People v. Dismuke

2017 IL App (2d) 141203, 79 N.E.3d 864

• Court: Appellate Court of Illinois
• Decided: June 9, 2017
• Docket: 2-14-1203
• Status: Unpublished

Opinion

2017 IL App (2d) 141203

No. 2-14-1203

Opinion filed June 9, 2017

___________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. )

Plaintiff-Appellee, )

)

v. ) No. 11-CF-262 ) ANTWON L. DISMUKE, ) Honorable ) Susan Clancy Boles,

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________

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

Justice McLaren concurred in the judgment and opinion.

Justice Burke specially concurred, with opinion.

OPINION

¶1 Defendant, Antwon L. Dismuke, appeals from his conviction of being an armed habitual

criminal (720 ILCS 5/24-1.7(a)(1) (West 2010)), following a jury trial in the circuit court of

Kane County. For the reasons that follow, we reverse and remand for a new trial.

¶ 2 I. BACKGROUND

¶3 The following facts are those necessary for an understanding of the case. We will discuss

additional facts as required in the Analysis section of this opinion.

¶ 4 A. Pre-Indictment

¶ 5 1. The July 13, 2009, Shooting 2017 IL App (2d) 141203

¶6 In the early morning hours of July 14, 2009, David Adams, an evidence technician with

the Aurora police department, was dispatched to the scene of a vehicle struck by gunfire on July

13, 2009. When he arrived, he saw two orange cones marking the locations of bullet fragments

in the roadway on Kane Street. Inside an area taped off with crime scene tape, Adams observed

an unoccupied silver Isuzu Ascender. Adams learned from the patrol officers that this was the

vehicle that was struck by gunfire. The vehicle had been occupied by three undercover police

officers when it was fired upon.

¶7 Adams’s examination of the exterior of the Isuzu revealed that one bullet struck the

driver’s-side rear door and another bullet struck the driver’s-side fender above the rear wheel.

There was also damage from a bullet striking the rear hatch door. The SUV’s interior exhibited a

bullet hole in the rear door that corresponded to the bullet hole on the outside of the door. A

white backpack lay on the rear seat. Adams found a bullet fragment on top of it. He collected all

three bullet fragments as evidence, but he submitted only the two found in the roadway for

examination by the Illinois State Police Crime Laboratory, because the bullet fragment on the

backpack was too deformed for examination.

¶8 2. The Search Warrant

¶9 On November 19, 2009, the police searched defendant’s home in Aurora pursuant to a

warrant. They did not find the gun that was used in the July shooting.

¶ 10 3. Derrick Smith

¶ 11 Derrick Smith was arrested in Du Page County in January 2010. He gave the Aurora

police information regarding the shooting of July 13, 2009, hoping for leniency in exchange for

his information. According to Smith, he was at defendant’s home in Aurora in July 2009, the

morning after the shooting. He was in the kitchen with defendant and Silas Strickland.

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Strickland received a call, and then he looked up something on the Internet. Strickland divulged

that he had shot at a vehicle, thinking that it contained rival gang members. Strickland gave

defendant a .44 Magnum, a black long-barrel revolver with a brown grip, and instructed him to

get rid of it. Defendant took possession of the revolver.

¶ 12 Derrick Smith told the police that he was again with defendant and Strickland around

Thanksgiving or Christmas 2009, when defendant told Strickland that he had not disposed of the

revolver. Defendant stated that the police did not find the revolver when they “raided” his house.

Strickland again instructed defendant to dispose of it.

¶ 13 4. June 30, 2010

¶ 14 Defendant and his next-door neighbor, Ismail Quintana, shared a common driveway.

Quintana’s building was a former single-family residence that he used as a real estate office. On

the morning of June 30, 2010, as Quintana walked to the front entrance of his building, he

noticed a piece of wood in the driveway next to his back stairs that was not there the evening

before. Wooden lattice work surrounding the stairs was broken. When Quintana stooped to look

at the damage, he saw a black plastic garbage bag stuffed under the stairs. He poked it with a

stick and felt the outline of a gun. He called the police.

¶ 15 The police seized the garbage bag. Inside was a blue towel wrapped around a .44

Magnum, a black long-barrel revolver with a brown grip. Forensic analysis proved that this gun

was used in the shooting of the Isuzu.

¶ 16 B. The Indictment

¶ 17 On April 20, 2011, the Kane County grand jury charged defendant in a three-count

indictment. Count I alleged that “on or about” June 30, 2010, defendant committed the offense

of being an armed habitual criminal in that he knowingly possessed a firearm “after having been

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convicted two or more times of the offenses of manufacture/delivery of a controlled substance

[in] Macon County, manufacture/delivery of a controlled substance [in] Kane County, and

aggravated discharge of a firearm [in] Kane County.” Count II alleged that “on or about” June

30, 2010, defendant committed the offense of unlawful possession of a firearm by a felon (720

ILCS 5/24-1.1(b) (West 2010)), and count III alleged that “on or about” June 30, 2010,

defendant committed the offense of unlawful possession of a weapon without a firearm owner’s

identification card (430 ILCS 65/2 (West 2010)). Prior to trial, the State dismissed counts II and

III. On April 29, 2014, the State filed an amended charge of being an armed habitual criminal,

alleging that defendant had previously been convicted of delivery of a controlled substance, a

Class 2 felony, and aggravated discharge of a firearm, a Class 1 felony. Defendant did not

contest the previous convictions at trial.

