NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 180570-U
Order filed June 3, 2021 Modified Order Upon Denial of Rehearing June 29, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0570 v. ) Circuit No. 16-CF-686 ) KELVIN ARNEZ GATHINGS III, ) Honorable ) Carol M. Pentuic, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE WRIGHT delivered the judgment of the court. Justices Holdridge and Lytton specially concurred. ____________________________________________________________________________
ORDER
¶1 Held: (1) The State erroneously introduced evidence to bolster a witness’s credibility and vouched for that witness’s credibility during its rebuttal argument, but the cumulative effect of these otherwise forfeited errors does not warrant review based on the plain error doctrine. (2) The court did not err by playing an audio recording in open court during jury deliberations.
¶2 Defendant, Kelvin Arnez Gathings III, appeals his conviction for aggravated battery with
a firearm. Defendant argues: (1) the cumulative effect of several errors committed by the State deprived him of his right to a fair trial, and (2) the court erred by playing an audio recording in
open court for the jury after deliberations were underway. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant by information with aggravated battery with a firearm (720
ILCS 5/12-3.05(e)(1) (West 2016)), a Class X felony. The matter proceeded to a jury trial.
¶5 During voir dire, the State asked,
“[THE STATE]: You may hear evidence in this case that some witnesses
have a criminal history. Do any of you believe that you can absolutely not believe
somebody who may have a criminal record if they testify on the stand under oath?
Does anybody believe they would absolutely not believe that person? ***
***
*** [T]o be more direct, if somebody were to get on the stand and testify
under oath and it came out that they had a criminal record or prior conviction, are
you saying that you would absolutely not believe that person?”
Later, the State asked,
“For those of you that have had kids that are teenagers or have had special
experiences with kids that are teenagers, do you feel that you can tell when a kid is
being truthful or not? If you feel like you can tell when a child or teenager is telling
the truth, could you raise your hand?”
The State also asked, “[D]o you all realize that [criminal television programs] are not like real life
at all. They aren’t solved in thirty minutes or an hour. There’s not always forensic evidence, or
someone saying, oh, I did it? Everybody understands those are not based on reality for the most
part?” Finally, the State asked, “Do any of you believe that you could never find somebody guilty
2 if there’s zero forensic evidence? *** If there’s other evidence but it’s not forensic evidence, that
you could never find somebody guilty?”
¶6 A. Domingo “Mingo” Vertez
¶7 Following opening statements, the prosecution called its first witness, Domingo “Mingo”
Vertez. Vertez testified that on August 10, 2016, Juan Hernandez and Hernandez’s girlfriend,
Christian Guerrero, arrived in the alley near Vertez’s residence to give Vertez a ride to work.
Vertez entered the backseat of the vehicle. While sitting in Hernandez’s vehicle, Vertez observed
an individual wearing a dark-colored hooded sweatshirt approach the vehicle and position himself
on the driver’s side of the vehicle between the driver’s and passenger’s doors. Vertez did not see
the individual’s face. According to Vertez, the individual began shooting at Hernandez, who was
seated behind the steering wheel. When the shooting began, Hernandez immediately started to
drive away.
¶8 B. Christian Guerrero
¶9 Christian Guerrero testified that on August 10, 2016, she was present in Hernandez’s
vehicle. According to Guerrero, the couple drove to an alley near Vertez’s residence for the
purpose of giving Vertez a ride to work. Guerrero was seated in the front passenger seat. After
entering the vehicle, Vertez was seated behind her in the backseat of the vehicle. While Guerrero,
Hernandez, and Vertez were talking, Guerrero observed an individual approaching the vehicle on
foot. This individual was wearing a dark-colored hooded sweatshirt with the hood up. Guerrero
could not see this individual’s face. The individual produced a gun, appeared to aim the weapon
at the backseat, and began shooting. After the shooting began, Hernandez immediately began
driving away from that location.
3 ¶ 10 C. Juan “Charlie” Hernandez
¶ 11 Juan “Charlie” Hernandez testified that on August 10, 2016, at approximately 10 p.m., he
was seated in the driver’s seat of his vehicle in an alley behind Vertez’s residence. Hernandez
explained that his girlfriend, Guerrero, was seated in the front passenger seat as they waited for
Vertez. Hernandez intended to provide Vertez with a ride to work. After Vertez arrived and entered
the vehicle, Hernandez heard someone knocking on the rear passenger window on the driver’s side
of his vehicle. The knocking sound was following by the sound of gunshots. When Hernandez
turned around, Hernandez saw an individual wearing a dark-colored hooded sweatshirt with the
hood up and also observed bullets flying toward Hernandez’s face. Hernandez immediately began
driving away, but soon realized he had been struck with a bullet. The bullet had entered
Hernandez’s back and became lodged next to his heart.
