People v. Harris

2020 IL App (5th) 160454

Opinion

2020 IL App (5th) 160454 NOTICE Decision filed 12/21/20. The text of this decision may be NO. 5-16-0454 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Alexander County. ) v. ) No. 15-CF-35 ) MARQUAD HARRIS, ) Honorable ) Mark H. Clarke, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court, with opinion. Justices Welch and Moore concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Marquad Harris was convicted of first degree murder

(720 ILCS 5/9-1(a)(1) (West 2014)). The jury also found that defendant personally discharged a

firearm that proximately caused the death of Christopher Nelson (730 ILCS 5/5-8-1(a)(1)(d)(iii)

(West 2014)). Defendant was 18 years old at the time of the offense. Following a sentencing

hearing, the trial court sentenced defendant to 51 years in the Illinois Department of Corrections

(IDOC). On appeal, defendant challenges both his conviction and sentence. First, defendant

argues that the admission of the dying declaration by the victim, Nelson, violated defendant’s

sixth amendment right to confront witnesses against him, where Nelson identified the defendant

as the shooter. Next, defendant claims that his case should be remanded for a new trial because

the testimony of a newly discovered witness provides defendant with an alibi defense. In his final

1 challenge to his conviction, defendant asserts that he was denied a fair and impartial trial because

the jury’s foreman had a work and familial relationship with Nelson’s father. In challenging his

sentence, defendant submits that his 51-year sentence is a de facto life sentence and violates the

Illinois proportionate penalties clause. For the following reasons, we affirm defendant’s

conviction and sentence.

¶2 I. BACKGROUND

¶3 A. Pretrial Proceedings

¶4 On June 16, 2015, the State charged the defendant by information with five counts of first

degree murder (720 ILCS 5/9-1(a)(1) (West 2014)) related to the shooting death of Nelson. Each

count of the criminal information charged a different theory of first degree murder. Count I

alleged that defendant intended to kill Nelson. Count II alleged that defendant intended to cause

Nelson great bodily harm. Count III alleged that defendant knew shooting Nelson would cause

his death. Count IV alleged that defendant knew that shooting Nelson created a strong

probability of death and caused the death of Nelson. Finally, count V alleged that defendant

knew that shooting Nelson created a strong probability of great bodily harm and caused the death

of Nelson. The information also indicated that the State sought a sentencing enhancement,

alleging that defendant personally discharged a firearm that proximately caused Nelson’s death

(720 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2014)).

¶5 Prior to trial, the State filed a “Motion in Limine to Introduce Dying Declaration.” The

motion in limine alleged that Nelson made a statement to police, while Nelson knew he was

dying, and that the statement implicated defendant as the individual who shot Nelson. Nelson

subsequently died as a result of the gunshot wounds. At the hearing on the motion in limine, trial

counsel conceded that Nelson’s statements to police identifying defendant as the shooter were

2 admissible as an exception to the hearsay rule. The trial court granted the State’s motion

in limine but indicated that the State would still be required to lay an adequate foundation at trial

before Nelson’s statements could be admitted into evidence. At two other pretrial hearings, the

trial court inquired of defendant as to whether he would be calling any witnesses in his defense.

Defendant confirmed that he had talked with his attorney about the decision not to call any

witnesses in defendant’s case and that defendant agreed with the decision.

¶6 B. Jury Trial

¶7 The case proceeded to a jury trial on March 8, 2016. During voir dire, the trial court, the

State, and defense counsel each asked questions of the entire jury panel. One of the panel

members, Hubert Pirtle, ultimately was selected as a juror to serve on defendant’s case. Mr.

Pirtle is the subject of one of defendant’s claims on appeal. During the trial court’s questioning,

Pirtle revealed that he was retired from the “Bunge” company, after 37 years, and was a pastor.

The trial court asked, generally of the panel, whether anyone on the entire panel of veniremen

knew the victim, Nelson, or had heard or read anything about the case. Pirtle did not respond to

these questions. Finally, the trial court asked the venire panel:

“Do any of you know of any reason, whether I’ve asked you about it or not,

whether because of some experience in life or association, personal or

professional or otherwise, do any of you know of any reason why you should not

serve as a juror in this case this week? Any concerns about your ability to serve,

whether I’ve asked you about it or not, you should volunteer that information now

so that we can talk about it.”

3 Again, Pirtle did not respond to the trial court’s inquiry. The trial court, the State, and the

defense all failed to ask whether the members of the panel knew any of Nelson’s family

members.

¶8 During the evidentiary portion of the trial, the following evidence was produced. On June

12, 2015, at 9:25 p.m., members of the Cairo Police Department, including Office Kenneth

Blackburn, responded to a shooting call at the residence of Christopher Nelson. Officer

Blackburn testified that he entered the kitchen through the rear door, and Nelson was lying on

the kitchen floor “squirming around.” Nelson had suffered several gunshot wounds. Officer

Blackburn testified that as he was caring for Nelson, he said “he was shot by Marquad Harris,

A[imee] Harris’ son.” Officer Blackburn also testified that Nelson stated that he was dying. Body

camera footage that had captured the interaction between Officer Blackburn and Nelson was

admitted into evidence without objection from defense counsel. According to the body camera

footage, the following exchange occurred:

“OFFICER BLACKBURN: Keep that arm right here.

VICTIM: I’m gonna die.

OFFICER BLACKBURN: No, you’re not buddy, just keep breathing for me. Ok?

Who shot you?

VICTIM: Marquad Harris.

OFFICER BLACKBURN: Marquad Harris?

VICTIM: Aimee Harris’s son.

OFFICER BLACKBURN: Where’d he go?

VICTIM: He took off runnin’ [sic].

OFFICER BLACKBURN: What’d he shoot you with?

4 VICTIM: I don’t know.

OFFICER BLACKBURN: Was it a handgun?

