People v. Carey

2021 IL App (4th) 190097-U

• Court: Appellate Court of Illinois
• Decided: May 19, 2021
• Docket: 4-19-0097
• Status: Unpublished

Opinion

NOTICE 2021 IL App (4th) 190097-U FILED This Order was filed under May 19, 2021 Supreme Court Rule 23 and is NO. 4-19-0097 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County WESLEY R. CAREY, ) No. 16CF61 Defendant-Appellant. ) ) Honorable ) John M. Madonia, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding (1) the State proved defendant guilty of first degree murder beyond a reasonable doubt, (2) the trial court did not abuse its discretion when it admitted other-crimes evidence and rebuttal testimony, (3) the court properly denied defendant’s motion to suppress and appropriately admitted a nonredacted recording of defendant’s police interrogation at trial, (4) the court did not abuse its discretion when it allowed testimony regarding the lyrics and content of the song “Dance with the Devil,” and (5) the court did not err in imposing a 45-year sentence.

¶2 Following a fall 2018 trial, a jury found defendant, Wesley R. Carey, guilty of

first degree murder (720 ILCS 5/9-1(a)(1) (West 2016)). In February 2019, the trial court

sentenced defendant to 45 years’ imprisonment.

¶3 Defendant appeals, arguing (1) the State failed to prove him guilty beyond a

reasonable doubt; (2) the trial court abused its discretion when it admitted prejudicial

other-crimes evidence and improper rebuttal testimony; (3) the court erred when it denied defendant’s motion to suppress and admitted into evidence at trial a recording of defendant’s

police interrogation where police failed to scrupulously honor defendant’s right to remain silent

and, in the alternative, the court should have redacted portions of defendant’s recorded

interrogation where defendant made statements that represented the opinion of a police officer;

(4) the court abused its discretion when it admitted testimony as to the lyrics and content of the

song “Dance with the Devil”; and (5) the court abused its discretion in sentencing defendant to

45 years in prison where the court failed to consider the uncontradicted evidence of defendant’s

rehabilitative potential. We affirm.

¶4 I. BACKGROUND

¶5 In January 2016, the State charged defendant with three counts of first degree

murder alleging he stabbed Nicole Maxey with a knife, resulting in her death (720 ILCS

5/9-1(a)(1) (West 2014)) (count I and count II); (720 ILCS 5/9-1(a)(2) (West 2014)) (count III).

¶6 A. Pretrial Motions

¶7 In January 2017, defendant filed a notice informing the State of his intent to assert

the affirmative defense of self-defense. Defendant also filed a motion in limine asking to

present, at trial, evidence of the alleged victim’s propensity for violence pursuant to People v.

Lynch, 104 Ill. 2d 194, 199-200, 470 N.E.2d 1018, 1020 (1984), where Maxey “previously

stabbed a man with a knife” and had a “history of directing violence against men.”

¶8 In April 2018, defendant filed a motion in limine asking to exclude or redact the

content of defendant’s recorded custodial interrogation on the basis of relevance. Specifically,

defendant argued his statements during his police interrogation were based on what Officer Eric

Bertoni told him happened to Maxey.

-2- ¶9 At an August 2018 hearing, the trial court heard evidence from defendant and

Keith Allen Underwood, Maxey’s ex-boyfriend, about a September 2009 incident where Maxey

stabbed Underwood. Defendant stated Maxey previously told him about the 2009 incident. The

court found Maxey’s propensity for violence relevant and stated, “If [defendant] testifies and

there’s evidence of self-defense, the statements that [Maxey] made to [defendant]

acknowledge—informing him that she had stabbed somebody is going to come in through his

testimony subject to Mr. Underwood also then testifying to the total context.” Next, the court

denied defendant’s motion to exclude or redact the contents of defendant’s recorded custodial

interrogation. Relying on People v. Whitfield, 2018 IL App (4th) 150948, 103 N.E.3d 1096, the

court found the officers’ statements during defendant’s interrogation were relevant.

¶ 10 In September 2018, defendant filed a second motion in limine seeking to present

evidence of the alleged victim’s propensity for violence pursuant to Lynch, where Maxey had a

2003 conviction for domestic battery which arose from an incident with her then-stepfather,

Gordon A. Lynn. Defendant also filed an omnibus motion in limine asking to exclude, in

relevant part, (1) the lyrics or any reference to the song “Dance with the Devil” and (2) evidence

of a New Year’s Eve 2015 incident where defendant broke the front window of Maxey’s

apartment. Defendant filed a motion to suppress statements unlawfully elicited during

defendant’s custodial interrogation. In the motion to suppress, defendant argued that “[b]ecause

[d]efendant invoked his right to remain silent, and law enforcement failed to scrupulously honor

defendant’s unequivocal invocation of that right, any and all subsequent statements elicited are

inadmissible as a matter of law.”

¶ 11 At a September 2018 hearing, the trial court heard evidence from Lynn regarding

the 2003 incident that resulted in Maxey’s conviction for domestic battery. The court granted

-3- defendant’s motion to present evidence of Maxey’s propensity for violence, stating, “with the

proper foundation laid, then I would permit it, permit him to be called for—to provide that

testimony[.]”

¶ 12 At an October 5, 2018, hearing on defendant’s motion to suppress, the trial court

heard evidence from multiple witnesses. Officer Bertoni with the Pawnee Police Department

testified that on January 18, 2016, around 9 p.m., he responded to a residence for a stabbing.

Officer Bertoni testified both Maxey and defendant were transported to St. John’s Hospital

where Officer Bertoni eventually spoke with defendant. Around 4:30 a.m., defendant woke up in

the hospital and asked Officer Bertoni what happened. Before answering, Officer Bertoni read

defendant his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Defendant acknowledged

he understood his rights and again asked what happened. Officer Bertoni indicated defendant

stabbed Maxey. Subsequently, defendant “covered his head up and said he didn’t want to talk

anymore because he was ashamed of what he did.” Officer Bertoni testified he did not continue

questioning defendant.

¶ 13 A while later, Officer Bertoni received a telephone call and stepped out of

defendant’s hospital room. When Officer Bertoni stepped back into defendant’s hospital room,

defendant asked him what happened. Officer Bertoni advised defendant that Maxey died.

Defendant then started “yelling and trying to choke himself.” Once the hospital discharged

defendant, Officer Bertoni transported defendant to the Sangamon County Sheriff’s Office to be

interviewed.

¶ 14 Detective Mike McMasters with the Sangamon County Sheriff’s Department

testified that on January 19, 2016, around 12:30 p.m., he interviewed defendant at the Sangamon

County Sheriff’s Office. Before questioning defendant, Detective McMasters read defendant his

-4- Miranda rights. Defendant agreed to speak with Detective McMasters and the interview

commenced.

¶ 15 Defendant testified that when he woke up in the hospital, he asked Officer Bertoni

what happened. Officer Bertoni indicated defendant stabbed Maxey. Defendant then stated he

told Officer Bertoni he did not want to talk anymore. Defendant testified his conversation with

Officer Bertoni briefly ceased “for about five or six minutes.” Then, Officer Bertoni asked

defendant several questions while “filling out [his] report.” Defendant testified “[t]hen it kind of

got a little more in-depth after that.” Defendant told Officer Bertoni he did not remember

fighting or arguing with Maxey and he did not want to talk with Officer Bertoni any longer.

¶ 16 About 20 minutes later, Officer Bertoni received a telephone call and left

defendant’s hospital room. Officer Bertoni then came back into the room and told defendant

Maxey died and that defendant was being charged with first degree murder. Defendant testified

Officer Bertoni then again asked him about the incident and what transpired.

¶ 17 When Officer Bertoni transported defendant to the Sangamon County jail,

defendant told Officer Bertoni that he did not want to be interviewed. Officer Bertoni told

defendant to “just go in there and tell them the truth[.]”

¶ 18 Subsequently, the trial court denied defendant’s motion to suppress. The court

found,

“more credible [Officer Bertoni] who is having trouble

remembering specifics about the particular circumstances that

occurred over two and a half years ago who had not reviewed the

transcript, who had not reviewed the circumstances much more

credible than a defendant coming to from being in that

-5- circumstance who remembers absolutely verbatim word for word

exactly the conversation he had.”

Further, the court stated,

“So, based on everything that is before the [c]ourt here

today, the factors the [c]ourt is to consider, the [c]ourt does find by

a preponderance of the evidence that the police at that time during

the second interview scrupulously honored the [d]efendant’s

invocation of his right to silence. He voluntarily waived that right

at that time. And the contents of the statement provided will be

admissible subject to any further motions that the [c]ourt has to

address going forward.”

