People v. Irwin

2017 IL App (1st) 150054

SECOND DIVISION
May 2, 2017

No. 1-15-0054

)
Appeal from the Circuit Court
)
PEOPLE OF THE STATE OF ILLINOIS, of Cook County.
)
)
Plaintiff-Appellee,
)
No. 12 C4 40256 (02)
)
v.
)
)
KRISTOPHER IRWIN, The Honorable
)
Gregory Robert Ginex,
)
Defendant-Appellant. Judge, presiding.
)
)

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

Justice Pierce concurred in the judgment and opinion.

Presiding Justice Hyman dissented in part, with opinion.

OPINION

¶1 On March 4, 2012, around 7:30 p.m., police officers in Maywood responded to a radio

call of “shots fired.” On their way to the location specified in the call, the officers saw a vehicle

traveling at high speed run through a red light and head past them in the opposite direction. The

officers pursued the car with lights and siren activated, but the car did not stop until blocked by

another responding police vehicle. After all four occupants exited the car, one of the officers

discovered a handgun on the floor in the front passenger seat where defendant Kristopher Irwin

had been sitting. Irwin was tried and convicted of aggravated unlawful use of a weapon (AUUW)

based on his failure to possess a valid Firearm Owner’s Identification (FOID) card. 720 ILCS

5/24-1.6(a)(1)(3)(C) (West 2010). Irwin was sentenced to three years’ imprisonment.
 1-15-0054

¶2 Irwin raises several issues on appeal relating to the admission of evidence during his trial.

Finding no error warranting a new trial, we affirm.

¶3 BACKGROUND

¶4 Maywood police Officer Joseph Escamilla was on patrol in a marked police car on the

evening of March 4, 2012. Around 7:30 p.m., he received a “shots fired” call over his police

radio. Escamilla’s partner, Officer Danielle Deering, accompanied him, and they drove

southbound on 17th Avenue toward the Eisenhower expressway. As they approached the bridge

across the expressway, they saw a four-door Dodge sedan, travelling at a high rate of speed,

make a left turn as it went through a red light and head northbound past them on 17th Avenue.

Escamilla activated his vehicle’s lights and siren, made a U-turn, and followed. The driver did

not stop or slow down, but as he tried to make a right turn onto Van Buren Street, the driver was

cut off by Officer Aaron Peppers’ police car. Peppers was responding to Escamilla’s radio call

regarding the fleeing vehicle. Peppers immediately exited his vehicle and shouted commands to

the occupants of the Dodge to put their hands up and keep them visible.

¶5 Escamilla parked behind the Dodge. He approached on the driver’s side and instructed

Deering to approach the passenger side. Escamilla acted as the business officer, i.e., the officer

who questions the driver during a traffic stop, and Deering acted as the guard officer, whose job

it is to ensure the safety of the officers and occupants of the vehicle. Peppers observed from in

front of the Dodge.

¶6 Escamilla illuminated the inside of the Dodge with his car’s spotlight and his own

flashlight. He could see there were four occupants but could not determine their race or gender.

As he approached the driver’s door, Escamilla saw through the rear window that the person in

the front passenger seat (later identified as Irwin) made a “sudden movement.” Escamilla was

-2­
 1-15-0054

about five feet away, and described Irwin’s movement as “his body just drop[ped] very quickly”

a few inches, as he bent down at the waist and then came back up. The movement only took a

second or two. Neither Deering nor Peppers noticed Irwin’s movement, nor did they see any of

the other occupants move after the Dodge was stopped.

¶7 The car had two bucket seats divided by a console in the front and a bench seat in the

rear. Escamilla asked the driver for his license, but the driver did not have one, so Escamilla

ordered him out of the car and had him stand in front of Peppers’ vehicle. Escamilla then

directed Irwin out of the car and had him stand with his hands on the hood of the Dodge.

Escamilla directed the individual sitting in the rear passenger side seat to get out next and also

had him place his hands on the hood of the car. About ten seconds passed between the time Irwin

got out of the car and the person sitting in the rear passenger side seat exited. When the fourth

occupant sitting in the rear driver’s side seat (Irwin’s co-defendant Derrick Craddock) got out of

the car, he pushed Escamilla and tried to flee.

¶8 By this time, Officer George Adamidis had arrived on the scene. Escamilla grabbed

Craddock by the waist and felt a blunt object in his waistband. With Deering’s assistance,

Craddock was handcuffed, and Adamidis recovered a 9mm Beretta handgun from his waistband.

¶9 Once all the occupants were out of the Dodge, Deering did an inventory search and

removed from the floor of the front passenger seat area a black 9mm BPI handgun. The gun was

over an inch thick. Neither Escamilla nor Deering had seen the gun in the car as they were

standing on opposite sides of the car before directing the occupants out, and neither had seen

Irwin with a gun. The gun was in plain view and would have been inches from Irwin’s feet while

he was in the car. About three minutes passed between the time Irwin exited the car and Deering

found the gun.