VICTIM: Yeah.

OFFICER BLACKBURN: Just keep breathing for me ok? Keep talking to me

too, alright?”

Officer Blackburn testified that he believed Nelson was coherent when Nelson answered Officer

Blackburn’s questions.

¶9 Officer Barbie Braddy testified that she interviewed Nelson’s eight-year-old son, C.N. Jr.

(C.J.), on the night of June 12, 2015. C.J. was in the house at the time of the shooting and was

also the defendant’s half-brother. The recorded interview was admitted into evidence. During the

interview, C.J. stated that defendant came to Nelson’s house “around dark,” and defendant and

C.J. played basketball. Defendant and Nelson subsequently got into an argument, and the

defendant left. According to C.J., he and Nelson then went into the house. Defendant returned,

and Nelson went to confront the defendant. C.J. stated that he saw the defendant shoot Nelson

with a pistol three times. C.J. stated that Nelson was holding a “shotgun” by his side but never

pointed it at the defendant. C.J. called the police and told them his father had been shot.

¶ 10 At trial, C.J. testified that he normally goes to bed around 9 p.m. and was in bed when

defendant came to Nelson’s house “a little before sunset.” C.J. then went outside to play

basketball with the defendant. C.J. stated that defendant and Nelson started arguing, and

defendant left the house. C.J. claimed that “some other dude” then came to the house a few

minutes after the defendant left and shot Nelson. C.J. stated that he could not see the shooter

because it was dark outside. C.J. acknowledged that he previously told police that defendant shot

5 Nelson but indicated that his former statement was not true. C.J. testified that he told police the

first statement because Nelson told C.J. that defendant shot Nelson.

¶ 11 Officer Shawn Stone testified that he arrived at Nelson’s house at 9:25 p.m. and observed

shell casings and shattered glass on the porch and rear interior door of the house. Officer Stone

spoke to C.J., who said that “his brother shot his dad.” C.J. identified his brother as the

defendant. Officer Stone collected shell casings and a pellet gun that resembled a rifle, lying near

the victim. Officer Stone later received a call at 10:28 p.m. stating that officers had a suspect in

custody at the McBride housing complex (McBride). Officer Stone went to that location and

transported the defendant to the police department.

¶ 12 Officer Jerren Carlton testified that he received a call to patrol the area and search for the

defendant, who was a suspect in a shooting. Officer Carlton went to McBride because he had

seen the defendant there earlier in the day and had briefly spoken with him. Upon his arrival to

McBride, Officer Carlton saw the defendant walking alone and arrested him. The defendant did

not resist arrest and was cooperative. When he arrested the defendant, Officer Carlton found a

key and cell phone in defendant’s pockets. Officer Carlton placed the items on the hood of his

car but forgot to remove them when he left the area. He subsequently returned, with other

officers, to search for the key and phone but could not locate the items.

¶ 13 Officer Ray Sutton, a crime scene investigator, identified several pictures of the crime

scene and a computer-generated diagram he had created to provide an “orientation of the rooms

in the house” to indicate where Officer Sutton located various items of evidence. Officer Sutton

testified that he had collected four discharged cartridge casings and a pellet gun from Officer

Stone. Officer Sutton also recovered a projectile fragment on the porch and a projectile from the

inside of the rear kitchen door. Officer Sutton swabbed areas in the kitchen that had red stains,

6 which appeared to be blood. Officer Sutton then attended the autopsy, where he took several

photographs of the victim’s body and collected two projectiles that were removed from the

victim. Finally, Officer Sutton collected defendant’s clothing from the night of his arrest, which

included a red T-shirt, tan cargo shorts, a brown belt, and two red tennis shoes. Officer Sutton

confirmed that the police lab had tested the defendant’s clothing and shoes for glass, and that the

tests were negative. Scott Rochowicz, a forensic scientist, tested defendant’s T-shirt for gunshot

residue, and the results were also negative.

¶ 14 Dr. James Jacobi testified that he performed the autopsy on Nelson’s body. Dr. Jacobi

testified that Nelson suffered gunshot wounds to his upper chest on the left side of his body, as

well as to his abdomen, near the left side of his navel, and to his right thigh, his right pelvis, and

his left wrist. The bullet that entered Nelson’s abdomen traveled upward, into his right lung. Dr.

Jacobi testified that the cause of death was “massive loss of blood” from this injury. Dr. Jacobi

further opined that Nelson lost enough blood to lose consciousness within a couple of minutes,

“possibly longer, possibly less.” Dr. Jacobi stated that Nelson would have been able to speak,

until he passed out from loss of blood, and that there was no reason Nelson could not be

coherent, at least initially.

¶ 15 Trooper Tim McDaniel interviewed the defendant regarding the shooting. Prior to

interviewing the defendant, Trooper McDaniel read the defendant his Miranda rights. The

defendant signed a written form, indicating that he understood those rights. The defendant’s

interview was recorded and admitted into evidence. During his interview, the defendant claimed

he was at McBride when the shooting occurred and provided the names of different people he

claimed were near him at the time. The defendant initially stated that he had gone to Nelson’s

house to play basketball with C.J. between 6 p.m. and 7 p.m. The defendant stated that, after he

7 left Nelson’s house and went to McBride, he heard “two to three” gunshots “one to two hours”

after returning to McBride. The defendant later indicated that he was playing basketball with C.J.

at Nelson’s house “probably an hour” before the shooting. The defendant denied returning to

Nelson’s house after defendant left and maintained that he did not shoot Nelson.

¶ 16 The defendant also stated that Nelson had issues with a neighbor named “Nepo” but

could not state whether Nepo was involved in the shooting. The defendant subsequently told

police that Nelson had pulled a gun on defendant before he left Nelson’s house. The defendant

claimed he told an associate of his, Mace Paris, what had happened and provided Paris with the

location of Nelson’s house. The defendant allegedly told Paris not to worry about the situation,

but Paris went to Nelson’s house to “holler” at him. Paris later called the defendant and told him

“what [Paris] did.” The defendant claimed that he and Paris looked alike. The interview

subsequently terminated. The interview began at 1:14 a.m. and concluded at 4:30 a.m.

