People v. Ellis

• Court: Appellate Court of Illinois
• Decided: June 2, 2026
• Docket: 4-25-0315
• Status: Unpublished

Opinion

NOTICE 2026 IL App (4th) 250315-U FILED This Order was filed under June 2, 2026 Supreme Court Rule 23 and is NO. 4-25-0315 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Rock Island County AARON D. ELLIS, ) No. 17CF1002 Defendant-Appellant. ) ) Honorable ) Peter W. Church, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.

ORDER

¶1 Held: By failing to object to excerpts of an eavesdropping recording on the grounds that the State had failed to lay a foundation for their admission and had failed to produce the complete recording in discovery, defense counsel erred, and the error prejudiced the defense, entitling defendant to a new trial because he received ineffective assistance.

¶2 In the circuit court of Rock Island County, a jury found defendant, Aaron D. Ellis,

guilty of first degree murder (see 720 ILCS 5/9-1(a)(1) (West 2016)), in which the victim was

Richard Smith, and aggravated battery with a firearm (id. § 12-3.05(e)(1)), in which the victim

was Stanley Golden. For aggravated battery, the court sentenced defendant to imprisonment for

10 years, and for first degree murder, the court sentenced him to a consecutive term of 50 years’

imprisonment.

¶3 Defendant appeals on four grounds.

¶4 First, he argues that defense counsel rendered ineffective assistance by failing to object to excerpts of an eavesdropping recording on the grounds of (1) the lack of a foundation

and (2) the State’s failure to produce the complete recording in discovery, making it impossible

to ensure compliance with the doctrine of completeness and the Brady doctrine (see Brady v.

Maryland, 373 U.S. 83 (1963)).

¶5 Second, he argues the circuit court erred by admitting propensity evidence of a

shooting with which he was not charged.

¶6 Third, he argues the circuit court erred by allowing a detective to testify as an

expert in street slang.

¶7 Fourth, he argues the circuit court erred by admonishing potential jurors that

defendant’s “failure” to testify should not be held against him.

¶8 Because we agree with defendant’s first argument, it is unnecessary to the

disposition of this appeal that we address his remaining three arguments. On the ground of

ineffective assistance, we reverse the circuit court’s judgment and remand this case for a new

trial.

¶9 I. BACKGROUND

¶ 10 A. The 12th Street Shooting, From Which the Present Charges Arise

¶ 11 Golden testified that on November 14, 2016, he was living with his grandmother,

Diane Mayfield, on 12th Street in Rock Island, Illinois. His uncle, Richard “Dobie” Smith, also

was living in Mayfield’s house, or at least he stayed there from time to time. At dusk that day,

Golden was sitting on the porch when he saw “a huge flash,” “felt the heat of bullets flying past

[him],” and “heard bullets hitting the house and ricocheting off of things.” He did not see a

shooter or where the shots were coming from. He retreated into the house, unaware yet that he

had been shot. Inside, Smith limped by, lifting his sweatshirt and shirt and telling Golden,

-2- “ [‘C]all the ambulance, I’m shot, I’m dying.[’] ” Smith sat on a chair, and some friends who

were at the house visiting applied pressure to his chest, trying to stop the bleeding, but Smith

slumped to the floor and died.

¶ 12 Across the street from Mayfield’s house, near a fence, the police found 17 empty

cartridge cases. A bullet had punctured the rear windshield of a Chevrolet Malibu parked nearby.

The police found the bullet behind an interior door panel of the car.

¶ 13 B. Two Other Shootings, Which Are Not Subjects of the Charges in This Case

¶ 14 1. The District Shooting

¶ 15 On August 7, 2016, in what the parties call “the District area” of Rock Island,

someone fired at a group of people in a parking lot. Two people were shot, including James Lee

Brewer Jr., who sustained a gunshot wound to the head.

¶ 16 In the parking lot, the police found 10 empty cartridge cases.

¶ 17 2. The Davenport Shooting

¶ 18 On November 26, 2016, there was a shooting in Davenport, Iowa, near a

convenience store, Mother Hubbard’s Cupboard. One of the gunshot victims was defendant, who

was hit in the back and in the right forearm.

¶ 19 A Davenport police officer, Patrick Seivert, saw defendant in the emergency room

of Genesis East Hospital and asked him how he had gotten shot. Defendant’s only answer was,

“ [‘]I got shot, the fuck.[’] ” When Seivert asked him about two guns the police had found in a

white Pontiac Bonneville automobile that had been left at the scene of the shooting, defendant

decided he did not want to answer any questions.

¶ 20 The rear windshield and right rear passenger side windshield of the Pontiac had

been shattered. On the right back seat was a Glock .9-millimeter pistol with an extended

-3- magazine. The Glock pistol was People’s exhibit No. 17. On the left rear passenger floorboard

was a Springfield XD 40 pistol.

¶ 21 C. Forensic Evidence

¶ 22 1. Defendant’s Palm Print on the Rearview Mirror of the Pontiac

¶ 23 Defendant’s right palm print was on the rearview mirror of the Pontiac. Witnesses

at the jury trial differed on whether this mirror was an interior mirror or an exterior mirror.

¶ 24 On the one hand, a police officer with the Iowa State Patrol, Michael Stegall,

testified that when he dusted the Pontiac for latent fingerprints, “a potentially comparable print”

was “lifted from the left exterior rearview mirror.” He agreed with the prosecutor that the latent

print lift cards in People’s exhibit No. 18 “contain[ed] the lift that was taken from the left

exterior mirror.”

¶ 25 On the other hand, Garrett Alderson, the criminalist who compared People’s

exhibit No. 18 with “the known fingerprints or palm prints” of defendant and found a match—

defendant’s right palm print, which had been lifted from the rearview mirror—pointed out that a

rearview mirror was, by definition, an interior mirror, not an exterior mirror. Alderson and

defense counsel had the following discussion on that distinction:

“Q. Okay. And that was from the exterior of the car rear-view mirror?

A. No. The rear-view mirror is on the inside of the car, sir.

Q. But according to the—what you just stated, it was on the exterior

mirror?

A. No. I was just reading off the location of each latent print lift card, sir.

Q. If I gave you the prints back for clarity, would you be able to tell me

where the actual print came from?

-4- A. Yes, sir.

Q. Okay.

A. Right here, sir?

Q. Yes.

A. Okay. In this case, the latent print L-1, the right palm interdigital of

[defendant], was identified on the rear-view mirror, sir.”

Each of the latent print lift cards in People’s exhibit No. 18 had written on the card the area of

the Pontiac from which Stegall had lifted the print. On one of these cards—the card that, in

Alderson’s analysis, matched defendant’s right palm print—Stegall had written “rear-view

mirror,” and Alderson understood the rearview mirror as being inside the car (unlike the side-

view mirrors). (People’s exhibit No. 18 does not appear to be in the record.)

¶ 26 2. The Empty Cartridge Cases

¶ 27 Ballistic analysis revealed that 8 of the 10 empty cartridge cases from the District

shooting had come from People’s exhibit No. 17, the Glock pistol that, at the scene of the

Davenport shooting, was found in the back seat of the Pontiac.

¶ 28 Ballistic analysis further revealed that all 17 empty cartridge cases from the 12th

Street shooting, together with the projectile in the Chevrolet, likewise had come from People’s

exhibit No. 17.

¶ 29 So, the pistol that was used to kill Smith and wound Golden on 12th Street in

Rock Island was the same pistol that was fired three months earlier in the District area of Rock

Island and that, 12 days after the 12th Street shooting, was found in the back seat of the Pontiac

in Davenport. It was the same Glock .9-millimeter pistol.

¶ 30 D. Admissibility of Excerpts of a Recording Made by an Eavesdropping Device

-5- ¶ 31 In October 2017, defendant was in jail in Mercer County, Illinois, on unrelated

charges. The circuit court of that county authorized the placing of an eavesdropping device in the

cell occupied by defendant and a confidential informant, Daquan White.

¶ 32 In the present case, pursuant to sections 108A-9 and 114-11 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/108A-9, 114-11 (West 2020)), defense counsel moved

for a suppression of the recording that had been made by the eavesdropping device. The grounds

of the motion were those listed in section 108A-9(a)(1) to (3) (id. §108A-9(1)-(3)):

“(1) the conversation was unlawfully overheard and recorded;

(2) the order of authorization or approval under which the device was used

or a recording made was improperly granted; or

(3) the recording or interception was not made in conformity with the

order of authorization.”