¶ 18 C. Defense Motion in Limine No. 7

¶ 19 Prior to trial, defendant filed a series of motions in limine. At issue in this appeal is No.

7, pertaining to the introduction of evidence of the shooting. Defendant maintained that the

shooting was irrelevant to whether he possessed the revolver. The court ruled that the fact of the

shooting was relevant to show that the gun defendant allegedly possessed was the one Strickland

gave him after the shooting. However, the court ruled that the details of the shooting were

irrelevant and prejudicial: “To get into any details that involved officers and all that (emphasis

added) *** the prejudice of that would outweigh the probative value.”

¶ 20 D. Trial

¶ 21 At the beginning of voir dire, the court admonished the venire as to “certain principles of

law that apply to all criminal cases.” Defendant refers to these principles as “the four basic

principles of law”: (1) the presumption of innocence; (2) the State has the burden of proof;

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(3) the defendant is not required to offer evidence on his own behalf; and (4) the defendant’s

failure to testify cannot be used against him. See Ill. S. Ct. R. 431(b) (eff. July 1, 2012)

(codifying People v. Zehr, 103 Ill. 2d 472 (1984)). We refer to these principles as the “Zehr

principles.”

¶ 22 The court instructed the entire venire to raise hands if the potential jurors did not

“understand or accept these principles or don’t agree with them.” Just prior to that instruction,

the court had instructed the venirepersons not to raise their hands if they did understand, agree

with, and accept the principles. The court then recited each principle followed by a different

question: “Is there anyone who has any difficulty or disagreement with this proposition of law?”

(Emphasis added). The court instructed the venirepersons to raise their hands if they did. No

hands were raised. Defense counsel did not object to the court’s handling of the Zehr principles.

The court then seated 12 potential jurors in the jury box, and the attorneys commenced their

questioning.

¶ 23 After 12 jurors had been chosen and sent from the courtroom, the bailiff ushered in

another group from whom two alternates would be chosen. This group was not present for the

court’s earlier admonishments as to the Zehr principles. Following the attorneys’ acceptance of

two alternate jurors, the court for the first time told the alternates that it would explain the Zehr

principles. The court further explained that not raising their hands signified that they understood

and accepted those principles. The court stated that, if they raised their hands, it would signify

that they did not accept or understand the principles or did not agree with them. The court

recited the Zehr principles and inquired after each recitation whether either of the alternate jurors

had “any difficulty or disagreement” with the stated principle. Neither raised a hand. The court

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then had the entire jury, including the two alternates, sworn. On the second day of trial, one of

the alternate jurors replaced a juror who was excused for illness.

¶ 24 In its opening statement, the State made clear its theory that defendant continuously

possessed the gun from July 2009, when Strickland handed it to him, to June 30, 2010, when

Quintana found it.

¶ 25 Quintana testified as recounted above. Additionally, he testified that people congregated

at defendant’s home and left garbage, like beer packages, in the common driveway. According

to Quintana, defendant was present at his own house only a couple of times a week. Quintana

saw garbage bags like the one holding the revolver strewn about every day. Typically, Quintana

cleaned up the mess, but he did not do so on the evening of June 29, 2010. Nor did he notice

anything out of the ordinary when he left his real estate office that evening.

¶ 26 On June 30, 2010, Aurora police officer Michael Carrasco and his partner responded to

Quintana’s call, which reported his finding a gun under his back steps. Carrasco called in

evidence technicians, and Officer Armando Montemayor responded to the scene. Montemayor

examined the plastic bag containing the revolver for DNA and fingerprints. He observed a

partial fingerprint on it, placed the fingerprint on a lift card, and turned it over to the police

department’s latent fingerprint examiners. Later, laboratory analysis determined that there was

insufficient DNA on the gun to warrant further testing. Montemayor also observed hairs on the

blue towel in which the gun was wrapped. He submitted the hairs to the Illinois State Police

Crime Laboratory for analysis. Montemayor testified that he found no fingerprints on the gun or

the bullets inside the chamber.

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¶ 27 Robert Berk of the Illinois State Police Crime Laboratory testified that the hairs found on

the towel were “human Negroid hairs,” possibly from three different people, and that it was not

possible to conduct DNA analysis on them.

¶ 28 When the State announced that it would call Adams to testify, defendant renewed his

objection to the admission of any evidence concerning the shooting. Over defendant’s objection,

Adams was allowed to testify to details of the crime scene. Additionally, the State introduced 12

color photographs to illustrate Adams’s testimony. Those photographs depicted the exterior

bullet holes in the vehicle, the interior bullet hole in the rear passenger door, a close-up of the

bullet fragment on the backpack in the back seat, and close-ups of the bullet fragments on the

pavement.

¶ 29 The State next introduced a fingerprint card depicting defendant’s fingerprints, taken at

the Kane County jail on November 19, 2009.

¶ 30 Julie Smith, an independent fingerprint examiner, testified that she compared defendant’s

known fingerprints from the card taken at the Kane County jail to the partial print on the plastic

garbage bag in which the revolver was found. She concluded that the print on the garbage bag

was a partial left thumb print that matched defendant’s. She revealed that the last step in her

analysis, before she could submit her report, was to have another examiner verify her results.

The State asked Smith who verified the results, and defendant objected without stating a basis.

