defendant was not there. Stewart testified that

defendant did not call or visit the hospital. At approximately 9 p.m. on May 24, 2007, while

he and other family members were at the hospital waiting to hear if the doctors would be able

to operate on decedent again, an announcement came over the intercom and doctors rushed

into decedent’s room. Afterwards, a doctor and police officer gathered the family in another

room and told them that decedent had passed away. Defendant was not present for the

announcement, never called while Stewart was at the hospital, and he never heard from

defendant during that time or since. Stewart subsequently identified decedent’s body at the

morgue. The family held a funeral for decedent and defendant did not assist in making any of

the arrangements, nor did he attend the funeral. Stewart testified that he had many occasions

to become familiar with decedent’s handwriting and identified her handwriting on a page taken

from a notebook.

¶ 36 On May 24, 2007, Stewart testified that he and other family members went to decedent’s

residence before going back to the hospital. Defendant was not there, and neither was a green

SUV. After the police released the house to him, Stewart went inside and saw a big pool of

blood in the living room, before going upstairs where the bedrooms were located. He testified

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that decedent and defendant usually “stayed” in the master bedroom to the left of the stairs, but

when he went to that room, decedent’s things were not there. He then went to the middle

bedroom at the top of the stairs where he saw his mother’s things. Stewart stated that only

decedent and defendant lived in the house, there was men’s clothing in the master bedroom

closet, men’s toiletries in the bathroom, and items belonging to defendant in the house. While

going through his mother’s things in the middle bedroom, Stewart found some type of recorder

under a pillow and tried to play it, but it did not work. When he changed the batteries, the

recorder worked, and Stewart and other family members listened to some of the recordings.

Stewart kept the recorder in a safe place before he and his family subsequently listened to more

of the recordings after decedent’s funeral. He subsequently called the Matteson Police

Department and a detective picked up the recorder from him.

¶ 37 After decedent’s death, Stewart was the executor of her estate and was in charge of taking

care of the house. He never saw defendant at the house; men’s clothing and toiletries were still

at the house, and two cars were in the garage. Defendant was not part of the process of clearing

the house or selling its contents, and the men’s belongings were discarded. Stewart identified

the cd containing the audio recording that the State had played for him earlier, after which the

State sought to publish the recording to the jury.

¶ 38 Defense counsel requested a sidebar, and counsel objected to the cd being published based

on improper foundation and relevancy. The State responded that the issue of relevancy had

been previously ruled upon in four pretrial motions. The State also made an offer of proof that

the portion of recording contained on the cd began with a phone call from Smitty, who had

already testified that he called defendant at approximately 7 a.m. on May 23, 2007. The State

argued that this set the stage for what it believed was the gunshot and subsequent death of

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decedent later in the recording. The State concluded that it was seeking Stewart’s identification

of the recording as what he listened to in May 2007, which was relevant. It was not seeking

the identification of any voices or of a gunshot, which would violate the pretrial order.

¶ 39 Defense counsel stated that Stewart told police that his brother initially recovered the

recording device and gave it to him, and that Stewart could not establish the proper foundation

for the recorder or its contents. Over defense counsel’s objection, the trial court allowed the

recording to be published. The State then played the disc in court and Stewart identified it as a

recording of what he originally heard on the recorder in May 2007.

¶ 40 On cross examination, Stewart testified that he met defendant before decedent married him,

they were not close, and he never spoke with him on the phone. He stated that at the time of

her death, decedent was working the morning shift at the post office, and it had been a few

months since he visited decedent’s home. Stewart acknowledged that the recordings were not

timestamped and was unable to say whether the recorder had a date/time capability because it

had been 11 years and he could not remember. He stated that he contacted the Matteson Police

Department approximately a week after decedent’s death on May 31, 2007, and spoke with

officers. He stated that he did not tell police that his brother Anthony found the recorder and

did not remember calling Anthony before the police arrived. Stewart acknowledged that he

had no personal knowledge of the date or time any of the recordings took place as he was not

in the residence when they were made.

¶ 41 The parties stipulated to the business records for the finance and purchase of defendant’s

2000 Mercury Mountaineer as certified by Nationwide Financial. The vehicle was purchased

on April 24, 2007. The State also introduced the parties’ marriage certificate dated June 19,

2003.

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¶ 42 The parties also stipulated that Walter Daniels would testify that he was the security

manager for Jewel-Osco located at 7530 Stony Island Avenue in Chicago. He was alerted by

loss prevention agent Willie Ross that a green Mercury Mountaineer had been parked in the

store parking lot for over two weeks. Loss prevention contacted a dealership in Kankakee based

on information from the vehicle. Subsequently, Daniels contacted the South Suburban Major

Crimes Task Force on June 13, 2007, and later than day he met with detectives and reviewed

surveillance camera footage showing the SUV entering and parking in the lot on May 24, 2007.

After reviewing the surveillance footage in the security office with the detectives, Daniels

copied the surveillance footage to a cd that he gave to the detectives and later identified the

State’s exhibit 28-A as the cd he gave to them.

¶ 43 Detective Shawn White testified that he worked for the Matteson Police Department for

just over 17 years and was working on May 23, 2007, as a detective in investigations. He was

assigned to investigate decedent’s shooting at 717 Oxford, which became a homicide the

following day once she died. As part of his investigation, he and Detective Tanya Eskridge

went to a hotel in Bourbonnais on May 31, 2007, to speak with decedent’s son, Stewart. At

that meeting, Stewart gave him a gold Olympus voice recorder which he identified in court.

During the conversation with Stewart, he was informed that Stewart’s younger brother found

the recorder in his mother’s residence and that he was present when the recorder was first

listened to. Detective White returned to Matteson and inventoried the recorder, before giving

it to Sergeant Arvin. Detective White testified that on May 25, 2007, they were still trying to

locate defendant, who he identified in court, through phone records and linking addresses to

the numbers called from defendant’s phone. As part of the investigation, Detective White

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 No. 1-18-2604

interviewed Leon Patterson at his home on May 25, 2007, and after speaking with Patterson,

Detective White searched a chair in Patterson’s home and found bullets.

¶ 44 At this point, defense counsel made a request for a side bar after objection. Defense counsel

considered the line of questioning to be “stealth hearsay” as there was no connection between

defendant, Patterson’s home, and bullets found there. Defense counsel acknowledged that

defendant spent the night there on May 23, 2007, but that alone did not tie him to any bullets

found there. The State responded that there was no such legal concept as “stealth hearsay,” and

that the information was relevant. The trial court sustained the objection regarding any

testimony related to the bullets because there was no nexus between the bullets at Patterson’s

home and defendant. The jury was subsequently instructed to disregard any comments made

in connection with finding bullets.

¶ 45 On cross examination, Detective White testified that in May 2007 he worked with a team

of detectives. He reasserted that he and Detective Eskridge went to a hotel on May 31, 2007,

and spoke with Stewart about a recorder found by his brother Anthony at decedent’s home.

However, Detective White never talked to Anthony. He also never went into decedent’s

residence because he was not at work when the case was assigned and later learned that the

residence had been “processed” by the Cook County Sheriff's Department, meaning that

evidence was collected, and photos were taken. Detective White had no personal knowledge

as to where in decedent’s house the recorder was recovered from.

¶ 46 Forensic scientist Nicole Fundell testified that she worked for the Illinois State Police

Forensic Command at the Joliet Forensic Science Laboratory since April 2001, and that she

specialized in firearm and tool mark examination and identification. The parties stipulated that

she was an expert in the field of firearms and ballistics identification and the trial court

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 No. 1-18-2604

qualified her as such. Fundell testified how she identified firearms and markings on fired

projectiles. She identified a sealed plastic bag containing one silver fired bullet jacket and one

large gray fragment of a bullet core which she had previously examined. She looked at the

bullet core and found it unsuitable for further comparisons. She also examined the fired bullet

jacket and determined it was a .380, 9mm, .38 or .357 class bullet based on its groove

impressions. Fundell testified that the list of possible firearms that may have shot that bullet

would include a Rossi .38 special based on the lands and grooves inside Rossi firearms and

those present on the fired bullet jacket. However, because she did not have the firearm to match

it, she could only say generally what may have been able to fire the bullet. Fundell explained

the difference between a revolver and a semiautomatic handgun, namely that a revolver’s fired

cartridge cases stayed in the gun’s cylinder until they were manually removed while a

semiautomatic ejected the fired cartridge case each time it was fired. She stated that the Rossi

.38 special was a revolver.

¶ 47 On cross examination, Fundell confirmed that her examination of the bullet did not

conclude a single caliber but a set of similar calibers which all had the same bullet diameter

but had different weights and cartridge cases that they were inside of. On redirect, Fundell

stated that she could not precisely identify the gun that ejected the bullet because there was no

gun to examine, but reconfirmed that a Rossi .38 special revolver could have fired the bullet.