¶ 33 On December 13, 2021, the circuit court held a hearing on the motion for

suppression. The hearing also concerned a motion by the State: the State sought a ruling that, at

the upcoming trial, evidence of two other crimes would be admissible, namely, the District

shooting and the Davenport shooting.

¶ 34 The circuit court first took up defendant’s motion for suppression. In support of

that motion, defense counsel called a Rock Island police officer, Benjamin Meiresonne. Here are

the relevant points in Meiresonne’s testimony.

¶ 35 In 2017, White was in jail because of a pending drug case. About three weeks

after the Davenport shooting, he approached the authorities, offering, in return for consideration

in his drug case, to be a confidential informant against defendant. According to White, defendant

had disclosed to him his involvement in the District shooting, the shooting of Smith, and the

-6- Davenport shooting.

¶ 36 Because both defendant and White were under federal arrest and were in the

Mercer County jail “under an agreement with the federal government to house federal prisoners,”

it was agreed (or “it was determined,” as Meiresonne put it) that after the Mercer County circuit

court issued an eavesdropping warrant, it would be the Federal Bureau of Investigation (FBI)

that would conceal its own eavesdropping device in the cell shared by defendant and White.

Meiresonne testified:

“When we first were discussing applying for the overhear, we had the

Rock Island County State’s Attorney’s Office involved, the Mercer County

State’s Attorney’s Office involved, and since *** both subjects were at that time

under federal arrest, the US attorney’s office here locally was involved, and then

the Department of Justice was actually involved, and it was determined that the

FBI would place the recording equipment and that they would then obtain the

recordings and that they would be basically scrubbed before they ever came to

me.”

In other words, before handing the recordings over to the Rock Island police, the FBI would

delete the parts of the recording that, in the FBI’s opinion, were irrelevant to the investigation of

Smith’s murder. The apparent purpose of this scrubbing would be to protect the FBI’s

investigation of other crimes that defendant and White might discuss in their jail cell.

¶ 37 The Mercer County circuit court issued the eavesdropping warrant, the FBI hid

the eavesdropping device in the jail cell, and a continuous audio recording was made “for

approximately seven days, 24 hours a day.” Meiresonne, however, was “only privy to three or

four recordings,” “a winnowed down or a limited portion of the totality of the tapes,” “based on

-7- what was determined by others,” including a Mercer County judge, to have been “pertinent to

[his] case only.”

¶ 38 On cross-examination in the hearing, Meiresonne proceeded to summarize what

he had heard in the scrubbed recordings. While Meiresonne was recounting what he had heard

defendant tell White, on “tape,” about the District shooting, defense counsel objected, “That’s

facts not in evidence.”

¶ 39 Defense counsel explained, “We listened to over 60 hours of *** a lot of wiretaps,

a lot of stuff that wasn’t even *** admissible or needed, but we listened to it and I didn’t get to

what [Meiresonne] is saying on the stand.” The prosecutor replied, “It has actually been reduced

to that [and] then provided to the Rock Island Police Department by the FBI. We got that

reduction.” Meiresonne’s summary, the prosecutor observed, was “not a word-for-word

repetition because much is spoken in slang and dialect, which is to be blunt, and from time to

time, as I listened to it, hard to interpret.” Defense counsel responded, “I’ll be willing to say that

a lot of things are interpretation and maybe I understood it differently from counsel, but if he saw

only three or four videos [sic], I would love to listen to those three or four videos.” Defense

counsel reiterated, “The only thing I would need is the three or four videos or wiretaps that

[Meiresonne] stated that he listened to.” The prosecutor agreed to provide to defense counsel the

recordings that Meiresonne had listened to and on which he had based his summaries. The

prosecutor explained that he had come to the case late and that he had assumed that “that was

provided earlier.”

¶ 40 The circuit court decided to keep the record open so that the prosecutor could

make sure that defense counsel had been provided the three or four recordings that Meiresonne

had listened to and which he had purported to summarize in his testimony. Defense counsel

-8- commented, “I believe [Meiresonne] sent me everything he has. He has been very responsive.”

¶ 41 While not ruling out the possibility that there was “other stuff out there,” the

prosecutor stated, “[T]he stuff that I received, occurred on October 14th.” Defense counsel

replied, “Okay. ’Cause I have a stack of October 14th. It just—I don’t know what [Meiresonne]

heard. So, if I can get you know—”The circuit court observed that, presumably, the State did not

want “to have the jury *** stay up for five or six days” listening to seemingly “endless”

recordings, so it would probably be necessary, anyway, to pinpoint the relevant parts.

¶ 42 The circuit court and the prosecutor agreed that, with respect to what parts

Meiresonne had listened to, the problem might have been one of finding a needle in a haystack:

“THE COURT: Maybe it’s more at this point—how many hours you got,

60?

[THE STATE]: Yeah, 60.

THE COURT: So, in other words, it’s not that it doesn’t exist, it’s finding

it.

[THE STATE]: Yeah.”

¶ 43 On January 14, 2022, at the next hearing, which was by telephone, defense

counsel stated, “I was in receipt of three videos [sic] that [were] tendered to me by the police

officer in which he based his testimony off of. There are *** three disks and 30 minutes apiece,

so about 90 minutes.” Defense counsel claimed that “what he’s testifying to *** is not on these

videos.” Because it would have been difficult to untangle this question over the telephone, the

parties agreed to schedule a hearing in person, leaving the record open.

¶ 44 The next hearing, which was in person, was held on March 7, 2022. Defense

counsel called Meiresonne on redirect examination. Meiresonne testified he had listened to only

-9- those portions of the recording “that the FBI office had said [were] pertinent to [his]

investigation”: three recordings, each of which was roughly 30 minutes long. He testified that

“[t]here were other recordings in that seven-day period [he] did not listen to.” Without objection

by the prosecutor, the circuit court admitted the three recordings into evidence as defense exhibit

Nos. 1, 2, and 3. Defense counsel asked Meiresonne, “And those would be the recordings that

you distributed to the defendant, as well as the State?” He answered, “The defense *** and, well,

the State was given every recording for that seven-day period. I only had privy to a few of them.”

¶ 45 After they finished questioning Meiresonne, the attorneys made their arguments

on defendant’s motion for suppression and the State’s motion for the admission of evidence of

other crimes. The circuit court ruled that at the jury trial, the State would be allowed to present

evidence of the District shooting and the Davenport shooting to prove the identity of Smith’s

murderer. Thus, the court granted the State’s motion for the admission of evidence of those other

crimes. The court denied defendant’s motion to suppress the excerpts from the eavesdropping

recording.

¶ 46 E. “Failure to Testify”

¶ 47 On January 9, 2023, during the voir dire of potential jurors, the circuit court

instructed each venire panel that a defendant’s “failure to testify cannot be held against him.”

¶ 48 F. The Presentation, at Trial, of Excerpts From the Recording

¶ 49 1. Transcription of the Audio Files

¶ 50 Before trial, Meiresonne testified that the eavesdropping device in defendant and

White’s cell had run for seven days. At trial, by contrast, he testified that it ran continuously for

approximately four days, from October 13 to 17, 2017, and that as the eavesdropping was going

on, the FBI sent him excerpts of recorded audio material that the FBI deemed relevant to his

- 10 - investigation of the Smith murder. Judge Conway of the Mercer County circuit court, who had

issued the eavesdropping warrant, also reviewed “those recordings” for relevance. Meiresonne

had listened to the recordings the FBI had sent him between 15 and 20 times, and his secretary

had transcribed the recordings. He had checked the transcripts against the audio material,

ensuring that the transcripts were verbatim, and had made any revisions as necessary. Whenever

what was spoken in the audio recording was unintelligible, Meiresonne—following along in the

draft of the transcript on his computer—would type “UI” in brackets (meaning unintelligible).

He identified People’s exhibit No. 41 as the completed transcriptions and People’s exhibit No. 42

as a thumb drive containing the audio files that had been transcribed. He believed that People’s

exhibit No. 41 accurately transcribed the audio files in People’s exhibit No. 42. These audio files

were nine separate recordings, each of which was from 1 to 12 minutes long.