The court overruled the objection, and Smith testified that Gina Mineti verified her results.

¶ 31 Derrick Smith testified as narrated above, except that he was precluded from testifying

that Strickland told defendant that he (Strickland) used the gun to shoot at a vehicle. Instead,

Smith testified that he was aware of a shooting and was present in defendant’s kitchen the next

morning when Strickland gave a .44 Magnum revolver to defendant with instructions to get rid

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of it. Additionally, Smith acknowledged seeking favors in exchange for his testimony.

According to Smith, the prosecutors told him that, if he testified truthfully, they would write a

letter recommending that he receive credits, work release, or home monitoring. The State also

gave Smith a written “proffer contract,” promising him immunity from prosecution related to any

statements he made to authorities concerning the July 13, 2009, shooting, if, in the authorities’

opinion, his statements were truthful. On direct examination, Smith testified that Strickland was

in defendant’s kitchen when he took the revolver from his waistband and handed it to defendant.

On cross-examination, he acknowledged that earlier he had stated that Strickland picked the gun

up from a table and gave it to defendant.

¶ 32 Aurora police officer Steve Stemmet testified to executing the search warrant for

defendant’s home on November 19, 2009. On direct examination, the prosecutor directed

Stemmet not to say whether anything was found during the search; rather, the prosecutor

specifically asked if a revolver like that recovered from under Quintana’s stairs was found in the

search. Stemmet answered “No.” Stemmet testified that when defendant was taken into custody

the night of the search, on unrelated charges, he waived his rights on a written form and agreed

to speak with the police. Defendant denied any knowledge of the shooting on July 13, 2009.

Stemmet testified that he and Detective Sergeant Wallers of the Aurora police spoke with

defendant again on October 18, 2010. Defendant again waived his rights on a written form.

Stemmet asked defendant if he knew that he could not “touch, hold or possess any firearms

because he was a convicted felon,” and defendant replied that he was aware of that.

¶ 33 On cross-examination, defense counsel established that, when executing a search warrant,

the police open cupboards and drawers and look in areas where things could be hidden. On

redirect examination, the prosecutor asked Stemmet: “You, in fact, did look into drawers during

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[the search of defendant’s home], correct?” Stemmet answered: “Yes.” The prosecutor asked:

“Was cannabis found in those drawers?” Stemmet answered: “Yes, sir.” The prosecutor then

asked: “And a gun was found underneath a couch, correct?” Stemmet answered: “Yes, sir.” The

prosecutor then clarified in a leading question that it was a “different type of gun” than the

revolver found by Quintana.

¶ 34 Wallers testified that he was the lead detective investigating the July 13, 2009, shooting.

He also testified that the vehicle was occupied by three people. He testified that, after speaking

with Derrick Smith, the police considered defendant a suspect in the shooting. Wallers

interviewed defendant on January 21, 2010, and defendant denied knowledge of the July 13,

2009, shooting or the gun that was used in that shooting. Wallers and Stemmet spoke with

defendant again on October 18, 2010. Wallers testified that defendant told them that he had

information about the shooting but demanded to speak with an assistant State’s Attorney before

he said anything. When Wallers refused to summon a prosecutor, defendant indicated that he

was willing to talk anyway. Defendant stated that, around midnight on July 13, 2009, he was

walking a lady through his kitchen when he heard someone say, “Be careful out there, we just

shot at some Kings around the corner.” Defendant also stated that, a couple of days later, he

went to a Marathon gas station near his house and talked to Smith. According to defendant,

Smith tried to sell him some guns, including a .44 Magnum. Defendant told Wallers that Smith

said that he was not trying to sell the gun used in the shooting and that he had thrown that gun in

the river. According to defendant, Smith later said that he had buried that gun. Wallers then

testified that he went to the Kane County jail on February 11, 2011, to speak with defendant on

an unrelated case. When defendant would not speak with him, Wallers left a warrant with the

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jail staff. Wallers further testified that he showed Smith a photo of the revolver Quintana found

and that Smith identified it as the revolver Strickland gave to defendant. Then the State rested.

¶ 35 The court denied defendant’s motion for a directed verdict, and defendant presented one

witness. Tracy Newcomer, an investigator for the Kane County public defender’s office,

testified that she interviewed Derrick Smith on August 12, 2013. Smith told Newcomer that he

did not remember having a conversation with Strickland and defendant in November or

December 2009, and he doubted that he told the police that such a conversation took place.

¶ 36 During its deliberation, the jury asked for a transcript of Derrick Smith’s testimony. The

court allowed the request, but informed the jury that it would take up to two hours to have the

transcript ready. The record does not reflect whether the transcript was delivered to the jury.

The jury found defendant guilty.

¶ 37 E. Posttrial Motions

¶ 38 The Kane County public defender filed a timely posttrial motion. The motion alleged,

inter alia, that (1) the State failed to prove defendant guilty beyond a reasonable doubt, (2) the

court erred in admitting evidence of the July 13, 2009, shooting, and (3) the court erred in

admitting testimony relating to the execution of the search warrant at defendant’s home.