¶ 48 Sergeant Kenneth Arvin testified that he worked for the Matteson Police Department for

28 years, but was retired at the time of trial. On May 23, 2007, he was sent to 717 Oxford

because a woman had been shot in the house. When he arrived, he saw a woman lying on the

floor in the dining room. Arvin was the supervisor of the investigation division and he spoke

to officers on the scene, walked through the residence and around the perimeter of the

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No. 1-18-2604

residence. Arvin testified to the layout of the inside of the residence, which he described as a

trilevel home. He went to the second floor where the bedrooms were located and saw an open

spiral notebook on the bed in the middle bedroom, which he identified in court. He identified

the caption on the open page of the notebook said “dumb and dumber” with three exclamation

points. The page had a series of questions and some statements on it. Arvin testified that he

subsequently found a cordless phone on a kitchen counter next to the doorway that led into and

from the dining room . He approximated the distance between where the phone was found and

where the decedent was lying to be about five or six feet, and recalled that the charging cradle

for the phone was in the dining room near decedent. Arvin also indicated that there were two

empty beer bottles on the opposite end of the counter. Arvin identified photos showing the

master bedroom closet, which was full of men’s clothing and a case of beer that matched the

bottles in the kitchen, as well as a photo of a garbage can next to the master bedroom closet,

with several empty beer bottles inside. Arvin testified that he did not observe any shell casings

or bullet holes in the dining room, there were no signs of forced entry on any of the inside

entryways to the residence, nor were there any open or broken windows. Arvin also stated that

the garage door was closed, the patio doors were locked and, as he walked the outside perimeter

of the residence, he saw no damage or signs of forced entry. He also entered the attached two-

car garage and saw two vehicles, a Honda, and a Cadillac with an open trunk. Arvin testified

that the laundry room door facing the residence’s lower level family room was damaged and

identified the damage in photos. After leaving the residence, Arvin notified the South Suburban

Major Crimes Task Force, which came to Matteson to investigate the case. He also tried to

reach defendant to notify him of decedent’s shooting by calling the number associated with the

residence’s alarm billing. A male answered the phone and when he asked for defendant, the

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 No. 1-18-2604

man replied, “wrong number” and hung up. Arvin then attempted to reach defendant at

Kingston Tile, but it went to voicemail, and he left a message. Defendant never returned

Arvin’s call. Arvin also learned what type of vehicle defendant was driving on May 23, 2007,

and based on information uncovered by the task force, Arvin had a “wanted” flyer printed for

defendant and his vehicle, a 2000 green Mercury Mountaineer. A search warrant was

subsequently executed at decedent’s residence.

¶ 49 On cross examination, Arvin testified that he arrived at 717 Oxford before 10 a.m. on May

23, 2007. He acknowledged that he did not know whether any clothing had been removed from

the master closet or how long the garbage or beer was present in the closet. He also stated that

the television was on in the master bedroom when he arrived, and a radio was playing in the

kitchen. Arvin went back to the residence with a search warrant around 3:30 p.m. and Cook

County evidence technicians and Detective Eskridge conducted the search. A search warrant

for defendant’s vehicle was also obtained, and it was searched once it was recovered. No prints

or gunpowder residue were discovered during the searches. On redirect, Arvin testified that he

saw blood on the phone in the kitchen, and that he sent a voice recorder to the FBI in Quantico

for analysis.

¶ 50 The parties stipulated that Dr. Arunkumar, the chief medical examiner at the Cook County

Medical Examiner’s Office, was an expert in the field of forensic medicine. Arunkumar

reviewed decedent’s autopsy because the doctor that performed the autopsy was no longer with

the office. Decedent’s body had injuries including a gunshot wound on the left side of her head,

just behind the left ear. The wound was stapled because decedent had been treated at the

hospital. A medium caliber white metal jacket fragment and a lead bullet fragment were

recovered from decedent’s brain. There was no evidence of close-range firing and Arunkumar

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 No. 1-18-2604

explained that even though the wound was cleaned, the puncture marks or stippling do not

wash away. Decedent also had a purple bruise on her forehead with bleeding underneath, an

irregular bruise on her upper left eyelid, two purple bruises on her front left forearm, a bruise

on her right knee, and irregular bruises on both legs. No alcohol was found in decedent’s

system. Decedent’s cause of death was homicide from a gunshot wound to the head, which

caused brain hemorrhaging and cerebral edema.

¶ 51 Sergeant Jeremy Sims testified that he worked for the Matteson Police Department for 17

years and was the supervisor of the criminal investigations division at the time of trial. On May

23, 2007, he was a detective assigned to investigate the shooting at 717 Oxford. Sims went to

the residence and saw the decedent lying on the dining room floor, wearing a post office

uniform. Decedent was transported to the hospital, and Sims also went to the hospital to try

and speak with her, but decedent was unable to respond to his questions. Sims identified

defendant in court as decedent’s husband and stated that he unsuccessfully attempted to locate

defendant during the investigation. He later learned the type of vehicle defendant drove as well

as the temporary plate number, 693H556, and an arrest warrant was issued. Sims confirmed

that a flyer was circulated indicating that police were looking for defendant and his vehicle.

On June 13, 2007, Sims was notified that defendant’s vehicle was parked at a Jewel-Osco at

7530 Stony Island in Chicago. He and Arvin went to that location and spoke with a loss

prevention agent and the store supervisor about the vehicle and subsequently viewed

surveillance footage of the vehicle being left there on May 24, 2007. Sims was given a copy

of the footage, which he inventoried and identified in court. The video footage was published

for the jury, and showed a green Mercury Mountaineer pulling into the parking lot and backing

into a space in the upper right side of the lot. The driver exited the vehicle and exited the

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 No. 1-18-2604

parking lot. The driver was described as an African-American man with a short or bald

hairstyle. Sims observed the vehicle in the lot, with the tags registered to defendant, and had it

towed to the Matteson Police Station where a search warrant was executed. There was no

damage to the vehicle, and it was never reported stolen. Sims learned through the investigation

that defendant’s brother-in-law lived near that Jewel-Osco location. On October 13, 2007, he

received a tip about defendant’s whereabouts and contacted the U.S. Marshal’s Office

(Marshal’s Office). On October 17, 2007, the Marshal’s Office indicated that defendant was

arrested in Milwaukee, Wisconsin. Sims then went to Milwaukee and took custody of

defendant. On cross examination, Sims stated that he was unsure who lived at the residence

where defendant was arrested.

¶ 52 Matteson police officer Ray Murray testified that he was a patrol officer for 16 years and

was a patrol officer on November 18, 2003, when he responded to a 911 hang-up call at 8:44

a.m. at 717 Oxford. When he arrived, he saw defendant, who he identified in court, and

decedent. He saw that decedent had swelling around her right eye, a cut on her lip and scratches

on her neck; those injuries were documented in photos. Murray recovered a Rossi .38 special

revolver from the master bedroom, which was left with decedent when the officers left with

defendant in custody for domestic battery. Defendant was processed at the station. Murray did

not see any injuries to defendant that morning. On cross examination, Murray testified that he

did not check defendant’s entire body for injuries when he was arrested.

¶ 53 The State moved to have all of its exhibits admitted into evidence. Defense counsel

continued their objection to the admission of the voice recorder and audio recordings. The trial

court admitted all of the State’s evidence, including the voice recorder and audio recordings

over the previously noted defense objections. The State then rested its case.

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 No. 1-18-2604

¶ 54 Defense counsel moved for a directed finding, which was denied. The trial court then held

an instructions conference with the State and the defense, after which defendant was

admonished as to his plea of not guilty, his right to jury trial and his right to testify on his own

behalf. Defendant chose to remain silent. Both the State and defense rested, and the case then

proceeded to closing arguments. The trial court admonished the jury that closing arguments

were not evidence, that it would instruct the jury on the law and then they would retire for

deliberations.

¶ 55 During the State’s closing argument, the defense objected to the following statements,

which are relevant to this appeal: (1) on May 23, 2007, decedent was so scared of defendant

that she wanted somebody to know what she knew in case she was not around to say it; and

(2) defendant changed his life by leaving his family here; the police could not find “them” 2

here.

¶ 56 Defense counsel argued in closing that “what the State just said was not evidence” and that

it was the State’s burden to prove defendant guilty beyond a reasonable doubt. The State

objected to the statement that the “State could not string together what happened on that day

for you.” Defense counsel’s closing focused on the circumstantial nature of the State’s case

and the lack of direct evidence against defendant.

¶ 57 Defense counsel objected to the State’s rebuttal argument regarding defendant’s failure to

attend decedent’s funeral or contact her family members.