¶ 19 At an October 23, 2018, hearing, the trial court ruled on defendant’s omnibus

motion in limine to exclude, in relevant part, (1) the lyrics or any reference to the song “Dance

with the Devil” and (2) evidence of a New Year’s Eve 2015 incident where defendant broke the

front window of Maxey’s apartment. The court denied the motion in limine regarding both the

song lyrics and the New Year’s Eve window-breaking incident. As to the window-breaking

incident, the court found the incident “highly relevant” where defendant “in his own words

referred to the particular conduct and compared it to the events of this fateful evening.” As to

the song, the court stated,

“The [d]efendant’s state of mind is going to be an extremely

contested issue in this case. And his attraction to that song and his

knowledge of the contents of the lyrics, the meaning behind the

song is overwhelming relevant to his state of mind, and a jury

-6- should be able to hear the impact this song has on him and how it

impacted everything that unfolded that evening.

In the end, while it might be inflammatory and somewhat

suggestive, it is in no way more prejudicial than it is probative.”

¶ 20 B. Defendant’s Jury Trial

¶ 21 Below, we summarize the relevant testimony elicited during defendant’s jury trial,

held over three consecutive days in October and November 2018.

¶ 22 1. Defendant

¶ 23 Defendant testified that on January 18, 2016, around 2:30 p.m. he and Maxey, his

girlfriend, started drinking at Maxey’s apartment in Pawnee, Illinois. Defendant and Maxey

drank a bottle of Canadian Superior whiskey and listened to music. Subsequently, Maxey

received a telephone call from her ex-boyfriend. Defendant testified that after Maxey finished

her phone call, he played the song “Dance with the Devil” by Immortal Technique on YouTube.

Defendant described himself as being quite drunk due to drinking for about an hour. Defendant

and Maxey discussed the lyrics of the song. Defendant testified the song affected Maxey

emotionally and “[s]he got upset.”

¶ 24 About 30 minutes later, defendant took a nap. After a couple of hours, Maxey

woke defendant up, poured him a drink, and asked to have sex with defendant. Defendant

testified, “I told her that I was sick and I was tired and I just wanted to go back to bed.” In

response, Maxey “got really upset and she started going crazy.” Defendant testified he told

Maxey, “this is not working. I said this just isn’t going to work.” Maxey punched defendant in

the face and kept hitting him. Defendant testified he pushed Maxey but did not recall if he threw

a punch or not while attempting to get her off. Defendant then grabbed Maxey’s cellular

-7- telephone and threatened to call the police. Defendant testified he walked toward the door to dial

911, when Maxey “grabbed me around the neck like this and she’s trying to get to the phone and

she pulled backwards and we slipped. We fell clean backwards and fell hard, real hard, on her

back. And I fell kind of on top of her and kind of beside her. But she just hooked me around the

neck. We fell back. And she smashed—we smashed the chair to blitherines [sic]. We landed on

the kiddie chair. We smashed the chair. It flew into the living room. We’re on the floor, and

she—we’re fighting over the phone.” Maxey eventually grabbed her cellular telephone from

defendant and went out the front door of her apartment.

¶ 25 Defendant went to collect his belongings and leave the apartment, when about a

minute and a half later, Maxey returned to the apartment. Defendant walked into the kitchen and

observed Maxey holding a steak knife in her hand. Maxey then moved toward defendant with

the knife in her hand. Defendant grabbed her wrist in an attempt to pull the knife out of her

hand. Defendant and Maxey struggled with the knife as they fell to the ground. During the fall,

defendant wrestled control of the knife from Maxey. Defendant then tossed the knife over the

back of their heads. Defendant testified Maxey tried to reach for the knife but she was bleeding

all over the place. Specifically, blood squirted out of her arm all over defendant. At that point,

Maxey’s one-year-old son walked into the room.

¶ 26 Defendant testified that a week before the January 18 incident, Maxey told

defendant she previously stabbed her ex-boyfriend, Underwood. During the struggle on January

18, defendant recalled the story where Maxey previously stabbed her ex-boyfriend.

¶ 27 Defendant later woke up in the hospital and had no idea what happened.

Defendant testified that when he woke up, the last thing he remembered was listening to the song

-8- “Dance with the Devil.” Defendant stated, “None of the lyrics had an impact on me, just the fact

that I remember playing it.” Defendant admitted some of the lyrics in the song were violent.

¶ 28 Defendant acknowledged he told Detective McMasters during his January 19

video-recorded police interrogation that he was guilty “[b]ut in that interrogation with what was

going on, it was a really intense situation to be in and everything in my mind was just

exaggerated to the 90,000th degree like you cannot imagine.” Defendant experienced blackouts

brought on by alcohol consumption on multiple prior occasions. Eventually, the details of the

alcohol induced blackout came back to him a few days later. Defendant testified “Hank” is his

alter ego. Defendant also acknowledged he told police, during his interrogation, that “Hank” is

his alter ego who comes out when he has had too much to drink.

¶ 29 Defendant testified that a few weeks before the January 18 incident, on December

31, 2015, an incident occurred at Maxey’s residence. On New Year’s Eve, police arrested

defendant after he broke a window at Maxey’s apartment. Defendant testified that around 11:30

p.m. on December 31, 2015, he received a text message from an ex-girlfriend and Maxey got

angry. Defendant acknowledged he was drunk and went outside to smoke a cigarette. After

being outside for about 20 minutes, defendant tried to go back inside but Maxey had locked the

door. Defendant asked her to let him in and she said no. Maxey refused to give defendant his

wallet and telephone. Defendant testified, “she giving me the finger like this through the

window, both fingers, fuck you, walk, freeze to death, I don’t give a shit.” In response,

respondent “thumped” on the front window, breaking it. Officer Bertoni subsequently arrested

him. Defendant acknowledged he discussed the December 31 incident with police during his

January 19 police interrogation. Defendant also testified “Hank” was involved in the window-

breaking incident.

-9- ¶ 30 2. Scott Snider

¶ 31 Scott Snider, a dispatcher for the Sangamon County Central Dispatch System,

testified that on January 18, 2016, a little after 9 p.m., he received a 911 telephone call. Snider

heard both a female and a male voice on the telephone call but did not know who made the

telephone call. Snider testified, “Uhm, the female was in distress. It sounded like a male was,

uhm, angry.” The parties stipulated that Maxey’s telephone records showed she made a

telephone call to 911 at 9:07 p.m. on January 18, 2016.

¶ 32 The State moved to admit the 911 recording through Snider. The jury then

received a transcribed copy of the 911 call in order to follow along with the recorded telephone

call. Defense counsel objected to the transcript but not the 911 recording. Subsequently, the

State played the recorded 911 telephone call for the jury.

¶ 33 During the 911 telephone call, a female voice can be heard repeatedly screaming

“help me,” “I’m dying,” “I’m bleeding,” “You’re killing me,” “I can’t move,” and “Let me go.”

The female also stated, “He stabbed me.” During the telephone call, a slapping noise is heard

numerous times.

¶ 34 A male’s voice can be heard saying “what do you want” and “hell with it, I

trusted you.” Later into the audio of the 911 telephone call, the same male’s voice said, “I did it,

I did it all, It’s all me. I tried to kill every fuckin person, every fucking soul in this fucking

house.” The male voice also stated, “give me the knife.”

¶ 35 3. Officer Eric Bertoni

¶ 36 Officer Bertoni testified that on January 18, 2016, he received a dispatch around 9

p.m. to an apartment at 14745 Cotton Hill Road in Pawnee. When Officer Bertoni entered the

apartment, he observed “a male and a female laying on the floor covered in blood.” Officer

- 10 - Bertoni observed the apartment in disarray, and it appeared there had been a physical struggle.

Officer Bertoni asked defendant his name, but defendant would not respond. Officer Bertoni did

not observe any injuries on defendant. Eventually, Maxey informed Officer Bertoni of

defendant’s name. Officer Bertoni testified Maxey also said that “she was in pain and hurt.”

Officer Bertoni identified defendant in court as the male he previously saw lying on the floor in

the apartment.

¶ 37 Once medical personnel arrived, Officer Bertoni directed defendant to move so

medical personnel could help Maxey. Officer Bertoni testified defendant was not cooperative

and would not tell him if he was hurt. Officer Bertoni informed defendant if he did not move, he

would tase him. When defendant did not respond, Officer Bertoni tased defendant. Defendant

failed to comply with medical personnel or Officer Bertoni until Officer Bertoni tased him for a

second time. Medical personnel then placed defendant on a gurney and transported him to St.

John’s Hospital. Officer Bertoni testified defendant was “highly intoxicated.”

¶ 38 Officer Bertoni testified William Walsh informed him of the presence of a knife.

Officer Bertoni then went back into the apartment and collected the knife. At trial, without

objection, the trial court admitted the knife into evidence.

