People v. Benford

2022 IL App (2d) 200349-U

• Court: Appellate Court of Illinois
• Decided: May 16, 2022
• Docket: 2-20-0349
• Status: Unpublished

Opinion

2022 IL App (2d) 200349-U No. 2-20-0349 Order filed May 16, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-852 ) JAVANTAVIOUS Z. BENFORD, ) Honorable ) Debra D. Schafer, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE BRIDGES delivered the judgment of the court. Justices Hutchinson and Hudson concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in denying defendant’s motion for recusal of the Winnebago County State’s Attorney’s Office. Also, an error in a jury instruction did not constitute plain error. We therefore affirm.

¶2 Defendant, Javantavious Z. Benford, appeals from his conviction of first-degree murder,

arguing that (1) the trial court abused its discretion in denying his motion seeking to recuse the

Winnebago County State’s Attorney’s Office based on his familial relationship with the State’s

Attorney; and (2) an error in a jury instruction constituted plain error and requires a new trial. We

affirm. 2022 IL App (2d) 200349-U

¶3 I. BACKGROUND

¶4 On April 21, 2016, defendant was charged in a 42-count indictment with first-degree

murder (720 ILCS 5/9-1(a)(1), (2), (3) (West 2016)), armed robbery (720 ILCS 5/18-2(a)(2) (West

2016)), attempted armed robbery (720 ILCS 5/8-4(a), 18-2(a)(2) (West 2016)), possession of a

firearm without a firearm owner’s identification card (430 ILCS 65/2(a)(1) (West 2016)), unlawful

possession of firearms (720 ILCS 5/24-3.1(a)(1), (2) (West 2016)), and mob action (720 ILCS

5/25-1(a)(1) (West 2016)). The charges alleged that on March 29, 2016, defendant shot and killed

Akeem Smith, and that defendant and his codefendants, Martaivis Harmon and Retavian Jefferson,

committed related crimes.

¶5 A. Motion for Recusal

¶6 On March 15, 2019, defendant filed a motion requesting the recusal of the Winnebago

County State’s Attorney’s Office due to defendant’s alleged familial relationship with State’s

Attorney Marilyn Hite-Ross.

¶7 At a hearing on March 18, 2019, the assistant State’s Attorney stated that “defendant early

on sent a letter to Ms. Hite-Ross claiming a familial tie ***.” The State subsequently filed a motion

to strike defendant’s motion for recusal, arguing that it named family members of the State’s

Attorney and put their safety in danger. The trial court granted the motion, giving leave to

defendant to file an amended motion without naming Hite-Ross’s family members.

¶8 On April 12, 2019, defendant filed a new motion requesting the recusal of the Winnebago

County State’s Attorney’s Office. He alleged as follows. Hite-Ross had married the uncle of

defendant’s mother, Keyondia Watkins, and Watkins had known Hite-Ross since Watkins was

nine years old. Watkins had a “long and warm familial relationship” with Hite-Ross, and defendant

had known Hite-Ross his entire life. The Ross family had regularly provided Watkins financial

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aid, including helping her purchase her house in Atlanta, Georgia, and the aid had allowed Watkins

to allocate some money to send to defendant during his incarceration. The codefendants had either

accepted or were offered a plea to second-degree murder in the case, but no such offer was

extended to defendant. Defendant argued that considering the differences in the plea offers to

defendant and his codefendants, and the familial and financial ties between defendant’s mother

and the family of the State’s Attorney, there was the appearance of a conflict of interest.

¶9 The State filed a reply stating that it was understandable that defendant was not given the

same offer as his codefendants because the State’s theory of the case was that defendant fatally

shot the victim. The State denied that there was a long and warm familial relationship between

Watkins and Hite-Ross and stated that there was no ongoing financial relationship between them.

¶ 10 In his response, defendant alleged that he had initially received an offer that was similar

to those conveyed to his codefendants, but the assistant State’s Attorney then stated that she was

mistaken in the offer and that her supervisors had told her that defendant would not be extended

the same offer as his codefendants. He further alleged that the State’s Attorney’s Office had

recused itself in the case of Janell Ross, who had an “identical” familial relationship with Hite-

Ross. Defendant attached an affidavit from Watkins in which she described her relationship with

Hite-Ross. She stated that she had spent nights at the house of Hite-Ross and her uncle when she

was young; that Hite-Ross “was there to help with” her dad’s funeral; that they went “out [of their]

way for Christmas for [her] kids when they” could; and that Hite-Ross had helped her with housing

when she was “low on funds.”

¶ 11 A hearing on the motion took place on May 30, 2019. Peggy Simmons, defendant’s

maternal grandmother, provided the following testimony. Hite-Ross married the brother of

Watkins’ father. Simmons had known Hite-Ross for about 25 years but had seen her in person only

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a couple of times over that period. Defendant had “[n]ot too much” contact with the Ross family

but would “[o]ften” visit the Ross family. Defendant had met Hite-Ross and knew that she was his

aunt. Hite-Ross came to the house three to four years prior and brought Christmas gifts for the

kids, including defendant. When asked when defendant had contact with Hite-Ross, Simmons

replied that “it was about during that time when she brought gifts over.” Simmons knew that

Watkins had received money from the Ross family because Hite-Ross’s husband had called

Simmons to verify that Watkins needed it for certain things.

¶ 12 Audrey Ross testified as follows. Defendant was her brother’s grandson. Hite-Ross married

another brother of Audrey’s in 1987. Hite-Ross had known defendant since that time and had seen

him at family gatherings and funerals, which occurred “every now and then.” The family

gatherings had 50 to 100 people. Hite-Ross’s husband, “DR,” gave the eulogy at the funeral of

defendant’s grandfather. She was not aware if Watkins had a financial relationship with DR.

Audrey was the mother of Janell Ross. The State stipulated that the Attorney General’s office

handled Janell’s prosecution.

¶ 13 Colleen Young testified that defendant’s grandfather was her nephew. DR had seen

defendant at family gatherings.

¶ 14 Defense counsel argued that the State’s Attorney’s Office should recuse itself because it

had done so in Janell’s case, and he had the same relationship to Hite-Ross as defendant, being the

grandson of Hite-Ross’s brother-in-law. 1 He argued that Watkins had a long relationship with Hite

Ross and that Hite-Ross’s husband had provided Watkins with financial support. Counsel argued

1 The testimony actually indicated that Janell was Hite-Ross’s nephew and that defendant

was Hite-Ross’s great nephew.