Defendant discharged the public defender and hired private counsel, who filed an amended

posttrial motion. Pertinent to this appeal, the amended posttrial motion alleged that it was error

to allow Julie Smith to testify to the fingerprint examination, because (1) she conducted it on

behalf of the Aurora police department, which was biased, and (2) her testimony was

unbelievable because she was unclear as to the date of the fingerprint card she used for

comparison. On October 9, 2014, the court denied the amended posttrial motion. Defendant was

sentenced to 13 years’ imprisonment. He filed a timely notice of appeal.

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¶ 39 II. ANALYSIS

¶ 40 Defendant contends that (1) he was not proved guilty beyond a reasonable doubt, (2) the

court erred in admitting evidence of other crimes, (3) fingerprint analyst Julie Smith should not

have been allowed to testify to hearsay, and (4) the court failed to comply with Illinois Supreme

Court Rule 431(b) during voir dire. Because we agree that defendant is entitled to a new trial,

we will address his reasonable-doubt argument to determine whether retrial is appropriate.

¶ 41 First, defendant contends that proof of his possession of the revolver, on any date,

depends upon the unreliable and uncorroborated testimony of Derrick Smith. Defendant also

argues that the State failed to prove that he either actually or constructively possessed the

revolver on June 30, 2010.

¶ 42 When a defendant challenges the sufficiency of the evidence, our inquiry is limited to

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

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

Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Cox, 195 Ill. 2d 378, 387 (2001). It is

not our function to retry a defendant. People v. Clinton, 397 Ill. App. 3d 215, 220 (2010).

Rather, it is the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from the evidence. Clinton, 397 Ill. App. 3d at

220. Most particularly, it is the function of the jury to evaluate the credibility of witnesses.

People v. Willett, 2015 IL App (4th) 130702, ¶ 90.

¶ 43 Section 24-1.7(a) of the Criminal Code of 1961 provides that a person commits the

offense of being an armed habitual criminal if he or she “receives, sells, possesses, or transfers”

any firearm after having been convicted a total of two or more times of any combination of

certain listed offenses. Here, the State introduced defendant’s prior convictions of unlawful

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delivery of a controlled substance (720 ILCS 570/401(d) (West 2000)) and aggravated discharge

of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1996)). Defendant does not contest that those

convictions satisfied the statutory elements. Defendant also does not contest that the revolver

was a firearm. The only issue is whether the State proved beyond a reasonable doubt that

defendant received and possessed the revolver.

¶ 44 Possession can be established by evidence of actual possession or constructive

possession. People v. Scott, 152 Ill. App. 3d 868, 871 (1987). Actual possession is proved by

testimony showing that the defendant exercised dominion over the contraband. Scott, 152 Ill.

App. 3d at 871. Constructive possession exists without actual personal present dominion, but

with the intent and capability to maintain control and dominion over the contraband. Scott, 152

Ill. App. 3d at 871. Mere access by other persons to the area where the contraband is found does

not defeat constructive possession. Scott, 152 Ill. App. 3d at 871. Actual possession and

constructive possession are two distinct theories under which a defendant may be proved guilty

of the crime of possession. People v. Dismuke, 2013 IL App (2d) 120925, ¶ 16.

¶ 45 Defendant isolates two instances and challenges the sufficiency of the proof as to each

instance. The first instance was in July 2009, when Strickland gave defendant the revolver and

told him to get rid of it. The second instance was the June 30, 2010, discovery of the revolver

under Quintana’s stairs. Derrick Smith testified that he was present in defendant’s kitchen when

Strickland got a phone call, checked something on the Internet, and then gave the revolver to

defendant with instructions to get rid of it. Defendant emphasizes that proof of this incident

depends entirely on Smith’s credibility.

¶ 46 Derrick Smith was a convicted felon, who was facing prison time. He gave the police the

information because he admittedly wanted leniency. He obtained the prosecutors’ conditional

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promise to write a letter urging that he be given consideration. The State also gave Smith

conditional immunity from prosecution for anything he told prosecutors about the shooting.

Defendant argues that it is possible that Smith was involved in the shooting. Defendant told

Wallers that Smith admitted that he either threw the gun in the river or buried it. Further,

defendant maintains that Smith was impeached when he testified that Strickland got the gun from

his waistband but had earlier stated to authorities that Strickland picked the gun up from a table.

Finally, defendant maintains that Smith was impeached with his statement to Newcomer in

which he denied being present when defendant told Strickland that the police did not find the

revolver when they executed the search warrant.

¶ 47 With respect to the discovery of the revolver on June 30, 2010, defendant argues that

(1) he was not present, (2) others had access to the area where the revolver was found, and

(3) defendant’s partial thumb print on the plastic bag containing the gun must be disregarded

because Julie Smith’s testimony concerning the identification of the thumb print was hearsay.

¶ 48 The inconsistency in Derrick Smith’s testimony about whether Strickland got the

revolver from his waistband or a table is trifling. According to Smith, defendant told Strickland

that the police did not find the revolver when they searched his house. The testimony that the

police executed a search warrant on defendant’s property at about the time of this conversation

corroborated Smith’s testimony. The bullet fragments recovered by Adams at the scene of the

shooting were matched to the revolver and tended to corroborate Smith’s testimony that he was

present the morning after the shooting when Strickland gave the revolver to defendant with

orders to get rid of it. Smith testified that he did not want to talk to defendant’s attorney or to

Newcomer, which may explain why he denied the November or December conversation and told

Newcomer that he did not tell the police about defendant’s admission. Testimony can be found

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insufficient under the Jackson standard only where the record compels the conclusion that no

reasonable person could accept the evidence beyond a reasonable doubt. People v. Cunningham,

212 Ill. 2d 274, 280 (2004). We do not conclude that Smith’s testimony was so lacking in

credibility that no rational juror could accept it. Consequently, the State proved beyond a

reasonable doubt that defendant possessed the revolver in July 2009.