¶ 51 The prosecutor moved for the admission into evidence of People’s exhibit Nos. 41

and 42. Although defense counsel stated he had no objection to People’s exhibit No. 42, he

objected to People’s exhibit No. 41 for three reasons. First, he characterized People’s exhibit No.

41 as a biased interpretation by the lead detective in this case. Second, defense counsel argued

that Meiresonne was “not qualified as an expert in linguistics or transcribing.” Third, defense

counsel had found that the recordings in People’s exhibit No. 42 were “hard to understand and

hear,” and Meiresonne had testified that his transcription was different in some ways from his

secretary’s transcription.

¶ 52 The prosecutor’s response was fourfold. First, the purpose of People’s exhibit No.

41 was “not to interpret the meaning of the words spoken”—the prosecutor would ask “another

witness” to do that—but, rather, to “accurately transcribe[ ] the words spoken.” Second, the

prosecutor was aware of no authority for the premise that to transcribe an audio statement, one

- 11 - had to be qualified as an expert. Third, any “potential bias” could “be explored on cross-

examination.” Fourth, the prosecutor anticipated the giving of a jury instruction that if the jurors

“perceive[d] a difference between the transcript and the audio, they [were] to rely on the audio.”

¶ 53 The circuit court admitted People’s exhibit No. 42 into evidence, noting that this

exhibit was admitted without objection. Then, after listening to the audio files in People’s exhibit

No. 42 in camera, during a recess, and confirming that People’s exhibit No. 41 appeared to

accurately transcribe them and that the parts designated in People’s exhibit No. 41 as

unintelligible were indeed unintelligible, the court concluded that People’s exhibit No. 41 would

be helpful to the jury and, accordingly, admitted it into evidence, over defense counsel’s

objection.

¶ 54 2. A Translator of Slang

¶ 55 Before the State called Detective Paul Girskis of the Rock Island Police

Department as its next witness, the circuit court did two things. First, it instructed the jury that an

electronic recording had been admitted into evidence and that, in addition, there was a transcript

of the recording. The recording, the court instructed the jury, was the evidence, and the transcript

was merely an aid, and if the jury perceived a conflict between the two, “the electronic recording

controls.” Second, the court acceded to defense counsel’s request (to which the prosecutor had

no objection) for a voir dire of Girskis, outside the jury’s presence, to determine whether Girskis

was qualified to do what the prosecutor proposed having him do: translate the slang in People’s

exhibit No. 42.

¶ 56 In the ensuing voir dire, Girskis testified he had been a police officer since

September 2006. After attending the police academy and undergoing training in the field, he

spent “a year in street crimes,” assisting the narcotics unit of the Rock Island Police Department.

- 12 - He then served “about three and a half years in *** Rock Island narcotics as an undercover

officer” and, afterwards, “a little over two years with the FBI gang task force.” Then he “went a

little over five years with the Quad City [Drug Enforcement Administration (DEA)], the DEA

Task Force.” In January 2021 he was assigned to the criminal investigations division, in which,

recently, “a new special investigations unit” was created, and he would “be back assigned to the

DEA Task Force.” From his 11 years of experience with the various agencies that “Rock Island

Narcotics” had worked with and his hundreds of conversations and interviews with suspects and

cooperators, he had become familiar with “street slang” and its evolution during that period. In

fact, when working as an undercover officer, he was obliged to use street slang himself to appear

convincing and to avoid arousing suspicion.

¶ 57 The prosecutor showed Girskis People’s exhibit Nos. 43 and 44: two sheets of

paper listing, in the left-hand column, phrases or terminology the speakers used in People’s

exhibit No. 42 and, in the right-hand column, the meanings of the phrases or terminology in

Standard English. Girskis testified he was familiar with the street slang in the left-hand column.

He further testified that he had “listened to certain audiotapes of a recorded conversation

between the defendant and the cooperating witness in this case, Daquan White,” and that, having

“encountered *** and talked with” defendant 10 to 20 times and having “encountered” White

about 10 times, he could identify their voices. He recognized the voices in the audio recordings:

the higher-pitched voice was that of defendant, and the lower-pitched voice was that of White.

Also, Girskis testified that he understood the slang that was used in the recordings.

¶ 58 On cross-examination by defense counsel during the voir dire, Girskis admitted

he had never “been a part of any peer-reviewed panels, discussions, articles, in regards to slang.”

He agreed that slang evolved, perhaps daily, and he admitted he did not know every slang word.

- 13 - ¶ 59 Defense counsel objected to the prosecutor’s tendering Girskis as an expert in

slang. The circuit court overruled the objection, ruling that Girskis was “an expert in the topic or

subject of street slang.”

¶ 60 The jury reentered the courtroom, and the prosecutor called Girskis as a witness.

Girskis recounted his experience in law enforcement and how he had learned street slang over

the years by interacting with hundreds of witnesses and suspects on the street. The prosecutor

tendered Girskis as an expert in street slang.

¶ 61 Defense counsel objected for three reasons. First, he argued that because Girskis

worked for the police department that was assisting in the prosecution of defendant, Girskis

would be biased and would “interpret what he hears in the best light of the police.” Second,

defense counsel observed that Girskis had “no formal education to qualify him as an expert in the

African-American vernacular.” Third, the speakers in the audio recording conversed in English;

the jury was made up of “all native English speakers”; and “[t]o allow a slang expert, because

[defendant was] black,” would be, in defense counsel’s view, “racial discrimination.” Defense

counsel observed that words that were once considered slang were now in the dictionary. He

argued that most of the words that defendant spoke in the audio recording were English and that

“[y]ou don’t need an English or slang interpreter to interpret English.”

¶ 62 The circuit court noted that in criminal courts throughout the country, it was

commonplace to hear “testimony from law enforcement officers regarding something that might

sometimes [be] refer[red] to as street slang.” The court found that, through his experience as a

police officer, Girskis had acquired “particular knowledge as to street slang, sufficient for him to

be qualified as an expert under Illinois law”—“[w]hich is not a high bar in terms of expert

testimony.” So, the court ruled, “I’m going to allow him to be tendered and find that he can be

- 14 - examined as an expert in the field of street slang.”

¶ 63 Girskis identified defendant in the courtroom and testified that, having had

conversations with him 10 to 20 times, he was able to identify his voice. Also, Girskis testified

that, by virtue of his “probably [10]” conversations with White, he was able to identify White’s

voice, as well. Girskis had “listened to the audio of the overhear tapes” and had recognized the

higher-pitched voice in those recordings as that of defendant and the lower-pitched voice as that

of White.

¶ 64 Before playing People’s exhibit No. 42 in his direct examination of Girskis, the

prosecutor requested that the bailiff distribute the transcripts, People’s exhibit No. 41, to each of

the jurors so that they could “at their discretion refer to them while they listen to the audio

tapes.” Defense counsel objected to the distribution of the transcripts, but the circuit court ruled,

“I am going to permit the jurors to have those transcripts, subject to the instruction I gave them

earlier, which is that if you perceive a difference between the transcript and the electronic

recording, the electronic recording controls.” The court added, however, that, once the recording

was played, the transcripts were to be taken back.

¶ 65 In transcript No. 1-1, Girskis explained (after the corresponding portion of

People’s exhibit No. 42 had been played), defendant told White he had gotten “into it” with

Smith (“Dobie”) because Smith had gotten into a dispute with Keomi Neely, Smith’s girlfriend,

who had been staying at defendant’s house. Smith was angry with Neely because (to quote

Girskin’s paraphrase) “she took some of his ecstasy, his jigs, [and] brought them over to

[defendant’s] house.” As defendant put it in the recording, Keomi had given Smith some money,

which Smith had spent “on liquor and shit,” and she “get mad and snatched all his jigs.”

Consequently, Smith “kicked in” defendant’s “crib,” his house, “trying to beat Keomi up.”

- 15 - ¶ 66 Transcript No. 1-2 corresponds to the part of the recording in which defendant

recounted for White his conversation with Smith when defendant came to the door in response to

Smith’s knocking. “ [‘L]ook cuz,[’] ” defendant told Smith. “ [‘]You at my door right now.