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that defendant was prejudiced because there was an appearance of impropriety and because

defendant had received a similar offer as his codefendants but it was rescinded. Counsel argued

that there was a strong possibility that the State might treat defendant harsher than his

codefendants.

¶ 15 The trial court denied the motion for recusal on June 6, 2019; we summarize its findings.

Watkins’ affidavit did not provide the timing of the financial assistance or any further details, nor

did it state how long she had lived in Atlanta and the extent of any contacts with Hite-Ross and

her husband in recent years. Defendant was not similarly situated to his codefendants because the

State’s theory of the case was that defendant fired the fatal shot, and the State had an evidentiary

reason to treat defendant differently given the victim’s dying declaration identifying defendant as

the person who shot him. Defendant had not suffered any actual and substantial prejudice from his

and his family’s relationship with Hite-Ross. The decision to have the Attorney General’s Office

prosecute Janell was an exercise of prosecutorial discretion. Defendant showed a relationship

between his mother and Hite-Ross through Hite-Ross’s husband’s family, based primarily on

attending family functions, but this fell below the “significant emotional ties” standard, and he

failed to establish that the alleged interest caused actual and substantial prejudice. As such,

defendant failed to meet his initial burden of showing that there was an actual conflict of interest.

¶ 16 B. Trial

¶ 17 Testimony in defendant’s trial began on October 22, 2019. We summarize the evidence

presented by the State. At about 2:35 p.m. on March 29, 2016, Detective Brian Strawser of the

Rockford Police Department was dispatched to a call of “shots fired” at the address of 3231

Parkside Avenue. Several individuals had been seen running from the garage area of the residence.

He and Officers Wagner and Schuster entered the side door of the garage, which was slightly ajar.

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Officer Wagner had a body camera on. Inside, there were numerous spent shell casings throughout

the garage, and Smith was laying on the ground with a gunshot wound to his chest or lower

abdomen.

¶ 18 The body cam video was played for the jury, and the jury received a transcript of the

recording. Detective Strawser had the following exchange with Smith, according to the transcript:

“OFFICER STRAWSER: You’re going to die, man. Who shot you:

***

[SMITH]: Tavious.

OFFICER STRAWSER: Tavious?

[SMITH]: Yes.

OFFICER STRAWSER: You said Tavious shot you, right?

[SMITH]: Benford.

OFFICER STRAWSER: Tavious Benford?

911 OPERATOR: Tavious Benford is going to be a suspect.

OFFICER STRAWSER: Got it.

OFFICER STRAWSER: What happened?

[SMITH]: They shot me.

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OFFICER STRAWSER: You were here at the house?

OFFICER STRAWSER: Okay. What happened?

[SMITH]: They shot me.” (Emphases added.) 2

Smith further stated that he was there because he “was supposed to bought [sic] some weed.”

¶ 19 Smith was transported to the hospital and died at about 8:30 p.m. An autopsy showed four

gunshot entrance wounds and corresponding exit wounds. One gunshot wound went from the left

side of Smith’s abdomen and exited from the right upper thigh. That wound was a “contact

wound,” meaning that the muzzle of the firearm was ½ inch or less from the skin. The forensic

pathologist opined that Smith died from that particular gunshot wound, and that his other injuries

did not contribute to his death.

¶ 20 Quincy Wright, Smith’s cousin, testified at trial that he did not recall any of the events of

March 29, 2016, but acknowledged giving a written statement to the police. In the statement,

Wright said that on March 29, 2016, Smith called him and asked for a ride because he was going

to buy a .38-caliber revolver from defendant for $150. Wright picked Smith up, and Smith “was

using the Facebook Messenger App to communicate with [defendant].” Wright drove Smith to

Parkside Avenue and saw defendant and Jefferson outside. He also noticed that Smith had a

revolver in the pocket of his sweatshirt. Smith exited the car and went around the corner of the

2 Detective Strawser testified that he could not tell if Smith said “they shot me” or “he shot

me” in response to the questions. It is unclear from viewing the video whether Smith said “they”

or “he.”

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house with defendant and Jefferson. Wright heard a lot of gunshots “what seemed like right after”

Smith had walked out of his view. Wright drove through the alley behind the house and saw

defendant standing near the patio door of the house and Jefferson and Harmon walking towards

him. Harmon was holding a rifle and started shooting at Wright. Wright drove away and called

Smith, who asked Wright to come and get him; Smith said that he was in a garage and had been

shot.

¶ 21 The evidence showed that defendant, Harmon, and Jefferson went to the emergency room

in defendant’s car to obtain treatment for gunshot wounds to Harmon and Jefferson. The right rear

passenger window on defendant’s car was broken, and there was glass on the inside of the back

seat. Defendant told an officer who was dispatched to the hospital that the window was broken

because “he had girlfriend problems.” Defendant told the officer that he was driving when he was

flagged down by two men, Harmon and Jefferson, whom he knew as “Tank.” They told him that

they had been shot, so he gave them a ride to the hospital. Defendant told the officer that his name

was Tavious Benford, and when asked his full name, defendant said that it was Javontavious

Benford. A “.380 auto” caliber shell casing was later found in the back of defendant’s vehicle.

¶ 22 From the garage, the police recovered 16 shell casings from a Remington brand .22 long

rifle and 1 Winchester brand 9-millimeter casing. There was no evidence of a .380-caliber gun,

which is usually semiautomatic, being fired in the garage.

¶ 23 A 9-millimeter Smith & Wesson handgun was found in a pile of plywood on the side of

an unattached garage about seven blocks from 3231 Parkside Avenue. It contained 19 live rounds

of ammunition, including one in the chamber. The 9-millimeter casing found in the garage was

determined to have been fired from this gun. It could not be determined whether all of the .22-

caliber casings were fired from the same firearm. Two bullet fragments were recovered from

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gunshot wounds in Smith’s left and right thighs, which wounds were not responsible for his death.

One of the fragments was from a .22-caliber bullet, but the other fragment could not be identified.

A bullet found on Smith’s gurney at the hospital was determined to be a 9-millimeter caliber bullet.

A bullet from Jefferson’s stomach area was determined to be “consistent with being of a .22

caliber.”

¶ 24 During trial, the parties agreed that the trial court should read the jury a modified version

of Illinois Pattern Jury Instruction, Criminal, No. 3.11 (approved Oct. 17, 2014) (hereinafter IPI

Criminal No. 3.11) in regard to Wright’s prior inconsistent written statement that he made to the

police. The parties agreed to the trial court reading the following instruction to the jury:

“The believability of a witness may be challenged by evidence that on some former

occasion he made a statement that was not consistent with his testimony in this case.