¶ 39 Following defendant’s transport to St. John’s Hospital, Officer Bertoni went to

defendant’s room at St. John’s Hospital where defendant was sleeping. Around 4 a.m.,

defendant woke up and asked Officer Bertoni what happened. Officer Bertoni read defendant his

Miranda rights then informed defendant that defendant “had stabbed [Maxey].” Officer Bertoni

testified defendant “advised that it wasn’t him, it was Hank.” Specifically, “[defendant] said

Hank comes out when he’s been drinking.” Defendant then fell back asleep. Officer Bertoni

received a telephone call and stepped out of defendant’s room. When Officer Bertoni stepped

- 11 - back into the room, defendant asked him what happened. Officer Bertoni told defendant Maxey

passed away. Defendant then attempted to choke himself. Once medical staff discharged

defendant, Officer Bertoni transported defendant to the Sangamon County jail.

¶ 40 4. Detective Mike McMasters

¶ 41 Detective McMasters testified that on January 19, 2016, around 12:26 p.m., he

and Chief Jan Bowsher interviewed defendant at the Sangamon County Sheriff’s Department

regarding the incident that occurred the day before. Before Detective McMasters interviewed

defendant, he advised defendant of his Miranda rights. Defendant acknowledged his rights and

agreed to speak with police.

¶ 42 When asked if defendant admitted to stabbing Maxey, Detective McMasters

testified that during the interview defendant “said he did it several times. Couldn’t remember

what he did, but he admitted doing it.” Defendant told Detective McMasters he had no

recollection of the day beyond playing the song “Dance with the Devil.” Over objection,

Detective McMasters testified the song contained themes related to violence against women.

Specifically, Detective McMasters stated, “The one line that stands out to me is it takes a real

thug to stab someone until they die while looking them in the eyes.” Detective McMasters

testified defendant referenced the devil several times and the last line of the song mentions the

devil. Detective McMasters also testified defendant mentioned “Hank” and “referenced that is

an alter ego of his when, one, he gets weak. Two, the devil controls him, Hank comes out and he

says [defendant] goes by [sic].”

¶ 43 The State moved to admit a recording of defendant’s January 19 police

interrogation through Detective McMasters. Over objection, the trial court admitted the

recording. The jury then received a transcribed copy of defendant’s police interrogation in order

- 12 - to follow along with the recorded interrogation. Defense counsel objected to the transcript as a

whole but not the actual contents. The State played defendant’s January 19 police interrogation

for the jury.

¶ 44 During the January 19 police interrogation, defendant stated numerous times he

did not remember what happened during the incident that resulted in Maxey’s death. When

defendant woke up in the hospital, he asked Officer Bertoni what happened. Officer Bertoni told

him that he stabbed Maxey. Defendant stated, “I did it,” “It had to be me,” and “Because that’s

what [Officer Bertoni] told me.” Defendant told police his last memory before he woke up in the

hospital was listening to the song “Dance with the Devil.”

¶ 45 Defendant told police that on the afternoon of January 18, 2016, he and Maxey

drank heavily and listened to music. Defendant played the song “Dance with the Devil” and then

he and Maxey talked about religion, the devil, and defendant’s weakness with alcohol.

Defendant described the song “Dance with the Devil” as “evil,” “horrible,” and “sad.”

Defendant stated “there’s no real relevance to the song” but it was “the last memory that I have

of any of this.” However, during the interrogation defendant told police that “Satan, the devil,

the dark side” took control of him the night of the stabbing. Further, when police asked

defendant what triggered the stabbing, he responded, “the song, the weakness, the—the 52 hours

of not sleeping and detoxing and then drinking an entire bottle of whiskey and… I don’t know

man, I—I can’t even, I was pure evil, it was pure hatred and I’m gonna fry for it but, it wasn’t

her fault, whatever it was, it wasn’t her fault, it was mine.” Defendant described himself as a

“puppet” the night of the stabbing where “the devil” or “Hank” pulled his strings that night.

¶ 46 Defendant told police, “I think I went crazy, I think that song and the—and Hank

said go ahead and I—and I went bye-bye and Hank went crazy.” Defendant explained “Hank”

- 13 - was his nickname and alter ego. Hank is a “really drunk guy” who can “stay awake and party for

three more hours.” Defendant told police he “blacked out.” Defendant claimed he regularly

experienced blackouts after drinking alcohol.

¶ 47 Defendant mentioned that a few weeks prior to January 18, 2016, an incident

occurred where Maxey was upset with “Hank” and locked him out of her apartment. Defendant

pounded on Maxey’s apartment door and asked for his cellular telephone so he could leave.

When Maxey refused to give defendant his telephone, defendant broke the front window of

Maxey’s apartment. When defendant asked for an attorney, police terminated the interview.

¶ 48 5. Detective Charles Bott

¶ 49 Charles Bott, a detective and crime scene investigator for the Sangamon County

Sheriff’s Office, testified that on January 19, 2016, he photographed an apartment at 14745

Cotton Hill Road. Specifically, Detective Bott took pictures of the scene of the stabbing. The

trial court admitted several pictures of Maxey’s apartment as it appeared after the stabbing

incident. The pictures depicted blood on the walls, floor, and on a broken chair.

¶ 50 6. Renee Ackman

¶ 51 Renee Ackman, Maxey’s friend and neighbor, testified that on January 18, 2016,

around 9 p.m., she heard a “horrific pounding on [her] door.” When Ackman answered the door,

she observed a panicked Maxey standing there with a little cut on her head. Maxey screamed,

“Lani, please go save my baby.” Ackman testified she went by Lani.

¶ 52 After Maxey pleaded for help, Ackman told her daughter to call 911 because

“[t]here had been another altercation a couple weeks prior[.]” Ackman then ran over to Maxey’s

apartment. Ackman testified she entered Maxey’s apartment and “saw a lot of blood. [Maxey]

and [defendant] laying between the kitchen and the living room and [Maxey’s son] in the

- 14 - kitchen. And I just wanted to get [Maxey’s son] out.” Ackman testified, “I did see a knife at

that point. I wasn’t sure, you know, and I took the baby back to my apartment.” Although

Ackman observed a knife, she did not know who had possession of it.

¶ 53 7. William Walsh

¶ 54 William Walsh, Maxey’s neighbor, testified that on January 18, 2016, around 9

p.m., he heard “yelling and screaming.” Walsh went outside and observed Ackman running

from Maxey’s apartment with Maxey’s son. Walsh went to Maxey’s apartment, walked inside

the door, and saw Maxey lying on the floor. Walsh also observed defendant lying on the floor

next to Maxey. Walsh testified, “There was just a lot of blood and there was a knife.” Walsh

observed defendant “laying on his back, but he was reaching toward the knife while on his

back.” Walsh testified he later told police that he heard defendant say, “let me finish it.” Walsh

also testified Maxey said, “I don’t want to die, please don’t let me die, don’t let him hurt my

baby.”

¶ 55 After Walsh observed defendant and Maxey on the ground, he “picked up a rag

off of the couch and threw it over the knife and moved it away.” Defendant did not prevent

Walsh from moving the knife. Walsh testified that when the police arrived, defendant seemed

agitated and upset with the police officers.

¶ 56 8. Medical Personnel

¶ 57 Several medical personnel, including Elmer Neal, John Archer, and David

Detmers, responded to Maxey’s apartment on January 18, 2016. Once on scene, both Archer and

Neal observed defendant refuse to cooperate with Officer Bertoni’s commands and become very

combative with the police officers. Neal testified he assessed defendant for injuries because “he

was covered pretty much head to toe in blood.” Neal found no injuries on defendant so he

- 15 - diverted his attention to Maxey. Neal also observed Maxey covered in blood and noted she had a

puncture wound to the left forearm. Neal testified “the only thing I heard come out of her mouth

was that she had been stabbed multiple times and punched.” Detmers testified defendant

admitted to drinking and he smelled of alcohol. Detmers also testified defendant was

“belligerent and combative.”

¶ 58 9. Nathaniel Patterson

¶ 59 Nathaniel Patterson, an autopsy pathologist, performed the autopsy on Maxey.

Patterson certified Maxey’s cause of death “as sharp force injuries of the left arm and chest and

blunt force injuries of the head.” Patterson opined the knife recovered from Maxey’s apartment

was consistent with the injury to her chest. Patterson did not have the opportunity to examine

Maxey’s arm injury because emergency personnel made additional incisions to reduce the

swelling to save her arm. Patterson was unable to determine what caused Maxey’s blunt force

injuries.

¶ 60 10. Keith Underwood

¶ 61 Keith Underwood testified that in 2009, Maxey, his fiancée at the time,

accidentally stabbed him in his upper left shoulder. After a party where Underwood and Maxey

consumed alcohol, Maxey bumped into a bookcase and a printer started to fall, and in response

Underwood shoved Maxey out of the way. Maxey had a kitchen knife in her hand and

subsequently stabbed Underwood. Underwood testified Maxey was surprised when he pushed

her and based on her reaction, he understood her to be defending herself.