Cuz.[’] I’m like nation.” (“Nation” was an exclamation, Girskis explained.) “ [‘]Catch this Bitch

when she leave.[’] I’m like [‘Y]ou at my crib. Nation. I’m dirty in this bitch[’] ”—meaning, as

Girskis explained, “I have contraband in my house.” “Then [Smith] like [‘W]ell yeah.[’] Nation,

so I walked off,” defendant said. “I tell her what’s going on.” Defendant assured Neeley, “ [‘]But

I ain’t finna [(fixing to)] let him come up in here, I aint gonna let him do nothin to you.[’] ”

¶ 67 “Motherfucker what you think I’m soft or somethin,” defendant mused. He went

“up in the room,” to quote transcript No. 1-3—but he had forgotten: “I ain’t leave no claps in the

crib to, uh, this day.” Rather, “my claps is in the a [sic] whip,” which was “[a]cross the street.”

(A “clap” was a gun, Girskis explained, and a “whip” was a car.) “So now I’m like damn,”

defendant continued, “I got one in the alley too. I’m like shit fuck it. I’m just going to go out

back and then just pop up on him and make him move around.” So, defendant went to the alley

to “get the clap,” but when he “come back to the front,” Smith was gone. Neely, “standing on the

porch now,” told defendant that Smith “ran that way.” Then, to quote defendant, “I hit the whip

and now I got both the claps now. I’m riding,” and “ [‘]f I catch you before you get to the crib,

Bitch you dead.[’] ” He added, “I don’t give a fuck what Keomi talking about. And if the bitch

acting stupid when I get back, (UI) tellin he dead, I’m smokin her.[’] ”

¶ 68 Defendant “pulled down 12th [Street],” but “[h]e made it to the crib hella fast. He

was outta there.” When defendant “pull[ed] up to the crib,” Smith was “standing on his porch.”

Defendant recalled to White, “I went up on the side, a little side street. (UI). I got both claps on

me, I’m like [‘H]ey cuz, what’s up[?’] ” Smith answered, “ [‘W]hat you mean, (UI)[?’] ”

- 16 - Defendant said to him, “ [‘]I told you *** ya gotta catch that bitch when she leaves.[’] ” Smith

responded, “ [‘L]ook, man. I ain’t scared of no motherfucker.[’] ” Defendant then was “hotter

than fuck up this bitch,” but the next thing he knew, “the laws”—the police, Girskis explained—

“ride past” and “look at us hella hard.” “Now I got fuckin dip on the laws,” defendant said (in

other words, he had to avoid the police, Girskis clarified). The “Law’s snatch him up,” that is,

arrested Smith, because “Keomi just said he beat her up.”

¶ 69 Nevertheless, in transcript No. 1-3, defendant resolved as follows: “I come down

here and I’m send some shots in this motherfucker. I’m a see how you feel after I burn yall shit

up for about a week. Better not get caught lackin (UI) I’m a pop yo ass (UI). That’s what’s in my

head.” Girskis translated:

“So that would be, I’m going to see how you feel after I [‘]burn yall shit

up for a week,[’] meaning like shoot your house up, or shoot at you for a week.

[‘]Better not get caught lackin,[’] better not get caught like sleeping or being

relaxed, not looking over your shoulder, ‘cause he’s going to [‘]pop yo ass,[’]

means *** I’m going to shoot you.”

¶ 70 White noted to defendant that “Dobie[ ] got kilt on his birthday” or, as he had

heard someone named Duck put it, Dobie “came on his birthday and left on his birthday.” White

remarked that Duck was “wild as hell.” He commented to defendant, “Then when you told me

that mother fucker still on that, it was on that thang, and your ass kept ridin with it. I’m like, you

tweak. You done a hundred motherfuckin (UI) digs.” Defendant corrected White, “I did a million

drills on that bitch,” and “I popped everybody with that bitch.” He was so pleased with the gun’s

performance that “I’m going to get me a couple of these when I get out.”

¶ 71 Defendant added, “Keomi had told me about, *** she like [‘Y]eah. I was out

- 17 - there, and motherfuckin’—we didn’t even see who was shooting or what the fuck. All we saw

was flashes.[’] I’m sitting right there like, [‘Y]es. Thank you.[’] but, Nation—I know firsthand

ain’t nobody saw shit.” “Right,” White acknowledged. Defendant continued, “You still blame it

on your cousin though. You bogus as hell. She even blamed it on our cousins.”

¶ 72 Girskis testified that the next transcript, transcript No. 2, had to do with the

District shooting, in which two people were shot: Kyra Golden and Brewer. Defendant recounted

to White that he was walking when Brewer stopped him, saying “ [‘]Shits, what’s up[?’] ” They

decided to exchange telephone numbers, but because defendant’s phone was dead, defendant told

Brewer, “ [‘]Text my shit.[’] ” As Brewer was typing some text, “Somebody get to moving (UI)

in the back ***. [M]otherfucker pop up out of the mothercukin backseat. Hella fast. Rollin[’] like

that. Boom boom boom boom boom. Hit him five times.” “He got hit five times. I put that bitch

on him, we this close.” White remarked, “I know [Brewer] got hit in the face.” Defendant

explained, “Oh yeah that was at the end, cuz I was mad. I thought about it, I’m like [‘Y]eah I

thought you set me up.[’] ([White] Laughing) Boom. Came back (UI) put that bitch on his face

though. On my mama.” “Yeah I hit [Brewer],” defendant said, “I only shot him once ***.” The

man in the back seat, who had popped up, got out of the car and started running, and defendant

“was leaning over the car” and “Blowin like 3 times.” That was when defendant accidentally

shot Neely. He recalled, “So yeah, I’m like blow, like 3 at him after I hit him with the 5 then I

blow 3. Boom. I hit her with the 3rd one and he ran on the other side of Webb truck. I was just

talking to Webb.” Defendant remarked, “Now I feel bad as hell, now I’m like fuck. I seen when I

did it too. *** I know I done hit her.” Now, every time he saw Neely, he stopped and gave her

hugs and tried to give her money. He said, “[T]hey wasn’t sure if she was going to get to carry

nor more. I think she can. But.”

- 18 - ¶ 73 Transcript No. 3 was about the Davenport shooting. Defendant told White that a

man named DT was with Dae Dae, which, Girskis knew from his work in law enforcement, was

the nickname of James Earl McKinney. DT, defendant said, “kept trying to get me to pick him

up” and kept trying to become chummy. “[H]e like, [‘H]ey you still in that white thang[?’] ” and

defendant replied, “[B]itch ass n***, don’t be asking me for what kind a car I at (UI).[’] ”

Defendant told DT to get out of his car, and he stopped answering DT’s calls. Defendant had just

sold Dae Dae “a three five” (meaning, Girskis explained, 3.5 grams, or an eighth of an ounce, of

marijuana), and Dae Dae called defendant’s phone and requested to buy “another three five.”

“We be down here in the District,” defendant recalled. He pulled into a dead end alley—he did

not know why. He had with him “two claps”: the “thirty *** and a little forty.” “The 30,” Girskis

clarified, “is a handgun or a pistol with a 30 round magazine, so it would be an extended clip,”

and the “40XD” (as defendant also called the other gun) was “a Springfield .40 caliber pistol.”

Defendant and Dae Dae were in defendant’s car. Defendant had just made a reefer for Dae Dae

and was about to make one for himself when “three motherfuckers walked past me.” Defendant

“grab[bed] both claps” and “hand[ed] cuz one,” that is, handed one of the guns to Dae Dae. The

three men “walk past”—or “at least [defendant] thought they walked past.” “They like, they just

got outta plain view. They musta ran, dead back up on the whip.” Defendant “turn[ed] and

looked at cuz” and tried to figure out “how to pop this bitch.” The three men who had been

strolling past opened fire on defendant and Dae Dae—at least two of the three did so. Defendant

recalled, “I’m blowing in the car. Outside. *** He ran up behind *** the whip. I’m blowing

through *** the back window. I’m get to blowing through the backseat, trying to get him through

the trunk.” Defendant was shot in the back and in the top of his arm and was grazed on the back

of his head. He felt his arms going limp, so, while the shooting was still going on, he got out of

- 19 - the car and fled on foot. Although it might have taken him two hours to do so, defendant made

his way to the “crib” of “Little D.” White asked defendant, “That shit was by Mother Hubbard’s

wasn’t it[?]” “Yeah,” he answered. “How the fuck did you get from Mother Hubbard’s to D

crib?” White asked. “I walked,” defendant answered.