Evidence of this kind ordinarily may be considered by you only for the limited purpose of

deciding the weight to be given to the testimony you heard from the witness in this Court

Room. Paragraph 2 of the instruction applies to the portions of the [s]tatement that describe

things that Quincy Wright is alleged to have personally observed, in other words, for this

purpose you may not consider Mr. Wright’s statements to the extent that it concerns matters

that Akeem Smith told Quincy Wright. This is Paragraph 2. However, you may consider a

witness’s earlier inconsistent statements as evidence without this limitation when the

statement narrates, describes or explains an event or a condition the witness had personal

knowledge of, and the statement was written or signed by the witness. The last Paragraph

applies to both Paragraphs 1 and 2. It is for you to determine whether the witness made the

earlier statement and if so what weight should be given to the statement. In determining

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the weight to be given to an earlier statement you should consider all the evidence or all

the circumstances under which it was made.”

¶ 25 After the State rested, Harmon provided the following testimony for the defense. He had a

conviction for second degree murder in connection with Smith’s death. On March 29, 2016, he

was with defendant and Jefferson in the detached garage of the residence where Harmon lived with

his grandmother. They were talking and smoking marijuana. Smith called Harmon at about 2:15

p.m. asking to purchase marijuana from him, and Smith came over at about 2:30 p.m. to buy two

bags for $20. Smith called Harmon to say he had arrived. Harmon exited the garage and saw Smith

get out of a car, and they walked back to the garage together. Jefferson was holding a rifle that was

2½ to 3 feet in length. Smith then tried to rob them using a small silver .32 revolver. Harmon began

wrestling with Smith, and Smith shot Harmon in the upper right chest and lower left thigh. Harmon

shot back once in defense, and Jefferson fired three or four shots at Smith. Smith shot his gun six

times, and one shot hit Jefferson in the stomach. Defendant did not have a gun, and when the

shooting started, defendant took cover on the side of a freezer. Afterwards, when Smith was laying

down on the ground, they took Smith’s gun. Smith never displayed any money, and they did not

take any money from him. Defendant drove Harmon and Jefferson to the hospital, and they

“dropped the guns off” on the way there. The bullets from Harmon’s injuries were never removed

from his body.

¶ 26 On cross-examination, Harmon testified that he did not recall telling Officer Erik

Semenchuk at the hospital that Jefferson and defendant were planning to sell jewelry to an

unknown black male, and that the man started shooting at Harmon as soon as the man exited the

car. He also did not recall telling Officer Duane Beets at the hospital that when he was in the garage

with defendant and Jefferson, defendant said that he called Smith and was going to sell him

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jewelry. Harmon did not remember saying that he and defendant greeted Smith outside when Smith

arrived, and they went into the garage. He did not recall saying that when he then turned to leave

the garage, Smith shot him in the leg for no reason, and then Jefferson shot Smith. Harmon did not

recall the detective saying that it was unlikely that one man would try to rob three individuals, or

responding that maybe defendant or Jefferson pulled out their guns first.

¶ 27 Harmon met again with Officer Beets on April 11, 2016, and made a recorded statement.

Prior to the recording being played for the jury, the trial court read a modified IPI Criminal No.

3.11 instruction that had been agreed to by the parties and was similar to the instruction for

Wright’s prior inconsistent statement. The trial court stated, in relevant part:

“For this next part you have to exclude from your brain the parts that Javontavious

Benford said, and then you can consider everything that’s going to be on this Statement

that’s being played, other than the statements that are alleged to have been made by Mr.

Benford.”

The trial court repeated a similar instruction when reading the jury instructions after closing

arguments.

¶ 28 We summarize Harmon’s statements from the recording. Defendant and Jefferson picked

Harmon up on the day in question, and they went to Harmon’s grandmother’s garage. Defendant

said that he was talking to Smith on Facebook and that Smith was going to come over. Smith was

dropped off at the front of the house, and Harmon and defendant escorted him to the garage. They

smoked marijuana, with Smith staying near the side door to the garage. Harmon thought that Smith

was planning to buy some jewelry. When they were done smoking, Harmon walked toward the

side door to leave and go shower. Defendant and Jefferson were behind Harmon such that Harmon

could not see them. Harmon guessed that Smith saw either Jefferson or defendant do something

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with their guns, and Jefferson may have “went off” on Smith. Smith may have then thought that

Harmon was going to grab Smith and that the group was going to rob him. Smith then shot Harmon

through his sweatshirt pocket with a gun that he had there, hitting Harmon in the leg. Harmon fell,

and Jefferson and defendant then shot Smith. Smith fell and fired shots from the ground, hitting

Harmon a second time and also hitting Jefferson. Jefferson had a rifle, and defendant had a 9-

millimeter gun. He, Jefferson, and defendant then got into defendant’s car to go to the hospital.

Harmon saw the car that Smith had arrived in pull up in the alley and then leave.

¶ 29 The trial concluded on October 28, 2019. During deliberations, at 2:21 p.m., the jury asked,

among other things, “Can we use Harmon’s first statement as evidence?” It then clarified that it

meant Harmon’s video interview. The trial court told the jury that it would be allowed to return to

the courtroom to view Harmon’s recorded interview with Officer Beets. The State noticed an error

with the written jury instruction on Harmon’s prior inconsistent statement, in that the instruction

said that evidence of a prior inconsistent statement came in substantively if written and signed.

Here, in contrast, there was a recording. The parties amended the instruction, and the trial court

informed the jury at 3:36 p.m. that there was an error. When the jury came back to the courtroom

to watch the recorded interview, the trial court read a revised instruction, and a new version of the

instruction was sent back with the jury.

¶ 30 At 5:33 p.m., the jury asked if it could “get additional guidance on what ‘legally

responsible’ for the conduct of others” meant. The trial court responded that it could not provide

additional guidance beyond the instructions already given.

¶ 31 At about 10 p.m., the jury found defendant guilty of first-degree murder (strong probability

of death or great bodily harm), first-degree murder (forcible felony of mob action), and mob action.

It found defendant not guilty of armed robbery and attempted armed robbery. Finally, the jury

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found that the State had not proven that defendant was armed with a firearm or personally

discharged a firearm.

¶ 32 On December 11, 2019, defendant filed a second amended motion for a new trial/

judgment notwithstanding the verdict. The trial court denied the motion on January 27, 2020.

¶ 33 At sentencing, the parties agreed that defendant’s convictions of mob action and felony

murder based on mob action merged into his first-degree murder conviction. The trial court

sentenced defendant to 25 years’ imprisonment.