¶ 62 11. Dorothy Brinson

¶ 63 Over objection, the court allowed the State to call Dorothy Brinson as a rebuttal

witness where she expressed a different recollection than defendant of the events that led to the

- 16 - December 31, 2015, window-breaking incident. Brinson, a college classmate of Maxey, testified

that on December 31, 2015, Maxey picked her up with defendant and Maxey’s son in the

vehicle. Brinson testified defendant was drunk. While in the vehicle, defendant wanted Maxey

to “come on to him” but Maxey said no.

¶ 64 Once they arrived at Maxey’s apartment, Brinson, Maxey, and Maxey’s son went

inside the apartment where Maxey locked the door. Defendant eventually pounded on the door

and demanded his telephone. Maxey told him “when he calmed down that she would give him

his [tele]phone back.” According to Brinson, defendant became angry and broke Maxey’s

apartment window.

¶ 65 12. Jury Instructions

¶ 66 Over objection, the trial court instructed the jury, in relevant part, the believability

of a witness could be challenged if he made a statement that was inconsistent with his trial

testimony. Further, the jury could consider a witness’s earlier inconsistent statement as

substantive evidence where the witness acknowledged under oath that he made the statement.

The court also instructed the jury on self-defense and the lesser offense of second degree murder.

¶ 67 13. Jury Verdict

¶ 68 The jury found defendant guilty of first degree murder.

¶ 69 C. Defendant’s Posttrial Motions and Sentencing Hearing

¶ 70 On November 29, 2018, defendant filed a motion for a new trial, alleging the trial

court erred when it (1) denied defendant’s motion in limine to exclude or redact the contents of

defendant’s police interrogation video recording; (2) admitted into evidence a video recording of

defendant’s police interrogation that occurred after defendant asserted his right to cease the

questioning, which was not scrupulously honored; (3) denied defendant’s motion in limine as to

- 17 - the specific content of the song lyrics of “Dance with the Devil” that were neither relevant nor

probative, and the prejudicial effect outweighed the same, even if, arguendo, admissible;

(4) allowed other-crimes evidence to be entered into evidence against defendant, specifically, a

previous conviction for criminal damage to property; (5) allowed the State to call a previously

undisclosed rebuttal witness to testify to the above-referenced irrelevant and non-probative

other-crimes evidence; and (6) “allowed *** Illinois Pattern Jury Instruction 3.11 to be tendered

to the jury with bracketed material relating to the admission of prior inconsistent statements as

substantive evidence, when no such statements were properly admitted at all.” In his posttrial

motion, defendant also alleged the State failed to prove each and every element of the offense

charged beyond a reasonable doubt.

¶ 71 On February 6, 2019, the trial court denied defendant’s motion for a new trial and

held a sentencing hearing. The court heard evidence in aggravation and mitigation. In

aggravation, the State submitted three victim impact statements. In mitigation, defendant’s

family members wrote letters on defendant’s behalf and four witnesses testified in support of

defendant. Lee Grabner, Andrew Furlong, Doctor Casey Younkin, and Joe Rupnik all testified

to their involvement in the Sangamon County jail Alcoholics Anonymous (AA) program. The

witnesses testified defendant regularly attended AA meetings while in jail, became a leader

within the meetings, and showed genuine remorse for his actions. Defendant made a statement

in allocution where he stated, “I realize that, you know, I committed a horrible act. I caused this

woman’s death. And I fully accept responsibility for that, but I’ll never be that same person

again.”

¶ 72 The court considered the evidence received at trial, the presentence investigation

(PSI) reports, the evidence in aggravation and mitigation, and the need for deterrence. The court

- 18 - rejected the notion defendant accepted responsibility for his actions that night where defendant

“blamed the victim in this case from the start.” Specifically, the court stated,

“[S]omehow you’ve convinced these same people that you’re

remorseful for this when you take the stand after having a

blackout, not being able to remember everything, but then take this

stand under oath and blame the innocent victim shows me a lack of

remorse. It shows me a lack of true rehabilitative potential. And if

there is any remorse, it’s not necessarily a lack of remorse, but if

there’s remorse, it’s because you’re sitting here right now. I heard

words like BS’ing. And I made a note of BS’ing, when someone

said BS’ing, that was duly noted by this [c]ourt, and it absolutely

applied to you and everything you tried to do during this trial. I

heard responsible, I heard remorseful, I heard acceptance of

responsibility. And all I can figure is those people who said all

that about you were not here to watch this trial, hear your

testimony and compare all of that to the ultimate facts of this case.

Because anybody that heard that has to be convinced that you’re

not remorseful other than that you’re caught in looking at several

years of your life in prison, that you truly didn’t accept any

responsibility whatsoever. In fact, you blamed the victim instead.

And all of that leads this [c]ourt to believe that you don’t have

much rehabilitative potential, that these are circumstances that will

likely reoccur as evidenced on some criminal history involving

- 19 - damaging property, involving losing your temper, involving acting

out in rage, whether that’s to another person or whether that’s to

someone’s property, it’s still indicative of what’s going on in your

mind.

So, I’ve spoken to the factors in aggravation and the

minimal factors in mitigation, considered any potential for

substance abuse treatment, which this defendant will certainly need

to continue in the Illinois Department of Corrections if he is at all

to reform himself should he ever be released from custody. I’ve

considered the arguments as to sentencing alternatives, and I’ve

considered the [d]efendant’s statement in allocution. I’ve

considered the totality of everything this [c]ourt is to consider.”

Ultimately, the court sentenced defendant to 45 years in prison.

¶ 73 This appeal followed.

¶ 74 II. ANALYSIS

¶ 75 On appeal, defendant argues (1) the State failed to prove him guilty beyond a

reasonable doubt; (2) the trial court abused its discretion when it admitted prejudicial

other-crimes evidence and improper rebuttal testimony; (3) the court erred when it denied

defendant’s motion to suppress, and admitted into evidence at trial, a recording of defendant’s

police interrogation where police failed to scrupulously honor defendant’s right to remain silent

and, in the alternative, the court should have redacted portions of defendant’s recorded

interrogation where defendant made statements that represented the opinion of a police officer;

(4) the court abused its discretion when it admitted testimony as to the lyrics and contents of the

- 20 - song “Dance with the Devil”; and (5) the court abused its discretion in sentencing defendant to

45 years in prison where the court failed to consider the uncontradicted evidence of defendant’s

rehabilitative potential. We review each issue in turn.

¶ 76 A. Sufficiency of the Evidence

¶ 77 Defendant argues the State failed to disprove his claim of self-defense and

therefore failed to prove him guilty of first degree murder beyond a reasonable doubt. In the

alternative, defendant argues his conviction should be reduced to second degree murder. Further,

in the alternative, defendant argues ineffective assistance of trial counsel where his counsel failed

to introduce evidence of Maxey’s violent character. The State disagrees and argues the jury

properly found defendant guilty of first degree murder beyond a reasonable doubt. Further, the

State asserts defendant’s trial counsel provided effective assistance of counsel.

¶ 78 When considering the sufficiency of the evidence, we determine whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the required elements of the crime beyond a reasonable doubt. People v. Bradford, 2016

IL 118674, ¶ 12, 50 N.E.3d 1112. “It is the responsibility of the trier of fact to resolve conflicts

in the testimony, weigh the evidence, and draw reasonable inferences from the facts.” Id.

“Accordingly, a reviewing court will not substitute its judgment for the fact finder on questions

involving the weight of the evidence or the credibility of the witnesses.” Id. “A conviction will

be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that it

justifies a reasonable doubt of the defendant’s guilt.” People v. Belknap, 2014 IL 117094, ¶ 67,

23 N.E.3d 325.

¶ 79 1. Self-Defense

- 21 - ¶ 80 Defendant argues the State failed to prove he was not acting in self-defense when

he stabbed Maxey with a knife. Defendant testified he stabbed Maxey only after she tried to

prevent him from leaving the apartment by using physical force where she grabbed a knife and

attacked him. In response, defendant grabbed Maxey’s arm, took control of the knife, and during

this altercation Maxey sustained her injuries.

¶ 81 “Self-defense is an affirmative defense, and once it is raised, the State has the

burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, in

addition to proving the elements of the charged offense.” People v. Gray, 2017 IL 120958, ¶ 50,

91 N.E.3d 876. “Self-defense includes the following elements: (1) unlawful force threatened

against a person, (2) the person threatened was not the aggressor, (3) the danger of harm was

imminent, (4) the use of force was necessary, (5) the person threatened actually and subjectively

believed a danger existed that required the use of force applied, and (6) the beliefs of the person

threatened were objectively reasonable.” Id. “If the State negates any one of these elements, the

defendant’s claim of self-defense necessarily fails.” Id.