-3­
 1-15-0054

¶ 10 Deering was not watching the rear passengers during the entire encounter, but it would

have been difficult for a person sitting in the rear passenger seat to reach between the front seats

to deposit a gun on the floor without being noticed. There was space under the front seats but

Deering did not remember how that area appeared. Deering could not see the rear passenger’s

feet until the door opened.

¶ 11 Adamidis took the gun from Deering and cleared it of ammunition. It was fully loaded

with one bullet in the chamber. The gun was never tested for fingerprints and a trace of its serial

number did not reveal Irwin as the owner. Irwin was arrested and later charged with AUUW.

¶ 12 Craddock ultimately pled guilty. Before trial, Irwin’s counsel filed several motions in

limine to exclude testimony. The trial court ruled that (i) the police witnesses could testify they

knew Irwin, but not about any other arrests or encounters; (ii) the officers could testify that they

pulled over the Dodge while responding to a “shots fired” call over the police radio, but not

elaborate further; and (iii) the State could not comment on Irwin’s silence after his arrest. Irwin’s

counsel made a standing objection to testimony concerning the “shots fired” radio call. The State

asked for a few minutes so that it could advise its witnesses of the court’s rulings and the

parameters of their testimony.

¶ 13 At trial, the officers recounted the events described above. The State referenced the

“shots fired” call in its opening statement, and Escamilla, Deering and Peppers all testified that

they responded to a “shots fired” call, but did not provide any further details. Irwin’s counsel

objected to the prosecutor’s and witnesses’ references to “shots fired.” The State made no

mention of a “shots fired” call in closing or rebuttal argument, instead referring to it once as an

“emergency call.”

-4­
 1-15-0054

¶ 14 State’s Exhibit 2 was a photograph of Irwin taken on the night he was arrested. The

exhibit consists of a black and white photocopy of two photographs of Irwin, laid out next to

each other. One photograph is a frontal shot of Irwin’s head and shoulders; the photograph next

to it is a profile shot of Irwin’s head and shoulders. In the photos, Irwin had longer curly hair and

was wearing a dark t-shirt. Based on the record, we can conclude that Irwin’s hair was shorter at

trial and he was wearing a shirt and tie. No number or other identifying information is on the

photos.

¶ 15 The State first used Exhibit 2 with Escamilla. Irwin’s counsel objected. Out of the

presence of the jury, counsel argued that Irwin was not contesting that he was the man who had

been sitting in the front passenger seat of the Dodge and that since identification was not at issue,

admission of the “mug shot” would be irrelevant and prejudicial. The State argued that the

exhibit was relevant to the police’s recognition of Irwin, and since Irwin looked different at trial,

the “jury is entitled to see who the officers removed from the vehicle.” Irwin’s counsel

responded that the State’s reason for submitting this photo was “they think he looks more like a

thug in this picture than he does now.” The trial court ruled that Exhibit 2 was not a mug shot

and allowed the State to use it over Irwin’s objection.

¶ 16 At one point in Adamidis’s testimony, the prosecutor asked how he recognized Irwin, to

which Adamidis replied, “multiple street encounters.” As this response violated the court’s order

in limine, the court sustained Irwin’s objection, struck the testimony, and instructed the jury to

disregard it. Irwin’s counsel later moved for a mistrial based on this testimony. The trial court

denied the motion.

¶ 17 The prosecutor then asked Adamidis if he recognized Irwin from the traffic stop, and

Adamidis replied that he did. The prosecutor further queried “but the defendant didn’t look like

-5­
 1-15-0054

he does now, does he?” Irwin’s objection was overruled. Adamidis identified Exhibit 2 as a

photograph of Irwin as he looked at the time of the traffic stop.

¶ 18 Although the State did not originally seek to publish Exhibit 2 to the jury, it later did so

and, again over defense counsel’s objection, the exhibit was admitted into evidence and sent

back to the jury room.

¶ 19 During Deering’s cross-examination, she was asked about the police report of the

incident and testified that she did not prepare it, but read it in preparation for her testimony. She

also prepared to testify by meeting with the prosecutors, while Escamilla and other police

officers were present. On redirect, the prosecutor asked Deering about the preparation of her

testimony, and then asked “didn’t I tell you I only wanted you to tell the truth?” Irwin’s objection

to this question was overruled. Deering agreed that the prosecutor had given her those

instructions.

¶ 20 Irwin’s counsel also asked that the State be prevented from arguing during closing that

the Dodge was “fleeing,” but the trial court denied the request, finding that it was a reasonable

inference from the evidence. The court also denied Irwin’s request for a jury instruction on the

“shots fired” call, which would have informed the jury of the limited purpose for which the

testimony was admitted and that it could not be considered for the truth of the assertion that shots

were, in fact, fired.

¶ 21 Before closing arguments, the trial court instructed the jury that the arguments were not

evidence. The State argued that the officers saw the Dodge “fleeing” the vicinity of “an

emergency call that they were responding to.” There was no other mention of the “shots fired”

call in the State’s opening or rebuttal closing argument.