¶ 58 After closing arguments, the trial court admonished the jury about its evidentiary rulings

during the trial and reiterated that arguments by the attorneys were not evidence. The court

2
The record is unclear whether the State was referring to defendant not being here or that his
family was also not found here.

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 No. 1-18-2604

then gave the jury instructions, including an instruction on circumstantial evidence. During

deliberations, the jury requested to view the surveillance footage and listen to the audio

recording. Everyone exited the courtroom except the sheriff so that the jury could listen to and

view those items.

¶ 59 On August 9, 2018, the jury returned a verdict of guilty for first degree murder and a

finding that defendant personally discharged a firearm. The case was continued until

September 7, 2018, for posttrial motions.

¶ 60 C. Posttrial Proceedings

¶ 61 On August 27, 2018, defendant sent a handwritten letter to Judge Brewer, the presiding

judge of the sixth district, in which he alleged that the trial judge (Judge Boyd) erred in

admitting the recording at his trial because the State failed to establish a proper chain of

custody. He also questioned the trial judge’s experience in criminal law and requested a new

trial.

¶ 62 On the same date, defendant also sent a pro se motion to Judge Boyd’s attention, in which

he argued that the recording should not have been admitted based on the lack of foundation

established by the State and that he received ineffective assistance of counsel because they

failed to locate and interview his former neighbor, Mr. Ojelade. Mr. Ojelade reportedly told

police that he arrived home 11 minutes prior to the 911 call and did not see defendant or any

other vehicle in the driveway or in front of the residence. Further, defendant argued that

counsel failed to visit the crime scene to take photos, interview neighbors, and recover relevant

evidence of the victim inviting married men to their residence.

¶ 63 At the September 7, 2018, court date, defense counsel acknowledged that defendant sent a

handwritten note to the court as well as a pro se motion for new trial, but stated that defendant

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 No. 1-18-2604

wished to withdraw the letter and the motion for new trial. The trial court asked defendant

about the letter and the motion and defendant responded that he wanted to pursue only his

motion for the return of property. Defense counsel indicated that they had no idea what

defendant was referring to. The trial court asked defendant if he wanted to withdraw his motion

for new trial and defendant responded affirmatively.

¶ 64 On the same date, defense counsel filed a motion for new trial in which it argued that the

State made prejudicial, inflammatory, and erroneous statements in closing argument designed

to arouse the prejudices and passions of the jury, which prejudiced defendant’s right to a fair

trial. A supplemental motion for new trial was filed on October 26, 2018, which argued that:

(1) the trial court erred in allowing the recordings into evidence because the State failed to lay

a proper foundation for the recorder and its contents, and failed to establish a proper chain of

custody; (2) the trial court erred in allowing the State to introduce the contents of the recording

because there was no witness who testified that the contents fully reflected a conversation and

the State failed to provide a foundation for the recording as required by People v. Smith, 321

Ill. App. 3d 669 (2001); (3) the trial court erred in admitting the voice recorder and its contents

because the chip malfunctioned and defendant had no opportunity to comprehensively examine

it; (4) the trial court’s ruling did not allow the State to identify the voices on the recording

through expert testimony which made the voice recorder and its contents irrelevant and the

jury should not have been allowed to make that conclusion; (5) the voice recorder and contents

should not have been admitted under the silent witness theory pursuant to People v. Sangster,

2014 IL App (1st) 113457; (6) the trial court erred in allowing evidence of the 2003 domestic

violence incident because its prejudice outweighed any probative value; (7) the State failed to

prove him guilty beyond a reasonable doubt when it failed to present any evidence that

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 No. 1-18-2604

defendant was present when the decedent was shot; (8) the trial court erred in failing to appoint

an investigator for defendant when he represented himself pro se; and (9) the trial court erred

in failing to provide funds to defendant for an expert witness to examine and analyze the

capability of the voice recorder when defendant was pro se and previously determined to be

indigent, thus prejudicing his waiver of counsel contrary to the due process clause of the United

States Constitution.

¶ 65 The trial court denied the motion on October 26, 2018, and the case was scheduled for

sentencing on December 12, 2018. Defendant was subsequently sentenced to an aggregate 65-

year prison term, and his motion to reconsider his sentence was denied. Defendant’s timely

notice of appeal followed.

¶ 66 II. ANALYSIS

¶ 67 On appeal, defendant contends that: (1) he was not proven guilty beyond a reasonable doubt

where the State presented no competent evidence showing that he was home when the decedent

was shot; (2) the trial court erred when it allowed the introduction of an audio recording

obtained from the marital home found by decedent’s son after the shooting; (3) he was denied

a fair trial where the State argued facts not in evidence during closing arguments and violated

the trial court’s pretrial evidentiary rulings that barred the State from eliciting prejudicial

testimony; (4) the trial court abused its discretion where it allowed evidence of a prior domestic

violence incidence under section 115-7.4 (725 ILCS 5/115-7.4 (West 2016)) of the Code of

Criminal Procedure (Code) where the incident involved conduct that was factually dissimilar

to the charged offense and its prejudicial effect outweighed any probative value; (5) the trial

court violated defendant’s sixth amendment right to represent himself when it forced him to

choose between proceeding pro se and engaging an expert witness that was necessary to his

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 No. 1-18-2604

defense; and (6) the trial court erred when it failed to conduct an inquiry into defendant’s pro

se claim of ineffective assistance of counsel in his posttrial motion for new trial, pursuant to

People v. Krankel, 102 Ill. 2d 181 (1984).

¶ 68 A. Forfeiture

¶ 69 At the outset, we note that two of the issues that defendant raises on appeal were not raised

in his posttrial motion. Specifically, defendant failed to include his arguments that (1) the audio

recording should not have been admitted under the eavesdropping statute, and (2) the State’s

closing argument argued facts not in evidence. Additionally, defendant failed to object to the

complained-of statements by the prosecutor during closing arguments. In general, a defendant

preserves an issue for review by timely objecting to it and including it in a written posttrial

motion. People v. Colyar, 2013 IL 111835, ¶ 27; People v. Marzonie, 2018 IL App (4th)

160107, ¶ 51. Because defendant failed to include these matters in his motion for new trial or

to even object to the now complained-of statements during trial, they are forfeited. People v.

Enoch, 122 Ill. 2d 176, 186 (1988). We note that waiver is the intentional relinquishment of a

known right, whereas forfeiture is the failure to make a timely assertion of a known right.

People v. Dunlap, 2013 IL App (4th) 110892, ¶ 9; People v. Hibbler, 2019 IL App (4th)

160897, ¶ 51.

¶ 70 Defendant acknowledges that he failed to preserve these issues for consideration on appeal;

however, he contends that they are reviewable under the plain error doctrine. He argues that

the erroneous admission of the audio recording can be reviewed under the first prong of plain

error, while errors in the State’s closing argument can be reviewed under both prongs of plain

error.

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 No. 1-18-2604

¶ 71 The plain error doctrine allows a reviewing court to address defects affecting substantial

rights if the evidence is closely balanced or if fundamental fairness so requires it rather than

finding the claims forfeited. People v. Woods, 214 Ill. 2d 455, 471 (2005). A defendant raising

a plain error argument bears the burden of persuasion. People v. Thompson, 238 Ill. 2d 598,

613 (2010). The first step in a plain error review generally is to determine whether any error

occurred, and the burden is on defendant to establish that such error occurred. Id. Accordingly,

to establish plain error, a defendant must first show that a clear or obvious error occurred (id.),

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 (People v. Naylor, 229 Ill. 2d

584, 593 (2008)) or that the error was sufficiently grave that it deprived defendant of a fair trial

(People v. Herron, 215 Ill. 2d 167, 187 (2005)).

¶ 72 In determining if the evidence was close, a reviewing court must evaluate the totality of

the evidence and conduct a qualitative, commonsense assessment of the evidence within the

context of the case. Marzonie, 2018 IL App (4th) 160107, ¶ 53 (citing People v. Sebby, 2017

IL 119445, ¶ 53). If the defendant meets his burden, he has demonstrated actual prejudice and

his conviction should be reversed. Id. (citing Sebby, 2017 IL 119445, ¶ 51).

¶ 73 When a defendant claims second-prong error, he must prove that a structural error

occurred. Marzonie, 2018 IL App (4th) 160107, ¶ 54 (citing Thompson, 238 Ill. 2d at 613). A

structural error is one that renders a criminal trial fundamentally unfair or unreliable in

determining a defendant’s guilt or innocence. People v. Bowens, 407 Ill. App. 3d 1094, 1101

(2011). Structural errors occur in very limited circumstances, such as the complete denial of

counsel, denial of self-representation at trial, trial before a biased judge, denial of a public trial,

racial discrimination in the selection of a grand jury, or a defective reasonable doubt

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 No. 1-18-2604

instruction. Marzonie, 2018 IL App (4th) 160107, ¶ 54. If the defendant fails to meet his burden

of persuasion, the issue is forfeited, and the reviewing court will honor the procedural default.