¶ 49 If the June 30, 2010, incident is viewed on a continuum, rather than in isolation, it is

circumstantial evidence that defendant moved the revolver after having possessed it continuously

since July 2009. Assuming, without deciding, that the partial thumb print on the plastic bag was

admissible, the print was probative, but not dispositive, of defendant’s continuous possession.

The thumb print could have been placed there at any time and did not definitively prove that

defendant left it on the bag when the gun and towel were placed into the bag. The evidence

showed that similar plastic garbage bags were routinely left on defendant’s property.

Nevertheless, assuming, without deciding, the inadmissibility of the partial thumb print, the

proximity of the revolver to defendant’s house, coupled with defendant’s statement to Strickland

that the police did not find it when they searched his house in November 2009, was sufficient

circumstantial evidence of defendant’s continuous possession. Accordingly, we conclude that

defendant was proved guilty of being an armed habitual criminal beyond a reasonable doubt and

that defendant will not be exposed to double jeopardy upon retrial. See People v. Macon, 396 Ill.

App. 3d 451, 458 (2009) (to prevent risk of exposure to double jeopardy after reversal for error,

court will consider whether the State presented sufficient evidence to prove the defendant guilty

beyond a reasonable doubt).

¶ 50 We next consider defendant’s argument that the court’s failure to comply with Rule

431(b) during voir dire requires a new trial. Rule 431(b) mandates trial courts to admonish and

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question each potential juror on the Zehr principles. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). The

rule provides that the court “shall ask” each juror, either individually or in a group, whether he or

she “understands and accepts” the Zehr principles. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). In

People v. Thompson, 238 Ill. 2d 598, 607 (2010), our supreme court made clear that the court

must ask both whether the jurors understand and accept the principles.

¶ 51 Here, at the beginning of voir dire, the court admonished the entire venire as to the Zehr

principles and instructed the potential jurors not to raise their hands “if [they] understand the

principles, agree with those principles[,] and accept those principles.” Then the court instructed

the venirepersons to raise their hands if they did not “understand or accept these principles or

don’t agree with them.” The court recited each principle and then asked the potential jurors

whether they had any “difficulty” or disagreement” with the principle. After the parties accepted

12 jurors, the court brought five potential alternates, who were not present for the previous

voir dire, into the courtroom. Following selection of two alternates, the court informed them that

it would explain certain principles. The court instructed the alternates not to raise their hands if

they understood, agreed with, and accepted those principles. The court then recited each of the

Zehr principles, asking after each principle whether the alternates had any “difficulty or

disagreement” with the proposition. Neither one did. The 12 jurors were brought back into the

courtroom, and all 14 jurors were sworn. One of the alternates was substituted for a juror who

was dismissed due to illness.

¶ 52 Defendant raises two issues: (1) the court did not inquire whether each juror understood

the Zehr principles, and (2) the court instructed the alternates as to the Zehr principles only after

they had been chosen. In People v. Wilmington, 2013 IL 112938, ¶ 32, our supreme court opined

that it is arguable that the court’s asking for disagreement, and getting none, is equivalent to juror

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acceptance of the principles. The court also opined that the failure to ask jurors if they

understand the principles “is error in and of itself.” Wilmington, 2013 IL 112938, ¶ 32.

¶ 53 Rule 431(b) mandates “a specific question and response process.” Thompson, 238 Ill. 2d

at 607. The court “shall ask” whether the potential jurors understand and accept the enumerated

principles. Thompson, 238 Ill. 2d at 607. Asking if they had any “difficulty or disagreement”

was not equivalent to asking if they understood. For example, someone might not disagree with

a statement simply because he or she does not understand it.

¶ 54 The inclusion of the court’s entire colloquy with the venire by Justice Burke in his special

concurrence demonstrates how unclear and inadequate the court’s instructions were. First, the

court instructed the potential jurors not to raise their hands if they understood, agreed with, and

accepted the Zehr principles. Second, the court instructed the potential jurors to raise their hands

in response to its question if they did not understand or accept the principles. Third, after

reciting each principle, the court changed the question from “understand and accept” to

“difficulty or disagreement.” Thus, the potential jurors received three different instructions

about what they were supposed to do with their hands. More problematic was the court’s

substitution of “difficulty or disagreement” for “understand and accept.”

¶ 55 While Justice Burke contends that the word “difficulty” meant whether a potential juror

had difficulty understanding or accepting the principle, there is no reason to reach this

conclusion from the language that the court actually used. The court asked whether the potential

jurors had any “difficulty or disagreement” with each principle. “Difficulty” is defined as “the

quality or state of being difficult, or hard to do or to overcome,” or a “disagreement” or

“controversy.” Webster’s Third New International Dictionary 630 (1993). “Difficulty” is not,

therefore, synonymous with “understanding.” The court never repeated, or even alluded to, the

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word “understand” in its questioning after the recitation of each principle. In sum, by using this

confusing multi-task exercise, the court’s method of inquiry failed to determine whether the

potential jurors understood the principles. Rather than make the procedure so convoluted, it was

necessary only to recite the principles and ask the potential jurors one question: whether they

understood and accepted the principles. Accordingly, we hold that the court violated Rule

431(b).