¶ 34 Defendant filed a motion to reconsider his sentence on April 2, 2020. The trial court denied

the motion on June 10, 2020, and defendant filed a timely appeal.

¶ 35 II. ANALYSIS

¶ 36 A. Motion for Recusal

¶ 37 Defendant first argues that the trial court abused its discretion in denying his motion for

the recusal of the Winnebago County State’s Attorney’s Office.

¶ 38 The Illinois Constitution provides for the election of a State’s Attorney in each county. Ill.

Const. 1970, art. VI, § 19. Section 3-9005(a)(1) of the Counties Code (55 ILCS 5/3-9005(a)(1)

(West 2018)) states that the State’s Attorney has the duty “[t]o commence and prosecute all actions,

suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which

the people of the State or county may be concerned.” Section 3-9008(a-10) of the Counties Code

provides:

“The court on its own motion, or an interested person in a cause or proceeding, civil

or criminal, may file a petition alleging that the State’s Attorney has an actual conflict of

interest in the cause or proceeding. The court shall consider the petition, any documents

filed in response, and if necessary, grant a hearing to determine whether the State's

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Attorney has an actual conflict of interest in the cause or proceeding. If the court finds that

the petitioner has proven by sufficient facts and evidence that the State’s Attorney has an

actual conflict of interest in a specific case, the court may appoint some competent attorney

to prosecute or defend the cause or proceeding.” 55 ILCS 5/3-9008(a-10) (West 2018).

The purpose of the special prosecutor provision is to prevent the discharge of the State’s Attorney’s

duties from being influenced by personal interest. People v. Max, 2012 IL App (3d) 110385, ¶ 61.

¶ 39 A State’s Attorney has “an actual conflict of interest” if he or she “is interested in” the case

as either (1) a private individual, or (2) an actual party to the action. In re Appointment of a Special

State’s Attorney on Behalf of Hanley, 2020 IL App (2d) 190845, ¶ 17. Additionally, a State’s

Attorney may be considered “interested” if (3) the attorney’s involvement creates the appearance

of impropriety in prosecuting a particular defendant. People v. VanderArk, 2015 IL App (2d)

130790, ¶ 38; People v. Weeks, 2011 IL App (1st) 100395, ¶ 46l; People v. Lang, 346 Ill. App. 3d

677, 682 (2004). But cf. In re Appointment of Special Prosecutor, 2019 IL App (1st) 173173, ¶ 39

(appearance of impropriety is not a basis for the appointment of a special prosecutor). Defendant

claims that the first and third categories apply here.

¶ 40 If the alleged interest is personal as a private individual, the defendant must show either

that the relationship involves significant emotional ties or that the defendant suffered actual and

substantial prejudice. People v. Arrington, 297 Ill. App. 3d 1, 3-4 (1998). In situations involving

the appearance of impropriety, “even if there is a concern about the appropriateness of the State’s

Attorney’s office prosecuting a case against a particular defendant, that concern must be weighed

against countervailing considerations.” VanderArk, 2015 IL App (2d) 130790, ¶ 38. Those

considerations include the burden that would be placed on the State’s Attorney’s Office if the

entire office had to be disqualified; how remote the connection is between the State’s Attorney’s

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Office and the alleged conflict of interest; and the extent of the public’s awareness of the alleged

conflict of interest. Id.

¶ 41 A special prosecutor may be appointed at any stage in the case. Lang, 346 Ill. App. 3d at

681. We review a trial court’s decision of whether to appoint a special prosecutor for an abuse of

discretion. County of Tazewell ex rel. Hranka v. Zimmerman, 2021 IL App (3d) 200315, ¶ 18. A

trial court abuses its discretion if its decision is arbitrary, fanciful, or unreasonable, or where no

reasonable person would take the trial court’s view. In re Appointment of a Special State’s Attorney

on Behalf of Hanley, 2020 IL App (2d) 190845, ¶ 17.

¶ 42 Defendant argues that the trial court abused its discretion in denying his motion for recusal

of the Winnebago County State’s Attorney’s Office where “sufficient emotional ties existed” and

prosecution by his great aunt presented the appearance of impropriety by her office, outweighing

any burden that would have occurred to the office.

¶ 43 Defendant cites Polonowski. There, the trial court dismissed the charges against the

defendant because the State’s Attorney was engaged to the niece of the wife of the defendant’s

expert. Polonowski, 258 Ill. App. 3d at 498-99. The trial court ruled that appointing a special

prosecutor would not cure the prejudice because the special prosecutor would most likely have to

consult with the State’s Attorney to begin the case. Id. at 500. The supreme court held that the trial

court erred in dismissing the charges because the relationship did not create a conflict of interest

or actual prejudice. Id. at 500-03. The court stated that the relationship between the expert and the

State’s Attorney was “tenuous at best” as they had only seen each other a few times, their wives

did not socialize, and the State’s Attorney testified that he did not consider the expert to be a

member of his family. Id. at 503. The court stated that the “fact that the relationship was familial

does not in and of itself create substantial emotional ties, especially given that the familial

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relationship was created by marriage.” Id. The court stated that even if a disqualifying relationship

existed, the trial court could have resolved the issue by appointing a special prosecutor and entering

an order forbidding contact with the State’s Attorney, and that the failure to appoint a special

prosecutor as a less drastic alternative to dismissing the charges was an abuse of discretion. Id. at

503-04.

¶ 44 Defendant argues that in contrast to Polonowski, he presented evidence showing the

significant emotional ties required to establish a personal conflict of interest necessitating recusal.

He maintains that Watkins’ affidavit showed that Hite-Ross and her husband went out of their way

to support defendant and his mother. Defendant contends that although Hite-Ross was related by

marriage as in Polonowski, this case is distinguishable because the affidavit shows that Hite-Ross

would have considered defendant part of her family by the fact that she assisted with defendant’s

grandfather’s funeral, “helped with Christmas,” and helped with Watkins’ finances. Defendant

asserts that the details in Watkin’s affidavit were corroborated by Simmons’ testimony. Defendant

argues that his relationship with Hite-Ross was not tenuous, as the witnesses testified that

defendant had seen her at family gatherings throughout his life, and her husband spoke at

defendant’s grandfather’s funeral. Defendant points out that after he was charged, he contacted

Hite-Ross by a letter in which he noted their family relationship. Defendant further argues that

although the court in Polonowski concluded that the record did not show “substantial emotional

ties,” that actual test is whether the relationship involves “significant” emotional ties (see

Arrington, 297 Ill. App. 3d at 3). Defendant argues that the evidence here met this standard.