¶ 12 D. J.R. “Chewy”
¶ 13 J.R. “Chewy” testified that he was 15 years old at the time of trial. On August 10, 2016,
around the time of the shooting, J.R. was outside Vertez’s residence with Vertez, A.L., and A.J.
Moments after J.R. saw Vertez enter Hernandez’s vehicle, J.R. heard four or five gunshots. When
J.R. looked toward Hernandez’s vehicle, he observed an individual in a black hooded sweatshirt
running away from the driver’s side of the vehicle toward the alley. The individual’s hood was
over their head. Following these observations, J.R. ran after the vehicle and arrived at A.L.’s
residence, where J.R. saw defendant outside of A.L.’s residence. According to J.R., defendant
appeared to be panicked and told J.R. to “Get the hell out of here.”
¶ 14 Later that same night, J.R. met with A.J., A.L., and defendant at defendant’s residence.
During this encounter, defendant stated that he tapped on the vehicle window of a vehicle with a
4 gun, and after seeing Vertez seated in the vehicle, defendant began shooting. According to J.R.,
defendant did not like Vertez and thought Vertez was a “snitch.”
¶ 15 J.R. also testified that the day before the shooting, defendant showed J.R. a gun. The day
after the shooting, defendant requested J.R., A.J., and A.L. to retrieve a gun from behind the wall
at A.L.’s residence and give it to Anthony “Hoot” Beserra. J.R. testified that A.J. retrieved the gun
from behind a wall at A.L.’s residence. The State presented People’s exhibit No. 16H, a
photograph of the wall in A.L.’s residence and People’s exhibit No. 20F, a photograph of the
recovered gun, for J.R. to review. After viewing both photographs, J.R. identified the gun depicted
in both photographs as the same gun that A.J. took from the wall and the same gun that defendant
displayed to J.R. the day before the shooting.
¶ 16 E. A.J.
¶ 17 A.J. testified that he was 16 years old at the time of trial. A.J. was together with J.R. and
A.L. at the time of the shooting on August 10, 2016, at approximately 10 p.m. A.J. testified that
while standing together with his friends, A.J. noticed Hernandez and Guerrero sitting in a vehicle
parked in the alley behind Vertez’s residence. A.J. described how Vertez left his residence and
then entered the backseat of Hernandez’s vehicle. According to A.J., moments later, an individual
appeared and started shooting a gun. According to A.J., the shooter wore a black hooded sweatshirt
with the hood up. A.J., J.R., and A.L. ran together toward the corner of the block in order to see
where the vehicle was headed and eventually arrived at A.L.’s residence, where they stayed for a
short time. While at A.L.’s residence, A.J. saw defendant outside the residence. Defendant was
sweating, appeared to be panicked, and told A.J. to “get out of here.”
¶ 18 Regarding a subsequent conversation between A.J. and defendant, the following colloquy
occurred between A.J. and the State:
5 “[THE STATE]: *** When you were at [defendant’s] after the shooting,
what did he tell you about the shooting?
[A.J.]: Just like—like he shouldn’t have done it.
[THE STATE]: Okay. What did you ask him about the shooting?
[A.J.]: Like why did you do it.
[THE STATE]: And he said what?
[A.J.]: Like he didn’t really know.
[THE STATE]: He didn’t know why he had done it? He told you that—he
told you that he shot at the car?
[A.J.]: No, not exactly.
[THE STATE]: What did he tell you?
[A.J.]: He just like regretted doing it.
[THE STATE]: He regretted doing it?
[A.J.]: Uh-huh.
[THE STATE]: Doing what?
[A.J.]: Shooting at the car, I guess.
According to A.J., defendant believed Vertez and Hernandez were both “snitches.”
¶ 19 The next day, A.J. assisted J.R. and A.L. when packing up defendant’s clothes into bags at
defendant’s residence. He also accompanied J.R. and A.L. to A.L.’s residence, where A.J. retrieved
a gun from the wall. A.J. identified People’s exhibit Nos. 15 and 16H as a photograph of the gun
in its hiding place in the wall and a photograph of the wall without the gun, respectively. The
prosecutor presented A.J. with People’s exhibit No. 20F, a photograph of the recovered gun. A.J.
told the prosecutor that the photograph depicted the same gun that A.J. removed from the wall.