¶ 17 Finally, Angela Horn, a forensic scientist, testified that each of the bullets recovered were

of the same caliber and had the same general rifling characteristics, but were not suitable for

comparison to each other. The bullets were also of the same class as the shell casings. Horn

confirmed that the bullets were likely fired from the same gun but did not have a gun to

determine whether the bullets were fired from any particular weapon.

¶ 18 Subsequent to the conclusion of the State’s case-in-chief, the defendant testified in his

own defense. The defendant maintained that he did not shoot Nelson. The defendant affirmed

that he did not have any issues with Nelson and considered him a friend. The defendant could not

provide the names of anyone defendant was with during the time of the shooting because he was

“generally in a large group of folks that night.” The defendant further admitted that the

statements he made to police about Mace Paris and about Nelson pulling a gun on the defendant

8 were not true. The defendant claimed that he was tired, under the influence of marijuana, and felt

bullied and pressured when he gave the interview.

¶ 19 Following deliberations, the jury found the defendant guilty of first degree murder. The

jury also found that the defendant personally discharged a firearm that proximately caused

Nelson’s death.

¶ 20 C. Posttrial Proceedings

¶ 21 After trial, the defendant raised concerns regarding the adequacy of his trial counsel. The

trial court conducted an inquiry in accordance with the guidelines of People v. Krankel, 102 Ill.

2d 181 (1984). Following the hearing, Donna McCann, 1 was appointed as new counsel for the

defendant. With new posttrial counsel, the defendant filed a “Motion for Judgment

Notwithstanding the Verdict or a New Trial.” In his posttrial motion, the defendant made several

challenges to his conviction. The defendant submitted, inter alia, that (1) the admission of

Nelson’s dying declaration violated the defendant’s sixth amendment right to confrontation,

(2) newly discovered evidence would probably change the result on retrial, and (3) defendant

was denied a fair trial because juror Hubert Pirtle did not disclose that he had a work and familial

relationship with Nelson’s father. Counsel attached a statement from a new witness, Kenyatta

Jones, to the motion. In the statement, Jones stated that she saw defendant at McBride on June

12, 2015, and told Officer Carlton that defendant had not done anything wrong and had been at

McBride. According to the statement, Officer Carlton did not respond to Jones but returned to

McBride later to ask if anyone had seen keys and a phone. The State filed an answer and

accompanying brief in opposition to the defendant’s posttrial motion. The trial court set the

posttrial motion for hearing.

1 The record reveals that defendant was also represented by Patrick McCann of the law firm McCann and McCann. We will collectively refer to both Donna McCann and Patrick McCann as “posttrial counsel” unless a distinction is necessary. 9 ¶ 22 At the hearing on the posttrial motion, the defendant called several witnesses. Officer

Blackburn, who had also testified at trial, testified about his interaction with Nelson when

Officer Blackburn arrived on the scene. This interaction had been captured on his body camera,

and the video footage was admitted into evidence at the defendant’s trial. Officer Blackburn

testified that he asked Nelson who shot him in order to identify a suspect and “bring justice” for

Nelson’s murder. When Officer Blackburn was talking to Nelson, Officer Blackburn was

concerned that someone might have a gun in town, and Officer Blackburn did not know the

whereabouts of that individual. Officer Blackburn affirmed that Nelson did not have any trouble

speaking or verbalizing. At the scene of the shooting, Officer Blackburn was not rendering

medical treatment to Nelson and was waiting for first responders to arrive.

¶ 23 Kenyatta Jones testified that she lived in McBride. Jones was also being represented by

posttrial counsel Donna McCann in an unrelated child custody case. Jones testified that on June

12, 2015, she was at McBride with a group of people and saw the defendant prior to seeing and

hearing police and ambulance sirens passing by McBride. Jones did not know defendant

personally, but knew of him and knew his name. Jones stated that the defendant had been present

“long before” the sirens. Jones stated that she could not provide a specific time but believed the

defendant was at McBride “for a few hours.” Jones admitted that she could not account for the

defendant’s whereabouts at all times but claimed that the defendant was at McBride the entire

time she was there. Jones asserted that, when the defendant was being arrested by Officer

Carlton, she told Officer Carlton that the defendant “had been in the projects this whole time.”

Jones stated that Officer Carlton did not respond to her and left with the defendant. She testified

that Officer Carlton later returned and asked if anyone had seen keys and a cell phone. Following

that evening, Jones never made any statements to the police, the State, or a defense attorney

10 regarding what she had witnessed. Despite knowing the defendant was in jail, she never came

forward during the pendency of the defendant’s case. After the trial, following a conversation

with one of Nelson’s family members, Jones decided to come forward. She then informed her

attorney, posttrial counsel Donna McCann, of what she knew and was encouraged to make a

statement.

¶ 24 With regard to juror Pirtle, Melvin Davis testified that he was Nelson’s father and had

been married to Pirtle’s half-sister. During this marriage, Davis did not know Pirtle. According

to Davis, he was only married to Pirtle’s sister for eight months and estimated the divorce was

finalized “a year or year and a half after that.” Nelson was not born until after this marriage, and

Davis confirmed that Pirtle was never an uncle to Nelson. Davis did not meet Pirtle until Davis

began working at Bunge. Further, while at Bunge, Davis worked in the processing department

and Pirtle operated the boiler. Davis estimated that 6 of the 60 workers at Bunge were black,

including Pirtle, and Davis knew them all. Davis testified that he sometimes ate lunch with Pirtle

and filled in for Pirtle occasionally, when needed. Davis and Pirtle were members of the same

union but did not work on union issues together. Davis only considered his fellow employees as

coworkers and stated that he and Pirtle did not socialize outside of work together.