¶ 74 In transcript No. 5, defendant said that DT told him, afterward, that “his brother

came out and *** hopped out of the car and moved it, and got up outta the alley and put it in the

other alley.” “But that don’t make sense,” defendant reflected. “And *** the motherfucker say he

left the bangers in the car.” (“Bangers,” Girskis clarified, was another term for guns, as “claps”

also were guns. “So—[‘]I know you ain’t leave it,[’] ” defendant remarked incredulously. “There

a body on that bitch. You’re an idiot if you did that.” (The phrase “there is a body on that bitch,”

Girskis explained, meant there was a dead body—there had been a murder—by the use of that

gun.) White asked defendant, “[W]hy the fuck did you keep it?” Defendant replied, “Cuz I was

finna keep putting shit on that bitch.” “I kept[ ] bringing it back out.” “Meaning, [‘]I was going

to keep using the gun like in the future like,[’] ” Girskis translated.

¶ 75 In the final transcript, transcript No. 6, defendant told White, “Cuz now one of

them D n*** got that motherfucker.” The prosecutor asked Girskis:

“Q. Detective Girskis, from your knowledge of this investigation, was a .9

millimeter Glock with an extended clip and a Springfield XD 40 semi-automatic

seized by the police or retrieved by the police in the shooting at 3rd and Division

by the Mother Hubbard’s?

A. Yes.

Q. Okay. When the statement is made by [defendant] that the Ds or the D

n*** have—have that, what did he say?

- 20 - A. He said, [‘]cuz now one of them D n*** got that motherfucker.[’]

A. So that—he’s implying it’s the Davenport Police.

Q. Okay. The D for Davenport?

A. Yes.”

¶ 76 Defendant continued, in his conversation with White, “Y’all better hope y’all

people up that bitch in the D because the D is running that bitch back. I would have fled to

Alaska they be *** [c]hecking that type of shit. The D be about that little [crime scene

investigation (CSI)] shit.” In other words, Girskis testified, if defendant had known that the

Davenport police had gotten possession of the gun, he would have fled to Alaska because the

Davenport police were “good with like the CSI, like the forensics and fingerprint and all that

type of stuff.” “Running that bitch back” meant “checking into the gun, like ballistics and all that

type of stuff.” Transcript No. 5 ends with defendant’s exclaiming, “Waht, 90 thousand shootings

cuz.”

¶ 77 G. White’s Testimony

¶ 78 The State called White, who testified substantially as follows.

¶ 79 In August 2016, White was in the parking lot during the District shooting, when

Kyra and Brewer were shot. When asked whether he saw defendant shoot Kyra, he answered,

“We didn’t know she was shot until later that night, but there was shooting, yeah.” But he saw

defendant shoot Brewer in the face with a Glock pistol that had an extended magazine. White

saw defendant in possession of that pistol both before and after the District shooting.

¶ 80 After the shooting in Davenport in November 2016, White picked defendant up

from the hospital in Davenport.

- 21 - ¶ 81 White remembered that when he and defendant were in the Mercer County jail,

White agreed to participate in a conversation with defendant, but he could not remember any of

the conversation. He could not remember whether, in the “court-ordered overhear,” he discussed

with defendant the shooting of Smith. He granted the possibility that he discussed that subject

with defendant, but he could not remember for certain that he did so. He explained, “It’s been too

many years ago for me to even have—I couldn’t even tell you a conversation that happened last

year.” White doubted it would help even if the prosecutor showed him a transcript of the

conversation. “The conversation that you showed me,” he noted, “I couldn’t even remember, so

[it] wouldn’t.” Nor could he remember the conversation he had with defendant after picking him

up at the hospital.

¶ 82 White denied being involved in the Davenport shooting or in the shooting of

Smith.

¶ 83 On cross-examination, White testified he was “on federal charges” when he

reached out to the state’s attorney, “seeking something in return for information.” But he denied

that the authorities gave him anything in return. “I was given on offer,” he explained, “but I done

did all my time already, sir”—or “almost already.”

¶ 84 White testified that, in the District shooting, “We didn’t see Kyra get shot” but

that, “[l]ater on down the night, that night, we found out she had got shot.” For that matter, “[w]e

didn’t even really see Jack Brewer, but we knew he was shot in the car.”

¶ 85 Defense counsel asked White:

“Q. *** Do you know who killed Dobie?

A. They say [defendant]. Do I know for sure? No.

Q. You said you don’t know?

- 22 - A. No, not for sure.

Q. But somebody told you?

***

Q. Okay. But you didn’t see it?

A. No. I wasn’t there, so I couldn’t tell you.”

¶ 86 Then the prosecutor and White had the following exchange on redirect

examination:

“Q. In fact, Mr. White, the person who told you he shot and killed ***

Smith was [defendant], wasn’t it?

A. In one of the conversations or another, yeah, but I don’t remember what

conversation because I don’t remember the conversations.

Q. In one of the conversations, [defendant] told you he shot and killed

Dobie Smith, didn’t he?

A. In one of the conversations. Like I said, I don’t remember the

conversations that we had. It was so long ago. But, yes, in one of the

conversations.”

¶ 87 On recross-examination, White testified, “I read the conversations with the

transcript and it doesn’t even sound like me in the transcript. It’s been so many years ago. Like I

said, I done been through too much to remember a conversation from last year, to let alone six,

seven years ago.”

- 23 - ¶ 88 H. Brewer’s Testimony

¶ 89 The defense called Brewer, who testified that on August 7, 2026, he was present

at the District shooting and that he was shot in that incident. He recounted that, before the

shooting, he was in a club, where he encountered some men from Chicago, Illinois, with whom

he was on bad terms. They got into an altercation at the club, the police broke up the altercation,

and Brewer went to his car. As Brewer was sitting in his car, defendant, a longtime acquaintance

of his, walked up, and they chatted for a while and exchanged telephone numbers. About 20

minutes after defendant walked away, the shooting began. Shots rang out, and Brewer woke up

in the hospital: he had been shot in the head. Brewer denied seeing defendant with a weapon that

night. He did not think that defendant was the one who had shot him.

¶ 90 I. The Verdicts

¶ 91 The jury found defendant guilty of the first degree murder of Smith and the

aggravated battery of Golden.

¶ 92 J. Posttrial Proceedings and Sentencing

¶ 93 Defendant retained a different attorney, who filed a motion for a new trial, to

supersede the motion for a new trial that the former defense counsel had filed. One of the claims

in the new motion was that the circuit court had erred by admitting the eavesdropping recordings

and the evidence of other crimes. Another claim was that the former defense counsel had

rendered ineffective assistance by failing to move for the exclusion of the recordings on the

ground of incompleteness. The court denied the motion for a new trial.

¶ 94 II. ANALYSIS

¶ 95 A. Deficient Performance

- 24 - ¶ 96 Under the sixth amendment to the Constitution (U.S. Const., amend. VI), a

criminal defendant has the right to counsel. This right to counsel includes the right to effective

representation by counsel or, in other words, adequate or competent representation. Strickland v.

Washington, 466 U.S. 668, 686 (1984); People v. Boose, 2025 IL App (4th) 231467, ¶ 30;

People v. Olsen, 2023 IL App (4th) 220738-U, ¶ 32.

¶ 97 Defendant claims that defense counsel rendered ineffective assistance at trial by

failing to make the following objections to the audio files in People’s exhibit No. 42: (1) the lack

of a foundation and (2) the impossibility of ensuring compliance with (a) the doctrine of

completeness and (b) Brady.

¶ 98 “The remedy for a valid claim of ineffective assistance of counsel should be

tailored to the injury from the constitutional violation and should not unnecessarily infringe on

competing interests.” People v. Patrick, 2011 IL 111666, ¶ 35. The remedy that defendant seeks

is a new trial, a recognized remedy for ineffective assistance (see id.).

¶ 99 To obtain that remedy, defendant must carry his burden of showing ineffective

assistance. See People v. Haynes, 2024 IL 129795, ¶ 37. Specifically, he must establish two

propositions: first, “the identified acts or omissions” by counsel “were outside the wide range of

professionally competent assistance” (Strickland, 466 U.S. at 690), and second, the

professionally unreasonable performance caused prejudice to the defense (see id. at 693).

