People v. Allen

2020 IL App (5th) 170271-U

Opinion

NOTICE 2020 IL App (5th) 170271-U NOTICE Decision filed 11/16/20. The This order was filed under text of this decision may be NO. 5-17-0271 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 16-CF-57 ) TIYE ALLEN, ) Honorable ) Robert B. Haida, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

PRESIDING JUSTICE WELCH delivered the judgment of the court. Justices Moore and Overstreet concurred in the judgment.

ORDER

¶1 Held: The defendant’s conviction for first-degree murder is affirmed where the State did not commit prosecutorial misconduct in regard to the admission of a condensed version of the surveillance footage of the shooting, where the defendant did not receive ineffective assistance of counsel, and where, although the trial court committed error when it failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), this error did not amount to plain error because the evidence was not closely balanced. However, because the trial court failed to properly admonish the defendant pursuant to Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001) after sentencing, we remand with directions that the court properly admonish him and allow him an opportunity to file an appropriate postsentencing motion.

¶2 This is a direct appeal from the circuit court of St. Clair County. At the April 2017

jury trial, the defendant, Tiye Allen, was convicted of first-degree murder. The trial court

1 then sentenced him to 60 years’ imprisonment to be followed by 3 years of mandatory

supervised release (MSR). On appeal, the defendant argues that he was entitled to a new

trial because the State misrepresented the nature of an edited surveillance video of the

incident and elicited false testimony regarding the contents of that video; the court failed

to ensure that the potential jurors understood and accepted the four fundamental legal

principles set out in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); the court erred

at sentencing when it failed to consider, as evidence in mitigation, that imprisonment would

be a hardship on the defendant’s dependents; and he was not properly admonished in

accordance with Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001) after sentencing,

so the case should be remanded to provide him with an opportunity to file a motion to

reconsider his sentence. For the reasons that follow, we affirm the defendant’s conviction

and remand with directions.

¶3 I. BACKGROUND

¶4 On December 12, 2015, at approximately 1:15 a.m., the victim, Salahudin Malik

Robbins, entered the Bottoms Up strip club (Bottoms Up) in Brooklyn, Illinois. Thereafter,

at approximately 1:30 a.m., three men arrived at Bottoms Up in a black Audi; the three

men were later identified as the defendant, Ryan Bryant, and Tony Lee Hampton. The

black Audi parked between an SUV and a white Dodge Charger. At around 2:30 a.m., the

three men exited Bottoms Up and got into the Audi. From Bottom Up’s video surveillance,

it appeared that Bryant got in the front passenger seat, the defendant got in the driver’s seat,

and Hampton got in the back seat. They remained inside the vehicle for about 25 minutes.

2 ¶5 Around 3 a.m., Robbins exited Bottoms Up with three women and walked toward

the parking lot. The surveillance video showed the driver’s side door of the Audi opening

and several shots being fired. That shooter remained by the vehicle. The video also showed

another shooter get out of the back seat of the Audi, run around the SUV parked next to

the Audi, and fire a few shots. That shooter then approached Robbins and shot him multiple

times at close range while Robbins was lying on the ground. The driver then got back into

the Audi and started to drive away. The other shooter ran back to the Audi and got into the

back seat. The Audi then sped away.

¶6 A Village of Brooklyn police officer, who was patrolling in the area, heard the gun

shots and went to Bottoms Up to investigate. He saw the black Audi leaving the parking

lot and attempted to stop the vehicle. The driver did not stop, so the officer chased the

vehicle into St. Louis, and he eventually lost sight of it.

¶7 The following day, the Illinois State Police (ISP) received an anonymous tip,

suggesting that they compare a photograph of Hampton to the surveillance video. The ISP

did so and concluded that Hampton was one of the suspects on the video and that he was

from the St. Louis area. The ISP contacted the St. Louis City police department and was

given names of people who had been arrested or in contact with them at the same time as

Hampton. This led to the ISP identifying the defendant and Hampton as the two shooters

and Bryant as the third person with them at Bottoms Up.

¶8 On January 15, 2016, the defendant was charged by indictment with one count of

first-degree murder (720 ILCS 5/9-1(a)(1) (West 2014)) of Robbins and three counts of

aggravated battery with a firearm (id. § 12-3.05(e)(1)) for the three bystanders who were 3 injured as a result of the shooting. On April 17, 2017, the State filed an amended notice of

intent to seek a mandatory enhanced sentence based on three firearm enhancements

pursuant to sections 5-8-1(a)(1)(d)(i), (a)(1)(d)(ii), and (a)(1)(d)(iii) of the Unified Code of

Corrections (730 ILCS 5/5-8-1(a)(1)(d)(i)-(iii) (West 2016)).

¶9 On April 24, 2017, the first day of trial, the State requested the dismissal of two of

the aggravated battery charges. The trial court granted the State’s request and dismissed

those charges. The State proceeded to trial on one count of aggravated battery with a

firearm and one count of first-degree murder. At trial, the following testimony was

presented.

¶ 10 Sherrod Stancil, who was previously employed as a patrol officer for the Village of

Brooklyn, testified that at approximately 3 a.m. on December 12, while he was on routine

patrol, he heard gunshots coming from the north end of town. He was approximately one

block away from that area and immediately headed in that direction. When he arrived, he

observed a black Audi leaving the Bottoms Up parking lot at a high rate of speed. He

pursued the vehicle with his lights and siren activated, but the vehicle never stopped. The

car’s Missouri license plates were registered to a dark-colored Audi, but he could not tell

who was in the vehicle or how many people were there. He followed the vehicle into

Missouri, but he eventually lost sight of it and terminated pursuit. After that, he returned

to the Bottoms Up parking lot. While there, he learned that Robbins was pronounced dead.