6 Also, A.J. recognized the gun as the same one that defendant had shown him a few days before
the shooting while A.J. was at defendant’s residence.
¶ 20 F. A.L.
¶ 21 A.L. testified that he was 13 years old at the time of trial. On August 10, 2016, at the time
of the shooting, A.L. was with J.R. and A.J. near the alley behind Vertez’s residence. A.L. observed
Hernandez and Guerrero in a vehicle. A.L. saw Vertez enter the vehicle. A person approached and
started shooting at the vehicle. A.L. testified that the man wore a dark-colored hooded sweatshirt
with the hood up. Upon hearing the gunshots, A.L. ran to see where the vehicle went. A.L. then
ran to his residence. A.L., J.R., and A.J. stayed at A.L.’s residence for approximately five minutes.
A.L., J.R., and A.J. then returned to the scene of the shooting where they saw a neighbor who let
them into Vertez’s house. After approximately an hour and twenty minutes, A.L., J.R., and A.J.
returned to A.L.’s residence. A.L. saw defendant in A.L.’s front yard, and defendant told A.L. to
leave. At the time, A.L. observed that defendant appeared to be nervous.
¶ 22 The following day, A.L. went to defendant’s residence and helped pack defendant’s clothes
into bags. He also helped to retrieve a gun from A.L.’s residence. The prosecutor displayed
People’s exhibit No. 16H, a photograph of the wall where the gun had been, and People’s exhibit
No. 20F, a photograph of the recovered gun, to A.L. A.L. testified that the gun depicted in the
photographs appeared to be the same gun retrieved from the wall at his residence. Initially, A.L.
stated that he could not remember who retrieved the gun from the wall, but later A.L. stated he
believed A.J. retrieved the gun. A.L. also testified that defendant had shown A.L. the same gun
before the shooting at defendant’s residence.
7 ¶ 23 G. Miguel Lopez
¶ 24 Miguel Lopez testified that his younger brother is J.R. J.R., A.J., and A.L. asked Lopez to
contact Beserra the day after Hernandez was shot. According to Lopez, defendant wanted Lopez
to deliver a gun to Beserra. J.R., A.J., and A.L. showed Lopez the gun behind the wall. Lopez
observed one of the boys take the gun from the wall. Lopez left the residence and returned
approximately an hour later. Then, J.R., A.J., and A.L. gave the gun to Lopez. Later that day,
Beserra drove Lopez to Iowa to dispose of the same gun by throwing it into a wooded area near
Davenport, Iowa.
¶ 25 According to Lopez’s testimony, Lopez helped law enforcement recover the gun at that
location. The prosecutor displayed two photographs, People’s exhibit No. 16H and People’s
exhibit No. 20F to Lopez, at which time Lopez testified that People’s exhibit No. 16H depicted
the gun on the wall and People’s exhibit No. 20F depicted the same gun that Lopez eventually
discarded in the woods.
¶ 26 H. Detective Jason Smith
¶ 27 Jason Smith testified that he was a detective with the Moline Police Department. On August
12, 2016, he conducted a search of defendant’s residence pursuant to a search warrant. Smith
located three black hooded sweatshirts inside a plastic garbage bag. The sweatshirts were collected
for testing. The sweatshirts were later admitted as People’s exhibits Nos. 24, 25, and 26.
¶ 28 I. Ellen Chapman
¶ 29 Ellen Chapman, a forensic scientist employed by the Illinois State Police Forensic Science
Center in Chicago, testified that she conducted a gunshot residue analysis of three black hooded
sweatshirts (People’s exhibits Nos. 24, 25, and 26) submitted to her by the Moline Police
Department. Chapman testified that on People’s exhibit No. 25 she found high levels of lead
8 particles and the presence of antimony—a substance commonly found in gunshot residue—on the
left cuff of the black sweatshirt. According to Chapman, the tests she conducted were inconclusive
because the black sweatshirt had particles consistent with gunshot residue, but those particles did
not test positive for gunshot residue.
¶ 30 J. Ann Yeagle
¶ 31 Ann Yeagle, a forensic scientist employed by the Illinois State Police, testified that she
discovered human DNA on the left side and back of the gun recovered by the Moline Police
Department, and later entered into evidence under People’s exhibit No. 9. Only the DNA from the
left side of the gun was suitable for comparison. Yeagle determined the DNA was a mixture of
two male contributors. Yeagle compared the sample to the DNA standards submitted by defendant,
Lopez, J.R., A.J., A.L, and Beserra. However, she could not exclude defendant, Lopez, J.R., A.J.,
A.L., or Beserra as the source of the DNA.