¶ 45 Defendant additionally argues that the trial court abused its discretion because defendant’s

prosecution by his great aunt created the impermissible appearance of impropriety. Defendant cites

Lang, 346 Ill. App. 3d at 682, where the court stated that the purpose of appointing “a special

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prosecutor in such a situation” is to “maintain the public’s confidence in the impartiality and

integrity of our criminal judicial system,” and that “[e]ven in the absence of demonstrated

prejudice to the defendant, a special prosecutor may be appointed if necessary to remove an

appearance that the defendant is being unfairly prosecuted.” See also People v. Courtney, 288 Ill.

App. 3d 1025, 1032 (1997) (per se conflict of interest existed where the defendant’s former trial

counsel becomes the State’s Attorney).

¶ 46 Defendant states that he has not found an Illinois case directly on point but that foreign

courts have concluded that a familial relationship between the defendant and a prosecutor requires

the recusal of the entire State’s Attorney’s Office. See People v. Doyle, 159 Mich. App. 632, 646

(1987) (affirming trial court’s disqualification of the State’s Attorney’s Office from prosecuting

the defendant, where the State’s Attorney and the defendant were brothers-in-law); People v.

Nuzzi, 489 N.Y.S.2d 836, 841 (N.Y. Sup. Ct. 1985) (entire staff of the district attorney was

disqualified where one of the assistant district attorneys was the defendant’s cousin, because the

“appearance of impropriety inherent in the blood relationship at bar requires disqualification”).

Defendant notes that here, the State represented that Hite-Ross had “examined” the case and

reviewed it with two Assistant State’s Attorneys. Defendant argues that as in Doyle, this created

the appearance of impropriety. Defendant asserts that although the trial court rejected defense

counsel’s argument that the refusal to extend an offer of second-degree murder was evidence of

prejudice and ruled that defendant did not suffer prejudice, a conflict still existed because

defendant had the right to be free from any anxiety that his case was being treated differently

because of his familial relationship with the State’s Attorney.

¶ 47 Defendant maintains that this case also presented the risk of public knowledge about the

conflict, as the record shows that there was a request for extended media coverage after defendant’s

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arrest, and both attorneys were contacted by a reporter at the conclusion of trial. Defendant argues

that given that he was being prosecuted by his great aunt, the countervailing considerations do not

outweigh “the importance of maintaining the public’s esteem for the State’s Attorney’s office and

the integrity of the criminal justice system ***.” Lang, 346 Ill. App. 3d at 685.

¶ 48 Defendant further argues that the conflict of interest was not outweighed by any

countervailing considerations. See supra ¶ 40. Defendant asserts that because Hite-Ross is no

longer the Winnebago County State’s Attorney, the Winnebago County State’s Attorney’s Office

may still prosecute the case on remand for a new trial. Defendant also argues that at the time of his

motion, the burden of disqualification was not high. Defendant argues that the parties were not on

the verge of trial when he moved for a recusal, and the State had moved for a continuance of the

set jury trial date shortly before his motion and waited several more months to file motions in

limine on critical evidentiary issues such as the admissibility of a 911 call and the presentation of

firearms evidence. Defendant argues that the conflict of interest cannot be considered remote

because it involved the head of the State’s Attorney’s Office who, at a minimum, was involved in

the case in a supervisory capacity and worked with the assistant State’s Attorneys prosecuting the

case. Defendant contends that the State’s Attorney’s Office appeared to recognize similar familial

relationships were not remote because the office recused itself from the prosecution of Janell, “who

was also a nephew to” Hite-Ross.

¶ 49 The State argues that the incident took place on March 29, 2016, and that Hite-Ross was

not appointed as the Winnebago County State’s Attorney until November 2018. It argues that it

was only after defendant expressed his dissatisfaction with the State’s plea offer that he filed a

motion requesting the recusal on March 15, 2019, which was nearly three years after he was

charged. The State maintains that defendant suffered no prejudice as a result of his familial

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relationship with Hite-Ross, as he did not receive the same plea offer as his codefendants because

there was compelling evidence that defendant was the individual who fatally shot the victim. The

State maintains that the fact that defendant was unsatisfied with his offer did not suddenly create

a sound basis for filing a motion for recusal.

¶ 50 The State argues that defendant’s “personal connection” to Hite-Ross was remote and

tenuous, as she was his great aunt by marriage and they saw each other occasionally at very large

family gatherings. It argues that although the parties noted that defendant had contacted Hite-Ross

by letter after he was charged, the record lacks information about the letter’s contents. The State

maintains that under these circumstances, defendant has failed to show that he and Hite-Ross had

significant emotional ties.

¶ 51 The State further argues that the tenuous familial connection substantially weakened any

appearance of impropriety. The State asserts that there is no evidence in the record that the public

was aware of the alleged conflict of interest because although there was occasional local media

coverage, the comments made by the trial court and attorneys suggested that the media’s interest

was limited. The State contends that defendant’s situation is distinguishable from Janell’s, whose

case the State’s Attorney’s Office did recuse itself from, because Janell was Hite-Ross’s nephew

whereas defendant was Hite-Ross’s great nephew. The State argues that it can reasonably be

inferred that the State’s Attorney’s Office determined that Hite-Ross’s familial relationship with

Janell was sufficiently close to warrant recusal, whereas the considerably more distant relationship

with defendant was remote enough to not warrant recusal.

¶ 52 The State maintains that at the time defendant filed his motion, the State’s Attorney’s

Office had already completed substantial pretrial preparations spanning nearly three years, and the

attorneys assigned to the case had already argued numerous pretrial motions and had met with a

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number of witnesses. The State argues that disqualifying the whole office at such a late stage in

the proceedings would have undoubtedly placed a severe burden on the prosecution of the case,

such that countervailing considerations weighed heavily against the alleged appearance of

impropriety. The State argues that the trial court properly exercised its discretion in denying

defendant’s motion for recusal because Hite-Ross’s distant familial relationship with defendant

did not influence the discharge of the State’s Attorney’s Office’s duties in the instant case, nor did

it cause defendant actual prejudice.

¶ 53 Regarding Hite-Ross’s alleged conflict of interest due to her interest as a private individual

through her familial relationship with defendant, defendant was required to show either significant

emotional ties or that he suffered actual and substantial prejudice. Arrington, 297 Ill. App. 3d at

3-4. Although defendant argued prejudice in the trial court through not receiving the same plea

offer as his codefendants, on appeal he asserts only significant emotional ties. During oral

arguments, defendant’s appellate counsel argued that the issue of recusal was one of first

impression since no bright-line rule exists as to what establishes significant emotional ties. We

agree that there is no bright-line rule on this issue. Instead, what constitutes significant emotional

ties must be determined on a case-by-case basis. Consequently, based on the circumstances of this

case, we hold that the trial court did not abuse its discretion in denying defendant’s motion for

recusal.