He believed that there were other individuals that were injured in the shooting, but he did

not have any contact with them because he was securing the scene. He contacted ISP to

assist with the investigation. 4 ¶ 11 Alexander Arosemena, who installed and maintained the video surveillance system

at Bottoms Up, testified that he assisted Special Agent Randall Copsey, an ISP technology

specialist, during this investigation. He explained that there were a total of 32 cameras,

both outside and inside the club. The outside cameras were motion activated; the cameras

continuously recorded but did not grab the recording until motion was detected. When

motion was detected, it would go back 30 seconds and record from that point forward. He

showed Special Agent Copsey how to download the digital images from the surveillance

cameras and was present while Special Agent Copsey viewed the video of the actual

shooting of Robbins. Arosemena identified one of the suspects as Hampton.

¶ 12 Special Agent Copsey testified that he extracted the video from the surveillance

system. He transferred the data to a thumb drive and then put the recovered data on a DVD.

This DVD was identified as the People’s Exhibit 1A. He testified that the video clips on

Exhibit 1A fairly and accurately depicted the data extraction from the surveillance system.

¶ 13 Special Agent Dennis Janis, an investigator in the ISP violent crime unit, testified

that he was the case agent in this investigation. As part of his investigation, he watched

the surveillance video of the incident. The video had clear images of the two shooters and

showed the actual shootings. He testified that one of the shooters had a prominent neck

tattoo on the front of his neck, and the shooter was later identified as Hampton. The second

shooter was identified as the defendant, and the third person with them was Bryant.

¶ 14 Special Agent Janis received all of the video clips that were collected from the

surveillance system. He then reviewed the clips and identified those that were relevant to

the incident. He compiled those clips onto one DVD, which was identified as the People’s 5 Exhibit 1B. He explained that there were five cameras total (inside and outside the club)

that were helpful to the investigation, and two of the outside cameras captured the actual

shooting.

¶ 15 Although the full video of the downloaded images was edited as a compilation of

the important parts of what transpired that morning, he testified that it fairly and accurately

depicted what he observed on the Bottoms Up system. Also, he noted that a particular clip

had been edited to play in a faster speed than normal because the three men were sitting

inside the black Audi for approximately 25 minutes; Special Agent Janis believed that they

were waiting for Robbins to leave the club. At this point, the defendant’s counsel objected

to the admission of the edited video into evidence. Counsel stated that she did not object

to showing the edited video to the jury as demonstrative evidence for efficiency purposes,

but she did not think it was appropriate to admit the exhibit into evidence because it was

an edited version of all of the videos. In response, the State noted that Special Agent Janis

had testified that, although the video was edited, it was still a fair and accurate depiction of

everything that happened. The State also argued that it was edited merely for ease of the

jury viewing it. The court allowed the edited video to be played for the jury and reserved

its ruling on the objection for a later time.

¶ 16 Special Agent Janis then continued his testimony about what the surveillance videos

showed; the State played the condensed version of the footage for the jury while Special

Agent Janis narrated. The video showed Robbins entering the club at approximately 1:15

a.m. on December 12. Shortly thereafter, the black Audi arrived with the suspects in it.

Special Agent Janis believed that the defendant was driving, Hampton was sitting in the 6 front passenger seat, and Bryant was sitting in the back seat. The three men then entered

the club. At around 2:30 a.m., the three men left the club and got into the black Audi.

Special Agent Janis believed that the defendant got into the driver’s seat, Bryant got into

the front passenger seat, and Hampton was in the back seat. There was a white Dodge

Charger parked beside the Audi, and it appeared that Hampton was talking to the people

inside the Charger. Special Agent Janis testified that there was a point in the video where

it appeared to him that somebody either got out of the Charger and into the vehicle with

them or someone got out of the Audi while the other occupants waited inside the vehicle.

After talking to Bryant, he learned that a fourth person did not get into the vehicle with

them. All three men were in the Audi when Robbins exited the club around 3 a.m. Robbins

was walking toward the club’s parking lot with three female friends. The video showed

Robbins and his friends walking in the parking lot when the driver’s side door of the Audi

opened, and a man, who Special Agent Janis identified as the defendant, got out and fired

several shots in Robbins’s direction. Hampton also exited the vehicle, ran around the SUV

parked next to the Audi, and started shooting in Robbins’s direction. He then ran up to

Robbins and shot him at close range while Robbins was lying on the ground. The defendant

got back into the driver’s seat of the Audi and started driving away. Hampton ran to the

vehicle and got in the backseat.

¶ 17 The following week, St. Louis City recovered a vehicle burned beyond recognition

in an area near Washington Street. The vehicle appeared to match the description of the

Audi, and, on the recovery report, the VIN number was the same as the black Audi. The

vehicle did not have a license plate on it, but the officer who observed the Audi leaving the 7 parking lot that morning had reported a Missouri license plate of KL4SOU. However, that

license plate was registered to Chris Masarek, who had an address in South County in St.