-6­
 1-15-0054

¶ 22 Irwin’s counsel argued that there was no evidence linking Irwin to the gun; it was not

registered to him and no fingerprints were recovered. Counsel noted that Irwin had not been

nervous or sweaty when he got out of the car as would be expected if he knew a gun was on the

floor by his seat. In rebuttal, the State argued that Irwin had no reason to be nervous because he

believed the police would not find the gun and went on: “what does he do when he gets out? He

doesn’t, he’s not under arrest. He doesn’t alert the officer [ ] for her own safety that there’s a gun

on that floor board, not mine. He doesn’t say anything about that gun.” Irwin’s objection to this

argument was sustained.

¶ 23 Irwin was convicted of aggravated unlawful use of a weapon. In his posttrial motion,

Irwin argued that (i) the “shots fired” testimony was hearsay that violated his rights under the

Confrontation Clause; (ii) admission of the photographs taken of him the night he was arrested

was error; (iii) the State impermissibly vouched for the credibility of Deering and commented on

Irwin’s silence after arrest; and (iv) Adamidis violated the in limine order by referring to his

“street encounters” with Irwin. Irwin’s posttrial motion was denied and he timely appealed.

¶ 24 ANALYSIS

¶ 25 At oral argument, the State conceded that two errors were committed during Irwin’s trial:

first, the State conceded that the trial court should have given the jury a limiting instruction

regarding the “shots fired” testimony; second, the State admitted that the photographs of Irwin

should not have been sent to the jury room, although it contends the photographs were properly

admitted into evidence. The State maintains, however, that neither of these errors, nor any of the

other issues raised by Irwin warrant a new trial.

-7­
 1-15-0054

¶ 26 As to those errors the State has conceded or that we find occurred, the State bears the

burden to show that they are harmless beyond a reasonable doubt. In re Brandon P., 2014 IL

116653, ¶ 50 (“Confrontation clause violations are subject to harmless error review.”); see also

People v. Jacobs, 2016 IL App (1st) 133881, ¶¶ 77-78 (improper admission of evidence subject

to harmless error review); People v. Campbell, 2012 IL App (1st) 101249, ¶¶ 32-33 (reviewing

trial court’s failure to give limiting instruction for harmless error).

“When determining whether an error is harmless, a reviewing court may ‘(1) focus on the

error to determine whether it might have contributed to the conviction; (2) examine the

other properly admitted evidence to determine whether it overwhelmingly supports the

conviction; or (3) determine whether the improperly admitted evidence is merely

cumulative or duplicates properly admitted evidence.’ ” In re Brandon P., 2014 IL

116653, ¶ 50 (quoting In re Rolandis G., 232 Ill. 2d 13, 43 (2008)).

¶ 27 All but one of the errors raised by Irwin on appeal concern the trial court’s rulings on the

admission of evidence. A trial court’s evidentiary rulings are discretionary and, therefore, such

rulings will not be overturned absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89

(2001) (Illinois courts apply abuse of discretion standard when reviewing trial court’s decision

admitting hearsay). An evidentiary ruling constitutes an abuse of discretion when it is arbitrary,

fanciful, or unreasonable. People v. Hanson, 238 Ill. 2d 74, 101 (2010); Caffey, 205 Ill. 2d at 89.

A court may exercise its discretion and exclude evidence, even if it is relevant, if the danger of

unfair prejudice substantially outweighs its probative value. Hanson, 238 Ill. 2d at 102; Ill. R.

Evid. 403 (eff. Jan. 1, 2011).

¶ 28 Irwin first argues that the “shots fired” radio call—used in the State’s opening statement

and in officer testimony—was inadmissible hearsay and violated his right to confront his

-8­
 1-15-0054

accusers. Both the federal and state constitutions guarantee the right of confrontation. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Because the declarant is not available for

cross-examination, hearsay evidence—an out-of-court statement offered to prove the truth of the

matter asserted—can violate a defendant’s right to confront the witnesses against him. People v.

Peoples, 377 Ill. App. 3d 978, 983 (2007); People v. Jura, 352 Ill. App. 3d 1080, 1085 (2004)

(“The fundamental reason for excluding hearsay is the lack of an opportunity to cross-examine

the declarant.”).

¶ 29 Generally, hearsay evidence is inadmissible. Ill. R. Evid. 802 (eff. Jan. 1, 2011). An

exception exists when the evidence is “offered for the limited purpose of showing the course of a

police investigation where such testimony is necessary to fully explain the State’s case to the

trier of fact.” People v. Williams, 181 Ill. 2d 297, 313 (1998) (admitting contents of 911 tape to

show officer acting in the course of his official duties); Jura, 352 Ill. App. 3d at 1085.

Specifically, police officers can testify to the statements of others when such evidence is not

offered to prove the truth of the matter asserted, but for the officer to explain investigative steps.

People v. Rush, 401 Ill. App. 3d 1, 15 (2010). Because such testimony referencing statements of

others can impinge on the right of confrontation and is subject to abuse, it should be admitted

sparingly and only when necessary. See People v. Cameron, 189 Ill. App. 3d 998, 1004 (1989)

(“ ‘The need for the evidence is slight, the likelihood of misuse great.’ ” (quoting Edward W.