¶ 54 In particular, the evidence showed that Hite-Ross was defendant’s great aunt by marriage,

as opposed to a blood relation. See Polonowski, 258 Ill. App. 3d at 503 (“fact that the relationship

was familial does not in and of itself create substantial emotional ties, especially given that the

familial relationship was created by marriage”). Defendant’s mother discussed her personal

relationship with Hite-Ross in her affidavit, but she did not testify at the hearing, and the issue

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here is defendant’s own relationship with Hite-Ross. Further, it is unclear how much financial

assistance came from Hite-Ross as opposed to her husband, as Simmons testified that Hite-Ross’s

husband had called her to verify that Watkins needed money, and it was also not clear how long

before the shooting the financial assistance was rendered. Further, Hite-Ross’s husband gave the

eulogy at defendant’s grandfather’s funeral, and not Hite-Ross.

¶ 55 Simmons testified both that defendant had “[n]ot too much” contact with the Ross family

but would “[o]ften” visit them. Aside from the contradictory nature of this testimony, the “Ross

family” included defendant’s own grandfather, with whom defendant may be expected to have

substantial contact. Simmons testified that defendant had last seen Hite-Ross three to four years

before, when she brought Christmas gifts for the kids, including defendant. Audrey Ross testified

that Hite-Ross saw defendant at family gatherings and funerals, which occurred “every now and

then” and included 50 to 100 people.

¶ 56 The evidence therefore showed that defendant was related to Hite-Ross but that it was

through marriage, and that their interaction largely consisted of seeing each other at occasional,

very large family gatherings. Hite-Ross’s decision to recuse herself in Janell’s case is not at issue

here. Regardless, as the State points out, defendant’s relationship with Hite-Ross was more distant

than Janell’s relationship with her, as Janell was her nephew and defendant was her great nephew.

Therefore, the trial court’s determination that defendant lacked the significant emotional ties

necessary to require the appointment of a special prosecutor was not an abuse of discretion. Cf.

Arrington, 297 Ill. App. 3d at 4 (the defendant’s allegations that the State’s Attorney’s cousins

owned the store that the defendant attempted to rob did not show that the State’s Attorney’s

relationship to the store involved such significant emotional ties that his personal interests

influenced the discharge of his duties).

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¶ 57 The distant familial relationship also weighs against a determination that the prosecution

by the State’s Attorney’s Office created the appearance of impropriety. Notably, the foreign cases

that defendant cites involved much closer relations, being a brother-in-law and a cousin. This case

is also readily distinguishable from Lang, which defendant cites extensively on this issue. There,

the appellate court held that a special prosecutor should have been appointed based on the

appearance of impropriety in prosecution because the assistant State’s Attorney secretly followed

the defendant after a proceeding to obtain evidence of a crime, hid behind some potted flowers and

a shaded glass window, called the police, was involved in the prosecution of the case, and was the

State’s sole witness at trial. Lang, 346 Ill. App. 3d at 679, 683-84. Here, there was no such evidence

that defendant was singled-out, and his differing plea offer was explained by the strong evidence

of his much greater culpability in the murder.

¶ 58 To the extent that there could arguably be some concern about Hite-Ross’s office

prosecuting defendant, the countervailing considerations weighed in favor of the State. The distant

relationship meant that the connection between the State’s Attorney’s Office and the alleged

conflict of interest was remote. See VanderArk, 2015 IL App (2d) 130790, ¶ 38. Though defendant

points to some level of media coverage of his trial, he presented no evidence that the media focused

on his connection to Hite-Ross. See id. (countervailing considerations include the extent of the

public’s awareness of the alleged conflict of interest). That defendant waited until March 15, 2019,

to file his motion for recusal is not especially long considering that Hite-Ross was not appointed

to her position until November 2018, but it raises the countervailing consideration of the burden

on the State’s Attorney’s Office if the whole office had to be disqualified. Defendant brought his

motion about three years after being charged. By that time the parties had gone through extensive

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discovery and the trial court had made many evidentiary rulings, including granting the State’s

motion in limine to allow into evidence the victim’s dying declaration.

¶ 59 For all of these reasons, the trial court’s denial of defendant’s motion to recuse the

Winnebago County State’s Attorney’s Office was not an abuse of discretion. Cf. People v. Davis,

2013 IL App (3d) 120469-U, ¶¶ 16, 18 (that the State’s Attorney was allegedly a first cousin of

the murder victim did not alone show significant emotional ties and was also insufficient to

establish the appearance of impropriety).

¶ 60 B. Jury Instruction

¶ 61 Defendant next argues that the jury received an incorrect instruction on prior inconsistent

statements during deliberations that failed to include the necessary limiting language on the use of

statements attributed to defendant, resulting in plain error because the jury may have improperly

used the statements as substantive evidence. Specifically, Harmon’s video interview with Officer

Beets included hearsay statements attributed to defendant that defendant was talking to Smith

through Facebook and that Smith was coming over to Harmon’s house. Before the jury watched

the video, the parties agreed to the court giving a modified version of IPI Criminal No. 3.11, in

which it stated, as pertinent here:

“You are going to receive evidence concerning a statement that Martaivis Harmon

made to Rockford Police Detectives Duane Beets and James Posley. Concerning the

entirety of the [s]tatement you can consider it for this purpose: The believability of a

witness may be challenge[d] by evidence that on some former occasion he made a

statement that was not consistent with his testimony in this case. Evidence of this kind

ordinarily may be considered by you only for the limited purpose of deciding what weight

to be given to the testimony you heard from the witness in this Court Room. All right. For

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this next part you have to exclude from your brain the parts that Javontavious [sic] Benford

said, and then you can consider everything that’s going to be on this Statement that’s being

played, other than the statements that are alleged to have been made by Mr. Benford.

However, you may consider a witness’s earlier inconsistent statement as evidence without

this limitation when the statement narrates, describes or explains an event or condition the

witness had personal knowledge of and the [s]tatement was accurately recorded by a tape

recorder, video recording or a similar electronic means of sound recording.

Now this relates to the whole [s]tatement you are going to hear. It is for you to

determine whether the witness made the earlier statement, and if so what weight should be

given to that statement. In determining the weight to be given to an earlier statement you

should consider all the circumstances under which it was made.”

The trial court also read a limiting instruction to the jury following closing arguments.