¶ 82 “In deciding a claim of self-defense, it is the function of the jury to assess the

credibility of the witnesses, the weight to be given their testimony, and the inferences to be

drawn from the evidence.” Id. ¶ 51. “It is also incumbent on the jury to resolve conflicts or

inconsistencies in the evidence.” Id. “The standard of review is whether, after considering the

evidence in the light most favorable to the State, any rational trier of fact could have found

beyond a reasonable doubt that the defendant did not act in self-defense.” Id.

¶ 83 At trial, defendant testified Maxey became upset, punched him in the face, and

repeatedly hit him when he did not want to have sex. In response, defendant pushed Maxey and

grabbed her cellular telephone to call the police. Maxey then grabbed him around the neck and

- 22 - they fell backward smashing a chair. Maxey eventually grabbed her cellular telephone and left

¶ 84 Defendant went to collect his belongings and leave the apartment when Maxey

returned to the apartment. Defendant observed Maxey holding a steak knife in her hand and she

moved toward him. In response, defendant grabbed her wrist and the two struggled with the

knife as they fell to the ground. When they fell to the ground, Maxey was stabbed with the knife.

Defendant also testified that during the struggle, he recalled Maxey previously telling him she

stabbed her ex-boyfriend.

¶ 85 However, in his January 19, 2016, police interrogation, the day after the stabbing,

defendant told police he did not remember the incident that resulted in Maxey being stabbed.

Rather, the last thing defendant remembered was listening to a song earlier in the day.

Defendant also informed police when he drinks a lot “Hank” comes out and he loses control.

Defendant believed he “went bye-bye and Hank went crazy.”

¶ 86 Further, Snider testified he received a telephone call at the same time Maxey’s

cellular telephone placed a 911 call. Snider heard a woman scream for help and state, “He

stabbed me.” Snider also heard a male voice say, “I tried to kill every fuckin person, every

fucking soul in this fucking house.” Ackman testified Maxey pounded on Ackman’s door asking

for help and telling Ackman to save her baby. Walsh testified he heard defendant say, “let me

finish it.” Walsh testified he heard Maxey say, “I don’t want to die, please don’t let me die,

don’t let him hurt my baby.” Neal also testified Maxey said she “had been stabbed multiple

times and punched.”

¶ 87 Here, when viewing the evidence in the light most favorable to the State, we

conclude more than sufficient evidence existed to allow the jury to find defendant guilty beyond

- 23 - a reasonable doubt. Specifically, the State’s evidence proved defendant guilty and negated his

self-defense claim. The guilty verdict demonstrates that the jury rejected defendant’s version of

the events and his self-defense claim. When considering the extensive witness testimony, the

state of the crime scene, the condition in which Maxey and defendant were found, defendant’s

statements and conduct following the attack, and defendant’s fluctuating story, the jury clearly

determined the State negated defendant’s self-defense claim and found defendant completely

incredible. Undoubtedly, top-of-mind for the jury was the fact defendant described being

subjected to a violent assault by Maxey, but initially he displayed no injuries consistent with the

claimed attack. Under these circumstances, the jury was in the best position to assess the

credibility of defendant and resolve any conflicts or inconsistencies in the evidence.

Accordingly, we find the jury, acting as a rational trier of fact, properly found defendant guilty of

first degree murder beyond a reasonable doubt where defendant was not acting in self-defense

when he stabbed Maxey with a knife.

¶ 88 2. Second Degree Murder

¶ 89 In the alternative, defendant argues his conviction should be reduced to second

degree murder because his actions were based on a sudden and intense provocation during

mutual argument and he subjectively, though unreasonably, believed he needed to defend

himself. We decline to reduce defendant’s conviction to second degree murder.

¶ 90 A person is guilty of second degree murder when he commits the offense of first

degree murder and at the time of killing (1) he is acting under a sudden and intense passion

resulting from serious provocation by the individual killed or (2) he believes the circumstances

justify using self-defense, but his belief is unreasonable. People v. Blackwell, 171 Ill. 2d 338,

- 24 - 357, 665 N.E.2d 782, 790 (1996). A defendant must prove one of the two mitigating factors by a

preponderance of the evidence to reduce the offense to second degree murder. Id.

¶ 91 Defendant’s claim that his actions were based on a sudden and intense

provocation during mutual combat fails. “Mutual combat” requires both parties to enter the fight

willingly. People v. Delgado, 282 Ill. App. 3d 851, 857, 668 N.E.2d 173, 177-78 (1996). Here,

defendant claimed he reacted to Maxey in self-defense when she attacked him and came at him

with a knife. Based on defendant’s own testimony, he did not willingly enter into the fight but

instead reacted when Maxey came at him. Thus, any mutual combat or serious provocation

claim fails.

¶ 92 Also, where the jury rejected defendant’s self-defense claim, that same

assessment led the jury to deny defendant a second degree murder conviction. Here, defendant

failed to prove by a preponderance of the evidence his alleged unreasonable belief. While

defendant testified Maxey attacked him and was accidently stabbed when they fell, the State

provided credible contradictory evidence through the 911 telephone call as well as the testimony

of multiple witnesses. Frankly, the jury was not required to believe defendant’s story that Maxey

was the aggressor or that she provoked defendant. Undoubtedly, the jury accepted the State’s

version of events and, as was well within their purview, determined the evidence required a first

degree murder conviction. As stated above, we find the jury was in the best position to assess

the credibility of defendant and resolve any conflicts or inconsistencies in the evidence.

Accordingly, where defendant failed to meet his burden as to either of the two mitigating factors,

we decline to reduce defendant’s conviction to second degree murder.

¶ 93 3. Ineffective Assistance of Counsel

- 25 - ¶ 94 Further, in the alternative, defendant argues ineffective assistance of trial counsel

where his counsel failed to introduce evidence of Maxey’s violent character. Specifically,

defendant notes counsel failed to introduce into evidence Maxey’s 2003 conviction for domestic

battery which arose from an incident with her then-stepfather, Lynn.

¶ 95 We review claims of ineffective assistance of counsel under the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim of ineffective assistance

of counsel, a defendant must show (1) the attorney’s performance fell below an objective

standard of reasonableness and (2) the deficient performance prejudiced the defendant. Id.

¶ 96 Both prongs of the Strickland test must be satisfied; therefore, a finding of

ineffective assistance of counsel is precluded if a defendant fails to satisfy one of the prongs.

People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601. “A court may resolve a claim of

ineffective assistance of counsel by reaching only the prejudice prong, as a lack of prejudice

renders irrelevant the issue of counsel’s alleged deficient performance.” People v. Hall, 194 Ill.

2d 305, 337-38, 743 N.E.2d 521, 540 (2000). Prejudice results when there is a reasonable

probability that, but for counsel’s unprofessional error, the result of the proceedings would have

been different. People v. Simms, 192 Ill. 2d 348, 362, 736 N.E.2d 1092, 1106 (2000). Here,

defendant is unable to establish prejudice.

¶ 97 We find trial counsel’s failure to introduce into evidence Maxey’s 2003

conviction for domestic battery did not prejudice defendant. Here, the trial court granted

defendant’s motions in limine to admit evidence of Maxey’s violent character, including

(1) defendant’s knowledge of an incident where Maxey stabbed her ex-boyfriend and

(2) Maxey’s 2003 conviction for domestic battery against her stepfather.

- 26 - ¶ 98 At trial, counsel introduced the incident where Maxey stabbed her ex-boyfriend to

support defendant’s claim of self-defense where the circumstances in both instances were

similar. We note, when testifying at the September 2018 hearing where defense counsel sought

permission to introduce the 2003 conviction, Lynn recalled little about the incident, including

whether or not he had been drinking. Lynn did however admit to occasionally drinking alcohol

to excess. Moreover, Lynn seemed hesitant to criticize Maxey, indicating Maxey hit him “just

that one time” and opining that he may have provoked Maxey because “maybe I ran my mouth a

little too long.” Ultimately, Maxey’s remote conviction added little to the question of whether

defendant acted in self-defense or whether Maxey was the aggressor. We find there is no

reasonable probability that the results of the proceedings would have been different had counsel

introduced Maxey’s 2003 conviction. Therefore, defendant’s ineffective assistance of counsel

¶ 99 B. Other-Crimes Evidence

¶ 100 Defendant next argues the trial court abused its discretion when it permitted the

State to introduce prejudicial other-crimes evidence. Specifically, the court admitted evidence of

a prior incident where defendant broke the front window of Maxey’s apartment. Further,

defendant argues the court compounded this error by allowing the State to present evidence of

the window-breaking incident through rebuttal testimony, the cumulative effect of which denied

defendant a fair trial. The State argues the court did not abuse its discretion in admitting the

evidence. We agree with the State.

¶ 101 1. Relevance

¶ 102 “Evidence of other crimes is admissible if it is relevant for any purpose other than

to show the defendant’s propensity to commit crime.” People v. Pikes, 2013 IL 115171, ¶ 11,

- 27 - 998 N.E.2d 1247. “Other-crimes evidence is admissible to show modus operandi, intent, motive,

identity, or absence of mistake with respect to the crime which the defendant is charged.” Id.