Cleary, McCormick on Evidence § 249, at 734 (3d ed. 1984))). Further, such evidence when

admitted should be accompanied by an instruction to the jury describing the limited purpose for

its admission. Williams, 181 Ill. 2d at 313-14.

¶ 30 The trial court certainly could have, in the exercise of its discretion, determined that

reference to an “emergency call” would have adequately informed the jury why the police gave

-9­
 1-15-0054

chase to the Dodge. Without being told that the call message was “shots fired,” the jury could

readily have concluded that the emergency was of a serious nature, given Peppers’ conduct in

cutting off the Dodge and immediately ordering the vehicle’s occupants to put up their hands.

¶ 31 The existence of discretion—here, whether or not to admit evidence—necessarily means

that not only one correct answer exists. For if that was true, the ruling would not be

discretionary. See People v. Witherspoon, 379 Ill. App. 3d 298, 310 (2008) (upholding a trial

court’s finding under abuse of discretion standard of review does not necessarily mean an

opposite finding would be an abuse of discretion). And our role on review is not to substitute our

judgment for that of the trial court. People v. Cookson, 335 Ill. App. 3d 786, 793 (2002); see also

People v. Braddy, 2015 IL App (5th) 130354, ¶ 32. So even if we believe that advising the jury

of an “emergency call” would have sufficed, we must still decide whether the trial court abused

its discretion in determining that references to “shots fired” were admissible.

¶ 32 Here, a reasonable trial judge could have concluded that the fact that police were

responding to a call of “shots fired” was necessary to inform the jury of the reason why

Escamilla and Deering, instead of proceeding to the location to which they were directed by the

radio call, decided to pursue a vehicle they saw run a red light. Without the context of the call,

the jury would be left to wonder why officers decided to divert from responding to the scene.

Further, if the driver’s only offenses were speeding and running a red light, the reason Escamilla

called for backup would have been unexplained and Peppers’ use of his vehicle to block the

Dodge would have appeared extreme. Upon eventually curbing the vehicle, the officers’ conduct

in directing all of its occupants to raise their hands and get out of the car is inexplicable unless a

jury understands the nature of the radio assignment to which police were responding. Finally, the

call of “shots fired” did not relate to or tend to prove the offense with which Irwin was charged.

-10­
 1-15-0054

Therefore, we find no abuse of discretion in the court’s decision to permit this testimony in the

first instance.

¶ 33 That said, it was unnecessary for three officers to repeat the contents of the radio call.

Once the jury understood from Escamilla’s testimony the nature of the call, no more needed to

be said to explain the officers’ actions. But repetition of the “shots fired” testimony does not

render this otherwise admissible evidence reversible error, particularly where the record reveals

that, other than to state the reason for their actions, the officers did not dwell on the radio call.

Further, as noted, the call of “shots fired” did not relate to the essence of the gun possession

charge against Irwin. Cf. Jura, 352 Ill. App. 3d at 1088 (testimony regarding contents of radio

call “directly impact[ed] the very essence of the dispute”). Finally, the State did not refer to the

“shots fired” call in closing or rebuttal, stating only that officers responded to an “emergency

call,” and the State did not suggest or imply that the vehicle in which Irwin was riding was the

source of the shots fired.

¶ 34 Irwin argues that this case is like Jura, where three officers testified to the substance of a

“ ‘person with a gun’ ” radio call. 352 Ill. App. 3d at 1083-84. The radio call also described the

offender as a white male with a tear drop tattoo on his cheek, details that the officers were

permitted to relay in their testimony. Id. When the officers reached the specified location, they

saw Jura and several other men. Id. The officers testified that Jura “ ‘match[ed] the description’ ”

of the offender, and that they observed Jura throw a gun into a garbage can. Id. Jura testified and

denied committing the offense. Id. at 1082. Reversing Jura’s conviction, we found that the

testimony about the radio call, which “directly impact[ed] the very essence of the dispute:

whether the defendant was the man who possessed the gun,” was not harmless because it was

testified to by several witnesses, contained substantive information used to prove Jura guilty, and

-11­
 1-15-0054

was exploited by the State in closing argument by emphasizing to the jury that Jura “matched the

description.” Id. at 1088, 1090.

¶ 35 In Jura, the central question was who owned the gun the officers found in the alley. The

officers testified they saw Jura holding the gun, but Jura denied this. The State was able to use

the 911 caller (who was never produced or cross-examined) to bolster the credibility of the

police witnesses. In this context, we determined the content of the radio call (particularly the

offender’s physical description) was vital to the outcome, and any error in admitting it was,

therefore, not harmless. Id. at 1091.

¶ 36 Here, the “shots fired” testimony could not bolster the credibility of Officers Escamilla

and Deering. There is no dispute that two guns were found that night: one in Craddock’s

waistband and one on the front passenger floor near where Irwin sat. And the jury was repeatedly

instructed that evidence regarding the weapon recovered from Craddock was not to be

considered against Irwin. Moreover, the jury heard that Irwin’s gun was fully loaded with a

bullet in the chamber, and there would thus be no basis for the jury to assume that Irwin was the

person who fired the shots leading to the call.