¶ 32 K. Detective Nathan Medinger
¶ 33 Detective Nathan Medinger was employed by the Moline Police Department when he
investigated the shooting that occurred on August 10, 2016. In an interview, Lopez described to
Medinger the location where Lopez disposed of the gun. Later, Lopez brought officers to the
described location and the gun was recovered. Medinger identified the recovered gun and the State
entered the gun into evidence under People’s exhibit No. 9.
¶ 34 Medinger opined that due to the location of the DNA and gunshot residue, the shooter was
likely left-handed. During Medinger’s investigation, Medinger conducted and recorded interviews
with defendant, Lopez, J.R., A.J, A.L., and Beserra. Defendant signed his Miranda waiver form
with his left hand and Lopez, J.R., A.J, A.L., and Beserra signed the form with their right hand.
9 ¶ 35 L. Anthony “Hoot” Beserra
¶ 36 Anthony “Hoot” Beserra testified that he was a longtime friend of defendant. The day after
the shooting, Beserra called Lopez. During this conversation, Lopez told Beserra that defendant
“stopped by and gave his brother something.” Beserra “just put two and two together, and just—
[he] went down there and then [he] *** picked [Lopez] up and [they] got rid of the gun.” Beserra
drove Lopez to Iowa where Lopez disposed of the gun. Beserra did not speak to defendant about
the shooting.
¶ 37 During his testimony, Beserra admitted that the prosecution agreed not to use Beserra’s
statements about the events surrounding Hernandez’s shooting against Beserra. Beserra also said
he had a criminal record and was on probation at the time of trial.
¶ 38 During the prosecutor’s redirect examination of Beserra, Beserra told the jury that he did
not want to testify against defendant. Beserra then explained that he decided to testify because he
was “trying to change [his] life.”
¶ 39 M. Attorney Aaron Dyer
¶ 40 Aaron Dyer testified that he was an attorney and represented Beserra on several prior
criminal matters. Dyer testified that he was involved in negotiations with the prosecution
concerning Beserra’s agreement to testify against defendant. The prosecutor asked Dyer the
following question: “Did you hear [Beserra] testify that he gave a statement because he’s in this
spot in his life and he wants to change?” When Dyer answered affirmatively, the prosecutor asked,
“In your opinion is that why he gave the statement?” Dyer believed Beserra testified because he
was “trying to make a change for the better for himself.”
10 ¶ 41 N. Closing Arguments and Jury Deliberations
¶ 42 During the prosecution’s initial closing argument, the State argued that defendant told J.R.,
A.J., and A.L. to give the gun to Beserra. The State contended that defendant said this because
“Beserra would know how to get rid of it.” The State continued, “Beserra did try to get rid of it.
He tried. And he did that for the defendant, his best friend of over ten years.” The prosecution
conceded that the DNA located on the left side of the recovered gun could not exclude defendant,
Lopez, J.R., A.J., A.L., or Beserra. However, the jury should consider the location of the DNA
evidence. Further, the prosecution argued that while the particles found on People’s exhibit No.
25—the left cuff of the black hooded sweatshirt were not conclusively gunshot residue, it argues
that the location of the high amounts of lead particles was important. The location of the DNA and
the lead particles corroborated that the shooter was also left-handed. Of the witnesses, defendant,
Lopez, J.R., A.J., A.L., and Beserra, only defendant was left-handed. Finally, as evidenced by J.R.,
A.J., and A.L.’s testimony, defendant had the motive and the means to shoot Hernandez.
¶ 43 In its closing argument, defense counsel referred to the prosecution’s witnesses as a group
of “twirps.” Defense counsel observed that the prosecution’s witnesses were “not particularly
credible.” Defense counsel told the jury that “[y]ou can believe [the State’s witnesses] if you
choose to, but I suggest that’s not credible based upon the entirety of their testimony and the other
facts of this case.”
¶ 44 Defense counsel then told the jury that it thought Beserra “was being very honest.” Counsel
argued as follows:
“[Beserra] told you that he is mending his ways. He’s going to change his life
around and that is to be commended. *** [Beserra], by all intents and purposes, his
11 presence here, he testified here as the State wanted him to do, because he had
committed a crime and they had given him immunity.”