¶ 25 Tara Harris, the defendant’s aunt, testified that she did not attend the jury selection

portion of the defendant’s trial. Tara attended the remainder of the trial and recognized Pirtle.

Tara stated she knew that Pirtle worked with Davis at Bunge. Before closing arguments, Tara

informed trial counsel of Pirtle and Davis’s work relationship. Tara testified that trial counsel

told her that he believed there was reasonable doubt and “figured he would win.”

¶ 26 Hubert Pirtle also testified regarding his work and familial relationship with Davis. Pirtle

stated that he had worked at Bunge for 37 years, and knew Davis, although they worked in

11 different departments. Pirtle did not believe that Davis would fill in for Pirtle when he went on

vacation. Pirtle also stated that he and Davis were members of the same union and that he “knew

all the blacks” who worked at Bunge. Pirtle testified that he did not socialize with Davis outside

of work and generally saw Davis at union meetings or mandatory safety meetings. When asked if

Pirtle knew that Nelson worked at Bunge, Pirtle stated he did not. Pirtle also confirmed that he

did not know Nelson when he was alive. Regarding the marriage to Pirtle’s sister, Pirtle knew

that she had been married to Davis, but did not know Davis during that time. During their

marriage, Pirtle did not spend time with either his sister or Davis. Pirtle indicated that he realized

Nelson was Davis’s son during voir dire, when he saw Davis in the courtroom with a woman

Pirtle recognized. Pirtle recalled that Davis and the woman had been together and had children in

the past. Pirtle then came to the belief that Davis was Nelson’s father. Pirtle did not inform the

trial court or anyone else that he knew Davis because Pirtle did not believe it affected his ability

to remain impartial.

¶ 27 Aimee Harris, defendant’s mother, testified that she had been married to Nelson and

knew Pirtle from living in Cairo, Illinois. Aimee claimed that Nelson worked at Bunge in 2006

and that Pirtle gave Nelson a ride home from work one evening.

¶ 28 The State did not present any witnesses but requested that the court admit into evidence

certified copies of the marriage license and the judgment of dissolution of marriage between

Davis and Pirtle’s sister. The documents showed that Davis and Pirtle’s sister married on

September 18, 1975, and their marriage was dissolved on September 17, 1979. After hearing the

parties’ arguments, the trial court took the matter under advisement.

¶ 29 The trial court subsequently entered a written order denying the defendant’s posttrial

motion for a new trial. In the trial court’s order, the trial court found, inter alia, that Nelson’s

12 statements were admissible as a dying declaration and did not violate defendant’s sixth

amendment right to confrontation because the statements were made during an ongoing

emergency and were not testimonial. Regarding the defendant’s claim that he did not receive a

fair trial because of Pirtle’s alleged partiality, the trial court found that Pirtle provided credible

testimony and that his prior association with Davis did not affect his ability to serve as a fair and

impartial juror. The trial court also found Amiee’s testimony that Pirtle knew Nelson was not

credible. Finally, the trial court found that Jones’s testimony was not credible, was inconsistent

with both the statements made to the police by the defendant and C.J., and was inconsistent with

C.J.’s trial testimony. The trial court concluded that Jones’s testimony was not of such a

conclusive character that it would probably change the result at a new trial.

¶ 30 After the trial court denied the defendant’s posttrial motion, the defendant filed a

“Supplemental Motion for a New Trial” and an “Amended Supplemental Motion for a New

Trial.” In these motions, the defendant made several claims that are not the subject of this appeal.

The trial court held a hearing on these motions and again denied the defendant’s request for a

new trial.

¶ 31 D. Sentencing

¶ 32 Prior to sentencing, a presentence investigation report (PSI) was submitted to the court.

The PSI contained information concerning the defendant’s offense information, juvenile and

adult criminal history, education and employment history, marital and family information,

substance abuse history, and physical and mental health history, as well as a statement from the

defendant. Attached to the PSI were records relating to the defendant’s history and a victim

impact statement.

13 ¶ 33 At sentencing, the defendant offered evidence in mitigation. The defendant submitted that

he had only a prior juvenile offense for possession of marijuana. At the age of 11, the defendant

had been removed from his home because of a domestic dispute between his mother and Nelson.

The defendant had also attended counseling following the death of his uncle, who the defendant

had considered a “father figure.” In school, the defendant attended Johnson, Alexander, Massac,

and Pulaski (JAMP) special education services and had an individualized education plan with a

disability listed as emotional disturbance. Jeffrey Chiles, the husband of the defendant’s

grandmother, testified that when the defendant lived with his grandmother, Chiles did not have

any trouble with the defendant, and that the defendant was a “model kid.” Dr. Andrea Evers, the

superintendent of the Cairo School District, testified that she had “hundreds” of interactions with

defendant. Dr. Evers never had any problems with the defendant, other than an altercation he had

when property was stolen from him.

¶ 34 Following the presentation of evidence, the State requested that the trial court sentence

defendant to 60 years in IDOC. Posttrial counsel “encourage[d] the court to go with the

minimum sentence of 45 years”—the mandatory minimum sentence under the statutory scheme.

In sentencing the defendant, the trial court found that the defendant’s lack of a criminal record

was a significant mitigating factor. The trial court also found that the defendant had “lived a life,

prior to this incident, that is worthy of qualifying, for the various statutory factors in mitigation

that have been cited by the defense.” The trial court went on to state that the court was “going to

impose a sentence that provide[d] a little more credit for the factors in mitigation” than the State

recommended. The trial court then sentenced defendant to 51 years in IDOC, 26 years for first

degree murder plus 25 years for the mandatory firearm enhancement. This appeal followed.