¶ 56 We disagree with defendant that the court further violated the rule when it questioned the

alternate jurors as to the Zehr principles only after they had been chosen. The appellate court

specifically sanctioned that procedure in People v. Willhite, 399 Ill. App. 3d 1191, 1197 (2010),

and People v. Staple, 402 Ill. App. 3d 1098, 1106 (2010). In Willhite, the court noted that the

rule does not state a specific time when the court must question venirepersons either individually

or in groups. Willhite, 399 Ill. App. 3d at 1197. The court approved of questioning after the

prospective jurors had been chosen but before they were sworn, reasoning that the trial judge

would be able to inquire further and remove any biased juror, if necessary. Willhite, 399 Ill.

App. 3d at 1197. In Willhite, the court also approved of the trial court’s method of inquiry,

which gave each juror the opportunity to respond audibly to the judge’s questions. Willhite, 399

Ill. App. 3d at 1196. Similarly, in Staple, the trial court gave the jurors the principles and

received audible responses. Staple, 402 Ill. App. 3d at 1101-02.

¶ 57 The next question is whether the error requires reversal and remand for a new trial

pursuant to plain-error review. It is undisputed that defendant did not preserve the error by

objecting to the procedure at voir dire or in his posttrial motion. The plain-error doctrine allows

a reviewing court to consider unpreserved error when a clear or obvious error occurred and

(1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice

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against the defendant, regardless of the seriousness of the error, or (2) the error was so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial

process. People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). In Thompson, our supreme court

held that a violation of Rule 431(b) is not cognizable under the second prong of the plain-error

doctrine. Thompson, 238 Ill. 2d at 611. Consequently, defendant argues that the evidence in the

present case is so closely balanced that reversal of his conviction is required.

¶ 58 Whether the evidence is closely balanced is a separate question from whether the

evidence is sufficient to sustain a conviction against a reasonable-doubt challenge. Piatkowski,

225 Ill. 2d at 566. In determining whether the evidence is closely balanced, we view the

evidence in a commonsense manner in the context of the totality of the circumstances. People v.

Belknap, 2014 IL 117094, ¶ 62. On June 30, 2010, Quintana found the revolver hidden under his

stairs, within feet of defendant’s property. The revolver was the same gun that Strickland gave

to defendant. Defendant referred to the revolver when he told Strickland that the police did not

find it when they searched his house in November 2009. Thus, a reasonable inference is that

defendant moved the revolver from his house to the hiding place under Quintana’s stairs, where

he could maintain dominion and control over it. Additionally, defendant lied to Wallers about

not knowing anything about the shooting or the revolver. In defendant’s second interview with

Wallers, he stated that Derrick Smith told him that he threw the revolver in the river or buried it.

¶ 59 Only the execution of a search warrant at defendant’s house in November 2009 (where

the police did not find the revolver) and the bullet fragments tended to corroborate Derrick

Smith’s testimony. Strickland did not testify. 1 The fingerprint on the garbage bag did not prove

that it was placed there when the revolver was put into the bag. Similar garbage bags were

1 The record shows that Strickland was likely dead at the time of trial.

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routinely strewn about defendant’s property. The towel did not contain evidence that defendant

handled it. The revolver and the bullets in the chamber did not contain any fingerprints or DNA.

People were constantly congregating at defendant’s house, including Smith, who testified that he

was there “often.”

¶ 60 Defendant’s statement to Wallers puts Derrick Smith in possession of the revolver,

leading to the inference that Smith was involved in the shooting. Smith was a convicted felon

who sought leniency in exchange for telling the police about the revolver. The prosecutors gave

Smith a proffer of immunity and agreed to write a letter recommending that he receive work

release or home monitoring. Under the totality of the circumstances, we believe that the

evidence is closely balanced. Accordingly, the court’s failure to comply with Rule 431(b)

requires reversal and a new trial.

¶ 61 Defendant asserts numerous other errors. We will address those contentions because the

cumulative errors also require a new trial and because those issues are likely to recur on retrial.

Defendant argues that he was prejudiced when the State introduced evidence of other crimes.

Specifically, defendant complains that the court allowed evidence of the shooting, the recovery

of cannabis and a gun during the November 2009 search of defendant’s property, and

defendant’s incarceration on unrelated charges. Because the shooting was not other-crimes

evidence, we will analyze that issue separately.

¶ 62 The court allowed the State to show that the shooting occurred, but it ruled that details of

the shooting, particularly that police officers were occupants of the vehicle being shot at, were

not admissible. The parties analyze this issue in terms of other-crimes evidence, but the State did

not introduce details of the shooting for any purpose applicable to that theory. Other-crimes

evidence is admissible to show the defendant’s modus operandi, intent, identity, motive, or

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absence of mistake. People v. Wilson, 214 Ill. 2d 127, 136 (2005). Other-crimes evidence may

also be admitted to show, by similar acts or incidents, that the act in question was not done

inadvertently, accidentally, involuntarily, or without guilty knowledge. Wilson, 214 Ill. 2d at

136. In a motion in limine, the State argued that the shooting was admissible to show

knowledge, ownership, possession, identification, intent, motive, and absence of mistake.