Id.

¶ 74 1. Admission of the Recording Under the Eavesdropping Statute

¶ 75 Defendant asserts that the audio recording was obtained in violation of the eavesdropping

statute because he never consented to any recording, which was allegedly made in the privacy

of his own home and there was no way for the State to show that decedent consented to it

either. At oral argument, defendant’s appellate counsel argued that consent was required by all

participants to the conversation and further that violation of the statute disallowed such

recording to be used in any civil or criminal trial. Additionally, appellate counsel conceded

that the statute in existence at the time the recording was first discovered was subsequently

declared unconstitutional and void ab initio. However, appellate counsel argued that the prior

version of the statute would apply and that the recording was inadmissible under that version.

He argues that this forfeited claim of error is reviewable under the first prong of plain error.

¶ 76 We must first determine if any error occurred. The eavesdropping statute in effect from

the time the audio recording was recovered until defendant filed his pro se motions to suppress

based on violations of the eavesdropping statute in 2014 was 720 ILCS 5/14-2(a), 14-5 (West

2006). As noted at oral argument, this statute was declared facially unconstitutional by our

supreme court in People v. Clark, 2014 IL 115776, for being overbroad. When a statute is held

facially unconstitutional, it is void ab initio, meaning that it is as if the law never existed.

People v. Dunmore, 2013 IL App (1st) 121170, ¶ 9.

¶ 77 The parties did not agree as to the implication of a declaration that a statute is

unconstitutional and considered void ab initio. Defendant argued that the proper consideration

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 No. 1-18-2604

is to consider the version of the statute in effect prior to the one that was found unconstitutional,

citing People v. Rodriquez, 313 Ill. App. 3d 877 (2000). In contrast, the State distinguished

Rodriquez and argued that there was no violation of the eavesdropping statute because it did

not exist at the time the recording was recovered because it was declared void ab initio.

Additionally, the State argued that the eavesdropping statute was subsequently amended, and

the recording would have been admissible under the amended version.

¶ 78 Our supreme court has held that when a statute is held facially unconstitutional, it is

unconstitutional in all its applications and is void ab initio. People v. Blair, 2013 IL 114122, ¶

28. The court further clarified that while such a finding does not render a statute nonexistent,

it does mean that the statute was constitutionally infirm from the moment of its enactment and

is, therefore, unenforceable. Id.

¶ 79 Turning to the case at bar, we find that there was no error in the trial court’s admission of

the audio recording as the version of the eavesdropping statute in effect from 2007 until 2014

was declared unconstitutional on its face and was unenforceable. It follows then that if the

statute was unenforceable, there could be no violation. We find Rodriquez distinguishable

because there was no constitutional argument made in that case nor was there a void ab initio

finding for the version of the statute in effect during the course of the case. Our finding that

there was no error by the trial court ends our inquiry for purposes of plain error, and the

procedural forfeiture will stand.

¶ 80 2. The State’s Closing Argument

¶ 81 Defendant also contends that the State committed reversible error when it argued facts not

in evidence during its closing argument. Specifically, defendant argues that the prosecutor

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 No. 1-18-2604

argued facts not in evidence when he speculated as to who the speakers were in the audio

recording and that the decedent used the device to record defendant’s abuse.

¶ 82 In our review of the State’s closing argument, there were a total of three complained-of

comments that defendant objected to: (1) on May 23, 2007, decedent was so scared of

defendant that she wanted somebody to know what she knew in case she was not around to say

it; (2) defendant changed his life by leaving his family here; the police could not find them

here; and (3) statements regarding defendant’s failure to attend decedent’s funeral or contact

her family members. None of the comments that defendant asserts as erroneously arguing facts

not in evidence were objected to during the State’s closing argument or included in his posttrial

motion. Thus, this issue is forfeited.

¶ 83 Defendant concedes that none of the complained-of errors in the State’s closing argument

were preserved for review because they were not included in defendant’s posttrial motion.

However, he asserts that we can review them under both prongs of the plain error doctrine

because the evidence was closely balanced, and the error was serious.

¶ 84 We must first determine if any error occurred during the State’s closing argument.

The State has wide latitude in both its opening statements and closing arguments and may

comment on the evidence and any fair, reasonable inferences it yields. People v. Glasper, 234

Ill. 2d 173, 204 (2009). Prosecutors may not argue assumptions or facts not contained in the

record. Id. However, the State is entitled to comment on the evidence and any reasonable

inferences drawn therefrom (People v. Cruz, 2019 IL App (1st) 170886, ¶ 41), and it may

assume the truth of the State’s evidence (People v. Green, 2017 IL App (1st) 152513, ¶ 77). A

closing argument must be viewed in its entirety, and the challenged remarks must be viewed

in their context. Glasper, 234 Ill. 2d at 204. Statements will not be held improper if they were

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 No. 1-18-2604

provoked or invited by the defense counsel’s argument. Id. It is also improper for the State to

make comments that have no other purpose but to arouse the prejudices and passions of the

jury. People v. Guerrero, 2020 IL App (1st) 172156, ¶ 10. A prosecutor may not misstate the

law or attempt to shift the burden of proof to defendant. People v. Carbajal, 2013 IL App (2d)

111018, ¶ 31. Even if remarks were inappropriate, reversal is only required if they engendered

substantial prejudice against the defendant such that it is impossible to tell whether the verdict

of guilt resulted from them. Guerrero, 2020 IL App (1st) 172156, ¶ 10.

¶ 85 Having examined the State’s closing argument in detail, we cannot say that the State

committed a clear or obvious error in its remarks. The complained-of remarks, namely that the

prosecutor speculated as to who the speakers were in the audio recording and that the decedent

used the device to record defendant’s abuse, were proper inferences from the State’s evidence.

In the audio recording, the male speaker stated “Brenda” several times throughout the clip and

woman responded, so it was a reasonable comment on the evidence for the prosecutor to

speculate that the speakers were defendant and decedent. Additionally, based on the evidence

presented of at least one prior domestic-violence related incident between defendant and

decedent, it was not unreasonable for the prosecutor to state that decedent bought the recorder

to record defendant’s abuse. Those comments were proper based on the State’s assumption of

the truth of its evidence. We conclude that defendant cannot obtain relief under the plain error

doctrine because he fails to demonstrate that any error occurred. Accordingly, the procedural

default will stand.

¶ 86 3. Ineffective Assistance of Counsel

¶ 87 In the alternative, defendant argues that trial counsel’s failure to include these issues in the

posttrial motion was ineffective assistance of counsel. We disagree.

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¶ 88 The standard for reviewing an ineffective assistance of counsel claim is whether the

attorney’s conduct fell below an objective standard of reasonableness and that defendant was

prejudiced by counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To

demonstrate prejudice, defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different, and a

reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

at 694. If either prong of the Strickland test cannot be shown, then the defendant has not

established ineffective assistance of counsel. Id. at 697.

¶ 89 We find that defendant’s claim of ineffective assistance of counsel fails because counsel

was not deficient where any objection to the challenged remarks would have bene unsuccessful

because, as discussed above, those remarks were based on the prosecutor’s reasonable

inferences and assumptions from the State’s evidence. Accordingly, defendant cannot meet his

burden of establishing prejudice as there is no reasonable probability that the outcome of the

trial would have been different if counsel had made futile objections to the prosecutor’s

challenged closing argument remarks.

¶ 90 We now turn our attention to the remainder of defendant’s arguments on appeal.

¶ 91 B. Sufficiency of the Evidence

¶ 92 Defendant contends that the State failed to prove beyond a reasonable doubt that he killed

decedent where there was no competent evidence showing that he was present in the home

when she was shot. He argues that the State’s case was entirely based on circumstantial

evidence that was insufficient to prove that he was guilty beyond a reasonable doubt.

¶ 93 When reviewing the sufficiency of the evidence, it is not the function of the reviewing

court to retry the defendant. People v. Hall, 194 Ill. 2d 305, 329-30 (2000). Rather, the relevant

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inquiry is whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). This standard of review applies in

cases whether the evidence is direct or circumstantial. People v. Saxon, 374 Ill. App. 3d 409,

416 (2007). The credibility of the witnesses, the weight to be given their testimony, and the

resolution of any conflicts in the evidence are within the province of the trier of fact, and a

reviewing court will not substitute its judgment for that of the trier of fact on these matters.