14 ¶ 35 II. ANALYSIS

¶ 36 On appeal, the defendant asserts several challenges to his conviction. First, the defendant

asserts that the admission of Nelson’s statements, identifying him as the shooter, violated

defendant’s sixth amendment right to confrontation. Next, the defendant contends that newly

discovered evidence, the testimony of Jones, provides the defendant with an alibi defense that

would likely change the result at a new trial. The defendant also claims that he was denied a fair

and impartial trial because Pirtle did not reveal during voir dire that he had a prior work and

familial relationship with Nelson’s father. Finally, the defendant argues that his 51-year sentence

to IDOC is a de facto life sentence that violates the Illinois proportionate penalties clause.

¶ 37 A. Admission of Dying Declaration

¶ 38 Before we address the argument that the admission of Nelson’s statements identifying

defendant as the shooter violated his sixth amendment right to confrontation, we must first

address whether this claim has been preserved for our review. Generally, to properly preserve a

claim for appeal, the defendant must both object at trial and include the claim of error in the

defendant’s posttrial motion. People v. Ward, 154 Ill. 2d 272, 293 (1992). The purpose of the

waiver doctrine is to enable the reviewing court to have the benefit of the trial court’s judgment

on an issue. People v. Clark, 108 Ill. App. 3d 1071, 1077 (1982). A reviewing court, however,

may exercise its discretion and consider an issue on appeal when it has been brought to the trial

court’s attention in some manner. People v. Maness, 184 Ill. App. 3d 149, 152 (1989). Therefore,

preservation of issues for review may be accomplished by a proper objection during trial or by

making the argument in a posttrial motion. Clark, 108 Ill. App. 3d at 1077.

¶ 39 Prior to trial, the State filed a motion in limine, seeking to introduce Nelson’s statements

to the police, identifying the defendant as the shooter, under the “dying declaration” exception to

15 the hearsay rule. At the hearing on the State’s motion in limine, trial counsel conceded that

Nelson’s statements were admissible as an exception to the hearsay rule. Accordingly, trial

counsel made no objection to the introduction of Nelson’s statements at trial. In his posttrial

motion, defendant claimed that the introduction of Nelson’s statements violated defendant’s sixth

amendment right to confrontation. The trial court held a hearing on the posttrial motion, and the

defendant called Officer Blackburn to testify regarding the questions he asked Nelson that

elicited the incriminating information. Following the hearing, the trial court entered a written

order, which found that Nelson’s statements did not violate the defendant’s right to confrontation

and were not testimonial because the statements were made during an ongoing emergency.

¶ 40 Here, we have the benefit of a developed record on defendant’s argument concerning

Nelson’s statements and the trial court’s ruling on the statement’s admissibility, albeit posttrial.

Also, the State has not argued on appeal that defendant failed to properly preserve this issue for

review. Therefore, in the exercise of our discretion, we will review defendant’s claim on its

merits.

¶ 41 Defendant contends that the admission of Nelson’s dying declaration, identifying the

defendant as the shooter, violated defendant’s sixth amendment right to confrontation. Defendant

argues that these statements were testimonial, and defendant had no prior opportunity to

challenge the statements on cross-examination. Defendant also argues that dying declarations are

“incompatible” with the right to confrontation as discussed in the United States Supreme Court

decision of Crawford v. Washington, 541 U.S. 36 (2004).

¶ 42 Before we may proceed to defendant’s constitutional challenge, we must consider

whether Nelson’s statements were admissible as an evidentiary matter. People v. Dobbey, 2011

IL App (1st) 091518, ¶ 41. A dying declaration is a statement of fact made by the victim about

16 the cause or circumstances of the homicide. People v. Gilmore, 356 Ill. App. 3d 1023, 1031

(2005). Illinois Rule of Evidence 804(b)(2) (eff. Jan. 1, 2011) provides that in a prosecution for a

homicide, a dying declaration is an exception to the hearsay rule where the statement is “made

by a declarant while believing that the declarant’s death was imminent, concerning the cause or

circumstances of what the declarant believed to be impending death.” A dying declaration

qualifies as an exception to the hearsay rule because it “poses a guarantee of trustworthiness

based on the assumption that the belief of impending death excludes the possibility of fabrication

by the declarant.” Gilmore, 356 Ill. App. 3d at 1031. Reviewing courts are reluctant to overturn

the trial court’s ruling on a dying declaration unless the trial court’s decision is against the

manifest weight of the evidence. Gilmore, 356 Ill. App. 3d at 1033-34.

¶ 43 To admit a statement as a dying declaration, the proponent must show, beyond a

reasonable doubt, that (1) the declaration pertained to the cause or circumstances of the

homicide, (2) the declarant believed death was imminent, and (3) the declarant was mentally

capable of giving an accurate statement regarding the cause or circumstances of the homicide.

People v. Graham, 392 Ill. App. 3d 1001, 1006 (2009). Here, police arrived at Nelson’s

residence and found him lying on the floor suffering from gunshot wounds. Nelson uttered, “I’m

gonna die.” After offering Nelson reassurances, Officer Blackburn asked Nelson, “Who shot

you?” Nelson replied, “Marquad Harris *** A[imee] Harris’s son.” Nelson was also able to state

that the defendant “took off runnin’ [sic]” and describe that the defendant used a handgun to

shoot Nelson.

¶ 44 Nelson’s statements fall squarely within the “dying declaration” exception to the hearsay

rule. Nelson clearly made the statements under the belief that death was imminent. Nelson had

suffered several gunshot wounds and expressed the belief he was dying. The statements—

17 concerning who shot him, where the shooter went, and the type of firearm used to shoot him—all

pertained to the cause and circumstances of his death. Finally, although Nelson was suffering

from gunshot wounds, the evidence does not suggest that he was mentally incapable of

accurately answering Officer Blackburn’s questions. Thus, Nelson’s statements were admissible

as a dying declaration.