Other-crimes evidence is also properly admitted to show the defendant’s state of mind. People v.

Wilson, 257 Ill. App. 3d 826, 830-31, 629 N.E.2d 582, 585 (1994). “However, even where

relevant, the evidence should not be admitted if its probative value is substantially outweighed

by its prejudicial effect.” Pikes, 2013 IL 115171, ¶ 11.

¶ 103 When we consider prejudicial effect, we examine whether the evidence in

question will cause the jury to view defendant in an unflattering light based on reasons totally

detached from the matter on trial. People v. Lynn, 388 Ill. App. 3d 272, 278, 904 N.E.2d 897,

992 (2009). Importantly, the jury should not decide the case based on sympathy, hatred,

contempt, or horror. People v. Lewis, 165 Ill. 2d 305, 329, 651 N.E.2d 72, 83 (1985).

¶ 104 “The admissibility of evidence rests within the discretion of the trial court, and its

decision will not be disturbed absent an abuse of discretion.” Pikes, 2013 IL 115171, ¶ 12. “A

reviewing court, however, may not simply substitute its judgment for that of the trial court on a

matter within the trial court’s discretion.” People v. Illgen, 145 Ill. 2d 353, 371, 583 N.E.2d 515,

522 (1991).

¶ 105 Based on the record, we find the trial court did not abuse its discretion when it

admitted the other-crimes evidence where the window-breaking incident was relevant and

probative of defendant’s state of mind at the time he stabbed Maxey and any prejudicial effect

failed to substantially outweigh its probative value.

¶ 106 Prior to trial, defendant filed a motion in limine to exclude evidence of the

December 31, 2015, incident where defendant broke the front window of Maxey’s apartment.

The trial court denied defendant’s motion, finding the incident “highly relevant” where

- 28 - defendant “in his own words referred to the particular conduct and compared it to the events of

this fateful evening.”

¶ 107 During his January 19, 2016, police interrogation, defendant told police his

theory. He suggested, “I think I went crazy, I think that song and the—and Hank said go ahead

and I—and I went bye-bye and Hank went crazy.” Defendant described himself as a “puppet”

the night of the stabbing where “the devil” or “Hank” pulled his strings. Defendant explained

“Hank” was his nickname and alter ego. Hank is a “really drunk guy” who can “stay awake and

party for three more hours.” Defendant indicated he regularly experienced blackouts after

drinking alcohol.

¶ 108 Further, defendant told police that a few weeks prior to January 18, 2016, an

incident occurred where Maxey was upset with “Hank” and locked him out of her apartment.

Defendant pounded on Maxey’s apartment door and asked for his cellular telephone so he could

leave. When Maxey refused to give defendant his telephone, defendant broke the front window

of Maxey’s apartment.

¶ 109 At trial, defendant also testified to the December 31, 2015, incident. On New

Year’s Eve, police arrested defendant after he broke a window at Maxey’s apartment. Defendant

testified that around 11:30 p.m. on December 31, he received a text message from an

ex-girlfriend and Maxey got angry. Defendant acknowledged he was drunk and went outside to

smoke a cigarette. After being outside for about 20 minutes, defendant tried to go back inside,

but Maxey had locked the door. Defendant asked her to let him in, and she said no. Maxey

refused to give defendant his wallet and telephone. Defendant testified, “she giving me the

finger like this through the window, both fingers, fuck you, walk, freeze to death, I don’t give a

shit.” In response, respondent “thumped” on the front window, breaking it. Officer Bertoni

- 29 - subsequently arrested him. Defendant also acknowledged he discussed the December 31

incident with police during his January 19 police interrogation. Defendant testified “Hank” was

involved in the window-breaking incident.

¶ 110 Ackman also testified that on the night of January 18, 2016, after Maxey pounded

on her front door and screamed for help, before Ackman ran over to Maxey’s apartment, she told

her daughter to call 911 because “[t]here had been another altercation a couple weeks prior[.]”

¶ 111 We find the court properly admitted evidence of the window-breaking incident

where defendant referenced the incident during his police interrogation the day after the

stabbing. Defendant also testified at trial about the prior window-breaking incident. The

window-breaking incident and the circumstances surrounding Maxey’s stabbing shared common

features. Specifically, in both instances defendant claimed he was highly intoxicated, his alter

ego “Hank” committed the act, and both instances involved him and Maxey. We find the prior

incident was relevant where it showed defendant’s state of mind when he stabbed Maxey and the

nature of Maxey and defendant’s relationship. Further, we also find the evidence of the window-

breaking incident to be probative of defendant’s state of mind where it occurred a few weeks

before the January 18 stabbing of Maxey.

¶ 112 Finally, where the incident failed to demonstrate severe violence akin to the

conduct testified to have occurred when Maxey was murdered, any prejudicial effect failed to

substantially outweigh the evidence’s probative value.

¶ 113 2. Rebuttal Testimony

¶ 114 Defendant argues the court abused its discretion when it allowed the State to

present evidence of the window-breaking incident through rebuttal testimony. Specifically,

Brinson’s recollection of the window-breaking incident was not sufficiently different from

- 30 - defendant’s testimony to be admissible as rebuttal testimony. Defendant also argues he did not

open the door to Brinson’s rebuttal testimony but rather the State introduced the

window-breaking incident through his police interrogation and Ackman’s testimony. The State

argues the court properly admitted Brinson’s rebuttal testimony. We note the State in its brief

appears to address the difference between Brinson’s recollection of the window-breaking

incident and defendant’s recollection of the window-breaking incident but attributes the rebuttal

testimony to Ackman. In his reply brief, defendant offers no clarification on the discrepancy.

We proceed and consider the rebuttal evidence regarding the window-breaking incident testified

to by Brinson.

¶ 115 “Rebuttal evidence is presented by the State to explain, repel, contradict, or

disprove evidence presented by the defendant.” People v. Mischke, 278 Ill. App. 3d 252, 264,

662 N.E.2d 442, 450-51 (1995). Rebuttal testimony is allowed when it is relevant to the question

of defendant’s believability. Id. “The decision to admit rebuttal testimony will not be reversed

absent an abuse of discretion by the trial court.” People v. Eveans, 277 Ill. App. 3d 36, 47, 660

N.E.2d 240, 248 (1996).

¶ 116 Here, defendant referenced the prior window-breaking incident during his January

19, 2016, police interrogation. Then, at trial, defendant went into greater detail about the

window-breaking incident as noted above. By testifying to the specifics of the incident,

defendant put his credibility at issue, allowing the State to present evidence that would contradict

defendant’s testimony.

¶ 117 On the final day of trial, the State moved to present testimony from rebuttal

witness Brinson. During the proffer, Brinson testified to the events of the December 31, 2015,

window-breaking incident. Over objection, the court allowed the State to call Brinson as a

- 31 - rebuttal witness where she expressed a different recollection than defendant of the events that led

to the December 31, 2015, window-breaking incident.

¶ 118 Brinson testified that on December 31, 2015, Maxey picked her up with defendant

and Maxey’s son in the vehicle. Brinson testified defendant was drunk. While in the vehicle,

defendant wanted Maxey to “come on to him,” but Maxey said no.

¶ 119 Once they arrived at Maxey’s apartment, Brinson, Maxey, and her son went

inside the apartment and locked the door. Defendant eventually pounded on the door and

demanded his telephone back. Maxey told him “when he calmed down that she would give him

his [tele]phone back.” Brinson testified defendant was angry. He then broke Maxey’s apartment

window.

¶ 120 Based on the evidence, we find the trial court did not abuse its discretion when it

allowed the State to present rebuttal testimony where defendant’s credibility was at issue in this

case and defendant’s and Brinson’s recollection of the incident differed. Because the court did

not err in admitting evidence of the window-breaking incident or allowing rebuttal testimony, we

decline to address any cumulative error claim.

¶ 121 C. Motion to Suppress Defendant’s Recorded Police Interrogation

¶ 122 Defendant next argues the trial court erred when it denied defendant’s motion to

suppress, and admitted into evidence at trial, a recording of defendant’s police interrogation

where police failed to scrupulously honor defendant’s right to remain silent. In the alternative,

defendant argues the court abused its discretion when it failed to redact portions of defendant’s

recorded interrogation where defendant made statements that represented the opinion of Officer

Bertoni. The State argues the court properly denied defendant’s motion to suppress and correctly

admitted defendant’s recorded police interrogation. We agree with the State.

- 32 - ¶ 123 1. Right to Remain Silent

¶ 124 Defendant argues the trial court erred when it denied defendant’s motion to

suppress and admitted into evidence at trial a recording of defendant’s police interrogation where

police failed to scrupulously honor defendant’s right to remain silent.