Louis. They eventually learned that Masarek had a gray Audi with a rear license plate that

matched the plate on the destroyed vehicle but with a front plate that did not match his

vehicle; it was believed that someone had replaced his front license plate with a different

plate that was registered to a Honda. Special Agent Janis spoke with both owners of the

plates about their involvement in the shootings, and he did not believe that either one was

involved.

¶ 18 On cross-examination, Special Agent Janis acknowledged that, at the time of the

grand jury proceeding, he believed that a fourth person had gotten into the Audi that

morning. He explained that, because of how the motion capture camera worked, he did

not see anyone get out of the Audi, but he did see someone get in. He did not have an

opportunity to interview Bryant before his grand jury testimony. He acknowledged that

there could have been another exchange of persons in the Audi that morning that did not

trigger the cameras.

¶ 19 Special Agent Elbert Jennings with the ISP testified that he was dispatched to

Bottoms Up on December 12 for the homicide investigation. During his involvement with

the investigation, he interviewed two of the witnesses on the scene and watched some of

the video surveillance. On December 13, he received an anonymous call with a tip to check

www.stlmugshots.com to compare the mugshot of Hampton listed on that website with the

images of the suspects in the video. When he went to the website, he noticed that the

mugshot of Hampton matched the image of one of the suspects. 8 ¶ 20 Dr. Gershom Norfleet, the assistant medical examiner at the St. Louis County

Medical Examiner’s office, testified that he conducted Robbins’s autopsy. Initially, he

observed 12 gunshot wounds to the body. Robbins sustained gunshot wounds in the head,

chest, left buttock, left thigh, right thigh, and right foot. Dr. Norfleet recovered four

separate fragments of ballistic material from Robbins’s body. He opined that the cause and

manner of Robbins’s death were the gunshot wounds to the head and chest. The other

injuries that Robbins sustained were not fatal.

¶ 21 James Randolph, who was previously employed as a crime scene investigator with

the ISP, testified that he assisted with this investigation by processing the crime scene,

photographing the scene, and collecting the evidence that was there. While processing the

crime scene, he discovered several fired shell casings on the ground in the parking lot. He

found 12 0.40-caliber shell casings from the area between the parked Audi and the SUV

and six 9-millimeter shell casings that were recovered from the area behind and between

the vehicles. There was also a projectile and another 9-millimeter shell casing recovered

closer to Robbins’s body.

¶ 22 Bryant testified that he went with the defendant and Hampton to Bottoms Up on

December 12 to get drinks. They rode with the defendant in his black Audi and got to the

club at around 2 a.m. They stayed at the club for about 30 to 45 minutes. He saw Robbins

in the club, but none of them interacted with Robbins. Thinking that all three were leaving

the club, he exited with Hampton. However, he noticed that the defendant was not with

them, so he went back inside to get the defendant. After exiting, they went to the Audi,

got inside, and sat there in the parking lot. The defendant was sitting in the driver’s seat, 9 Bryant was sitting in the front passenger seat, and Hampton was in the back seat. They did

not leave the parking lot because Hampton was talking to the two occupants of the white

Charger parked next to them about what they were doing later; Hampton had his window

rolled down and was talking to them through the window. Hampton wanted the driver of

the Charger to drop Bryant off, and, at one point, Bryant got into the Charger. However,

he did not know who the occupants of the vehicle were, so he decided to get back into the

Audi. He got into the front passenger seat of the Audi. No one else got into or exited the

Audi that morning.

¶ 23 Bryant testified that Hampton and the defendant had discussed how Robbins was

staring at them but that was all they said about Robbins. When Bryant got back into the

Audi, he noticed that both Hampton and the defendant had guns on them; Hampton had a

short gun that looked like a semi-automatic on his lap while the defendant had a longer gun

that appeared to be a semi-automatic on the side of his leg. He had not seen the guns before

then, and he did not ask about the guns. He did not see Robbins exit the club because he

was nodding off. He heard the defendant say, “there he go” and then a gunshot. He

observed the defendant firing his gun in Robbins’s direction and then Robbins fall to the

ground. He also saw some girls that were near Robbins run away. While the defendant

was shooting, Hampton got out of the Audi, went behind the SUV that was to the right of

the Audi, and started shooting in Robbins’s direction. Hampton then ran closer to Robbins

as he continued to shoot. The defendant then got back inside the vehicle. As the defendant

started to drive away, Hampton ran back to the car and got inside. Both men had their guns

10 with them when they got back inside the car. Bryant testified that he had previously viewed

Exhibit 1B, and it fairly and accurately depicted what happened that morning.

¶ 24 As they were pulling out of the parking lot, they encountered a police car with lights

and siren activated. The defendant did not pull over, and the officer followed them into St.

Louis until the officer finally lost sight of them. They went to an apartment complex in

downtown St. Louis and switched vehicles; the defendant had the key to the new vehicle.

Hampton then called the occupants of the white Charger, and they all met up at a gas

station. Then, they went back to the Audi and moved it to a vacant lot. The defendant

directed them to wipe down the Audi and set it on fire. After wiping down the Audi,

Hampton poured gasoline all over it, and one of the other guys set it on fire. After setting

the Audi on fire, Bryant was dropped off at home. Before exiting the vehicle, both the

defendant and Hampton told him to keep his mouth shut. They never said why they shot

Robbins, but Hampton did say that he “got him.” There was no discussion before going to

the club about knowing that Robbins would be there, there was no conflict with Robbins

inside the club, and the only mention of Robbins was that he had been staring. Hampton’s

discussion with the people in the Charger was only about who they were going to meet up

with later. Bryant admitted that he had been drinking in the club, and he did not remember

whether he had used any drugs.