¶ 45 In rebuttal, the State argued, “Now, Anthony Beserra, boy, if there was ever a prodigal son,
*** I would submit to you that if his testimony wasn’t the truth, he wouldn’t be here joining us
today.” Defense counsel did not object to the State’s argument. The court instructed the jury that
counsel’s arguments were not evidence and “[a]ny statement by the attorneys that is not based
upon evidence should be disregarded.” The court also instructed the jury that only they were the
“judges of the believability of the witnesses and the weight to be given to the testimony of each of
them.”
¶ 46 During deliberations, the jury requested transcripts of the testimony of J.R., A.J, and A.L.
Instead of sending the transcripts to the jury room, the court suggested playing the recorded audio
of each witness’s testimony in the courtroom with the jurors and parties present. Neither party
objected. The court admonished the parties not to speak in the presence of the jury and brought the
jury into the courtroom. The court reporter played the recording of J.R.’s testimony for the jury
while the parties were present in the courtroom. No one spoke while the recording played. After
the jury heard J.R.’s recorded testimony, the foreperson of the jury sent a note to the court. The
foreperson’s note stated that the jury did not need to hear the recordings of A.J. and A.L.’s
testimony.
¶ 47 The jury found defendant guilty of aggravated battery with a firearm. The court sentenced
defendant to 18 years’ imprisonment. Defendant appeals.
¶ 48 II. ANALYSIS
¶ 49 On appeal, defendant raises two contentions of error in support of his request for this court
to reverse his conviction and remand the matter for a new trial. First, defendant contends that a
12 pattern of prosecutorial misconduct resulted in an unfair trial. Second, defendant claims judicial
error arose when the trial court arranged for the jury to listen to recorded testimony after
deliberations began. The State submits that neither prosecutorial misconduct nor judicial error
exists in this case. In addition, the State observes that neither issue was properly preserved by
defense counsel for our review.
¶ 50 Defendant acknowledges that he failed to preserve both of these issues for appellate review.
See People v. Johnson, 238 Ill. 2d 478, 484 (2010) (“When, as here, a defendant fails to object to
an error at trial and include the error in a posttrial motion, he forfeits ordinary appellate review of
that error.”). However, defendant argues his forfeiture of both issues should be excused based on
the application of the second prong of plain error doctrine.
¶ 51 The plain error doctrine provides a limited exception to the general rule of forfeiture. The
first step of the plain error analysis determines whether a clear or obvious error occurred. People
v. Piatkowski, 225 Ill. 2d 551, 565 (2007). A defendant may establish plain error by either showing
that (1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against him, or (2) the error is so serious that it affected the fairness of his trial and challenged the
integrity of the judicial process, regardless of the closeness of the evidence. People v. Sebby, 2017
IL 119445, ¶¶ 50, 51.
¶ 52 Notably, defendant does not rely on the first prong of plain error by claiming the evidence
was closely balanced. Instead, defendant asserts that his forfeiture should be excused based on the
second prong of plain error. In essence, defendant agues the pattern of prosecutorial misconduct,
together with judicial error, compromised the integrity of the judicial process. Id. ¶ 50.
13 ¶ 53 A. Prosecutorial Misconduct
¶ 54 Defendant challenges his conviction by claiming he was denied a fair trial due to the
cumulative impact of the following four acts of prosecutorial misconduct: (1) improperly
bolstering the credibility of the State’s witness, Beserra, by presenting testimony from Beserra’s
attorney; (2) improperly vouching for Beserra’s credibility during the State’s rebuttal argument;
(3) improperly presenting misleading expert testimony that was not relevant to guilt or innocence;
and (4) improperly indoctrinating the jury to view the upcoming testimony of the State’s witnesses
without considering the age or prior record of the witnesses. We begin our plain error analysis by
first considering whether the alleged prosecutorial misconduct, if any, rises to the level of “clear
or obvious” error. See Piatkowski, 225 Ill. 2d at 565.
¶ 55 1. Voir Dire
¶ 56 Defendant argues the prosecutor unfairly indoctrinated the jury by asking a series of
improper questions during voir dire. Defendant takes issue with the following questions: “did any
potential jurors have experience with teenagers[?]; did the jurors know when teenagers were being
truthful[?]; did any jurors watch crime shows and were they aware that forensic evidence was not
always presented[?]; could anyone not find [defendant] guilty without forensic evidence[?]; and
would any juror not believe a witness with a criminal record[?]”
¶ 57 The case law instructs that an attorney’s voir dire examination “must not be ‘a means of
indoctrinating a jury, or impaneling a jury with a particular predisposition.’ [Citation.] Rather than
a bright-line rule, this is a continuum. Broad questions are generally permissible.” People v.