People v. Brooks, 187 Ill. 2d 91, 131 (1999). The testimony of a single witness, if positive and

credible, is sufficient to convict. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009).

Reversal is justified only where the evidence is so unsatisfactory, improbable, or implausible

that it raises a reasonable doubt of defendant’s guilt. People v. Slim, 127 Ill. 2d 302, 307 (1989).

¶ 94 Circumstantial evidence is sufficient to sustain a criminal conviction, provided that such

evidence satisfies proof beyond a reasonable doubt of the elements of the crime charged. Hall,

194 Ill. 2d at 330. The trier of fact need not be satisfied beyond a reasonable doubt as to each

link in the chain of circumstances; it is sufficient if all of the evidence taken together satisfies

the trier of fact beyond a reasonable doubt of the defendant’s guilt. Id. To prove guilt beyond

a reasonable doubt does not mean that a jury must disregard the inferences that flow normally

from the evidence before it. Saxon, 374 Ill. App. 3d at 417.

¶ 95 Here, defendant was tried for first degree murder under section 9-1(a)(2), known as

“knowing murder”- when, in performing the acts that cause the death of an individual, he

knows that such acts create a strong probability of death or great bodily harm. (725 ILCS 5/9-

1(a)(2) (West 2006).

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¶ 96 Viewing the evidence presented at defendant’s trial in the light most favorable to the State,

as we must, we find that a jury could reasonably conclude that defendant committed the

knowing murder of decedent. There was evidence presented at defendant’s trial that his

coworker Smitty called defendant on the morning of the shooting just after 7 a.m. because

defendant was late for work and had picked up Smitty’s paycheck the day prior. The audio

recording appeared to corroborate this phone call as the male speaker on the recording, which

the jury apparently inferred was defendant, greeted Smitty when he received a call. The male

speaker said that he would be at work in an hour, but ultimately did not.

¶ 97 There was also evidence presented that a call to 911 was made from a landline at the

parties’ residence, apparently after the shooting. The police department dispatched officers to

the residence after receiving the 911 hang-up call based on a prior dispatch to the residence

during a domestic incident where a firearm was found on the premises. Smitty’s testimony also

confirmed that defendant and his wife were having marital issues.

¶ 98 When police arrived, decedent was lying face down in a pool of blood in the dining room,

and the firearm previously found there was not in the residence. Police did not find any shell

casings near decedent or elsewhere in the residence. The ballistics expert testified that the

firearm, a Ross .38 special revolver, retained its cartridge cases when fired, which corroborated

why no shell casings were found. A cordless phone was found lying on the kitchen counter

with blood on it, while the phone cradle was found near decedent on the floor. Decedent was

unresponsive and was subsequently transported by ambulance to the hospital where she died

the following day. Police unsuccessfully attempted to reach defendant several times to notify

him that decedent had been shot. The medical examiner testified that decedent had been shot

in the back of her head, near her left ear, and that the cause of her death was homicide.

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¶ 99 Evidence was also presented that defendant never returned to the residence, never returned

to work, did not go to the hospital, and did not attend decedent’s funeral. There was evidence

presented that defendant had recently purchased a green Mercury Mountaineer, through the

financing agreement and Smitty’s testimony. That vehicle was not present at the residence on

the day of the shooting, but was shown on a surveillance video being parked at a Jewel-Osco

located at 7530 S. Stony Island in Chicago and a bald, African-American man exiting the

vehicle, on May 24, 2007, the day after the shooting. The driver exited the vehicle and the

parking lot, leaving the vehicle unattended in the parking lot for two weeks. The vehicle was

identified as belonging to defendant based on the license plates, showed no signs of tampering,

and had not been reported stolen. There was also evidence presented that one of defendant’s

relatives lived near the location where the vehicle was found. Defense counsel corroborated

that defendant stayed with Patterson on the night of the shooting during a sidebar, and the

evidence established that defendant was eventually located, five months later, in Milwaukee.

All of this evidence supports the reasonable inference that defendant fled the area after the

shooting.

¶ 100 With respect to the gunshot wound, there was testimony that the bullet removed from the

decedent’s head could have been fired from a Rossi .38 special revolver which was the type of

firearm police had previously found at the marital residence. Moreover, in addition to the

gunshot wound, the decedent had bruising to her face and neck; similarly, in the prior domestic

violence incident, decedent had head injuries.

¶ 101 Finally, the State presented the audio recording, which the trial court found relevant and

allowed the jury to make its own determination about. While the voices on the audio recording

were never confirmed by any witness to be those of defendant and decedent, the male voice

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addressed “Brenda” throughout the recording, so the jury could have reasonably inferred that

the voices belonged to defendant and decedent. The female voice stated that she was going to

work, decedent’s son testified that she worked for the post office, and decedent was wearing a

postal uniform when her body was found by police. Additionally, although the expert witnesses

were unable to conclusively state that the loud impulse noise on the recording was a gunshot,

the jury could have reasonably determined that it was a gunshot when they listened to the

recording. It was also a reasonable inference for the jury to conclude that the recording took

place on the morning of the shooting based on the Smitty’s phone call, decedent being dressed

in her work uniform and the time of the 911 call.

¶ 102 The reviewing court must allow all reasonable inferences from the record in favor of the

State. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011). It is the trier of fact who bears the

responsibility to assess the credibility of the witnesses, weigh the evidence presented, resolve

conflicts in the evidence, and draw reasonable inferences from the evidence. People v.

Williams, 193 Ill. 2d 306, 338 (2000). We afford the trier of fact great deference (People v.

DePaolo, 317 Ill. App. 3d 301, 306 (2000)) and will not set aside a conviction unless the

evidence is so improbable or insufficient that there remains a reasonable doubt as to

defendant’s guilt (People v. Campbell, 146 Ill. 2d 363, 374 (1992)).

¶ 103 During closing argument, defense counsel argued to the jury that the State failed to

establish that defendant was at the marital residence on the morning of the shooting. Based on

defense counsel’s argument and the State’s evidence presented at trial, the jury was well aware

of the lack of direct evidence of defendant’s guilt, but apparently resolved the lack of direct

evidence in favor of the State and concluded that the circumstantial evidence showed that

defendant was present at the residence that morning, as was its prerogative as the trier of fact.

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See People v. Williams, 2015 IL App (1st) 1300097, ¶ 29. Taken together, the circumstantial

evidence presented by the State as well as defendant’s conduct after decedent’s shooting, we

find that this evidence, when viewed in the light most favorable to the State, allowed a rational

trier of fact to find defendant guilty beyond a reasonable doubt of first degree murder. Slim,

127 Ill. 2d at 307.

¶ 104 C. Violation of the Trial Court’s Preliminary Evidentiary Rulings

¶ 105 Defendant next contends that two of the trial court’s pretrial evidentiary rulings were in

error. First, he argues that the trial court erred when it allowed the introduction of an audio

recording obtained from a device found by the decedent’s son because: 1) the State failed to

lay a proper foundation for its admissibility; 2) the recording had no probative value; and 3)

the malfunctioning of the device after testing was done at the State’s behest warranted

sanctions pursuant to the discovery rules. Additionally, defendant contends that the trial court

abused its discretion when it granted the State’s motion in limine and published evidence of a

prior domestic violence incident to the jury under 725 ILCS 5/115-7.4 (West 2018) where the

incident involved conduct that was factually dissimilar to the offense charged and its

prejudicial value outweighed any probative value.

¶ 106 1. General Principles Regarding Review of Evidentiary Issues

¶ 107 Typically, evidentiary rulings are within the trial court’s sound discretion and will not be

disturbed on review unless the court has abused that discretion. People v. Risper, 2015 IL App

(1st) 130993, ¶ 32 (citing People v. Caffey, 205 Ill. 2d 52, 89 (2001)). This is a highly

deferential standard, where error is only found if the trial court’s ruling is so arbitrary or

fanciful that no reasonable person would agree with the view adopted by the court. Id. The

reason for this deferential standard is that the trial court’s decision to admit evidence is often

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not made in isolation, but rather after consideration of many circumstances, including

questions of prejudice and reliability, which the trial court is in a more suitable position to

analyze than a reviewing court. Id.

¶ 108 Relevance is a threshold requirement that must be met by every item of evidence. People

v. Dabbs, 239 Ill. 2d 277, 289 (2010). All relevant evidence is admissible, except as otherwise

provided by law. Id. Evidence which is not relevant is not admissible. Id.; Ill. R. Evid. 402 (eff.

Jan. 1, 2011). Further, although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence. Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 109 With those general principles concerning the admissibility of evidence in mind, we turn

our attention to consideration of defendant’s specific arguments on appeal. As previously

noted, defendant filed several motions to suppress in an effort to keep the audio recording from

being admitted into evidence.