¶ 25 Thomas Gamboe Jr. testified that he was a forensic scientist specializing in the areas

of firearm, tool mark, footwear and tire track identifications by the ISP. He was assigned

to the Metro East laboratory in Belleville and received evidence obtained from the crime

scene to test. He received 12 0.40-caliber Smith & Wesson discharged cases and seven 9- 11 millimeter Luger caliber discharged cartridge cases. After comparing the 0.40-caliber

discharged cartridge cases, he determined that all 12 were fired from the same firearm. He

explained that usually 0.40-caliber pistols were longer pistols that range from about six to

nine inches long. He also determined that all seven of the 9-millimeter caliber cartridge

cases were fired from the same firearm. He explained that this firearm was likely a smaller

pistol. The 0.40-caliber casings and the 9-millimeter caliber casings could not have been

fired from the same gun due to the size difference. Most of the bullets recovered from the

body were 9-millimeter. There were two recovered from the body that were 0.40-caliber.

The injuries to Robbins’s right knee were from 0.40-caliber projectiles. No firearms were

recovered for testing.

¶ 26 Over defense counsel’s objection, the trial court allowed the introduction of Exhibit

1A and 1B into evidence. After the State finished presenting its evidence, it then moved

for dismissal of the remaining aggravated battery charge and rested its case. The defense

presented no evidence and also rested. After hearing closing arguments and receiving the

relevant jury instructions, the jury found the defendant guilty of first-degree murder. The

jury also found that all three of the firearm enhancements were applicable given that the

defendant had personally discharged a firearm that was the proximate cause of Robbins’s

death. The jury members were subsequently polled, and each juror confirmed that this was

their verdict. The court then entered judgment on the verdicts.

¶ 27 On May 24, 2017, the defendant filed a motion for judgment notwithstanding the

verdict or a new trial. In the motion, the defendant contended that the State failed to prove

him guilty beyond a reasonable doubt, that the trial court erred in denying his motion in 12 limine relating to the admission of testimony regarding the only aggravated battery count

that went to trial, that the court erred in denying his motion in limine related to the

admission of testimony of Robbins’s wife to establish his identity, and that the court erred

in denying his motion of judgement of acquittal at the close of the State’s case and at the

close of all of the evidence.

¶ 28 On June 13, 2017, the trial court held the defendant’s sentencing hearing. Initially,

the court announced that it was denying the defendant’s posttrial motion. It then proceeded

to the sentencing hearing. The State noted that the sentencing range would be 45 years to

natural life imprisonment with the sentence enhancement and requested that the defendant

be sentenced to 65 years’ imprisonment. The State contended that although the defendant

likely did not fire the fatal shots, he fired his gun at least 12 times in Robbins’s direction,

that he was the first person shooting at Robbins, that he was the person who drove the

vehicle and led a police officer on a high-speed chase, and that he directed everyone to

wipe down the Audi and light it on fire. In aggravation, the State argued that the

defendant’s conduct caused and threatened serious harm in that he fired at least 12 shots in

the direction of Robbins while Robbins was walking with three other people and while

others were in the vicinity and then led a police officer on a high-speed chase. The State

also argued that a stern sentence was necessary for deterrence to show that the court would

not tolerate the senseless killing of another. The State contended that the defendant had no

concern for the life of Robbins, anyone else in that parking lot, or anyone on the road.

¶ 29 In response, defense counsel requested a sentence at the lower end of the sentencing

range. Counsel argued that the defendant was the son of a single mother and did not know 13 his father, that he did not complete high school, and that he was young (21 years old) and

had not begun to explore the opportunities that life would present. Counsel also noted that,

a few weeks before the trial, the mother of the defendant’s three young children was

murdered, and the children were now without a mother and a father. Counsel requested a

lower sentence so that the children could at some point have their father in their lives. In

his statement of allocution, the defendant asked the court to give him a lower sentence so

that he could get back to his children.

¶ 30 After hearing the arguments and the defendant’s statement in allocution, the trial

court sentenced him to 60 years’ imprisonment. In announcing this decision, the court

found that there were not any statutory factors in mitigation. The court then stated as

follows:

“[There] are certainly human factors that go into why life circumstances put individuals into situations that cause them to engage in criminal conduct. The thing about this crime is to call it criminal conduct doesn’t really fully explain what happened. If I’m recalling the evidence, I think your codefendant shot—fired at least as many shots as you did. We all know from our experience or those of us that have worked in the criminal justice system for any period of time know that a person can die from one gunshot wound. And Malik Robbins suffered many more than one. I don’t know if it would make any difference to any of us if I knew why you and the other people involved in this did what you did. *** *** But I would have to admit to some curiosity as to why it happened, but I don’t know that it would make any difference. Because the fact is what you and your associates did—I think from the evidence and hearing the evidence, there’s definitely a fair inference that it was preplanned. It was preconceived. You were part of that plan. We hear a lot now about conspiracies and people agreeing to do things and we hear that on a national level. We hear it all the time in many other places. But we saw that play out here in—on video in large part, although there was, I’m sure, planning involved leading up to that fact. In mitigation [sic] obviously your conduct threatened the harm of many other people that were walking around on the streets that night. 14 You do have a history of criminal conduct, although it’s not significant. I don’t think that a life sentence would be appropriate. I think that would be excessive under the circumstances. But I do think a significant sentence in terms of years that may result in you not getting released is appropriate. Even the minimum sentence could result in you not out living your sentence. And that’s a factor that I consider. The statutory gun factor adds 25 years to the sentence. I think the appropriate sentence under the circumstances is a term of 60 years in the Illinois Department of Corrections. I sentence you to 35 years for the offense of first degree murder, and an additional 25 years will be added to that for the statutory gun enhancement. I order that you serve that sentence at 100 percent pursuant to truth-in-sentencing. And if you do out live that sentence, you will be ordered to serve three years of mandatory supervised release if you do survive that sentence.”