¶ 45 Having determined that Nelson’s statements qualified as a dying declaration, we now

consider whether the admission of the dying declaration into evidence at defendant’s trial

violated his sixth amendment right to confrontation. We review this claim de novo. Graham, 392

Ill. App. 3d at 1007. Both the United States and Illinois Constitutions guarantee the defendant’s

right to confront witnesses against him. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. In

Crawford, the United States Supreme Court held that testimonial hearsay statements may not be

admitted into evidence against an accused unless (1) the witness is unavailable to testify and

(2) the defendant had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at

53-54. While examining the historical basis for the confrontation clause and exceptions to the

hearsay rule, the Supreme Court noted that “there is scant evidence that exceptions were invoked

to admit testimonial statements against the accused in a criminal case.” (Emphases in original.)

Crawford, 541 U.S. at 56. However, the Supreme Court continued in a footnote:

“The one deviation we have found involves dying declarations. The

existence of that exception as a general rule of criminal hearsay law cannot be

disputed. [Citations.] Although many dying declarations may not be testimonial,

there is authority for admitting even those that clearly are. [Citations.] We need

not decide in this case whether the Sixth Amendment incorporates an exception

18 for testimonial dying declarations. If this exception must be accepted on historical

grounds, it is sui generis.” Crawford, 541 U.S at 56 n.6.

¶ 46 Following the Crawford decision, the Second District considered the Crawford dicta

found in the footnote “as a strong indication that the [Supreme] Court does not believe that

admitting testimonial dying declarations violates the confrontation clause.” Gilmore, 356 Ill.

App. 3d at 1032. The Second District also considered a case from the California Supreme Court,

which ruled that the “dying declaration” exception to the hearsay rule existed at common law

and therefore was not repudiated by the sixth amendment. Gilmore, 356 Ill. App. 3d at 1032

(citing People v. Monterroso, 101 P.3d 956, 971-72 (Cal. 2004)). The Monterroso court reasoned

that

“if, as Crawford teaches, the confrontation clause ‘is most naturally read as a

reference to the right of confrontation at common law, admitting only those

exceptions established at the time of the founding’ [citations], it follows that the

common law pedigree of the exception for dying declarations poses no conflict

with the Sixth Amendment.” Monterroso, 101 P.3d at 972 (quoting Crawford,

541 U.S. at 54).

Accordingly, the Second District concluded that, in the context of a dying declaration, “there is

no constitutional impediment to admitting [the declarant’s] statements.” Gilmore, 356 Ill. App.

3d at 1033.

¶ 47 Four years after Supreme Court decided Crawford, the Supreme Court in Giles v.

California, 554 U.S. 353 (2008), referred to the Crawford footnote and, again, acknowledged the

“dying declaration” exception to the hearsay rule. The Supreme Court stated: “We have

previously acknowledged that two forms of testimonial statements were admitted at common law

19 even though they were unconfronted. [Citation.] The first of these were declarations made by a

speaker who was both on the brink of death and aware that he was dying. [Citations.]” Giles, 554

U.S. at 358. When discussing the relevant common law, the Giles Court stated:

“In cases where the evidence suggested that the defendant had caused a person to

be absent, but had not done so to prevent the person from testifying—as in the

typical murder case involving accusatorial statements by the victim—the

testimony was excluded unless it was confronted or fell within the dying

declarations exception.” Giles, 554 U.S. at 361-62.

¶ 48 Following the dicta in both Giles and Crawford and the Second District’s ruling in

Gilmore, the First District found that the admission of a testimonial dying declaration did not

conflict with the sixth amendment. See Graham, 392 Ill. App. 3d at 1008. Other state supreme

courts have also recognized that dying declarations do not conflict with the right to confrontation

post-Crawford. See Davis v. State, 207 So. 3d 142, 162 (Fla. 2016) (“The unique nature and

purpose of the dying declaration exception, observed in Crawford and Giles, justifies its

continuing utility and validity as an exception to the rule against hearsay.”); People v. Johnson,

353 P.3d 266, 288-89 (Cal. 2015); State v. Young, 710 N.W.2d 272, 283-84 (Minn. 2006);

Harkins v. State, 143 P.3d 706, 710-11 (Nev. 2006); People v. Clay, 926 N.Y.S.2d 598, 608-09

(App. Div. 2011); State v. Lewis, 235 S.W.3d 136, 146-50 (Tenn. 2007); and State v.

Beauchamp, 2011 WI 27, ¶ 31, 796 N.W.2d 780. Recently, the United States Court of Appeals

for the Sixth Circuit recognized that dying declarations did not conflict with Supreme Court

precedent. See Woods v. Cook, 960 F.3d 295, 300 (6th Cir. 2020) (“[W]e cannot fault state courts

for continuing to do what the U.S. Supreme Court has acknowledged they may be able to do

after Crawford ***.”).

20 ¶ 49 We find no reason to depart from the decisions in Gilmore and Graham finding that the

admission of dying declarations do not offend the sixth amendment confrontation clause. The

dicta in Crawford and Giles, the decisions of other state supreme courts, and the Sixth Circuit’s

recent opinion support our position. Because we find that dying declarations do not violate the

sixth amendment right to confrontation, we need not further discuss whether Nelson’s dying

declaration was testimonial, as this issue is subsumed by our prior discussion.

¶ 50 Finally, defendant now claims that his trial counsel was ineffective for failing to object to

the admission of the dying declaration at trial. Our holding as to this issue renders defendant’s

claim of ineffective assistance of counsel moot, and there is thus no need to address it further.