¶ 110 2. Foundation and Probative Value

¶ 111 Defendant first contends that the State failed to adequately lay the proper foundation for

the admissibility of the audio recording under the silent witness theory and further that the

recording had no probative value where the speakers in the recording could not be identified,

the time between the recordings could not be determined, the date of the recording was

unknown, and the sound was never determined to be a gunshot.

¶ 112 As previously stated, the admissibility of trial evidence rests in the trial court’s sound

discretion, and we will not reverse its ruling absent an abuse of that discretion. People v.

Montes, 2013 IL App (2d) 111132, ¶ 61. There is no doubt that sound recordings are admissible

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if they are otherwise competent, material, and relevant and where a proper foundation is laid.

Id. Under the silent witness theory, a recording may be admitted without the testimony of a

witness with personal knowledge of what the recording portrays as long as there is sufficient

proof of the reliability of the process that produced the recording. People v. Sangster, 2014 IL

App (1st) 113457, ¶ 48. The requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter

in question is what its proponent claims. People v. Reynolds, 2021 IL App (1st) 181227, ¶ 48;

Ill. R. Evid. 901(a) (eff. Jan. 1, 2011). Generally, an audio recording is authenticated when a

participant to the conversation or a person who heard the conversation while it was taking place

identifies the voices of the people in the conversation and testifies that the recording accurately

portrays the conversation. Reynolds, 2021 IL App (1st) 181227, ¶ 49. However, when there is

no witness with personal knowledge of what the recording portrays, a sufficient foundation to

admit the recording may be laid under the silent witness theory. Id. Under that method of

authentication, a recording may be admitted without the testimony of a witness with personal

knowledge of what the recording portrays as long as there is sufficient proof of the reliability

of the process that produced the recording. Id.

¶ 113 This court has previously held that a sufficient foundation may be laid for the admission of

an audio recording by evidence regarding: 1) the capability of the device for recording; 2) the

competency of the operator; 3) the proper operation of the device; 4) the preservation of the

recording with no changes, additions, or deletions; and 5) the identification of the speakers.

People v. Smith, 321 Ill. App. 3d 669, 675 (2001). Our supreme court has stressed that “this

list of factors is nonexclusive” and each case must be evaluated on its own and depending on

the facts of the case, some of the factors may not be relevant or additional factors may be

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considered. People v. Taylor, 2011 IL 110067, ¶ 35. Regardless of the factors used, the

dispositive issue in each case is the accuracy and reliability of the process that produced the

recording. Id.

¶ 114 In the case at bar, we find that the State laid the proper foundation for the audio recording

under the silent witness theory where the recording device was examined by the FBI and there

was expert testimony presented through Fisher as to its capabilities, that the device was

operating properly at the time the recordings were made, and that the recorder or its memory

chip were not tampered with or altered in any way before they were examined. Both items

were inventoried by the FBI and kept in those inventory bags until they were opened for

examination during the pretrial proceedings. Additionally, there is no dispute that the recording

device was recovered from the parties’ residence in the room where decedent was sleeping,

regardless of who initially found it. We conclude that with such testimony, the State presented

sufficient proof of the reliability of the process that produced the audio recording. Unless the

defendant produces actual evidence of tampering, substitution, or contamination, the State

need only establish a probability that tampering, substitution, or contamination did not occur.

People v. Dennis, 2011 IL App (5th) 090346, ¶ 28. Any deficiencies go to the weight rather

than the admissibility of the evidence. Id., (citing People v. Payne, 239 Ill. App. 3d 598, 706

(1993)). No such evidence of tampering, substitution or contamination was presented by

defendant. We therefore conclude that the audio recording was properly authenticated under

the silent witness theory.

¶ 115 Defendant further contends that the audio recording had no probative value but was unduly

prejudicial. We disagree.

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¶ 116 The determination of whether the prejudicial effect of evidence substantially outweighs its

probative value rests within the sound discretion of the trial court. People v. Sims, 2019 IL App

(3d) 170417, ¶ 29. As our supreme court has explained, relevant evidence will not be excluded

merely because it may prejudice the accused. People v. Williams, 181 Ill. 2d 297, 314 (1998).

Rather, a trial judge must weigh the prejudicial effect and probative value of a piece of

evidence. Id. Probative value refers to the relevance of a particular piece of evidence.

¶ 117 Here, we find that the probative value of the recording was not outweighed by its

prejudicial effect. It is clear that the audio recording was relevant to decedent’s murder as it

could have been useful to the jury. The jury could have concluded that the voices on the

recording belonged to defendant and decedent and that Smitty’s call to defendant was captured

on the audio recording, thus establishing that defendant was in the residence the morning of

the shooting. The recording also appeared to corroborate the marital issues between defendant

and decedent as Smitty testified. Additionally, the female voice on the recording stated that

she was going to work, and decedent was wearing her work uniform when she was found lying

on the floor after the shooting. The recording also appeared to reflect police activity at the

residence after the 911 call. We find that the audio recording was clearly relevant. While no

witness identified defendant or decedent as the speakers on the recording, and the recording

posed some prejudice to defendant, the prejudice did not outweigh the probative value, we find

that the prejudice did not amount to reversible error for reasons further discussed below. We

conclude that the trial court did not abuse its discretion in admitting the audio recording.

¶ 118 3. Denial of Sanctions for the Preservation of the Memory Chip

¶ 119 In a related issue, defendant contends that the trial court erred in denying his motion for

sanctions against the State for its failure to preserve the recorder’s memory chip to allow for

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independent testing by the defense, which was a discovery violation. The trial court declined

to issue sanctions, finding that there was no bad faith by the State, the recording itself was not

the essence of the charges against defendant, and there was no order issued for preservation.

Defendant contends that he did not need to show bad faith by the State or have a preservation

order for the trial court to impose sanctions.

¶ 120 We note that a discovery violation can be analyzed under the due process clauses of the

United States (U.S. Const., amends. V, XIV) and State Constitutions (Ill. Const.1970, art. 1, §

2) or under Illinois Supreme Court Rule 415(g)(i) (eff. Oct. 1, 1971). People v. Moore, 2016

IL App (1st) 133814, ¶ 23. In this case, it appears that defendant is only arguing that the trial

court’s failure to exclude the audio recording was an appropriate sanction under the discovery

rules.

¶ 121 Rule 415(g)(i) authorizes a trial court to impose sanctions for a party’s inadvertent failure

to follow discovery orders, including the exclusion of evidence. Ill. S. Ct. R. 415(g)(i) (eff.

Oct. 1, 1971). The trial court is allowed to exercise its discretion when selecting a Rule

415(g)(i) sanction. People v. Guja, 2016 IL App (1st) 140046, ¶ 60.

¶ 122 In this case, defendant contends that the requested discovery sanction to exclude the

recording was proper because the State violated the defense’s discovery of tangible items that

would be used in defendant’s trial. Defendant was unable to independently examine the chip

and the attempt to obtain other information from the data within the chip. We disagree with

defendant’s theory that exclusion of the audio recording was the only available sanction for

the inadvertent damaging of the memory chip as the proper sanction for a discovery violation

is left to the trial court’s discretion.

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¶ 123 Our supreme court held, in People v. Newberry, 166 Ill. 2d 310, 315 (1995), that even

absent bad faith, there are circumstances where trying the defendant would deny him due

process when the destroyed evidence was essential to and determinative of the outcome of the

case. In that case, defendant was charged with possession of drugs, which the police mistakenly

destroyed after the substance tested negative for drugs, but later tested positive, and the trial

court dismissed the indictment. Newberry, 166 Ill. 2d at 312-13. In affirming the trial court,

the supreme court found that the defendant could not be convicted of the possession charges

without proof of the content of the substance, and conversely, could not hope to exonerate

himself without a chance to have his own experts examine the substance. Id. at 315.

¶ 124 Additionally, this court addressed the issue of a lost videotape in People v. Camp, 352 Ill.

App. 3d 257 (2004), which is factually similar to the case before us. In that case, the defendant

was charged with driving under the influence and subsequently moved to dismiss the charge

during discovery because the State had lost a videotape of his field sobriety tests. Id. at 258.

We concluded that the circumstances were distinguishable from cases where the physical

evidence was essential or outcome determinative, noting that “[a]lthough the videotape may

be important to defendant, and its loss may prejudice him, the tape itself did not give rise to

the charge against [him].” Id. at 261.