¶ 31 After announcing the sentence, the trial court then admonished the defendant as

follows regarding his rights to an appeal:

“You have 30 days from today’s date to file a notice of appeal or to file in this court a motion to reduce or modify the sentence. You can file either one. I will appoint an attorney to represent you on the appeal at the Appellate Court in Mount Vernon, Illinois.”

The court then told the defendant that his counsel was going to file the notice of appeal and

asked the defendant whether he understood his rights on appeal. The defendant responded,

“You say I got 30 days to file it?” The court answered that the defendant’s counsel was

going to file the notice for him but technically his rights would last for 30 days. The court

then asked whether the defendant understood his rights, and the defendant said, “Yeah.”

¶ 32 The defendant did not file a motion to reconsider sentence, but he did file a notice

of appeal on July 10, 2017.

¶ 33 II. ANALYSIS

¶ 34 On appeal, the defendant raises the following arguments: (1) that the State

misrepresented the nature of the edited surveillance video and elicited false testimony

15 regarding the contents of that video, preventing the jury from fairly assessing whether he

could be one of the shooters; (2) that trial counsel was ineffective because counsel failed

to correct the State’s misleading representation of what the edited video showed and failed

to impeach Janis regarding the numerous substantial gaps in the video during which other

people could have replaced the defendant in the driver’s seat of the Audi; (3) that the trial

court failed to ensure that the potential jurors understood and accepted the principles set

forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); (4) that the court erred at

sentencing when it failed to consider, as evidence in mitigation, that imprisonment would

be a hardship on the defendant’s dependents; and (5) that he was not properly admonished

in accordance with Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001), so the case

should be remanded to provide him with an opportunity to file a motion to reconsider his

sentence.

¶ 35 The defendant first argues that the State mischaracterizes the nature of the edited

surveillance video that was played for the jury (in particular, clip 14, which was the portion

of the video where the suspects were sitting inside the Audi for approximately 25 minutes).

At trial, the State noted that the surveillance tapes had been edited to show a compilation

of the important parts of the events of that morning and that the clip showing the suspects

waiting in the Audi was edited to play at a faster speed for ease in viewing. The State’s

argument during trial was that there were only three people in the Audi at that time and

that no one entered or exited the Audi for those 25 minutes.

¶ 36 However, the defendant contends that the video actually demonstrates that there

would have been multiple opportunities for the person in the driver’s seat to change without 16 that exchange being captured by the surveillance system. The defendant argues that the

State misled the trial court and the jury about that portion of the surveillance video because,

not only was the video played at a faster speed, but there were 14 gaps in the clip that were

spliced together to make clip 14. Specifically, the defendant noted that clip 14 was

comprised of 16 different clips, that the total amount of time covered by those clips was

actually 14 minutes and 47 seconds (not 25 minutes), and that there was a total of 5 minutes

and 21 seconds of time that was not recorded.

¶ 37 The defendant argued that although Special Agent Janis specifically testified that

there were no “sizable gaps” in the video footage, the gaps were of the following durations:

27 seconds, 53 seconds, 16 seconds, 13 seconds, 41 seconds, 7 seconds, 11 seconds, 15

seconds, 8 seconds, 47 seconds, 7 seconds, 48 seconds, 13 seconds, and 15 seconds. He

contends that the gap between recordings during which Bryant exited the Audi and got into

the Charger, which did not trigger the surveillance cameras, totaled 12 seconds. Thus, he

contends that any gap of approximately 12 seconds or longer allowed adequate time for the

drivers to change in the Audi. The defendant further argues that the State’s misconduct

was exacerbated when, during both opening statements and closing arguments, the State

indicated that the video showed that no one exited or entered the Audi during the entire

time that the suspects were waiting inside.

¶ 38 In making this argument, the defendant acknowledges that he forfeited this

argument concerning the video because, although trial counsel objected to the admission

of the edited video into evidence, counsel failed to object to any alleged prosecutorial

17 misconduct with regard to the edited video. However, he claims that it can be reviewed

under either prong of plain-error review.

¶ 39 The plain-error doctrine bypasses forfeiture principles and allows a reviewing court

to consider unpreserved error when: (1) the evidence is closely balanced, regardless of the

seriousness of the error, or (2) the error is serious, regardless of the closeness of the

evidence. People v. McDonald, 2016 IL 118882, ¶ 48. The first step of plain-

error review is determining whether any error occurred. Id.