Rinehart, 2012 IL 111719, ¶ 17 (quoting People v. Bowel, 111 Ill. 2d 58, 64 (1986)). Our supreme
court has held that “The purpose of voir dire is to ascertain sufficient information about
prospective jurors’ beliefs and opinions so as to allow removal of those members of the venire
14 whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in
accordance with their oath.” People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993). In other words,
the State may always make inquiries to ascertain whether a potential juror may have deep-seated
beliefs that might prevent that particular juror from returning a guilty verdict when the State’s
evidence is sufficient. People v. Faulkner, 186 Ill. App. 3d 1013, 1025 (1989).
¶ 58 In this case, the prosecutor’s questions during voir dire were very broad. For example, the
prosecutor asked generic questions designed to reveal whether a potential juror might be unaware
of his or her own bias about the inability of a juvenile witness to testify truthfully. In addition, the
prosecutor advanced broadly worded questions to determine if a potential juror would
automatically discredit the testimony of any witness with a previous criminal history. Based on
our careful review of the record, we conclude the prosecutor’s questions about credibility matters
were proper and did not involve any prosecutorial misconduct in the form of indoctrinating this
jury.
¶ 59 Next, defendant claims the prosecutor indoctrinated the jury by asking whether the jurors
understood that real criminal investigations are not like the criminal investigations depicted in
fictional television programs. The prosecutor asked, “Do any of you believe that you could never
find somebody guilty if there’s zero forensic evidence? *** If there’s other evidence but it’s not
forensic evidence, that you could never find somebody guilty?”
¶ 60 Given the prevalence of forensic-based true-life crime dramas, together with a plethora of
fictional law enforcement programs available to the public, this question was proper. The
prosecutor’s line of questioning would help determine if a potential juror could keep an open mind
about the State’s evidence, even if that evidence did not include conclusive forensic evidence.
Again, these questions were proper and broad enough to allow the State to determine a potential
15 juror’s misconception that forensic evidence was required in order to sustain the State’s burden of
proof beyond a reasonable doubt. Therefore, we conclude that prosecutorial misconduct did not
take place during voir dire.
¶ 61 2. Dyer’s Testimony
¶ 62 Next, we consider defendant’s contention that the State impermissibly bolstered Beserra’s
testimony by presenting Beserra’s defense counsel as a State’s witness. The obvious purpose for
offering testimony from Beserra’s attorney was to inform the jury that this attorney knew Beserra
well, and based on this knowledge, the attorney opined that Beserra testified against his friend only
because Beserra was “trying to make a change for the better.”
¶ 63 The case law is clear and establishes “it is generally improper to ask one witness to
comment directly on the credibility of another witness” except for, in some cases, after the
opposing party had attacked that witness’s character. People v. Becker, 239 Ill. 2d 215, 236 (2010);
Ill. R. Evid. 608 (eff. Jan. 6, 2015). Here, such an attack on Beserra’s altruistic motivation did not
occur. Therefore, simple prosecutorial error results from calling Beserra’s attorney as a witness
but does not rise to the level of prosecutorial misconduct.
¶ 64 3. Forensic Evidence
¶ 65 Defendant argues that the State improperly misled the jury by introducing inconclusive
DNA and gunshot residue evidence. 1 Claiming that this evidence had no relevance, defendant
asserts that it was prosecutorial misconduct to introduce such evidence. In contrast, the State
argues the fact that defendant could not be excluded as a potential contributor to the DNA on the
gun and this fact rendered the DNA evidence relevant.
1 Chronologically, the jury received Dyer’s testimony after the testimony concerning gunshot residue but before the testimony concerning DNA analysis. To reduce redundancy, we address all of the scientific testing together.
16 ¶ 66 Generally, “[a]ll relevant evidence is admissible, except as otherwise provided by law.” Ill.
R. Evid. 402 (eff. Jan. 1, 2011). Relevant evidence is evidence “having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant
evidence may be excluded “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Ill. R. Evid. 403 (eff. Jan.
1, 2011).
¶ 67 Here, the DNA evidence and gunshot residue evidence had relevance because it
demonstrated that the State attempted to, but could not, conclusively link defendant to the gun that
was recovered with the assistance of Lopez. This evidence was relevant for two reasons. First, it
allowed the jury to consider that defendant had not been completely excluded as the DNA
contributor. Second, this evidence wards off the possibility that the defense might successfully
convince a juror that the prosecution’s case was based on an incomplete investigation that did not
make an attempt to conduct DNA testing.