¶ 125 Defendant cites to People v. Koutsakis, 255 Ill. App. 3d 306 (1993) to support his argument

that the recording should have been suppressed as a sanction to the State. However, we find

that case actually supports the sanction imposed by the trial court in the instant case. In

Koutsakis, the testimony of police officers involved in the stop and search of defendant’s

vehicle from which cannabis was recovered was limited as a sanction for the State’s failure to

preserve the tape recording of radio transmissions made by the officers during the stop. Id. at

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310. We held that the tape recording was discoverable, sanctions could be imposed in the

absence of bad faith, and the excluding the testimony of the police officers on matters which

may have been contained on the tape as a sanction was not an abuse of discretion. Id. at 312.

We concluded that the trial court could properly fashion a sanction for a discovery violation

when it was proportionate to the magnitude of the violation. Id. at 314.

¶ 126 That is precisely what happened here. Defendant was charged with murder and such charge

was not premised on the existence of the memory chip, recording device, or audio recording

but rather on certain events, about which the recording was simply one source of evidence,

albeit a potentially important one. The recording device and memory chip were examined by

a neutral, third party expert, namely the FBI, and testimony was presented about the tests used

to determine the capabilities of the device and the audio recording was preserved and

downloaded to a cd that was available to the defense. The court does not favor the exclusion

of evidence as a Rule 415(g)(i) sanction because exclusion does not further the goal of truth

seeking. See People v. Rubino, 305 Ill. App. 3d 85, 88 (1999). In allowing the audio recording

into evidence, the trial court limited its prejudicial effect by not allowing identification

testimony of the voices on the recording, which was, in essence, a sanction. Further, as the

experts were unable to conclusively establish that the loud impulse sound in the recording was

a gunshot, the prejudicial effect of the audio recording was further limited. We find that the

limitations imposed by the trial court on the admission of the audio recording were sufficient

sanctions for the State’s failure to preserve the memory chip for analysis and was not an abuse

of discretion.

¶ 127 D. Admission of Prior Domestic Violence Evidence

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¶ 128 Defendant also contends that the trial court erred in admitting evidence of a prior domestic

violence incident between him and decedent under section 115-7.4 of the Code (725 ILCS

5/115-7.4 (West 2016)) where the incident involved conduct that was factually dissimilar to

the offense charged, and its prejudicial effect outweighed any probative value.

¶ 129 As a common law rule of evidence in Illinois, it is well settled that evidence of other crimes

is admissible if relevant for any purpose other than to show a defendant’s propensity to commit

crimes. Dabbs, 239 Ill. 2d at 283. Such purposes include but are not limited to motive, intent,

identity, and accident or absence of mistake. Id. The admissibility of other-crimes evidence is

within the sound discretion of the trial court, and its decision on the matter will not be disturbed

absent a clear abuse of that discretion. Id.

¶ 130 The common law rule has been abrogated in part by section 115-7.4 of the Code, titled

“Evidence in domestic violence cases,” which provides:

“(a) In a criminal prosecution in which the defendant is accused of an offense of

domestic violence as defined in paragraphs (1) and (3) of Section 103 of the Illinois

Domestic Violence Act of 1986, evidence of the defendant’s commission of another

offense or offenses of domestic abuse is admissible, and may be considered for its

bearing on any matter to which it is relevant.

(b) In weighing the probative value of the evidence against undue prejudice to the

defendant, the court may consider:

(1) the proximity in time to the charged or predicate offense;

(2) the degree of factual similarity to the charged or predicate offense; or

(3) other relevant facts and circumstances.

(c) In a criminal case in which the prosecution intends to offer evidence under this

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Section, it must disclose the evidence, including statements of witnesses or a summary of

the substance of any testimony, at a reasonable time in advance of trial, or during trial if

the court excuses pretrial notice on good cause shown.

(d) In a criminal case in which evidence is offered under this Section, proof may be

made by specific instances of conduct, testimony as to reputation, or testimony in the

form of an expert opinion, except that the prosecution may offer reputation testimony

only after the opposing party has offered that testimony.” 725 ILCS 5/115-7.4 (West

2016).

¶ 131 Thus, other crimes evidence is admissible to prove propensity as provided under section

115-7.4 of the Code. People v. Nixon, 2016 IL App (2d) 130514, ¶ 36. This enactment followed

the legislature’s enactment of section 115-7.3 of the Code, titled “Evidence in certain cases,”

which created a similar exception to the common law propensity rule. Dabbs, 239 Ill. 2d at

285. When a defendant is charged with certain crimes involving sexual assault or abuse, this

statute allows the admission of evidence of previous offenses of the same types. 725 ILCS

5/115-7.3 (West 2016). However even if other-crimes evidence is otherwise admissible, it may

be excluded if it is irrelevant or if the risk of undue prejudice substantially outweighs its

probative value. Nixon, 2016 IL App (2d) 130514, ¶ 36.

¶ 132 Here, we find that evidence of defendant’s prior arrest for a domestic violence incident

toward decedent was relevant and admissible in defendant’s subsequent murder trial. It was

relevant to show defendant’s intent and inclination to harm decedent and that he did not commit

the murder as a result of self-defense or due to a fit of passion. It was also relevant and

admissible to show the absence of mistake in any harm caused to decedent. We conclude that

the trial court did not abuse its discretion in determining that defendant’s prior domestic

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violence arrest was more probative than unduly prejudicial, and the trial court did not err in

admitting the evidence.

¶ 133 E. Prosecutorial Error

¶ 134 Defendant next contends that he was denied a fair trial where the State violated the trial

court’s pretrial orders barring it from eliciting certain prejudicial testimony. Specifically,

defendant argues that the State repeatedly violated the trial court’s pretrial rulings by eliciting

inadmissible evidence and the State’s misconduct constitutes plain error and requires reversal.

¶ 135 Defendant contends that the State repeatedly violated the trial court’s pretrial evidentiary

rulings by eliciting inadmissible prejudicial evidence through the testimony of certain

witnesses. Prior to trial, defendant filed a motion in limine to bar the State from eliciting certain

testimony. After a hearing, the State was precluded from eliciting testimony that: (1) decedent

intended to divorce defendant and that there was a prior domestic violence call involving a gun

by the 911 operator. Our review of the record reveals that during trial, there were three

instances where a witness responded to the prosecutor’s question with barred information:

twice during Gryczewski’s testimony where she first stated that there were prior 911 calls to

717 Oxford for domestic and second that there was a previous call for a domestic with a gun;

and during Smith’s testimony when he stated that defendant told him that his wife was talking

about getting a divorce. In each of those instances, when the barred testimony was elicited,

defense counsel promptly objected and the State responded, both of which were on the record.

In each instance, a sidebar was held in the judge’s chambers, and the trial court ultimately

sustained the objection and admonished the jury to disregard the improper statement.

¶ 136 A violation of a motion in limine will constitute a ground for mistrial only where the

violation deprived defendant of a fair trial. People v. Hall, 194 Ill. 2d 305, 341- 42 (2000).

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Contrary to defendant’s assertion, we find that the barred information came from improper

testimony, not improper questioning by the State. While we do agree with defendant that such

testimony was improper in light of the pretrial ruling, we do not find that it deprived him of a

fair trial. The trial court’s prompt action in sustaining the objection and instructing the jury to

disregard the comments cured any error from the improper testimony. People v. Jones, 155 Ill.

App. 3d 641, 646 (1987). Although there are situations where the improper testimony is so

damaging that a trial court cannot cure the prejudicial effect (see People v. Carlson, 79 Ill. 2d

565, 577 (1980)), this is not such a situation. Here the State asked a single question of Smith,

who responded with a narrative that included the barred statement. Similarly, the State asked

Gryczewski about how she handled the 911 hang-up, to which she twice stated that it was for

a previous domestic and then that it was a prior domestic with a gun. From our examination of

the question and response, the State’s questions were nonleading and not designed to elicit the

barred testimony. We disagree with defendant’s characterization that the State purposely

elicited the testimony. Rather, it was Gryczewski’s answer that was improper, and the trial

court allowed defendant to cure the error by asking a leading question. We conclude that the

trial court’s act of sustaining defendant’s objections and subsequently admonishing the jury

cured any prejudice to defendant.

¶ 137 F. Sixth Amendment Right to Self-Representation

¶ 138 Defendant further contends that the trial court violated his sixth amendment right to

represent himself when it forced him to choose between proceeding pro se or engaging an

expert witness that was necessary to his defense.

¶ 139 It is well established that the sixth amendment to the United States Constitution provides

for the right of self-representation in criminal proceedings. People v. Foster, 391 Ill. App. 3d

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487, 491 (2009). A criminal defendant has a constitutional right to represent himself if he

makes an unequivocal request to do so. People v. Shelton, 401 Ill. App. 3d 564, 574 (2010). In

the case at bar, defendant concedes that his request to represent himself was unequivocal and

properly accepted by the trial court. However, defendant asserts that as a pro se litigant he was

also entitled to transcripts and a publicly-funded expert witness.