¶ 125 When reviewing a trial court’s suppression ruling, the reviewing court applies a

two-part standard of review. People v. Oliver, 236 Ill. 2d 448, 454, 925 N.E.2d 1107, 1110

(2010). A trial court’s factual findings are entitled to great deference, and a reviewing court will

reverse them only if they are against the manifest weight of the evidence. Id. The trial court’s

ultimate legal ruling is reviewed de novo. Id.

¶ 126 “A statement made by a suspect as a result of a custodial interrogation is

admissible if, after being advised of his Miranda rights, including the right to remain silent, he

voluntarily waives his rights prior to making the statement.” People v. R.C., 108 Ill. 2d 349, 353,

483 N.E.2d 1241, 1243 (1985) (citing Miranda, 384 U.S. at 444-45). Even if a suspect initially

waives his rights and agrees to talk to police, the interrogation must cease if he indicates he

wishes to remain silent. Id. “Under these circumstances, the interrogation may be resumed and

any statement resulting from renewed questioning is admissible only if the suspect’s right to

remain silent was ‘scrupulously honored.’ ” Id. (quoting Michigan v. Mosley, 423 U.S. 96,

103-04 (1975)).

¶ 127 In deciding whether a suspect’s right to remain silent was scrupulously honored,

“courts should consider whether (1) the police immediately halted the initial interrogation after

the defendant invoked his right to remain silent; (2) a significant amount of time elapsed between

the interrogations; (3) a fresh set of Miranda warnings were given prior to the second

interrogation; and (4) the second interrogation addressed a crime that was not the subject of the

- 33 - first interrogation.” People v. Nielson, 187 Ill. 2d 271, 287, 718 N.E.2d 131, 142 (1999) (citing

Mosley, 423 U.S. at 104-05). “The fact that the second interrogation addressed the same crime

as the first interrogation does not preclude a finding that the defendant’s right to remain silent

was scrupulously honored.” Id.

¶ 128 At the hearing on the motion to suppress, Officer Bertoni testified that on January

19, 2016, around 4:30 a.m., defendant woke up in the hospital and asked him what happened.

Before answering, Officer Bertoni read defendant his Miranda rights. Defendant agreed to speak

with Officer Bertoni and again asked what happened. Officer Bertoni told defendant he stabbed

Maxey. Subsequently, defendant “covered his head up and said he didn’t want to talk anymore

because he was ashamed of what he did.” Officer Bertoni testified he ceased questioning

defendant.

¶ 129 A while later, Officer Bertoni received a telephone call and stepped out of

defendant’s hospital room. When Officer Bertoni stepped back into defendant’s hospital room,

defendant asked him what happened. Officer Bertoni advised defendant that Maxey died.

Defendant then started “yelling and trying to choke himself.” Once the hospital discharged

defendant, Officer Bertoni transported defendant to the Sangamon County Sheriff’s Office to be

¶ 130 Detective McMasters testified that on January 19, 2016, around 12:30 p.m., he

interviewed defendant at the Sangamon County Sheriff’s Office. Before questioning defendant,

Detective McMasters read defendant his Miranda rights. Defendant agreed to speak with

Detective McMasters and the interview commenced.

¶ 131 Defendant argues Officer Bertoni continued to question him about the stabbing

incident with Maxey after he invoked his right to silence. Thus, his January 19 recorded police

- 34 - interrogation was not admissible at trial because his right to remain silent was not scrupulously

honored.

¶ 132 In ruling on defendant’s motion to suppress, the trial court found Officer

Bertoni’s testimony more credible than defendant’s testimony. Ultimately, the court denied

defendant’s motion to suppress the recorded police interrogation, findingby a preponderance of

the evidence that at the time of the second interview, the police scrupulously honored

defendant’s right to remain silent.

¶ 133 Based on the evidence, we find the trial court’s credibility determinations were

not against the manifest weight of the evidence. Further, the court properly denied defendant’s

motion to suppress the recorded police interrogation because the police scrupulously honored

defendant’s right to silence when Officer Bertoni halted the initial interrogation after defendant

invoked his right to silence, and a significant period of time elapsed before Detective McMasters

provided fresh Miranda warnings and interviewed defendant again. Therefore, the court did not

err when it allowed defendant’s recorded police interrogation to come in as evidence at trial.

¶ 134 2. Unredacted Police Interrogation

¶ 135 In the alternative, defendant argues the trial court abused its discretion when it

failed to redact portions of defendant’s recorded police interrogation because defendant made

statements that represented the opinion of Officer Bertoni. Specifically, defendant argues that

during his interrogation, he told police he must have stabbed Maxey because that was what

Officer Bertoni told him. Defendant asserts Officer Bertoni’s opinion of the events was

irrelevant, constituted inadmissible hearsay, and was not based on his personal knowledge. The

State argues the court did not abuse its discretion when it denied defendant’s request to redact

defendant’s statements to police. We agree with the State.

- 35 - ¶ 136 “Statements made by police officers when questioning a defendant, including

opinions and observations regarding the defendant’s guilt or credibility, are generally relevant

and admissible to demonstrate the statements’ effects on the defendant, to provide context to the

defendant’s responses, or to explain the logic and course of the officer’s interview or

investigation.” People v. McCallum, 2019 IL App (5th) 160279, ¶ 56, 144 N.E.3d 491.

¶ 137 During defendant’s January 19 police interrogation, defendant stated he did not

remember what happened during the incident that resulted in Maxey’s death. Rather, when

defendant woke up in the hospital, he asked Officer Bertoni what happened, and Officer Bertoni

told him that he stabbed Maxey. Defendant told police, “I did it,” “It had to be me,” and

“Because that’s what [Officer Bertoni] told me.”

¶ 138 Defendant’s statements to police that Officer Bertoni told him what happened

during the incident that resulted in Maxey’s death provided context and assisted the jury in

determining the weight to be given to defendant’s statements and testimony.

¶ 139 In People v. Whitfield, 2018 IL App (4th) 150948, ¶ 48, this court stated as

follows:

“In determining whether or which questions or statements by a police

officer during an interrogation of the defendant are admissible, a trial court should

consider (1) whether the officer’s questions or statements would be helpful to the

jury so as to place the defendant’s responses (or lack thereof) into context and

(2) assuming the first criteria is satisfied, whether the prejudicial effect of the

officer’s questions or statements substantially outweighs their probative value.”

Questions and statements by police officers during defendant’s interrogation need only be

“helpful,” not “necessary” to a jury’s understanding of the defendant’s responses or silence. Id.

- 36 - ¶ 140 The defendant in Whitfield “concede[d] that statements he made during his

videotaped interrogation were relevant and admissible. Without the officers’ statements and

questions, the meaning and significance of [the] defendant’s answers, comments, behaviors—or

even, at times, his silence—would be difficult to discern.” Id. ¶ 49.

¶ 141 We find defendant’s statements made by Officer Bertoni as to what happened to

Maxey were relevant to give context to defendant’s answers, comments, and behaviors during

his January 19 police interrogation. Further, Officer Bertoni’s statements were not inadmissible

hearsay because they were not offered for the truth of the matter asserted. Rather, Officer

Bertoni’s remarks were offered to show the course of the interview, the effect his remarks had on

defendant, and to put defendant’s statements to police during his interrogation into context.

Moreover, Officer Bertoni’s remarks did not amount to inadmissible lay opinion. Officer

Bertoni did not testify as to defendant’s guilt. Rather, Officer Bertoni’s statements to defendant

were presented to show the course of the conversation between defendant and the officer.

¶ 142 Finally, where Bertoni’s statements served to give necessary context to

defendant’s conduct and responses and were not offered for the truth of the matters asserted, we

are reluctant to find any prejudice, let alone prejudice that substantially outweighed the probative

value of the statements. Accordingly, the trial court did not abuse its discretion when it declined

to redact portions of defendant’s recorded police interrogation.

¶ 143 D. “Dance with the Devil”

¶ 144 Defendant next argues the trial court abused its discretion when it allowed

irrelevant and prejudicial testimony relating to the lyrics and content of the song “Dance with the

Devil.” The State argues the court did not abuse its discretion when it admitted the evidence.

We agree with the State.

- 37 - ¶ 145 “ ‘Evidence is relevant when it (1) renders a matter of consequence more or less

probable or (2) tends to prove a fact in controversy.’ ” People v. Shaw, 2016 IL App (4th)

150444, ¶ 63, 52 N.E.3d 728 (quoting People v. Pelo, 404 Ill. App. 3d 839, 864, 942 N.E.2d 463,

485 (2010)). “ ‘[R]elevant evidence is inadmissible only if the prejudicial effect of admitting

that evidence substantially outweighs any probative value.’ ” (Emphasis in original.) Id.

(quoting Pelo, 404 Ill. App. 3d at 867).

¶ 146 Based on the record, we find the trial court did not abuse its discretion when it

allowed testimony relating to the lyrics and content of the song. Defendant made repeated

reference to the song throughout his recorded police interrogation and testified to it at trial. We

find the contents and lyrics of the song to be relevant.