Prejudice is “a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

¶ 100 Because it is undisputed that defense counsel did not object to People’s exhibit

No. 42 on the grounds that defendant argues he should have objected to it, there is no factual

- 25 - dispute in that respect, and we decide de novo whether defendant has shown the two elements of

deficient performance and resulting prejudice. See People v. Nowicki, 385 Ill. App. 3d 53, 81

(2008). We take up the first ground of objection that, according to defendant, defense counsel

unreasonably passed by: the State’s failure to lay a foundation for the admission of People’s

¶ 101 1. Failure to Object to the Lack of a Foundation

¶ 102 “Laying a foundation” means presenting “evidence or testimony that establishes

the admissibility of other evidence.” Black’s Law Dictionary (12th ed. 2024) (foundation).

“[T]he proponent of evidence bears the burden of proving the necessary elements for

admissibility.” People v. Torres, 2012 IL 111302, ¶ 53. For a document to be admitted into

evidence, for example, “[e]vidence must be presented to demonstrate that the document is what

its proponent claims it to be.” Anderson v. Human Rights Comm’n, 314 Ill. App. 3d 35, 42

(2000); see Piser v. State Farm Mutual Automobile Insurance Co., 405 Ill. App. 3d 341, 349

(2010); Ill. R. Evid. 901(a) (eff. Sept. 17, 2019). The same is true of a recording: to be

admissible, it must first be proven to be authentic. See People v. Daniel, 2022 IL App (1st)

182604, ¶ 112.

¶ 103 Illinois case law recognizes two ways to authenticate, or lay a foundation for, an

audio recording. First, there is the traditional method of authentication. See People v. Martin,

2024 IL App (4th) 231154-U, ¶ 116. “Generally, an audio recording is authenticated when a

participant to the conversation or a person who heard the conversation while it was taking place

identifies the voices of the people in the conversation and testifies that the recording accurately

portrays the conversation.” Daniel, 2022 IL App (1st) 182604, ¶ 112; see Martin, 2024 IL App

(4th) 231154-U, ¶ 116. Although Girskis testified that he recognized the voices of defendant and

- 26 - White in the recorded conversations from the FBI, he did not testify he had participated in those

conversations or that he heard the conversations while they were taking place (see Daniel, 2022

IL App (1st) 182604, ¶ 112). Thus, Girskis was unable to authenticate the audio recordings

through the traditional method of authentication. See id. One of the participants in the recorded

conversations, White, likewise was unable to authenticate the recordings through the traditional

method, for he could not remember his conversations with defendant and, hence, was incapable

of determining whether the recordings accurately portrayed the conversations. See id. The other

participant in the conversations, defendant, did not testify. Thus, the traditional method of

authenticating People’s exhibit No. 42 was closed to the State.

¶ 104 Case law recognizes an alternative method of authenticating an audio recording:

authentication under the silent witness theory. See id. Under this theory,

“a sufficient foundation may be laid for the admission of an audio recording by

evidence regarding (1) the capability of the device for recording, (2) the

competency of the operator, (3) the proper operation of the device, (4) the

preservation of the recording with no changes, additions, or deletions, and (5) the

identification of the speakers.” Id. ¶ 113.

See People v. Reynolds, 2021 IL App (1st) 181227, ¶ 50. (Metaphorically, the recording itself

serves as the “silent witness.” People v. Zalewski, 2024 IL App (1st) 221864-U, ¶ 69.) Although

Girskis identified the speakers in People’s exhibit No. 42, thereby satisfying the fifth item in the

list above, he did not testify to the preceding four items in the list. Nor, apparently, could any

witness have testified to the fourth item—preservation of the recording with no changes or

deletions—for it is undisputed that the recording was scrubbed by the FBI: the FBI deleted the

portions of the recording that it regarded as irrelevant to the investigation of Smith’s murder.

- 27 - ¶ 105 Granted, the parties disagree on the amount of the scrubbing: the State points to

statements by defense counsel and the prosecutor that they received 60 or more hours of audio

recordings, while defendant points to testimony by Meiresonne that he received only three

recordings, each of which was approximately 30 minutes long. In any event, regardless of how

much the FBI deleted from the four days, or 96 hours, of continuous recording, it is undisputed

that the FBI made deletions. Although the precise amount of scrubbing is in dispute, the fact of

the scrubbing is undisputed. There was a single, continuous recording from which material was

cut. It would have been impossible, then, for any witness to testify (truthfully) to “the

preservation of the recording with no changes *** or deletions” (Daniel, 2022 IL App (1st)

182604, ¶ 113), and, therefore, the silent witness method of authenticating People’s exhibit No.

42 was closed to the State, as well.

¶ 106 Nevertheless, the State maintains that “[t]he recordings were adequately

authenticated through multiple sources of circumstantial evidence.” The State quotes People v.

Kent, 2017 IL App (2d) 140917, ¶ 86, which states: “Authentication of a document may be made

by direct or circumstantial evidence.”

¶ 107 In Kent, however, the question was whether the circuit court had abused its

discretion by ruling that a Facebook post had been authenticated. See id. ¶ 66. The federal case

on which Kent relied, United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), also involved the

authentication of social media (Kent, 2017 IL App (2d) 140917, ¶ 90). A social media post is

significantly different from an audio recording. In fact, the appellate court remarked in Kent that

“[t]he authentication of social media poses unique issues regarding what is required to make a

prima facie showing that the matter is what the proponent claims.” (Emphasis added and internal

quotation marks omitted.) Id. ¶ 105. The difficulty in the State’s case in Kent—a difficulty the

- 28 - State never overcame—was presenting “ ‘some basis’ on which a reasonable juror could

conclude that the post was not just any Internet post but was, in fact, created by [the] defendant

or at his direction.” Id. ¶ 119 (quoting Vayner, 769 F.3d at 133). In the present case, the State

presented some basis from which a reasonable juror could have concluded that defendant and

White had “created” People’s exhibit No. 41, in the sense of conversing while, for four days, the

hidden eavesdropping device was continuously on. Girskis testified that he recognized the voices

of defendant and White in the audio files from the FBI. The problem is, in the silent witness

method of authenticating an audio recording, “the identification of the speakers” is only one

element. Daniel, 2022 IL App (1st) 182604, ¶ 113. There also are four other elements: “(1) the

capability of the device for recording, (2) the competency of the operator, (3) the proper

operation of the device, [and] (4) the preservation of the recording with no changes, additions, or

deletions.” Id.

¶ 108 For five reasons, the State argues it proved those elements by circumstantial

evidence.

¶ 109 First, the State observes that “the overhear operation was court-authorized and

conducted by the FBI.” We are aware of no case holding, however, that the identity of the

operator of the recording device circumstantially authenticates the recording. Nor are we aware

of any basis for supposing that every recording device in the FBI’s possession was in good

working condition and that every FBI agent knew how to operate the recording devices properly.

Maybe the numerous UIs in People’s exhibit No. 41 are symptomatic of a defect in the recording

device or its improper operation or placement. We know for a fact that the operator’s identity as

the FBI did not prevent “deletions” from being made in the recording (id.), for, as the State says

in its brief, “[f]ederal agents ‘scrubbed’ the raw audio for relevance.”

- 29 - ¶ 110 Second, the State points to White’s testimony that “he consented to the overhear

recording while in federal custody with defendant.” It is indeed arguable that White’s consent to

the eavesdropping increased the probability that White wanted to elicit reminiscences from

defendant and that, therefore, the voices in People’s exhibit No. 42 were those of defendant and

White as White questioned defendant and he reminisced. Again, though, “the identification of

the speakers” is only one element in the authentication of an audio recording. Id. It is commonly

known that, by the use of artificial intelligence, a real conversation between known speakers that

has been digitally recorded can be altered (thus, the importance of having a witness testify, under

penalty of perjury, that the recording is unaltered). And, in fact, the FBI did alter the recording

by deleting approximately 36 hours of it (96-60=36).

¶ 111 Third, the State argues that “[t]he chain of custody was established from the FBI

to local law enforcement to the prosecutors to defense counsel.” But was that chain of custody

established? If, as the State represents, the recordings went from the FBI to the Rock Island

police and then to the prosecutor and finally to defense counsel, why did the prosecutor and

defense counsel possess a greater quantity of recorded material than the lead detective,

Meiresonne of the Rock Island Police Department, possessed? Meiresonne testified, “The ***

defense and, well, the State was given every recording for that seven-day period. I only had privy

to a few of them.” If the Rock Island Police Department was a conduit between the FBI and the

prosecutor (who, in turn, was a conduit to defense counsel), it is unclear why Meiresonne would

be privy to fewer recordings than the prosecutor and defense counsel. Even if we disregarded

that conundrum, the purpose of proving a chain of custody is “to render it improbable that the

original item has been *** subjected to tampering” (internal quotation marks omitted) (People v.