¶ 37 While the State concedes and we agree that the trial court should have given a limiting

instruction to the jury, the failure to do so does not warrant reversal. See People v. Pistonbarger,

142 Ill. 2d 353, 377 (1990) (“Although it is not mandated in every case, *** it is constitutionally

permissible for a reviewing court to determine that given the facts of the individual case, the

result would have been the same had the defect in the [jury] instructions not been present.”);

People v. Austin, 133 Ill. 2d 118, 124 (1989) (“[A]ny error in giving or refusing instructions will

not justify a reversal when the evidence in support of the conviction is so clear and convincing

that the jury’s verdict would not have been different.”).

-12­
 1-15-0054

¶ 38 There was ample evidence to sustain Irwin’s conviction. It is undisputed that Irwin sat in

the passenger seat of the Dodge and that the fully-loaded gun was recovered inches away from

where his feet would have been. No occupant of the vehicle, other than Irwin, was observed

moving after the Dodge was stopped. On the other hand, Escamilla, who was unimpeached,

observed Irwin bending down in a movement that could reasonably have been interpreted as an

effort to remove the gun from his person, and the gun’s location in the vehicle was consistent

with that inference. No other occupant of the vehicle was observed reaching over or around the

front seat (in the case of the back seat passengers) or the console (in the case of the driver). That

leaves Irwin’s suggestion to the jury that the back seat passenger could have dropped the gun and

pushed it under the seat with his feet in the minute or so after the Dodge was stopped so that it

came to rest in the front passenger seat area. While we suppose that such a scenario, although not

supported by the evidence, is within the realm of possibility, it does not cause us the question the

strength of the State’s case.

¶ 39 Irwin emphasizes that the gun was not tested for fingerprints and that its serial number

did not reveal him as the owner. But while the presence of fingerprint or ownership evidence

would have rendered the State’s case irrefutable, its absence does not, in our view, render the

evidence of Irwin’s guilt less than overwhelming.

¶ 40 And even if the jury assumed the truth of the assertion that, in fact, shots had been fired,

this does not make more likely Irwin’s possession of the weapon found in the front passenger

seat area. Consequently, we conclude that the trial court’s failure to give a limiting instruction

did not contribute to Irwin’s AUUW conviction and, therefore, we find this instructional error

harmless beyond a reasonable doubt.

-13­
 1-15-0054

¶ 41 Irwin next argues that he was deprived of a fair trial when the State was allowed to admit

into evidence and send to the jury the two photographs of him taken on the night of his arrest.

Irwin argues that the photographs were “mug shots” and were irrelevant and prejudicial as there

was no issue regarding either the fact that he was present on March 4, 2012, or the officers’

ability to identify him in court.

¶ 42 The State contends that Exhibit 2 was not a “mug shot” because it “does not indicate or

imply prior criminal activity” by Irwin. There was no legend on the photograph indicating a prior

arrest, and all of the officers who testified regarding the photograph indicated that it was taken at

the time of Irwin’s arrest for this crime.

¶ 43 While the State may be technically correct that Exhibit 2 was not a “mug shot” of Irwin

because it was generated contemporaneously with his arrest, we nevertheless believe the jury

would have treated the exhibit as such. Courts have noted that “a person of even subnormal

intelligence would know that the front and side profile snapshots were all ‘mug shots.’ ” People

v. Woodruff, 62 Ill. App. 3d 949, 954 (1978). We cannot think of another circumstance where a

person’s front and profile photographs are presented together. This arrangement is “common

knowledge to the public from their exposure to the same in the news media, television, and ***

on the walls of the vast majority of police stations and post offices throughout the United States.”

People v. Wheeler, 71 Ill. App. 3d 91, 97 (1979).

¶ 44 But introducing a defendant’s photograph, even one taken in the police station, is not

inherently prejudicial. The reason mug shots are generally excluded from evidence is because

they imply that the defendant has been previously arrested. See People v. Nelson, 193 Ill. 2d 216,

224 (2000); People v. Arman, 131 Ill. 2d 115, 123 (1989). For example, a jury’s awareness that a

witness or victim identified the defendant from a mug shot already in law enforcement’s

-14­
 1-15-0054

possession, while admissible, clearly indicates possible involvement by the defendant in other

criminal activity. On that rationale, we generally exclude use of such evidence, except in limited

circumstances, because we do not want jurors to convict a defendant based on prior conduct

outside the scope of the trial. People v. Murdock, 39 Ill. 2d 553, 562 (1968) (“We agree that the

front and profile views of the defendant in the photographs might very well suggest to the jury

that they were ‘mug’ shots taken for police files and, since there was no probative purpose for

their admission into evidence, find that the photographs were erroneously admitted.”). Here,

because all of the witnesses testified that the photos of Irwin were taken on the night he was

arrested, there would be no basis for the jury to presume they were anything else. In other words,

although Exhibit 2 became Irwin’s “mug shot” because of his arrest, it was not the type of

evidence that suggests other criminal activity.