¶ 147 Prior to trial, defendant filed a motion in limine to exclude the lyrics or any

reference to the song “Dance with the Devil.” The trial court denied defendant’s motion finding

the meaning behind the song was “overwhelmingly relevant to [defendant’s] state of mind” and

“it is in no way more prejudicial than it is probative.”

¶ 148 During his January 19, 2016, police interrogation, defendant told police his last

memory before he woke up in the hospital was listening to the song “Dance with the Devil.” On

the afternoon of January 18, 2016, defendant and Maxey drank heavily and listened to music.

Defendant played the song “Dance with the Devil” and then he and Maxey talked about religion,

the devil, and defendant’s weakness with alcohol. Defendant described the song “Dance with the

Devil” as “evil,” “horrible,” and “sad.” Defendant stated, “there’s no real relevance to the song,”

but it was “the last memory that I have of any of this.”

¶ 149 However, during the interrogation defendant also told police “Satan, the devil, the

dark side” took control of him the night of the stabbing. Further, when police asked defendant

- 38 - what triggered the stabbing, he responded, “the song, the weakness, the—the 52 hours of not

sleeping and detoxing and then drinking an entire bottle of whiskey and… I don’t know man, I—

I can’t even, I was pure evil, it was pure hatred and I’m gonna fry for it but, it wasn’t her fault,

whatever it was, it wasn’t her fault, it was mine.” Defendant described himself as a “puppet” the

night of the stabbing where “the devil” or “Hank” pulled his strings. Ultimately, defendant told

police his view of what occurred, stating, “I think I went crazy, I think that song and the—and

Hank said go ahead and I—and I went bye-bye and Hank went crazy.”

¶ 150 At trial, defendant testified that on January 18, 2016, he played the song “Dance

with the Devil” by Immortal Technique on YouTube. While listening to the song, defendant and

Maxey discussed the lyrics of the song. Defendant testified the song affected Maxey

¶ 151 Defendant testified when he woke up in the hospital the last thing he remembered

was listening to the song “Dance with the Devil.” Defendant stated, “None of the lyrics had an

impact on me, just the fact that I remember playing it.” However, defendant admitted some of

the lyrics in the song were violent. Defendant also acknowledged that he told police during his

interrogation that “Hank” is his alter ego who comes out when he has had too much to drink.

¶ 152 Further, Detective McMasters testified that during defendant’s January 19 police

interrogation, defendant told the detective he had no recollection of the day after he played the

song “Dance with the Devil.” Over objection, Detective McMasters testified the song contained

themes related to violence against women. Specifically, Detective McMasters stated, “The one

line that stands out to me is it takes a real thug to stab someone until they die while looking them

in the eyes.” Detective McMasters testified defendant referenced the devil several times, and the

last line of the song mentions the devil. Detective McMasters also testified defendant mentioned

- 39 - “Hank” and “referenced that is an alter ego of his when, one, he gets weak. Two, the devil

controls him, Hank comes out and he says [defendant] goes by [sic].”

¶ 153 We find the court properly admitted testimony related to the content and lyrics of

the song “Dance with the Devil.” While defendant stated the song had no real relevance, he

referenced the song multiple times throughout his police interrogation and at trial. Further,

defendant in his police interrogation identified the song as a possible cause of his actions on the

night of Maxey’s stabbing. Defendant also told police the devil controlled him the night of the

stabbing; thus, the song’s refence to the devil goes to defendant’s state of mind. Therefore, we

find the song highly relevant. Moreover, while the evidence did provide insight into what was

happening when Maxey died, it was not of such an inflammatory nature that it overtook the issue

at hand and somehow led the jury to punish defendant for matters unrelated to the charge being

considered. Thus, any prejudicial effect did not substantially outweigh the probative value of the

evidence.

¶ 154 E. Excessive Sentence

¶ 155 Last, defendant argues the trial court abused its discretion in sentencing defendant

to 45 years in prison because the court failed to consider the uncontradicted evidence of

defendant’s rehabilitative potential. We disagree.

¶ 156 The trial court has discretion in sentencing, and we will not reverse a sentence

absent an abuse of discretion. People v. Snyder, 2011 IL 111382, ¶ 36, 959 N.E.2d 656. Such

discretion in sentencing is necessary because “the trial court is in a better position to judge the

credibility of the witnesses and the weight of the evidence at the sentencing hearing ***.”

People v. Ramos, 353 Ill. App. 3d 133, 137, 817 N.E.2d 1110, 1115 (2004). “A sentence that

falls within the statutory range is not an abuse of discretion unless it is manifestly

- 40 - disproportionate to the nature of the offense.” People v. Franks, 292 Ill. App. 3d 776, 779, 686

N.E.2d 361, 363 (1997).

¶ 157 “A sentence imposed by the trial court is presumed to be proper.” People v.

Butler, 2013 IL App (1st) 120923, ¶ 31, 994 N.E.2d 89. “There is a strong presumption that the

trial court considered any evidence of mitigation presented to it.” Id. “In order to rebut this

presumption, the defendant must present some indication, other than the sentence imposed, that

the trial court did not consider the mitigating evidence.” Id.

¶ 158 Defendant forfeited his claim that his 45-year prison sentence is excessive

because he failed to file a motion to reconsider the sentence. See 730 ILCS 5/5-4.5-50(d) (West

2016) (“A defendant’s challenge to the correctness of a sentence or to any aspect of the

sentencing hearing shall be made by a written motion filed with the [trial court] clerk within 30

days following the imposition of sentence.”). The State argues defendant’s forfeited claim

should not be analyzed for plain error because it is merely an arguable error. We disagree.

¶ 159 When a defendant fails to file a motion to reconsider his sentence to preserve

sentencing issues on appeal, the court’s sentencing decision will only be overturned if the

defendant demonstrates plain error. People v. Moreira, 378 Ill. App. 3d 120, 131, 880 N.E.2d

263, 272 (2007).

¶ 160 Under the plain error doctrine, we first determine whether a clear or obvious error

occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007). If the

reviewing court determines a clear or obvious error occurred, the second step is to determine

whether (1) “the evidence is so closely balanced that the error alone threatened to tip the scales

of justice against the defendant, regardless of the seriousness of the error” or (2) the “error is so

serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

- 41 - judicial process, regardless of the closeness of the evidence.” Id. Thus, we turn to whether the

court abused its discretion by committing a clear or obvious error in sentencing defendant to 45

years in prison.

¶ 161 The trial court errs when the sentence is “greatly at variance with the spirit and

purpose of the law, or manifestly disproportionate to the nature of the offense.” People v.

Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 629 (2000). As the court determines an

appropriate sentence, “a defendant’s history, character, and rehabilitative potential, along with

the seriousness of the offense, the need to protect society, and the need for deterrence and

punishment, must be equally weighed.” People v. Hernandez, 319 Ill. App. 3d 520, 529, 745

N.E.2d 673, 681 (2001). “A defendant’s potential for rehabilitation is not given greater weight

than the seriousness of the crime.” People v. Haley, 2011 IL App (1st) 093585, ¶ 64, 960 N.E.2d

670.

¶ 162 In determining defendant’s sentence, the trial court considered the evidence

received at trial, the PSI reports, the defendant’s statement in allocution, and the evidence in

aggravation and mitigation. In mitigation, defendant’s family wrote letters on defendant’s behalf

and four witnesses testified to defendant’s participation in AA while incarcerated and his

genuine remorse for his actions. The court in sentencing defendant explicitly addressed

defendant’s remorse for the crime and his rehabilitative potential as factors to be considered in

making its decision.

¶ 163 The court considered the possibility of rehabilitation and found defendant lacked

rehabilitative potential because he continued to blame the victim throughout the case. The court

stated,

- 42 - “In fact, you blamed the victim instead. And all of that leads this

[c]ourt to believe that you don’t have much rehabilitative potential,

that these are circumstances that will likely reoccur as evidenced

on some criminal history involving damaging property, involving

losing your temper, involving acting out in rage, whether that’s to

another person or whether that’s to someone’s property, it’s still

indicative of what’s going on in your mind.”

¶ 164 We find the trial court did not abuse its discretion when it sentenced defendant to

45 years in prison because the sentence fell within the statutory range and was not

disproportionate to the nature of the offense. The trial court at sentencing analyzed defendant’s

rehabilitative potential in depth and found defendant’s conduct demonstrated a lack of

rehabilitative potential and likely recidivism that reasonably required imprisonment. Therefore,

we cannot say that the court abused its discretion by sentencing defendant to 45 years’

imprisonment in this case. Accordingly, defendant fails to demonstrate a clear or obvious error

to support his contention of plain error.

¶ 165 III. CONCLUSION

¶ 166 For the reasons stated, we affirm the trial court’s judgment.

¶ 167 Affirmed.

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