¶ 62 The written instruction given to the jury stated, in relevant part:

“Detective Beets also testified as to matters that Martaivis Harmon is alleged to

have personally observed. As to those portions of his statement and not as to what

Javontavious [sic] Benford allegedly told Martaivis Harmon, you are instructed as follows:

However, you may consider a witness’s earlier inconsistent statement as evidence without

this limitation when the statement narrates, describes, or explains an event or condition the

witness had personal knowledge of and the statement was written or signed by the witness.”

(Emphases added.).

After the jury brought up the issue of the video recording, the State noticed that the instruction

referred to being “written or signed by the witness” as opposed to being recorded. The parties

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agreed to an amended instruction, and the trial court read the instruction to the jury when it re-

watched the video.

¶ 63 However, the written instruction sent back to the jury the second time differed from what

the trial court read aloud, in that it stated:

“Detective Beets also testified as to matters that Martaivis Harmon is alleged to

have personally observed. As to those portions of his statement only, you are instructed as

follows: However, you may consider a witness’s earlier inconsistent statement as evidence

without this limitation when the statement narrates, describes, or explains an event or

condition the witness had personal knowledge of and the statement was accurately

recorded by a tape recorder, videotape recording, or a similar electronic means of sound

recording.” (Emphases added.).

Thus, although the revised instruction changed the reference to a written statement to referring to

a recording, it left out the portion of instruction that the jury was not to consider what Harmon said

that defendant allegedly told him.

¶ 64 Defendant acknowledges that he did not preserve this issue for review on appeal because

defense counsel did not raise the subject in a posttrial motion (see People v. Enoch, 122 Ill. 2d

176, 186 (1988)), but he argues that the issue constitutes plain error. The plain error doctrine allows

a reviewing court to consider an unpreserved error where either (1) a clear error occurs and the

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

the defendant, or (2) a clear error occurs that is so serious that it affected the trial’s fairness and

challenged the integrity of the judicial process. People v. Sebby, 2017 IL 119445, ¶ 48. The first

step in a plain error analysis is to determine whether a clear or obvious error occurred. People v.

Jackson, 2021 IL App (1st) 180672, ¶ 21.

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¶ 65 Defendant notes that although a defendant’s admission is generally admissible (see People

v. Herron, 218 Ill. App. 3d 561, 575 (1991) (the defendant’s affidavit was admissible into evidence

as an admission of the defendant)), the same is not true for statements attributed to a defendant in

a witness’s prior inconsistent statement, as they may not be considered as substantive evidence

(see People v. Wilson, 2012 IL App (1st) 101038, ¶¶ 42-43). Defendant argues that the erroneous

instruction, which did not include the language limiting the statements attributed to defendant by

Harmon in the police interrogation video to impeachment purposes only, constituted a clear and

obvious error here. Again, the statements that Harmon attributed to defendant in the video

recording were that defendant said that he talked to Smith on Facebook and that Smith was coming

over to Harmon’s grandmother’s house. Defendant argues that if this evidence was improperly

used by the jury as substantive evidence, it would have been the sole substantive evidence that

defendant and Smith communicated before the shooting. Defendant maintains that the only other

such evidence of this was Wright’s written prior inconsistent statement that Smith was talking to

defendant on Facebook, but that statement was limited solely to impeachment purposes, and the

jury was properly instructed on that limitation.

¶ 66 Defendant argues that had the jury deliberated with the proper instruction, it could have

rationally acquitted defendant of first-degree murder and mob action. Regarding mob action,

defendant argues that any improper substantive consideration of the statements at issue would have

been used by the jury to conclude that defendant “acted together” with his codefendants. For first-

degree murder, defendant argues that the lack of substantive evidence that defendant and Smith

were communicating before Smith arrived would have prevented a conclusion that defendant was

“engaged in a common criminal design or agreement” with Harmon and Jefferson, and supported

a finding that defendant was merely present at the crime scene. Defendant contends that it appears

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from the record that the jury found defendant guilty of first-degree murder based on accountability,

as evidenced by the jury’s note asking for “additional guidance on what ‘legally responsible’ for

the conduct of others means,” and the jury’s verdicts finding that the State failed to prove the

firearm enhancements that defendant was armed with a firearm, personally discharged a firearm,

and personally discharged a firearm that proximately caused death or great bodily harm.

¶ 67 Defendant cites People v. Carr, 53 Ill. App. 3d 492 (1977), where the trial court allowed

prior inconsistent statements which had not been admitted into evidence to go back to the jury

room during deliberations without instructions that the statements were not to be used as

substantive evidence. 3 The appellate court held that this was reversible error, stating:

“Although the State has pointed out that the court gave I.P.I. Criminal No. 3.11, as

to impeachment by prior inconsistent statements, we note that the instruction was

apparently given some hours earlier along with the rest of the instructions and was not

repeated at the time the statements themselves were given to the jury. Thus, the jury herein

could quite easily have concluded that they could use these statements for any purposes

they wished, including as substantive evidence of the matters stated therein. In this state

the law is clear that prior inconsistent statements of witnesses may not be considered as

substantive evidence by the jury and that the jury must be adequately instructed as to the

3 At the time, witnesses’ prior inconsistent statements could not be considered as

substantive evidence. Carr, 53 Ill. App. 3d at 500. The law has since changed, and there is a

hearsay exception in criminal cases for prior inconsistent statements under certain conditions. See

725 ILCS 5/115-10.1 (West 2018) (allowing for substantive admission of prior inconsistent

statements).

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limited purposes for which such evidence may be used. [Citations.] Under the

circumstances of this case we are not at all sure the jury was adequately instructed with

regard to the proper use of the portions of the [witness] statements which differed in part

from their testimony at trial.” Id. at 499-500.

See also People v. Walker, 335 Ill. App. 3d 102, 114 (2002) (trial court erred in sending a prior

consistent written statement to the jury room without the proper limiting instruction that it could

not be considered as substantive evidence).

¶ 68 Defendant states that the trial court read the proper limiting instruction to the jury both

when the State first played the video of Harmon’s interview during its rebuttal case and with the

rest of the jury instructions following closing argument. However, defendant argues that like the

jury in Carr, even though the jury was initially told the correct instruction, it then deliberated for

several hours with an incorrect instruction that removed the proper limiting language.