¶ 51 B. Newly Discovered Evidence

¶ 52 Defendant next argues that he should be granted a new trial because a newly discovered

witnesses provided an alibi that would likely change the result at a new trial. Newly discovered

evidence warrants a new trial when the evidence (1) has been discovered after trial, (2) could not

have been discovered prior to trial through the exercise of due diligence, (3) is material to the

issue and not merely cumulative, and (4) is so conclusive that it will probably change the result

upon retrial. People v. Rush, 294 Ill. App. 3d 334, 343 (1998). Motions for a new trial based on

newly discovered evidence are not looked upon favorably by the courts and must be closely

scrutinized. Rush, 294 Ill. App. 3d at 344. The decision to grant a new trial based on newly

discovered evidence is within the sound discretion of the trial court and will not be disturbed

absent a showing that the trial court abused its discretion. Rush, 294 Ill. App. 3d at 344.

¶ 53 Defendant argues that Jones’s testimony provided defendant with an alibi. Jones testified

at the hearing on defendant’s posttrial motion that she saw defendant at McBride on June 12,

2015, prior to hearing or seeing any police and ambulance sirens. While she could not provide

21 specific times, Jones claimed that defendant was at McBride for a “few hours” and that

defendant was at McBride the whole time Jones was there. Jones admitted, however, that she

could not account for defendant’s whereabouts at all times on the evening in question.

¶ 54 Jones’s testimony that the defendant was at McBride the entire time Jones was there is

inconsistent with the evidence presented at trial. Police responded to the shooting at 9:25 p.m. In

his statement to police, the defendant admitted that he went to Nelson’s house to play basketball

with C.J. between 6 p.m. and 7 p.m. The defendant later indicated he was playing basketball with

C.J. at Nelson’s house approximately an hour before the shooting. At trial, C.J. testified that he

normally goes to bed around 9 p.m. and was in bed when defendant came to Nelson’s house “a

little before sunset.” C.J. then went outside with defendant to play basketball with defendant.

Subsequently, defendant and Nelson got into an argument, and defendant left Nelson’s house.

C.J. further testified that his father was shot a few minutes after defendant left the house. In his

statement to police, C.J. stated that defendant came to Nelson’s house “around dark,” and C.J.

and defendant played basketball. Defendant left Nelson’s house after getting into an argument

with Nelson. C.J. further stated that the defendant left Nelson’s house and returned with a pistol.

C.J. then witnessed defendant shoot Nelson.

¶ 55 Jones’s testimony does not, as defendant claims on appeal, provide him with an alibi.

Jones provided only general testimony that she saw defendant at McBride a few hours prior to

hearing or seeing any sirens. According to the evidence presented at trial, however, the defendant

could not have been at McBride the entire time Jones was there, as she claimed, because

defendant went to Nelson’s house to play basketball that evening. Moreover, the trial court had

the opportunity to view Jones’s live testimony and found that Jones was not credible. This

22 credibility determination is best left to the trial court. People v. Gonzalez, 407 Ill. App. 3d 1026,

1036 (2011).

¶ 56 Considering Jones’s generalized testimony, the evidence presented at trial, and the trial

court’s credibility determination, we cannot say Jones’s testimony would probably change the

result at a new trial. Based on the record before this court, we cannot say that the trial court

abused its discretion in denying defendant’s motion for a new trial based on newly discovered

evidence.

¶ 57 C. Juror Impartiality

¶ 58 In his final challenge to his conviction, defendant claims that he did not receive a fair and

impartial trial because the jury’s foreman, Hubert Pirtle, did not reveal during voir dire that he

had a familial and work relationship with Nelson’s father. Defendant argues that this relationship

affected Pirtle’s ability to serve as an impartial juror.

¶ 59 Generally, a person is not competent to sit as a juror if their state of mind is such that the

defendant will not receive a fair and impartial trial. People v. Strawbridge, 404 Ill. App. 3d 460,

465 (2010). The party making the challenge bears the burden of showing that the challenged

juror possessed a disqualifying state of mind. People v. Peeples, 155 Ill. 2d 422, 463 (1993).

Whether to grant a new trial because of a claimed disqualification of a juror is within the sound

discretion of the trial court. People v. Porter, 111 Ill. 2d 386, 403 (1986). The trial court’s

determination will not be set aside unless it is against the manifest weight of the evidence.

People v. Cole, 54 Ill. 2d 401, 414 (1973). A mere suspicion of bias or partiality is insufficient to

disqualify a juror. Porter, 111 Ill. 2d at 403.

¶ 60 Under the circumstances of this case, we find the decisions of Porter and Strawbridge

provide considerable guidance. In Porter, a juror attended the same church as the mother of the

23 victim and did not realize this fact until after “ ‘it had got started and everything was going on.’ ”

Porter, 111 Ill. 2d at 398. The juror indicated that the fact that she went to the same church as the

victim’s mother “ ‘made no difference’ ” to the juror. Porter, 111 Ill. 2d at 397-98. The trial

court denied the defendant’s subsequent motion for a mistrial. Porter 111 Ill. 2d at 398. The

defendant also raised the issue in his motion for a new trial but did not call the juror or anyone

else as a witness to establish the nature of the relationship in question and to show the defendant

was prejudiced. Porter, 111 Ill. 2d at 403. Our supreme court noted that the record only showed

that the juror and the victim’s mother attended the same church, which was insufficient to show

that the defendant had suffered any prejudice. Porter, 111 Ill. 2d at 404.

¶ 61 In Strawbridge, the victim indicated, during a break in her direct testimony at trial, that

she knew one of the jurors. Strawbridge, 404 Ill. App. 3d at 466. The victim told the court that

she was in a church youth group with the juror, but that they were in different school-aged

groups. Strawbridge, 404 Ill. App. 3d at 466. The victim indicated that they had never actually

met but would say “hi” if they passed each other. Strawbridge, 404 Ill. App. 3d at 466. The

victim estimated she had seen the juror two or three times. Strawbridge, 404 Ill. App. 3d at 466.