¶ 68 Finally, we would be remiss without noting that the prejudicial impact of this inconclusive
evidence was very slight. It is entirely possible that some jurors considered this DNA evidence to
be exculpatory in nature. Therefore, the introduction of the inconclusive DNA and gunshot residue
test results was proper.
¶ 69 4. State’s Rebuttal Argument
¶ 70 Defendant argues the State improperly vouched for the credibility of Beserra by
characterizing Beserra as the “prodigal son” and then suggesting that “if [Beserra’s] testimony
wasn’t the truth, he wouldn’t be here joining us today.” While prosecutors generally have a wide
17 latitude when delivering closing arguments, a prosecutor may not vouch for the credibility of a
witness, because there is a reasonable possibility that “ ‘ “the prosecutor’s opinion carries with it
the imprimatur of the Government and may induce the jury to trust the Government’s judgment
rather than its own view of the evidence.” ’ ” People v. Williams, 2015 IL App (1st) 122745, ¶ 13
(quoting People v. Townsend, 136 Ill. App. 3d 385, 402 (1985), quoting United States v. Young,
470 U.S. 1, 18-19 (1985). Here, the prosecutor’s rebuttal argument improperly vouched for the
credibility of Beserra by implying that if the prosecutor believed Beserra was not being truthful,
then Beserra “wouldn’t be here joining us today.” This argument violated the well accepted
boundaries for proper prosecutorial argument, even in the context of rebuttal argument.
¶ 71 5. Integrity of the Judicial Process
¶ 72 Here, defendant argues the cumulative effect of all four prosecutorial errors, alleged above,
constitutes second prong plain error. Importantly, defendant has not suggested that structural error
can be attributed to any one of the four individual errors, standing alone. Obviously, the cumulative
impact of two prosecutorial errors is greatly reduced from the cumulative impact of all four
purported prosecutorial missteps identified by defendant.
¶ 73 Defendant did not make any incriminating admissions to Beserra. Beserra was not an
eyewitness to the shooting. Other State witnesses gave consistent testimony placing defendant in
close proximity to the shooting shortly after the shooting occurred. One witness testified that
defendant made an incriminating remark about his role in the shooting. In contrast, Beserra’s
testimony was limited to events resulting in Beserra and Lopez’s disposal of a gun, without any
purported involvement from defendant in that process. After carefully reviewing the record, it
becomes apparent that the cumulative impact of the prosecutor’s erroneous decision to first bolster
the credibility of an ancillary witness and then vouch for that witness’s credibility did not result in
18 an unfair trial that lacked integrity or rose to the level of second prong plain error. Therefore,
forfeiture controls.
¶ 74 B. Jury Deliberation
¶ 75 Lastly, defendant argues the circuit court committed error when it allowed the jurors to
return to the courtroom after the jury began their deliberations. The record reveals that in response
to the jury’s note requesting to review the testimony of several witnesses, the circuit court
permitted the jury to return to the courtroom for the purpose of listening to an audio recording of
J.R.’s testimony. The record also indicates that the parties and the judge were present together in
the courtroom when the audio recording was published to the jury.
¶ 76 At the time the trial court was called upon to determine the best approach to provide the
jury with the information request, our supreme court had not decided People v. Hollahan, 2020 IL
125091. In that case, our supreme court settled existing conflicts in the case law by holding that,
“a court may, after submission of the case to the jury, suspend deliberations and bring the jury
back into the courtroom for supplemental instruction, when warranted, or even allow the jurors to
separate temporarily outside the presence of a court officer with proper admonishments.” Id. ¶ 25.
In this case, the circuit court followed a procedure that was consistent with this holding. Therefore,
based on the rationale of Hollahan, the circuit court did not err by allowing the jury to listen to
recorded testimony in the courtroom during a short break in the jury deliberations.
¶ 77 III. CONCLUSION
¶ 78 The judgment of the circuit court of Rock Island County is affirmed.
¶ 79 Affirmed.
19 ¶ 80 JUSTICE HOLDRIDGE, specially concurring:
¶ 81 I agree with the disposition in this case. However, I write separately to clarify my
position on two points. First, the majority finds that (1) the State committed “simple
prosecutorial error” when it called Dyer as a witness, and (2) the State’s rebuttal argument
“violated the well accepted boundaries for proper prosecutorial argument.” Supra ¶¶ 63, 70. I
find it necessary to expound on this analysis.