¶ 69 Defendant argues that the evidence was closely balanced under the plain error doctrine

because it hinged on Harmon’s credibility, specifically whether he was more credible on the stand

or in his prior inconsistent statement. Defendant argues that the evidence established that an

incident occurred, but not who discharged the firearm that caused Smith’s death. Defendant

maintains that although the State took the position that Smith answered this question by saying

that defendant shot him, Smith later stated that “They shot me.” Defendant highlights that in

Wright’s written statement, he said that the only firearm that he saw besides the one carried by

Smith was held by Harmon. Defendant argues that the jury understood that the case hinged on

whether Harmon was more credible in his written statement or in his trial testimony, as the jury

sent a note asking to see Harmon’s recorded statement to Beets again and asked whether it could

use that statement as evidence. Defendant also argues that the length of the jury deliberations

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shows the closely-balanced nature of the evidence, as the first jury note was sent out at 2:20 p.m.

and the jury did not return a verdict until about 10 p.m.

¶ 70 The State admits that the amended written instruction given to the jury during deliberations

did not indicate how defendant’s statements to Harmon could be used. However, the State argues

that the error did not amount to first prong plain error because the evidence was not closely

balanced and the error did not contribute to defendant’s conviction. The State argues that the

portion of Harmon’s video recorded interview describing statements made by defendant that he

was talking to Smith on Facebook and that Smith was coming over to Harmon’s grandmother’s

house lasted about 30 seconds. The State also argues that the first three jury instructions regarding

Harmon’s interview contained the proper limiting language on the use of the statements made by

defendant. The State maintains that even if, arguendo, the jury considered defendant’s statements

to Harmon as substantive evidence, there is no reasonable probability that the error affected the

trial’s result, as it was undisputed that Smith did come over to Harmon’s grandmother’s house and

was subsequently shot inside the garage.

¶ 71 The State argues that the evidence in question was also cumulative to the other evidence

adduced at trial, specifically Wright’s prior written statement to the police. The State further argues

that defendant’s suggestion that in the absence of the instructional error, the jury could have

somehow found that he was merely present at the crime scene, is speculative and belied by the

record. The State contends that the evidence clearly established that defendant was an active

participant in the commission of Smith’s murder, in that Wright’s prior written statement said that

he saw defendant and Jefferson in front of the house on Parkside, and that shortly after hearing the

gunshots, Wright drove around to the alley and saw defendant, Jefferson, and Harmon. After the

incident, defendant drove Harmon and Jefferson to the hospital, and defendant lied to the police

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there by saying that they had flagged him down and asked for a ride. The State asserts that Smith’s

statement “They shot me” does not absolve defendant of responsibility, because Smith was shot

multiple times. The State argues that if another offender in addition to defendant shot Smith,

defendant would still be guilty. The State maintains that the notion that defendant did not shoot

Smith is contradicted most significantly by Smith’s dying declaration, in that he specifically stated

that “Tavious Benford” shot him. The State also points to Harmon’s statement in the video

recording that defendant had a 9-millimeter gun and that defendant and Jefferson shot Smith after

Smith first shot Harmon. The State asserts that given the facts of this case, it defies common sense

to believe that in the absence of the instructional error, the jury would have acquitted defendant.

¶ 72 It is undisputed on appeal that removing the limiting language from the jury instruction on

Harmon’s prior inconsistent statement was error. Based on the error, the jury may have wrongly

considered as substantive evidence Harmon’s statements in his video recorded interview that

defendant said that he was talking to Smith through Facebook and that Smith was coming over to

Harmon’s grandmother’s house. The central issue is whether the error qualifies as plain error on

the basis that the evidence was so closely balanced that the error alone threatened to tip the scales

of justice against the defendant. Sebby, 2017 IL 119445, ¶ 48. In other words, plain error under

the first prong requires a finding that “the evidence is so closely balanced that the guilty verdict

may have resulted from the error.” People v. Thompson, 238 Ill. 2d 598, 613 (2010). “In

determining whether the evidence adduced at trial was close, a reviewing court must evaluate the

totality of the evidence and conduct a qualitative, commonsense assessment of it within the context

of the case.” Sebby, 2017 IL 119445, ¶ 53.

¶ 73 Defendant was found guilty of counts 3, 5, and 42. Count 3 alleged that defendant,

Harmon, and Jefferson committed first-degree murder in that defendant, knowingly and without

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lawful justification, shot and killed Smith, knowing that such acts would create a strong probability

of death or great bodily harm to Smith. Count 5 alleged the same except that it alleged that Smith

was shot during the course of a forcible felony, mob action, in that defendant knowingly, by the

use of force or violence, disturbed the public peace in that while acting together attempted to take

property from Smith. Count 42 alleged that defendant, Harmon, and Jefferson committed mob

action in that “said defendants engaged in the knowing or reckless use of force or violence he [sic]

disturbed the public peace by two or more persons acting together without authority of law in

trying to” take Smith’s property. The jury was also instructed on principles of accountability.

¶ 74 We agree with the State that the evidence in this case was not so closely balanced that the

guilty verdict may have resulted from the error. Harmon’s prior statement that defendant said that

he was talking to Smith through Facebook was cumulative evidence in that Wright wrote in his

prior statement that Smith “was using the Facebook Messenger App to communicate with

[defendant].” As Wright’s statement did not indicate that this information was something Smith

said to him, as opposed to something Wright personally observed, it was not hearsay and could be

considered as substantive evidence. Given the evidence that defendant was communicating with

Smith before Smith arrived, it is inconsequential that the jury may have improperly considered

Harmon’s statement that defendant said that Smith was coming over, as it is undisputed that Smith

did come to Harmon’s grandmother’s house. Wright also stated in his statement that defendant and

Jefferson were outside when he dropped Smith off.

¶ 75 Additionally, in Harmon’s prior inconsistent statement, he stated that defendant had a 9-

millimeter gun and that both Jefferson and defendant shot Smith. Defendant argues that the jury

had to determine whether to believe Harmon’s statements at trial or his prior written statement,

but weighing against Harmon’s trial testimony was the fact that he changed his version of events

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to say that defendant was not involved in communicating with Smith or shooting him after Harmon

already had a conviction in relation to this case and would not be personally affected by implicating

himself.

¶ 76 Regardless, the most significant evidence against defendant was Smith’s dying declaration

telling the police more than once that defendant was the person who shot him. Defendant’s reliance

on Smith’s statement that “They shot me” to raise doubts about his involvement is not persuasive,

as even if the jury accepted that Smith said “They shot me” rather than “He shot me,” there was

evidence that more than one person shot Smith, and the jury could have also found defendant guilty

based on accountability. Accordingly, the evidence was not closely balanced, such that defendant

has failed to show plain error arising from the error in the amended jury instruction.

¶ 77 III. CONCLUSION

¶ 78 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

¶ 79 Affirmed.

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