¶ 140 Under both the Illinois Constitution (Ill. Const. 1970, art. II, § 8) and the United States

Constitution (U.S. Const., amend. XIV), a criminally accused has the fundamental right to

summon witnesses in his behalf. Such right is not dependent on the financial circumstances of

the defendant. People v. Watson, 36 Ill. 2d 228, 234 (1966); People v. Lawson, 163 Ill. 2d 187,

220 (1994). A denial of funds to an indigent for the securing of expert witnesses in defense of

criminal charges may violate constitutional protections in certain circumstances. Id. at 574-75.

Whether it is necessary to subpoena expert witnesses in order to assure a fair trial will depend

upon the factors in each case. Watson, 36 Ill. 2d at 234. Our supreme court has held that the

touchstone in determining whether an indigent defendant is entitled to funds to secure an expert

is not what is useful, helpful, valuable, or even important to his defense but rather what is

crucial to it. Id. at 75; People v. Keene, 169 Ill. 2d 1, 7 (1995). The protections are triggered

when the expertise sought goes to the heart of the defense. Id. Further, there must be some

showing that the lack of funds for the expert will therefore prejudice the defendant. Lawson,

163 Ill. 2d at 222. We review a trial court’s decision not to provide funds for an expert witness

for an abuse of discretion. People v. Wilson, 117 Ill. App. 3d 744, 749 (1983).

¶ 141 In this case, while representing himself pro se, defendant sought an expert to analyze the

capability of the recording device and for an investigator. In his brief, defendant contends that

he needed his own expert, “at the very least, to educate himself about the device’s

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specifications and prepare himself for an effective cross examination of the FBI experts. Thus,

the services sought were ‘necessary to prove a crucial issue in the case.’” We disagree.

¶ 142 Here, the record indicates that defendant did not establish the necessity of the expert. While

it may have been helpful to defendant’s understanding of how the device worked, defendant

has made no substantive argument in support of his claim that an expert to analyze the

capabilities of the device was crucial to his defense. The audio recording was allowed into

evidence for the jury as relevant evidence based on pretrial rulings; however, no witness

identified the voices on the recording. There were no dates for the recordings submitted into

evidence. Nor was the sound on the recording identified by the State’s expert witnesses as a

gunshot. Fisher testified to establish a foundation for the introduction of the recording, and he

also testified that the device was capable of recording in several ways, one of which being

voice-activated. This testimony was presented at the pretrial hearing and at trial. Additionally,

Marr testified that the device was incapable of clearly and conclusively capturing sounds other

than voices. Defendant was charged with first degree murder, which as charged in this case,

required a finding that he killed an individual without lawful justification and in performing

the acts that caused the death, he knew that such acts created a strong probability of death or

great bodily harm to that individual or another. 720 ILCS 5/9-1(a)(2) (West 2006). We find

that the capability of the recording device or defendant’s understanding of how the device

worked was not crucial to his defense of the murder charge as that information did not go

towards defending any element of the charges against him. See People v. Shelton, 401 Ill. App.

3d 564, 575 (2010). Such information was only relevant in establishing the foundation for the

admission of the recording and not its weight, as properly determined by the trial court.

Moreover, as defense counsel conceded in their motion for sanctions against the State, the fact

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that the recorder no longer functioned precluded any further review of it, thus securing an

expert to confirm that the device no longer functioned properly would not have been beneficial

to defendant. Additionally, at oral argument, defendant’s appellate counsel stated that

defendant’s appointed trial counsel subsequently hired an expert but did not use them at trial,

which further speaks to the necessity of the expert as a crucial part of the defense strategy. We

conclude that the trial court did not abuse its discretion in denying defendant’s request for

funds for an expert witness. As such, defendant cannot show that he was prejudiced by the

disallowance of funds for an expert witness to test the device, and there is no constitutional

violation.

¶ 143 The State argues, as it did in the trial court, that defendant waived this issue for

consideration when he later accepted the reappointment of the Public Defender’s Office. We

decline to address whether the issue was waived based on our conclusions herein.

¶ 144 G. Krankel Inquiry

¶ 145 Finally, defendant contends that the trial court erred when it failed to conduct an inquiry

into defendant’s pro se claim of ineffective assistance of counsel in his posttrial motion for

new trial, pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).

¶ 146 When a defendant presents a pro se claim of ineffective assistance of counsel, the trial

court should examine the factual basis of the claim. People v. Moore, 207 Ill. 2d 68-77-78

(2003) To accomplish this, the trial court can confer with counsel regarding the facts

surrounding the claim or hold a brief discussion with defendant. People v. Milton, 354 Ill. App.

3d 283, 292 (2004). The court may also evaluate the claims based on its knowledge of counsel’s

performance at trial or the insufficiency of the defendant’s allegations. Id. Where the probe

reveals that defendant’s allegations are conclusory, misleading, legally immaterial and do not

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bring forth a colorable claim of ineffective assistance of counsel, the trial court may be excused

from further inquiry. People v. Burks, 343 Ill. App. 3d 765, 774 (2003) (citing People v.

Johnson, 159 Ill. 2d 97, 126 (1994)). After the inquiry, the trial court need not appoint new

counsel if it concludes that the ineffectiveness claim is without merit or pertains purely to

matters of trial strategy, but should appoint new counsel if the allegations reveal possible

neglect. Moore, 207 Ill. 2d at 78. If appointed, new counsel would represent defendant on his

claims of ineffective assistance and investigate those claims. Id.

¶ 147 Here, the record reveals that the trial court did not hold a hearing on defendant’s pro se

claims of ineffective assistance of counsel as alleged in his motion for new trial, because

defendant withdrew his pro se motion. The trial court specifically inquired as to whether

defendant wished to withdraw his pro se pleading, and defendant responded affirmatively. A

defendant’s invitation, agreement, or active participation in the direction of the proceedings

and or procedure that he later challenges on appeal goes beyond mere waiver People v.

Villarreal, 198 Ill. 2d 209, 227 (2001)) and is estopped (People v. Harvey, 211 Ill. 2d 368, 385

(2004)). “Under the doctrine of invited error, [a defendant] may not request to proceed in one

manner and then later contend on appeal that the course of action was in error.” People v.

Carter, 208 Ill. 2d 309, 319 (2003). As defendant withdrew his pleading containing his

allegations of ineffective assistance of counsel in open court, there was no longer any allegation

of ineffective assistance pending before the trial court.

¶ 148 Defendant’s conclusion that the trial court was obligated to specifically inquire into the

allegations raised in the withdrawn pro se posttrial motion is incorrect. Illinois caselaw

contradicts defendant’s claim that the mere filing of a pro se posttrial pleading that alleges

ineffective assistance of counsel triggers a trial court’s obligation to inquire even when such

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pleading is later withdrawn in open court. The trial court was under no obligation to sua sponte

raise the issue of trial counsel’s ineffectiveness when such action would have been against

defendant’s expressed wishes. People v. Davis, 337 Ill. App. 3d 977, 988 (2003). Defendant’s

affirmative act of withdrawing his pro se posttrial motion had the effect of telling the trial court

that he no longer wanted an examination of his ineffective assistance of counsel claims. Thus,

he prevented the trial court from giving him what he now requests- a Krankel hearing and

invited the alleged error by his own action and prevented substantive review of the matter by

the trial court. People v. McGee, 345 Ill. App. 3d 693, 699 (2003). Accordingly, defendant has

waived the alleged error and is not entitled to appellate review of it. People v. Allen, 409 Ill.

App. 3d 1058, 1076-78 (2011) (Krankel issues presented in a pro se letter to the court but not

personally presented to the trial court were forfeited).

¶ 149 CONCLUSION

¶ 150 In sum, we find that defendant forfeited review of whether the trial court erred in admitting

the audio recording under the silent witness doctrine and whether the State argued facts not in

evidence because he failed to establish that any error occurred. Additionally, we find that the

evidence was sufficient to find defendant guilty beyond a reasonable doubt; the trial court did

not err in admitting the audio recording where a proper foundation was laid for its admission

and it had probative value; the trial court did not err in failing to impose discovery sanctions

on the State regarding the malfunctioned recorder and chip where such malfunction was not

intentional and there was no preservation order in place; the trial court did properly admitted

evidence of a prior domestic violence incident under section 115-7.4 of the Code; the State did

not elicit evidence from witnesses in violation of the trial court’s pretrial evidentiary rulings;

defendant’s right to self-representation was not violated; and the trial court did not err in failing

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to consider defendant’s pro se posttrial claim of ineffective assistance of counsel under Krankel

where he withdrew the motion from consideration. For the foregoing reasons, the judgment of

the circuit court of Cook County is affirmed.

¶ 151 Affirmed.

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