¶ 40 Here, after carefully reviewing the record, which includes the full version of the

video clips (Exhibit 1A) obtained from the Bottoms Up surveillance system as well as the

edited version (Exhibit 1B) of the video, we find that there was no error. The testimony

indicated that the surveillance cameras at Bottoms Up were motion activated and would

not grab the recordings unless they were triggered by motion. Special Agent Janis

explained that Exhibit 1A included footage obtained from several different cameras (both

inside and outside of the club) that was compiled onto one DVD and that some of the

footage did not show the victim or the suspects in it. The DVD contained over 100 clips

and were organized by camera, so they were not presented in a way that would create a

cohesive viewing experience; this made it difficult to find the relevant clips. After

identifying the clips that were relevant to the incident and primarily included the suspects

and/or the victim, Special Agent Janis merged those clips on one DVD, making Exhibit

1B; he testified that Exhibit 1B was a compilation of all of the important parts of the events

of that morning on one DVD. Although Exhibit 1B did not contain all of the video footage,

Special Agent Janis testified that it fairly and accurately depicted what he observed on the 18 Bottoms Up surveillance system. As for clip 14 on Exhibit 1B, the testimony revealed that,

after leaving the club, the suspects waited in the parking lot for approximately 25 minutes,

presumably waiting for the victim to exit the club. For ease of viewing, this clip was played

at a faster speed, and it does not appear that the clip or the footage on Exhibit 1A contained

the entire 25 minutes that the suspects were waiting in the Audi (likely because the cameras,

which were motion triggered, were not grabbing the recordings the entire time).

¶ 41 Although Special Agent Janis stated that there not any “sizable gaps” in the footage,

he testified that all of the clips, which included clip 14, fairly and accurately depicted what

he observed on the Bottoms Up system. Special Agent Copsey testified that Exhibit 1A

was all of the data that he extracted from the surveillance videos and that it fairly and

accurately depicted the data from the surveillance. Also, the ISP officers’ testimony was

corroborated by Bryant, who testified that, except for him quickly leaving the vehicle one

time, no one else got into the Audi that morning and no one else exited the vehicle during

that time. Bryant further testified that the defendant remained in the driver’s seat of the

Audi from the time that they left the club until Robbins exited the club and the shooting

began. Exhibit 1A, which contained the footage obtained from all of the surveillance

cameras that morning, does not show the defendant exiting the vehicle or someone of a

similar build to the defendant replacing him in the driver’s seat of the Audi. This video

was also introduced into evidence, although it was not played for the jury during trial.

Thus, we conclude that the evidence did not indicate that Exhibit 1B, the condensed version

of the surveillance videos, (or even Exhibit 1A) misrepresented what actually occurred that

morning. Because the testimony revealed that the surveillance videos played for the jury 19 accurately portrayed what happened that morning, which was corroborated by Bryant, we

find that the fact that the jury may not have been specifically informed that there were gaps

in clip 14 did not constitute prosecutorial misconduct. Thus, we reject the defendant’s

argument that the State intentionally misled the jury and knowingly solicited perjured

testimony about the nature of the recordings played at trial.

¶ 42 Moreover, Bryant testified that, at some point during that 25 minutes, he exited the

Audi and got into the white Charger parked next to them. He did not remain there long

and got back into the front passenger seat of the Audi. This entire exchange was not

captured on the surveillance videos as they were not triggered until the car door of the

white Charger opened and closed. This clip was played for the jury during Special Agent

Janis’s testimony, and he noted that the video did not show who exited the Audi. Defense

counsel also elicited testimony from Special Agent Janis on cross-examination that there

could have been another exchange of persons in the Audi that was not captured on the

video. Thus, the jury was presented with evidence that it was possible that the defendant

could have exited the Audi before the shooting happened without triggering the

surveillance cameras. However, the jury still found the defendant guilty.

¶ 43 The defendant has also raised an alternative argument, that his counsel was

ineffective for not objecting when “faced with the State’s misleading representation of

what clip 14 actually demonstrated.” The defendant contends that his counsel’s failure to

correct the State and impeach Special Agent Janis regarding the numerous substantial gaps

in the video during which someone else could have gotten in the driver’s seat likely made

a difference between his conviction and an acquittal. 20 ¶ 44 To demonstrate that his counsel was ineffective, defendant has the burden to prove

that counsel’s performance was deficient, and that the deficient performance prejudiced

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to establish

either prong precludes a finding of ineffectiveness. People v. Simpson, 2015 IL 116512,

¶ 35. To show deficient performance, defendant must demonstrate that counsel’s

performance fell below an objective standard of reasonableness. People v. Veach, 2017 IL

120649, ¶ 30. With respect to deficient performance, defendant must overcome the “strong

presumption” that counsel’s action or inaction was the result of sound trial strategy, rather

than incompetence. People v. Houston, 226 Ill. 2d 135, 144 (2007). As such, trial-

strategy matters are immune from ineffective-assistance claims, unless

counsel’s strategy was so unsound that counsel completely failed to conduct any

meaningful adversarial testing of the State’s case. People v. West, 187 Ill. 2d 418, 432-33

(1999).

¶ 45 Here, as noted above, Exhibit 1B was compiled from the footage on the Exhibit 1A

DVD, Special Agent Copsey testified that Exhibit 1A accurately portrayed what he

extracted from the surveillance videos, Special Agent Janis testified that clip 14 of Exhibit

1B accurately portrayed what he saw on the surveillance footage, and Bryant’s testimony

about what occurred that morning was consistent with the video clips played for the jury.