- 30 - Flores, 406 Ill. App. 3d 566, 576 (2010)), but we know that the original item in this case was

tampered with: the FBI scrubbed the four-day recording.

¶ 112 Fourth, the State argues, “Sergeant Meiresonne testified that Judge Conway had

reviewed the recordings for pertinence before their disclosure.” Nevertheless, the State fails to

explain how this review of the recordings by Judge Conway enhanced their authenticity. It is

unclear what one thing has to do with the other.

¶ 113 Fifth, the State contends that “the recordings’ content demonstrated their

authenticity through internal consistency with other trial evidence.” Such consistency, however,

could be, at least in part, a result of the deletions. Excluded material might contradict the State’s

theory of the case. Because of the deletions, People’s exhibit No. 42 might be misleading, a

falsification, a distortion, an inauthentic version of defendant and White’s conversations.

¶ 114 This is not to suggest that the State was obliged to have the jury listen to the entire

recording, which was four days long (or seven days long, depending on which account by

Meiresonne one goes with). Only the relevant excerpts could have been played for the jury. The

entire recording, however, which was a single, continuous, four-day recording, had to be

authenticated and admitted into evidence. Why? Because there was a line of appellate court cases

going back to 1980 holding that the lack of “changes, additions, or deletions” was a foundational

requirement for audio recordings if the silent witness method of authentication was used. See,

e.g., People v. Howard, 2022 IL App (2d) 190468-U, ¶ 78; People v. Smith, 321 Ill. App. 3d 669,

675 (2001); People ex rel. City of Leland Grove v. City of Springfield, 193 Ill. App. 3d 1022,

1041 (1990); People v. Estrada, 91 Ill. App. 3d 228, 238 (1980).

¶ 115 It was undisputed that People’s exhibit No. 42 was the product of scrubbing.

Therefore, to keep that exhibit out of evidence, all defense counsel had to do was object on the

- 31 - ground of a lack of foundation. People’s exhibit No. 42 was devastating to the defense, with no

upside. There was no imaginable benefit to the defense in the jury’s hearing defendant tell

White, for example, about the bodies he had heaped up on his cherished Glock .9-millimeter

pistol or about his intention to shoot Smith and shoot up his living quarters. Admission of the

audio excerpts that the FBI had deigned to share with the State offered no compensating

advantage to the defense. Not objecting on the ground of a lack of foundation was “outside the

wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

¶ 116 2. Failure to Object on the Ground of Noncompliance With Discovery

¶ 117 The State understands defendant as arguing that “the People violated Brady by

failing to disclose complete raw recordings maintained by federal authorities.” The State violates

Brady if “(1) the undisclosed evidence is favorable to the defendant because it is exculpatory or

impeaches the State’s evidence; (2) the State suppressed the evidence, whether willfully or

inadvertently; and[ ] (3) the defendant was prejudiced because the evidence was material.”

People v. Ewing, 2026 IL App (1st) 172983-U, ¶ 105. “[T]he burden of establishing a Brady

violation is on the defendant.” People v. Goldsmith, 259 Ill. App. 3d 878, 888 (1994). The State

maintains that defendant has failed to carry that burden because he has not proven that the FBI

retained any evidence favorable to him. The State quotes United States v. Agurs, 427 U.S. 97,

109-10 (1976), which states: “The mere possibility that an item of undisclosed information might

have helped the defense *** does not establish ‘materiality’ in the constitutional sense.”

¶ 118 The State further contends that defendant’s claim of a violation of the

completeness doctrine likewise is speculative. Illinois Rule of Evidence 106 (eff. Jan. 1, 2011)

provides, “When a writing or recorded statement or part thereof is introduced by a party, an

adverse party may require the introduction at that time of any other part or any other writing or

- 32 - recorded statement which ought in fairness to be considered contemporaneously with it.” For the

presentation of People’s exhibit No. 42 to have been fair, what other information in the

undisclosed part of the recording should have been presented to the jury? Defendant does not

specify. Defendant claims a violation of the completeness doctrine, the State argues, without

carrying his burden of proving a violation.

¶ 119 It is true that, in his brief, defendant refers to the State’s “inability to satisfy the

doctrine of completeness” and its “inability to satisfy Brady.” Such language, regarded in

isolation, might be understood as an attempt to shift the burden of proof from defendant to the

State. If, however, his argument is regarded as a whole, what defendant claims is this (to quote

another part of his brief): “The State effectively ‘outsourced’ the gathering of evidence in a way

that allowed it to sidestep discovery, Brady, and completeness issues.” Defendant criticizes

defense counsel for failing to object to People’s exhibit No. 42 on the basis of “discovery rules.”

Specifically, defendant cites Illinois Supreme Court Rule 412(f) (eff. Mar. 1, 2001).

¶ 120 Paragraph (f) of that rule is best understood in the context of paragraph (a)(ii):

“(a) Except as is otherwise provided in these rules as to matters not subject

to disclosure and protective orders, the State shall, upon written motion of defense

counsel, disclose to defense counsel the following material and information

within its possession or control:

(ii) any written or recorded statements and the substance of any

oral statements made by the accused or by a codefendant, and a list of

witnesses to the making and acknowledgment of such statements[.]

- 33 - (f) The State should ensure that a flow of information is maintained

between the various investigative personnel and its office sufficient to place

within its possession or control all material and information relevant to the

accused and the offense charged.” Ill. S. Ct. R. 412(a)(ii), (f) (eff. Mar. 1, 2001).

¶ 121 “[A]ny *** recorded statements *** of any oral statements made by the accused”

are categorically “relevant to the accused and the offense charged” because subsection (a)(ii)

effectively says so: “the State shall, upon written motion of defense counsel, disclose to defense

counsel” “any” such recorded statements. (Emphases added.) Id. Defendant has the right to

examine such recorded statements, in their entirety, and to determine for himself, with the

assistance of defense counsel, whether the statements contain exculpatory material and whether,

pursuant to the doctrine of completeness, other parts of the statements should be presented to the

jury besides the parts the State presents. Under Rule 412(a)(ii), defendant should not be required

to rely on the police—or, for that matter, on a judge—to screen his recorded statements for

pertinent information. Accordingly, on June 19, 2018, in his “Pretrial Discovery Motion,”

defendant requested “[a]ny written or recorded statements and the substance of any oral

statement made by the accused.”

¶ 122 It is true that, under Rule 412(a), the State is required, “upon written motion of

defense counsel” to “disclose to defense counsel” only “material and information within its

possession or control.” Ill. S. Ct. R. 412(a) (eff. Mar. 1, 2001). The four-day recording from the

eavesdropping device was within the FBI’s possession or control, and the FBI refused to provide

the entire recording to the State. The State notes, “[T]he defense admits receiving everything the

People possessed.” Even so, under Rule 412(f), the State had a duty to “ensure that a flow of

information [was] maintained between the various investigative personnel and its office

- 34 - sufficient to place within its possession or control all material and information relevant to the

accused and the offense charged.” Ill S. Ct. R. 412(f) (eff. Mar. 1, 2001). Defendant argues:

“When the State of Illinois chose to have the federal government gather evidence

to be used in a State prosecution, the State became responsible for maintaining

access to the evidence that was gathered so that it could satisfy its discovery and

Brady obligations. [Citation.] But the State off-loaded that responsibility to the

federal agents, who were beyond the apparent jurisdiction of the court.”

In other words, while the State was required, under Rule 412(a), to disclose only material and

information that was within its possession and control, Rule 412(f) forbade the State to make an

end run around Rule 412(a) by arranging that discoverable material and information would

remain beyond its possession and control—such as by acquiescing or agreeing to an

investigatory plan that would place discoverable material and information beyond its possession

and control. As Rule 412(f) provided, the State had a duty to “ensure that a flow of information

[was] maintained between the various investigative personnel,” such as FBI agents, “and its

office sufficient to place within its possession or control all material and information relevant to

the accused and the offense charged.” (Emphasis added.) Id. Defendant argues that (1) the State

violated its duty to ensure an unimpeded flow of information from the FBI to the State and

(2) defense counsel should have moved for the exclusion of People’s exhibit No. 42 on this

ground because of the State’s noncompliance with discovery.