¶ 45 This does not end our analysis. While in the context of this case, the photographs do not

carry the inherent prejudice of mug shots because they do not imply other criminal activity, Irwin

is correct that the photos were irrelevant to any issue the jury was called upon to decide.

Generally, evidence is admissible if it is relevant. Ill. R. Evid 402 (eff. Jan. 1, 2011). Relevant

evidence is “evidence having any tendency to make the existence of any fact that is of

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

without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence may be excluded

“if its probative value is substantially outweighed by the danger of unfair prejudice.” Ill. R. Evid.

403 (eff. Jan. 1, 2011).

¶ 46 The trial court abused its discretion in admitting the photographs because they did not

meet the threshold requirement of relevance. The photographs did not make “the existence of

any fact that is of consequence to the determination of the action more probable or less probable

-15­
 1-15-0054

than it would be without the evidence.” (Emphasis added.) Ill. R. Evid. 401 (eff. Jan. 1, 2011).

The fact that Irwin had longer hair and was not as neatly dressed at the time he was arrested does

not make it any more or less likely that he possessed the weapon found where he was sitting.

And we agree with Irwin that the only apparent purpose for admitting the photographs was to

show the jury that the neatly attired young man in court did not appear that way on the night he

was arrested (which, incidentally, is another thing that jurors generally know).

¶ 47 And even if Irwin’s appearance when he was arrested was relevant, the State needed only

one front-facing photograph to illustrate the point. We can discern no reason, and the State has

articulated none, why it was necessary for Irwin’s jury to see both photos. Beyond that, there was

certainly no reason for the exhibit to be sent to the jury room. Michael H. Graham, Graham’s

Handbook of Illinois Evidence § 401.8, at 184 (10th ed. 2010) (“It is preferable not to permit the

mug shots to go to the jury room.”); People v. Burrell, 228 Ill. App. 3d 133, 144 (1992)

(potentially prejudicial evidence must be closely scrutinized, since “evidence present in the jury

room during deliberations gives the party producing it a distinct advantage”).

¶ 48 Given our finding that the trial court should not have permitted the State to use this

exhibit because it was irrelevant and arguably prejudicial, and in light of the State’s concession

that it was error to allow the exhibit to go to the jury room, we must determine whether these

errors are harmless beyond a reasonable doubt. In the context of this case, we find that they are.

See Nelson, 193 Ill. 2d at 224 (“When admitted in error, ‘mug shot’ evidence will not warrant a

reversal when competent evidence establishes the defendant’s guilt beyond a reasonable doubt,

and it can be concluded that retrial without the challenged evidence would produce no different

result.”).

-16­
 1-15-0054

¶ 49 As discussed above, the State sustained its burden to prove Irwin guilty beyond a

reasonable doubt through admissible evidence that, in our view, was overwhelming. Moreover,

similar to issues relating to the radio call, Irwin’s appearance on the night he was arrested did not

go to the essence of the charge against him. In other words, there is nothing in Irwin’s

appearance in the photographs that would lead a juror, otherwise unpersuaded by the State’s

evidence, to convict Irwin of possession of the weapon. Therefore, we find the error in admitting

the photographs and sending them to the jury harmless beyond a reasonable doubt.

¶ 50 Next, Irwin argues that the prosecutor improperly vouched for Deering’s credibility by

asking Deering on redirect, “didn’t I tell you I only wanted you to tell the truth?” This question

was in response to cross-examination regarding Deering’s witness preparation meeting with the

State.

¶ 51 Irwin mischaracterizes the situation; this was not vouching for witness credibility. In fact,

not a single one of the cases Irwin cites in his briefs is factually analogous to what happened

here. Asking this question of Deering is not akin to a prosecutor suggesting in closing argument

that the prosecutors had “ ‘checked *** out’ ” and “ ‘corroborate[d]’ ” the witness’s statement

with forensic evidence before accepting it (People v. Williams, 2015 IL App (1st) 122745, ¶ 10),

or saying that the prosecutor himself could “ ‘cut through the BS and have a way to find out who

is telling the truth.’ ” (People v. Schaefer, 217 Ill. App. 3d 666, 668 (1991)).

¶ 52 The statements in Williams and Schaefer were improper for two reasons—(i) the

statements might give the jury the impression that there is “secret” evidence, known only to the

State, that supports the charge against the defendant or (ii) they might induce the jury to trust the

State’s judgment over their own evaluation of the evidence. Williams, 2015 IL App (1st) 122745,

¶ 13. But here, there was no reference to unknown evidence or any suggestion that the jury

-17­
 1-15-0054

should trust the prosecutor’s judgment rather than their own evaluation of Deering’s credibility.

Even if the jury accepted the implied proposition that the prosecutor had instructed Deering to

tell the truth, it would still have to decide on its own whether Deering followed that instruction.

Irwin was not deprived of a fair trial by this action.

¶ 53 Irwin argues that he was denied a fair trial when the prosecutor elicited testimony from

Officer Adamidis that Adamidis recognized Irwin from “multiple street encounters.” The trial

court sustained Irwin’s objection to this testimony, struck Adamidis’s response, and instructed

the jury to disregard it.