¶ 82 Like the majority, I find that the State committed a plain error by presenting Dyer’s
testimony, which improperly bolstered Beserra’s credibility. “[I]t is generally improper to ask one
witness to comment directly on the credibility of another witness” absent an attack to the witness’s
credibility. Becker, 239 Ill. 2d at 236; Ill. R. Evid. 608 (eff. Jan. 6, 2015). From my review, I find
that defense counsel did not directly attack Beserra’s character or credibility. Thus, the State could
not use Dyer’s testimony to comment on Beserra’s credibility. At most, defense counsel confirmed
information that the State had already asked of Beserra on direct examination. Therefore, the State
committed a plain error by eliciting Dyer’s opinion testimony as to Beserra’s character. See Ill. R.
Evid 608 (eff. Jan. 6, 2015).
¶ 83 I also find that the State erred by improperly vouching for the credibility of Beserra in its
rebuttal argument. The State characterized Beserra as the “prodigal son” and stated that “if his
testimony wasn’t the truth, he wouldn’t be here joining us today.” While the State may comment
“on the evidence and on any fair and reasonable inference” that may be derived from that evidence
(People v Jackson, 2020 IL 124112, ¶ 82), its argument in this case went too far. The State’s
comments could reasonably induce the jury to trust the State’s judgment over their own. Moreover,
the prosecutor’s characterization of Beserra as the “prodigal son” is particularly problematic as it
likened a key prosecution witness to the protagonist in the well-known biblical parable. The State’s
20 second comment about Beserra’s credibility compounded this error as it further bolstered Beserra’s
testimony. These comments reasonably could have induced the jury to trust the State’s evidence
over its own view. Therefore, the State’s comments about Beserra’s credibility were plain error.
¶ 84 After carefully reviewing the errors, I too conclude that the combination of these two errors
does not rise to the magnitude of reversible structural errors under the second prong of the plain
error doctrine. People v. Glasper, 234 Ill. 2d 173, 197-98 (2009). In particular, I note that the
State’s improper argument possessed very little prejudicial effect as, immediately after the State’s
comments in rebuttal, the court instructed the jury that the parties’ arguments were not evidence,
that “[a]ny statement by the attorneys that is not based upon evidence should be disregarded,” and
that only the jury were the “judges of the believability of the witnesses.” The combined effect of
these errors did not create a pervasive pattern of unfair prejudice such that a new trial is warranted.
See People v. Howell, 358 Ill. App. 3d 512, 526 (2005).
¶ 85 This conclusion should not be interpreted in any way as condoning the conduct of the State
in this case. Although such prosecutorial misconduct may not always amount to reversible error
or require a new trial (see People v. Johnson, 208 Ill. 2d 53, 88-117 (2003)), it is highly
inappropriate, and I strongly condemn the State’s conduct in this case (see People v. Moss, 205 Ill.
2d 139, 171 (2001)).
¶ 86 Second, as the authoring justice of People v. Hollahan, 2019 IL App (3d) 150556, I
recognize that the supreme court has since held that it is acceptable for the court to suspend jury
deliberations and allow the jury to review video or audio evidence in the courtroom in the presence
of the court, the prosecutor, the defendant, and defense counsel (Hollahan, 2020 IL 125091, ¶¶ 24-
27). Nonetheless, I maintain that the best practice in such situation remains that which I outlined
in Hollahan, 2019 IL App (3d) 150556, ¶¶ 20-23, 28. The jury should have the opportunity to
21 review the video or audio evidence in the jury room alone. Id. ¶ 27. “[I]f, for some reason, a video
or audio recording must be played for a deliberating jury in the courtroom, the jury should view
the video in private, not in the presence of the parties, their attorneys, or the trial judge.” Id. ¶ 28.
Thus, while it was proper for the court to permit the jury to listen to the audio recording of J.R.’s
testimony, best practice prescribes allowing the jury to listen to such a recording outside the
presence of anyone else.
¶ 87 JUSTICE LYTTON, specially concurring.
¶ 88 I concur with Justice Wright’s majority order. I also concur with paragraphs 81-85 of
Justice Holdridge’s special concurrence. As to paragraph 86, I agree with Justice Carter in his
dissent in People v. Hollahan, 2019 IL App (3d) 150556, when he said, “[t]he mode and manner
in which a trial court allows a jury to review a piece of evidence during jury deliberations falls
within the scope of the court’s inherent authority to manage its courtroom and is a matter of the
court’s discretion.” Id. ¶38. “With all due respect, the majority’s position on this issue is a radical
departure from the traditional way reviewing courts have treated questions involving the integrity
of jury deliberations.” Id. ¶41.