However, by its nature, other-crimes evidence means other crimes committed by the defendant.

In our case, the State did not show that defendant was involved in the shooting, and the court

explicitly found that defendant was not a co-conspirator in the shooting. Furthermore, the

shooting was not in any way similar to the crime for which defendant was being tried.

¶ 63 The more accurate analysis is whether the shooting was relevant to prove any fact of

consequence. Relevant evidence is that having any tendency to make the existence of any fact of

consequence more or less probable than it would be without the evidence. Smith v. Silver Cross

Hospital, 339 Ill. App. 3d 67, 73-74 (2003). All evidence must be relevant to be admissible.

Smith, 339 Ill. App. 3d at 74. Determining relevance and admitting evidence are matters within

the discretion of the trial court, and its ruling will not be reversed absent a clear abuse of

discretion. Smith, 339 Ill. App. 3d at 74. Also, defendant moved in limine to bar evidence of the

shooting, and he renewed the motion prior to Adams’s testimony. A trial court has discretion

whether to grant a motion in limine, and we will not reverse its ruling unless the court clearly

abused its discretion. People v. Hogan, 388 Ill. App. 3d 885, 890 (2009).

¶ 64 The offense of being an armed habitual criminal has three elements: (1) the defendant

receives, sells, possesses, or transfers (2) any firearm (3) after having been convicted a total of

two or more times of a combination of any of the listed offenses. 720 ILCS 5/24-1.7(a) (West

2010). As noted above, defendant concedes elements 2 and 3. Therefore, defendant’s receipt

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and possession of the revolver were the facts “of consequence.” The trial court ruled that

defendant and Strickland were not co-conspirators in the shooting, but that they were co-

conspirators in the concealment of the revolver that was used in the shooting. Defendant does

not challenge that finding. Thus, the fact of the shooting is relevant to show that the revolver

hidden under Quintana’s stairs was the revolver that was used in the shooting. That the revolver

was used in the shooting is relevant to corroborate Derrick Smith’s testimony that he was present

the next morning when Strickland gave defendant the gun and told him to get rid of it. However,

we agree with defendant that the details of the shooting are irrelevant and prejudicial. 2

¶ 65 On appeal, the State argues that details of the shooting were necessary to show the

“continuing narrative.” The “continuing narrative” is a component of the other-crimes doctrine.

People v. Carter, 362 Ill. App. 3d 1180, 1189-90 (2006). When facts concerning uncharged

criminal conduct are all part of a continuing narrative concerning the circumstances of the entire

transaction, those facts do not concern separate, distinct, and unconnected crimes. Carter, 362

Ill. App. 3d at 1190. As the court explained in Carter, the “continuing narrative” may be

necessary for the jury to understand the evidence. Carter, 362 Ill. App. 3d at 1190. As noted

above, however, the details of the shooting did not constitute other-crimes evidence, because

defendant was not involved in the shooting. The court specifically ruled against the State’s

position that defendant and Strickland were co-conspirators in the shooting. Therefore, the

continuing-narrative exception is inapplicable. Moreover, Derrick Smith’s testimony was fully

comprehensible without the details of the shooting.

¶ 66 On retrial, Adams’s testimony should be limited to: (1) shots were fired at a vehicle on

July 13, 2009; (2) on July 14, 2009, Adams recovered three bullet fragments from the scene—

2 The State does not argue that the improper admission of evidence was harmless error.

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leaving out that the third bullet struck the backpack—and two bullet fragments were suitable for

comparison; and (3) Adams submitted two of the bullet fragments to the crime laboratory. The

photographs and verbal descriptions of the scene are not admissible. On retrial, Wallers will not

be permitted to testify that there were three occupants of the vehicle and that he developed

defendant as a suspect in the shooting. Wallers may not testify that defendant asked for an

assistant State’s Attorney or otherwise insinuate that defendant desired to make a deal,

supposedly about his involvement in the shooting. Also, Wallers may testify that defendant

initially denied knowledge of the revolver, but not that he denied knowledge of the shooting.

Wallers may not testify to the details of defendant’s second statement, in which he related to

Wallers that a person said that they had shot at some Kings. Additionally, the State may not

characterize the shooting as a “drive-by.”

¶ 67 The evidence that defendant possessed cannabis and another gun and that he was

incarcerated on unrelated crimes is other-crimes evidence. Evidence of other crimes is

admissible if it is relevant for any purpose other than to show the defendant’s propensity to

commit crimes. Wilson, 214 Ill. 2d at 135. The admissibility of other-crimes evidence rests

within the trial court’s discretion, and its decision will not be disturbed absent an abuse of

discretion. Wilson, 214 Ill. 2d at 135.

¶ 68 In a pretrial hearing, the State acknowledged that the other gun that the police found

when executing the search warrant at defendant’s house was not admissible. Nevertheless, the

State’s redirect examination of Stemmet consisted of a series of leading questions in which the

State elicited that the police found cannabis and a gun. The State intimates, without explicitly

arguing, that defense counsel opened the door to this evidence. In her cross-examination,

defense counsel inquired whether the police search in cupboards and in hidden areas when

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executing a search warrant. Her point was that such a thorough search did not yield the revolver.

We do not believe that the cross-examination opened the door to what the police actually found.