¶ 54 The testimony violated the trial court’s in limine order, but it did not deprive Irwin of a

fair trial. A timely, sustained objection and instructing the jury to disregard the testimony can

correct this type of error. See People v. Hall, 194 Ill. 2d 305, 342 (2000) (State’s question

regarding defendant’s prior criminal activity improper, but error cured by sustaining objection

and admonishing jury to disregard). The testimony was not so prejudicial as to be incurable and

deny Irwin a fair trial.

¶ 55 Irwin also objects to the statement in the prosecutor’s rebuttal quoted above, which was

made in response to defense counsel’s argument that there was no evidence that Irwin appeared

nervous or sweaty when he exited the car. Irwin’s objection to this argument was immediately

sustained. While the standard of review of alleged errors in closing argument is uncertain

(compare People v. Wheeler, 226 Ill. 2d 92, 121 (2007) (whether statements made by prosecutor

during closing argument were so egregious as to warrant a new trial is a legal issue to which de

novo standard of review applies) and People v. Blue, 189 Ill. 2d 99, 128 (2000) (trial court’s

determination of the propriety of closing argument will not be disturbed absent an abuse of

discretion)), we have no trouble concluding under either standard that this isolated remark played

-18­
 1-15-0054

no role in Irwin’s conviction.

¶ 56 Prosecutors are afforded “wide latitude” in closing argument, and improper argument in

closing warrants reversal only if the improper remark constituted a “material factor” in the

conviction. Wheeler, 226 Ill. 2d at 123. We are not convinced that the prosecutor’s remark was a

material factor: the remark was isolated, it was responsive to defense arguments regarding

Irwin’s demeanor prior to his arrest, the trial court immediately sustained Irwin’s objection, and

it properly instructed the jury that closing arguments are not evidence. See People v. Moore, 171

Ill. 2d 74, 105-06 (1996) (“[t]he act of sustaining an objection and properly admonishing the jury

is usually viewed as sufficient to cure any prejudice”); People v. Wiggins, 2015 IL App (1st)

133033, ¶ 59. Moreover, because Irwin was not under arrest at the time he was directed out of

the car, the prosecutor’s argument was not, as Irwin contends, a comment on his postarrest

silence. Consequently, we conclude that this single remark did not deprive Irwin of a fair trial.

¶ 57 Finally, Irwin argues that the cumulative errors committed during his trial denied him a

fair trial. Ordinarily, a new trial is not warranted where a defendant raises several contentions of

error, none of which rise to the level of reversible error, because “ ‘[t]he whole can be no greater

than the sum of its parts.’ ” People v. Sullivan, 366 Ill. App. 3d 770, 786-87 (2006) (quoting

People v. Albanese, 102 Ill. 2d 54, 82-83 (1984), abrogated on other grounds in People v.

Gacho, 122 Ill. 2d 221 (1988)). Nevertheless, there may be circumstances where the cumulative

impact of otherwise harmless errors deprives a defendant of a fair trial and mandates reversal.

See, e.g., Albanese, 102 Ill. 2d at 83 (citing People v. Killian, 42 Ill. App. 3d 596, 601 (1976)).

However, given the straightforward nature of the evidence, which was essentially uncontradicted

and which established the presence of a weapon where Irwin was sitting discovered shortly after

-19­
 1-15-0054

he exited the vehicle, the errors we have identified in this case, even when considered

cumulatively, do not rise to this level.

¶ 58 Affirmed.

¶ 59 PRESIDING JUSTICE HYMAN, dissenting in part.

¶ 60 While the majority rightly concludes that the “shots fired” call merited a limiting

instruction, and that the “mug shot” was irrelevant and should not have been allowed in the jury

room, I respectfully must part ways at the impact of those errors. The majority believes that they

were harmless beyond a reasonable doubt. I disagree—the errors, combined with others that the

trial court tried to cure, collectively rise to the level of cumulative error, depriving Irwin of his

right to a fair trial. Accordingly, I would overturn Irwin’s conviction and remand for a new trial.

¶ 61 Kristopher Irwin’s trial was replete with mistakes:

(i) Evidence that should have been admitted only for limited purposes (the “shots

fired” 911 call) was instead admitted without limiting instructions;

(ii) Irrelevant and unduly prejudicial evidence (the “mug shot”) was admitted and sent

to the jury room for no reason whatsoever;

(iii) Even when the trial court did properly limit prejudicial evidence, the State’s

witness violated a motion in limine by testifying that he recognized Irwin from

“multiple street encounters”; and

(iv) The prosecutor went on to improperly comment during closing argument on

Irwin’s silence.

¶ 62 In concluding that these errors were harmless, the majority relies on the gun’s location on

the floor of the Dodge (near where Irwin’s feet would have been) and Officer Escamilla’s

observation that Irwin made a “movement” during the traffic stop that could be construed as

-20­
 1-15-0054

Irwin dropping the gun. This evidence may have been legally sufficient, in the sense that a

reasonable trier of fact, viewing this evidence in the light most favorable to the State, could

conclude Irwin was guilty. People v. Campbell, 146 Ill. 2d 363, 374 (1992). But that is not the

same thing as saying that this evidence was “overwhelming,” so that the error was harmless

beyond a reasonable doubt. People v. Patterson, 217 Ill. 2d 407, 434 (2005); see also People v.