¶ 123 This seems to be a good argument. We are aware of no reason why the FBI, as

opposed to the Rock Island Police Department, had to be the agency applying for the

eavesdropping warrant if, in the preparatory discussions, the FBI expressed an unwillingness to

share the complete recording that would result from the proposed eavesdropping—that is, if

- 35 - scrubbing was understood to be part of the deal. The circuit court was concerned that the

scrubbing would prevent the parties from confirming compliance with Brady. The court

remarked, “[W]e had a lot of these types of situations where the FBI conducts an overhear,

reviews the material on their own, decides what is relevant and what’s not relevant. I don’t know

if they take Brady material into account or not.” The prosecutor responded, “I certainly do have

from experience faith that the federal authorities know what Brady material is and their

obligations related to it.” The court retorted, “The Court’s concern is usually the final adjudicator

of that issue isn’t one of the parties, it’s the Court.” The prosecutor acknowledged that the court

had a point. The court continued, “I have no way to adjudicate that issue.”

¶ 124 But the circuit court would have had a way to adjudicate that issue if defense

counsel had moved for the exclusion of People’s exhibit No. 42 as a discovery sanction under

Illinois Supreme Court Rule 415(g)(i) (eff. Oct. 23, 2020). That rule provides as follows:

“(i) If at any time during the course of the proceedings it is brought to the

attention of the court that a party has failed to comply with an applicable

discovery rule or an order issued pursuant thereto, the court may order such party

to permit the discovery of material and information not previously disclosed,

grant a continuance, exclude such evidence, or enter such other order as it deems

just under the circumstances.” (Emphasis added.) Id.

Given the concern the court repeatedly expressed about compliance with Brady (“I sure hope

there is no Brady material on there.”), such a motion would have had a reasonable probability of

success. It was “outside the wide range of professionally competent assistance” not to make such

a motion. Strickland, 466 U.S. at 690. Arguably, if the State entered into an agreement whereby

it would receive only partial access to a statement that the State otherwise would have had to

- 36 - disclose to the defendant in its entirety and if, apparently, by alternative arrangements, the State

could have obtained the full statement without limitation, the State should be barred from using

the fragmentary statement against the defendant at trial.

¶ 125 B. Prejudice

¶ 126 For a claim of ineffective assistance, deficient performance is not enough; the

deficient performance must have caused prejudice to the defense. See People v. Sanchez, 169 Ill.

2d 472, 487 (1996). We find an infliction of prejudice, for, although the State adduced other

evidence against defendant besides the recordings, this other evidence had vulnerabilities.

¶ 127 When we exclude People’s exhibit No. 42 from consideration, we are left with the

evidence that empty cartridge cases at the scene of Smith’s murder and at the scene of the

District shooting came from the .9-millimeter Glock pistol that the police found in the back seat

of the Pontiac that was left at the scene of the Davenport shooting. After the Davenport shooting,

defendant went to the hospital in Davenport to receive treatment for gunshot wounds. Also, the

police found his palm print on the rearview mirror of the Pontiac.

¶ 128 There is some discrepancy in the evidence as to whether this mirror was inside the

Pontiac or outside. On the one hand, a Davenport police officer, Stegall, testified he had lifted a

potentially comparable print from the “left exterior rearview mirror.” On the other hand,

Alderson, the criminalist who identified defendant’s right palm print in People’s exhibit No. 18,

testified that the corresponding print lift card was labeled “simply” “ [‘]rear-view mirror,[’] ” and

he pointed out that a rearview mirror was, by definition, “inside of the car.”

¶ 129 Alderson was right about the meaning of “rearview mirror”: it is “a mirror (as in

an automobile) that gives the driver a view of the area behind a vehicle” (emphasis added)

(Merriam-Webster’s New Collegiate Dictionary 1036 (11th ed. 2020)), whereas a “side-view

- 37 - mirror” is “a mirror on the outside of a vehicle that allows the driver to see what is behind and to

the right or left of the vehicle” (emphasis added) (Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/side-view%20 mirror (last visited Apr. 8, 2026).

To a trier of fact, this distinction between inside and outside might matter because a passerby

might leave a palm print on the side-view mirror of a car, but it is difficult to visualize how the

right palm print of anyone other than the driver would end up on the rearview mirror, properly

speaking. If defendant was the driver of the Pontiac, then, arguably, he had constructive

possession of the Glock .9-millimeter pistol that was lying, in plain sight, on the back seat. See

People v. Hunter, 2013 IL 114100, ¶ 19 (“Constructive possession exists where there is no

actual, personal, present dominion over contraband, but [the] defendant had knowledge of the

presence of the contraband, and had control over the area where the contraband was found. The

doctrine of constructive possession has been applied to cannabis and weapons collectively as

contraband.”). The trouble is, such a theory of constructive possession in this case would depend

on whether, when Stegall wrote “rear-view mirror” on the print lift card, he used that term in its

correct lexical sense as the interior mirror or, alternatively, whether he meant the left side-view

mirror, the mirror from which, according to his testimony, he had lifted a potentially comparable

print. The State endorses Stegall’s testimony. The State says that “[d]efendant’s palm print was

found on the exterior rearview mirror of the vehicle in which the murder weapon was recovered

following the Davenport shooting.” (Emphasis added.) Assuming, as the State says, that

“defendant’s own palm print [was] found on the exterior of that same vehicle,” we do not know

when he placed his palm print on the exterior of the vehicle, and he would not necessarily have

done so as the driver. Although defendant was shot on the night of the Davenport shooting, it

- 38 - does not necessarily follow (in the absence of the recordings) that he was shot at that shooting or

that he wielded the .9-millimeter Glock pistol found in the Pontiac.

¶ 130 White’s testimony against defendant could likewise be problematized. Although

White testified that defendant had told him he had shot Smith, White could not remember the

conversation in which defendant made this, one would think, momentous and, therefore,

memorable disclosure.

¶ 131 So, without the audio excerpts in People’s exhibit No. 42, the State had some

evidence against defendant, but the evidence could have been reasonably questioned. It could

have been called into doubt. People’s exhibit No. 42 made the State’s evidence overwhelming: it

supplied defendant’s motive for murdering Smith, his stated intent to shoot him, his ownership

and repeated use of the murder weapon, and his participation in the District shooting, where

empty cartridge cases from the same murder weapon were found. Therefore, we find prejudice

from defense counsel’s failure to make a meritorious objection to People’s exhibit No. 42 on the

grounds of a lack of foundation and noncompliance with discovery. See Strickland, 466 U.S. at

693.

¶ 132 Our acceptance of this claim of ineffective assistance is enough to resolve the

appeal. The supreme court has cautioned us “that courts of review should not ordinarily consider

issues where they are not essential to the disposition of the cause or where the result will not be

affected regardless of how the issues are decided.” People v. White, 2011 IL 109689, ¶ 144. In

other words, “we should decide only what we have to decide” to reach a disposition. People v.

Manskey, 2016 IL App (4th) 140440, ¶ 87. By concluding that the failure to make a twofold

objection to People’s exhibit No. 42 was ineffective assistance, entitling defendant to a new trial,

- 39 - we have effectively disposed of this appeal. We need not reach the remaining three issues that

defendant raises.

¶ 133 It is unfortunate, though, that, in its admonitions to the prospective jurors, the

circuit court characterized as a “failure” defendant’s choice not to testify (if, as it turned out, he

so chose). “Failure” is a pejorative term, and no hint of criticism should be made against a

defendant’s exercise of the right to remain silent (see People v. Appelt, 2013 IL App (4th)

120394, ¶ 90). Under the current version of Illinois Supreme Court Rule 431(b) (eff. July 1,

2012), the court is to “ask each potential juror, individually or in a group, whether that juror

understands and accepts *** that if a defendant does not testify[,] it cannot be held against him

or her.” We mention this only because it may become an issue on remand for a new trial.

¶ 134 III. CONCLUSION

¶ 135 For the reasons stated, we reverse the circuit court’s judgment and remand this

case for a new trial.

¶ 136 Reversed and remanded.

- 40 -