Also, testimony was presented that the cameras were motion activated and would not

capture the recordings unless triggered by motion. As previously noted, counsel elicited

testimony that an exchange of drivers could have occurred without triggering the cameras.

Further, we note that counsel did object to Exhibit 1B being introduced into evidence on 21 the grounds that the video was edited and did not contain all of the video from that morning.

However, the trial court overruled this objection. Based on the above, we reiterate our

previous conclusion that the evidence does not support the defendant’s argument that the

State intentionally misled the jury about the nature of the clips contained on Exhibit 1B.

Accordingly, we cannot find that the defendant’s trial counsel was ineffective for failing

to raise a meritless prosecutorial misconduct argument.

¶ 46 The defendant’s next argument is that the trial court erred by failing to properly

inquire of the jury the four principles set out in Illinois Supreme Court Rule 431(b) (eff.

July 1, 2012), commonly referred to as the Zehr principles (see People v. Zehr, 103 Ill. 2d

472 (1984)). Although he failed to preserve the issue for appellate review, the defendant

contends the alleged error is reversible under the first prong of the plain-error doctrine.

The State concedes that the court failed to comply with Rule 431(b) because it did not

specifically question all potential jurors as to whether they understood and accepted the

four Zehr principles, but it contends that the error does not constitute plain error.

¶ 47 The Illinois Supreme Court adopted Rule 431(b) to ensure compliance with its

decision in Zehr, 103 Ill. 2d 472. People v. Glasper, 234 Ill. 2d 173, 187 (2009).

Rule 431(b) requires a trial court to ask potential jurors if they understand and accept the

following principles: “(1) that the defendant is presumed innocent of the charge(s) against

him or her; (2) that before a defendant can be convicted the State must prove the defendant

guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any

evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be

held against him or her[.]” Ill. S. Ct. R. 431(b) (eff. July 1, 2012). Rule 431(b) is not 22 merely a suggestion; failure to strictly comply threatens the integrity of the jury’s guilty

verdict. People v. Reed, 376 Ill. App. 3d 121, 125 (2007); People v. Stevens, 2018 IL App

(4th) 160138, ¶ 25. Rule 431(b) mandates a specific question and response process to

ensure the jurors’ understanding and acceptance of the Zehr principles. People v.

Thompson, 238 Ill. 2d 598, 607 (2010). The court must ask each potential juror whether

he or she understands and accepts each of the principles in the rule. Id. The rule requires

that, although the questioning may be done individually or in a group, each prospective

juror must have an opportunity for a response on their understanding and acceptance of

these principles. Id. The trial court’s failure to ask each juror if he or she understands and

accepts each of the enumerated principles constitutes noncompliance with Rule 431(b). Id.

¶ 48 In the instant case, the trial court instructed the potential jurors that there were four

principles of criminal law that were basic and applied to all criminal defendants in criminal

cases in Illinois. The court then discussed the individual principles as follows. The court

instructed the potential jurors as to the first principle (the presumption of innocence) and

asked each group (the court grouped the potential jurors by row) to raise their hand if they

did not understand that principle. There was only one potential juror that raised her hand.

The court then addressed that potential juror by further explaining the presumption of

innocence and then asked whether that clarified the principle. After the juror indicated that

she understood, the court then asked each group to raise their hand if they could not apply

that principle to the defendant. No hands were raised. The court then addressed the

remaining principles in this same manner, and no one raised their hand for the remaining

principles. 23 ¶ 49 As noted above, the State concedes that the trial court erred by not specifically

questioning all potential jurors as to whether they understood and accepted each of the Zehr

principles. However, the State contends that this does not amount to plain error.

¶ 50 As already stated, the plain-error doctrine bypasses forfeiture principles and allows

a reviewing court to consider unpreserved error when: (1) the evidence is closely balanced,

regardless of the seriousness of the error, or (2) the error is serious, regardless of the

closeness of the evidence. McDonald, 2016 IL 118882, ¶ 48. The defendant acknowledges

that our supreme court has held that a Rule 431(b) violation is not cognizable under the

second prong of the plain-error doctrine, absent evidence that the violation produced a

biased jury. See People v. Wilmington, 2013 IL 112938, ¶ 33. The defendant does not

argue that his jury was biased. Thus, the trial court’s Rule 431(b) error is not reviewable

under the second prong of the plain-error doctrine. The defendant contends that the error

is reviewable under the first prong because the evidence was closely balanced and the error

in failing to ensure the selection of an impartial jury tipped the scales in favor of the State.

¶ 51 Under the first prong, a reviewing court may consider an unpreserved error when it

is clear or obvious and the evidence is so closely balanced that the error alone threatened

to tip the scales of justice against defendant. People v. Sebby, 2017 IL 119445, ¶ 51. When

determining whether the evidence is closely balanced, a reviewing court must evaluate the

totality of the evidence. Id. ¶ 53. The reviewing court’s inquiry involves an assessment of

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

witnesses’ credibility. Id.