Hogan, 388 Ill. App. 3d 885 (2009) (finding evidence was sufficient to support conviction, but

not overwhelming for harmless error analysis).

¶ 63 That the majority characterizes the evidence as being overwhelming does not hold. No

witness saw Irwin holding or using the gun. No forensic evidence (such as his fingerprints on the

gun) was presented. The gun was found on the floor of a car that Irwin did not own and was not

controlling at the time of the offense. And another of the car’s occupants was found with a gun in

his waistband, and a third passenger was sitting directly behind Irwin’s seat, with space between

the car’s floor and the bottom of Irwin’s seat.

¶ 64 Again, the State’s case turns solely on the location of the gun and Officer Escamilla’s

observation—though the scene was so dark that Escamilla could not make out the race or gender

of the car’s occupants, and the other officers conducting the stop did not see Irwin’s

“movement.” At best this evidence is thin and inconclusive, not overwhelming.

¶ 65 Compare this case with one like Patterson, where the defendant was the last person seen

with the victim before the victim’s disappearance, the victim’s body was found with a blanket

similar to a blanket belonging to the defendant, and (most tellingly) the victim’s DNA was found

in a blood stain on the defendant’s living room carpet. 217 Ill. 2d at 433-35. The evidence in

Patterson was circumstantial, but nonetheless “overwhelming.” There is no compelling forensic

evidence inculpating Irwin, or evidence pointing to him alone as the culprit (as opposed to the

-21­
 1-15-0054

three other men in the car). Or a case like People v. Mullins, where three police officers, whose

testimony was unimpeached, watched Mullins make multiple heroin sales during a half-hour

period. 242 Ill. 2d 1, 25 (2011). The case against Mullins consisted of direct observations of

illegal actions; no inferences needed to be drawn (as must be drawn here between an ambiguous

movement and the gun’s position on the floor, the only basis on which the jury could have

concluded that Irwin possessed the gun).

¶ 66 Reviewing the trial proceedings as a whole, I am not convinced that Irwin would have

been convicted regardless of these errors. Mullins, 242 Ill. 2d at 23.

¶ 67 Irwin also raised a number of other claims. While I agree with the majority that the State

did not improperly vouch for Officer Deering’s credibility, the remaining claims (the “multiple

street encounters” testimony and the commentary on Irwin’s silence) should not be taken in

isolation, but examined together in the context of their cumulative effect. See People v. Blue, 189

Ill. 2d 99, 139 (2000) (finding that cumulative errors “created a pervasive pattern of unfair

prejudice to defendant’s case”).

¶ 68 Before trial, the trial court ruled that police witnesses could not testify that they knew

Irwin from prior arrests or encounters; yet, when asked how he recognized Irwin, Officer

Adamidis replied, “multiple street encounters.” The trial court tried to cure this unmistakable

violation by sustaining an objection, striking the testimony, and instructing the jury to disregard

it. Whether this testimony stemmed from a deliberate attempt to violate the in limine ruling, or

simply poor witness preparation, it was impermissible and had the highly prejudicial effect of

painting Irwin as a criminal, an effect further emphasized by the use of the mug shot.

¶ 69 During closing argument, the State told the jury that Irwin had not mentioned to Officer

Deering that there was a gun in the car. The trial court sustained Irwin’s objection. I disagree that

-22­
 1-15-0054

this statement was responsive to defense argument that Irwin wasn’t nervous during the traffic

stop: the prosecutor could have responded that Irwin did not believe the gun would be discovered

without going on to chastise him for not alerting Officer Deering to the gun’s presence “for her

own safety.” The prosecutor did not need to comment on his lack of speech, or imply that he

failed to inform Officer Deering about the gun because he nefariously wished her harm. This

error ties in to the use of the “shots fired” call, again embroidering possession of a gun into intent

to cause bodily harm with that gun.

¶ 70 All four of the errors listed above fall into this pattern of painting Irwin as a hardened,

dangerous criminal committing serious crimes. When the 911 call and the mug shot are added to

the “multiple street encounters” and the commentary on silence, it shows a pattern of unfair

prejudice that, cumulatively, denied Irwin his fundamental right to a fair trial. Again, the State’s

evidence was purely circumstantial, and at every turn, the State attempted to strengthen that

evidence by making Irwin appear as dangerous as possible.

¶ 71 When considering the weight of all these errors, what matters most is whether Irwin

received a fair trial, regardless of the strength of the State’s evidence. See Blue, 189 Ill. 2d at 139

(though evidence against defendant was “overwhelming,” new trial ordered to “preserve the

trustworthiness and reputation of the judicial process”).

¶ 72 The net effect of the multiple errors rendered Irwin’s trial fundamentally unfair and

unreliable; he is entitled to a new trial.

-23­