Evidence that they found another gun was highly prejudicial because of Stemmet’s testimony

that defendant admitted that he knew that he, as a convicted felon, could not possess a gun. The

jury could have concluded that defendant’s possession of the gun found during the search was

sufficient to convict. The testimony that the police found cannabis was not related to the issue of

defendant’s possession of the revolver, and it was introduced solely as propensity evidence.

Upon retrial, testimony about the discovery of the gun and the cannabis will not be admissible.

¶ 69 The State also introduced evidence of defendant’s incarceration in the Kane County jail

for crimes unrelated to the instant offense. Specifically, Shari Clark, a booking officer at the jail,

testified to the jail’s booking and fingerprinting procedures. She also testified that she

fingerprinted defendant on November 19, 2009. Ryan Salisbury, a Kane County corrections

officer, testified that he tried to take defendant to “intake” on February 11, 2011, but that

defendant refused to go. Wallers testified that he attempted to talk to defendant at the Kane

County jail on February 11, 2011, on an unrelated case, but that defendant would not speak with

him, so Wallers left a warrant with the jail staff.

¶ 70 Clark’s testimony was admissible to lay the foundation for the fingerprint examiner’s

testimony. Ostensibly, Salisbury’s testimony corroborated Wallers’s testimony that defendant

refused to talk to Wallers on February 11, 2011. However, the February 11, 2011, incident

clearly had no bearing on defendant’s possession of the revolver. Wallers testified that he

wanted to talk to defendant about an unrelated crime. Wallers’s testimony that he left a warrant

with jail personnel was simply a gratuitous effort to paint defendant as a bad person. Similarly,

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Stemmet’s testimony that, after executing the search warrant, police arrested defendant for an

unrelated crime was irrelevant and prejudicial.

¶ 71 Defendant further contends that the court erred in admitting Julie Smith’s hearsay

testimony that her supervisor, Gina Mineti, verified defendant’s partial thumb print on the

garbage bag holding the revolver. Defense counsel objected without stating a basis, and neither

the public defender nor private counsel included the error in the posttrial motions. Julie Smith’s

testimony that Mineti verified defendant’s print was hearsay (see People v. Smith, 256 Ill. App.

3d 610, 615 (1994)) and is not admissible on retrial.

¶ 72 III. CONCLUSION

¶ 73 For the reasons stated, we reverse defendant’s conviction and remand for a new trial.

¶ 74 Reversed and remanded.

¶ 75 JUSTICE BURKE, specially concurring.

¶ 76 I agree with the majority’s analysis concerning the sufficiency of the evidence, as well as

the decision to reverse and remand the case due to cumulative evidentiary errors. I part company

with the majority on the voir dire issue.

¶ 77 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires that the trial court ask

each potential juror whether he or she understands and accepts the four Zehr principles.

Defendant contends that the trial court failed to comply with Rule 431(b) during voir dire. Since

defendant did not preserve this alleged error below, he requests that we review it under the plain-

error doctrine. The first step in such an analysis is to determine whether clear and obvious error

is present. People v. Cohn, 2014 IL App (3d) 120910, ¶ 26.

¶ 78 The majority finds error in the trial court’s phrasing of the question posed to the venire

after each Zehr principle was explained. Instead of asking whether the potential jurors

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understood and accepted the principles, the court asked whether they had any “difficulty or

disagreement” with them. This phrasing standing alone is certainly problematic, but I believe

that we must examine the entire colloquy between the court and the venire to determine whether

there was compliance with the rule. Here, the trial court stated,

“Okay, Ladies and Gentlemen, earlier I touched upon some principles of law that

apply to all criminal cases. I am going to explain to you certain principles, and if you

understand the principles, agree with those principles and accept those principles, please

do not raise your hand and that will signify that you understand, you agree and you

accept these principles. If you don’t understand or accept these principles or don’t agree

with them, I would ask that you raise your hand in response to my question.

The defendant is presumed to be innocent of the charge against him. This

presumption remains with the defendant throughout the trial and is not overcome unless,

by your verdict, you find that the State has proven the defendant guilty beyond a

reasonable doubt. Is there anyone who has any difficulty or disagreement with this

proposition of law, the presumption of innocence? If so, raise your hand.

The record reflects none.

The State has the burden of proving the guilt of the defendant beyond a

reasonable doubt. This burden remains upon the State throughout the trial. Does anyone

have any difficulty or disagreement with this proposition of law, the burden of proof? If

so, raise your hand.

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The defendant is not required to offer any evidence on his own behalf. Does

anyone have any difficulty or disagreement with this principle of law. If so, please raise

your hand.

If the defendant does not testify, it cannot be held against him. Does anyone have

any difficulty or disagreement with this proposition of law, the right to remain silent? If

so, please raise your hand.

The record reflects none.” (Emphasis added.)

¶ 79 The trial court used the same procedure when impaneling the alternate jurors. When

addressing all potential jurors, the court clearly instructed them to raise their hands if they did

not understand or accept the principles or if they did not agree with them. After each principle

was explained, the court asked if any potential jurors had any difficulty or disagreement with it.

In light of the instructions, “difficulty” referred to whether a potential juror had difficulty

understanding or accepting the principle.

¶ 80 Had the trial court used the best practice of simply parroting the language of the rule in

its questions, this issue never would have arisen on review. That said, the potential jurors sitting

through this voir dire would have known that they should raise hands if they did not understand,

accept, or agree with each Zehr principle.

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