24 ¶ 52 In this case, the State argues the evidence was not closely balanced. We agree. The

surveillance videos showed the suspects leaving the club, getting into the Audi with the

defendant in the driver’s seat, Robbins leaving the club, and a person with a similar build

of the defendant’s getting out of the driver’s side of the Audi and starting to shoot at

Robbins. Bryant identified the defendant as the person sitting in the driver’s seat. Bryant

also testified that he observed the defendant sitting in the driver’s seat with a long, semi-

automatic firearm. Once Robbins exited the club, Bryant heard the defendant exclaim,

“there he go,” and saw the defendant firing his gun from the driver’s side of the vehicle

toward Robbins. Bryant then testified that the defendant fired his gun multiple times, and

he saw Robbins hit the ground. The defendant drove the Audi from the scene of the

shooting, did not stop when Stancil attempted to pull him over, and then directed the

burning and cover-up of the Audi. Bryant’s testimony was corroborated by the video

surveillance from that morning and the testimony of the other officers that were involved

in the investigation. In light of these circumstances, the trial court did not commit plain

error because the evidence was not closely balanced. Because the court’s Rule 431(b) error

is not reviewable under either the first or second prong of the plain-error rule, the defendant

cannot meet his burden of persuasion. Accordingly, reversal is not warranted on the sole

basis that the court erred in admonishing the prospective jurors under Rule 431(b).

¶ 53 The defendant next contends that the trial court failed to comply with Illinois

Supreme Court Rule 605(a)(3) (eff. Oct. 1, 2001) at his sentencing hearing when it gave

him insufficient admonishments after sentencing him. Specifically, the defendant argues

that the court failed to admonish him that, if he sought to challenge the correctness of his 25 sentence or any aspect of his sentencing hearing, he was required to file a motion to

reconsider sentence before filing an appeal. He argues that he was prejudiced by the court’s

insufficient admonishments because his argument that the court failed to consider a

relevant statutory factor in mitigation (i.e., that the court failed to consider, as a factor in

mitigation, that imprisonment would be a hardship on his dependents) was forfeited by his

failure to file a motion to reconsider sentence. Thus, the argument can only be reviewed

as plain error. The State concedes this case should be remanded with directions to

admonish the defendant pursuant to Rule 605(a)(3) and allow him an opportunity to file a

postsentencing motion.

¶ 54 Illinois Supreme Court Rule 605(a)(3) provides that in cases where a defendant is

sentenced after a plea of not guilty, the trial court shall, at the time of sentencing, admonish

defendant: (1) that the right to appeal the judgment of conviction, excluding the sentence

imposed or modified, will be preserved only if he files a notice of appeal in

the trial court within 30 days from the date on which the sentence is imposed; (2) if he

seeks to challenge his sentence, or any aspect of the sentencing hearing, he must file a

written motion to reconsider the sentence within 30 days of sentencing; (3) any claim of

error regarding the sentence imposed, or any aspect of the sentence, shall be deemed

waived if not raised in the written motion to reconsider the sentence; and (4) defendant

must file a notice of appeal in the trial court within 30 days from the entry of the order

disposing of the motion to reconsider sentence or order disposing of any challenges to the

sentencing hearing, if he wishes to preserve his right to appeal. Ill. S. Ct. R. 605(a)(3) (eff.

Oct. 1, 2001). However, not every case of improper admonishment requires remand. 26 Where a trial court fails to properly admonish a defendant in accordance with Rule 605(a),

remand is only required if he is prejudiced or denied real justice as a result of the inadequate

admonishments. People v. Henderson, 217 Ill. 2d 449, 466 (2005).

¶ 55 Here, following sentencing, the trial court instructed defense counsel to file a notice

of appeal on the defendant’s behalf. The court then admonished the defendant as follows:

“You have 30 days from today’s date to file a notice of appeal or to file in this court a

motion to reduce or modify the sentence. You can file either one. I will appoint an attorney

to represent you on the appeal at the Appellate Court in Mount Vernon, Illinois.” The court

then told the defendant that his defense counsel would file a notice of appeal for him. The

defendant was not instructed that he must file a motion to reconsider his sentence if he

wished to challenge any aspect of his sentencing hearing. He also was not instructed that

any issue not raised in a postsentencing motion would be waived for appellate review.

Thus, the court did not comply with Rule 605(a)(3).

¶ 56 Although the defendant has raised a sentencing issue on appeal despite his improper

admonishments, the State concedes that he was prejudiced by the court’s incomplete

admonishments because the sentencing issue was forfeited and was thus subject to plain-

error review. In cases where a defendant raises sentencing issues on appeal that have not

been properly preserved as a result of inadequate Rule 605(a) admonishments, the appellate

court can either hear the challenge itself or remand to the trial court. Henderson, 217 Ill.

2d at 468. Accordingly, we remand to the trial court with directions that the court properly

admonish defendant in compliance with Rule 605(a) and allow him an opportunity to file

an appropriate postsentencing motion. Because we are remanding for complete Rule 27 605(a) admonishments, we find it unnecessary to address the defendant’s plain-error

argument concerning the court’s failure to consider an appropriate factor in mitigation. On

remand, the defendant would be allowed to seek reconsideration of his sentence and assert

any challenge to the sentencing hearing in the trial court as contemplated by Rule 605(a),

including the issue raised here on appeal.

¶ 57 In summary, we affirm the defendant’s conviction for first-degree murder. We

remand the cause to the trial court with directions that the court properly admonish the

defendant in compliance with Rule 605(a) and allow him an opportunity to file an

appropriate postsentencing motion.

¶ 58 III. CONCLUSION

¶ 59 For the foregoing reasons, we affirm the defendant’s conviction and remand with

directions that the trial court properly admonish the defendant in compliance with Illinois

Supreme Court Rule 605(a) (eff. Oct. 1, 2001).

¶ 60 Affirmed and remanded with directions.