¶ 62 Following the victim’s testimony, the trial court questioned the juror, who acknowledged

she recognized the victim. Strawbridge, 404 Ill. App. 3d at 466. The juror indicated that she

knew the victim from church but did not know the victim “ ‘very well’ ” and did not recognize

her last name. Strawbridge, 404 Ill. App. 3d at 466. The juror stated that she and the victim never

socialized at school but interacted at church. Strawbridge, 404 Ill. App. 3d at 466. Their

interactions consisted of seeing each other at church and chatting “ ‘for a second.’ ” Strawbridge,

404 Ill. App. 3d at 466. They also shared a mutual friend and would “ ‘stop and say hey to each

other.’ ” Strawbridge, 404 Ill. App. 3d at 466. The juror stated she had seen the victim at church

24 “ ‘maybe three times at best.’ ” Strawbridge, 404 Ill. App. 3d at 466. The juror told the trial court

that the fact that she knew the victim would not affect her ability to be impartial. Strawbridge,

404 Ill. App. 3d at 466.

¶ 63 Defense counsel in Strawbridge requested that the juror be removed and indicated that

counsel “probably” would have moved to strike her during voir dire had counsel been aware of

the relationship. Strawbridge, 404 Ill. App. 3d at 466. The trial court denied this request.

Strawbridge, 404 Ill. App. 3d at 466. The trial court noted that there was no deceit during

voir dire, and that the victim and juror were consistent regarding their interactions. Strawbridge,

404 Ill. App. 3d at 466. The trial court also credited the juror’s assurances that she could remain

impartial. Strawbridge, 404 Ill. App. 3d at 467. The appellate court held that the trial court’s

decision not to remove the juror was not against the manifest weight of the evidence or an abuse

of discretion. Strawbridge, 404 Ill. App. 3d at 467. The defendant in Strawbridge attempted to

distinguish his case from Porter because the victim and the juror actually knew each other.

Strawbridge, 404 Ill. App. 3d at 467. The appellate court commented that the brief and minimal

interactions between the victim and the juror did not truly differentiate the case from Porter.

Strawbridge, 404 Ill. App. 3d at 467.

¶ 64 Here, defendant attempts to distinguish his case from Porter because Pirtle and Davis

knew each other from work and had a remote familial relationship. While it is true that Pirtle and

Davis worked for the same company, under Porter, this fact alone is not enough to disqualify

Pirtle. See Strawbridge, 404 Ill. App. 3d at 467. The record shows that they worked for the same

company in different departments and had minimal interaction with each other. Both indicated

that they did not often see each other at work and never socialized together outside of work.

Furthermore, Davis’s marriage to Pirtle’s sister is of little, if any, consequence. According to

25 Davis, he was married to Pirtle’s sister for only eight months with the divorce being finalized

after they split. During this time, Pirtle and Davis had not met each other and did not consider

each other “family.” In fact, the record does not show that Pirtle even knew Nelson. Pirtle and

Davis’s minimal interactions at work, and their remote familial relationship, are insufficient to

show that Pirtle’s impartiality was affected in any way.

¶ 65 Defendant also argues that the work and familial relationships between Pirtle and Davis

created an “implied bias” that would disqualify Pirtle. Under the implied bias doctrine, a court

must excuse a juror for cause if the juror is related to one of the principals in the case. United

States v. Brazelton, 557 F.3d 750, 753 (7th Cir. 2009). As we have discussed, Davis’s and

Pirtle’s work relationship was minimal and their familial relationship was remote. We cannot say

Pirtle possessed any bias, implied or otherwise. Therefore, the trial court did not abuse its

discretion in denying defendant’s posttrial motion on this point, and the trial court’s decision was

not against the manifest weight of the evidence.

¶ 66 D. Constitutionality of Sentence

¶ 67 Finally, defendant challenges his 51-year sentence under the Illinois proportionate

penalties clause (Ill. Const. 1970, art. I, § 11). The proportionate penalties clause states that “[a]ll

penalties shall be determined both according to the seriousness of the offense and with the

objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. In

challenging his sentence, defendant argues that his 51-year sentence constitutes a de facto life

sentence that violates the proportionate penalties clause because the trial court did not fully

consider defendant’s youth and its attenuating circumstances. Relying on our supreme court’s

decision in People v. Harris, 2018 IL 121932, the State contends that defendant’s challenge is

premature because he did not raise this challenge in the trial court. See Harris, 2018 IL 121932,

26 ¶ 46. In reply, the defendant acknowledged our supreme court’s ruling in Harris and stated his

belief that, under Harris, defendant is not foreclosed from raising his as-applied constitutional

challenge under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). See

Harris, 2018 IL 121932, ¶ 48.

¶ 68 Defendant’s sentencing challenge is based upon a line of cases affording heightened

protections to juveniles in sentencing. See Roper v. Simmons, 543 U.S. 551, 574-75 (2005)

(eighth amendment prohibits death penalty for juveniles who commit homicide), Graham v.

Florida, 560 U.S. 48, 82 (2010) (eighth amendment prohibits mandatory life without parole

sentences for juveniles who commit nonhomicide offenses), and Miller v. Alabama, 567 U.S.

460, 479 (2012) (eighth amendment prohibits mandatory life in without parole sentences for

juvenile offenders convicted of homicide). Defendant argues that the Illinois proportionate

penalties clause affords broader protections than the eighth amendment, and thus, the reasoning

from Roper, Graham, and Miller should be extended to his specific circumstances as a young 18-

year-old. Defendant’s challenge is what is known as an “as-applied” challenge to the

constitutionality of the eighth amendment.

¶ 69 In making an as-applied challenge, a defendant must show that the sentencing statute is

unconstitutional as it applied to the specific facts and circumstances of his case. Harris, 2018 IL

121932, ¶ 38. As-applied challenges are dependent on the specific facts and circumstances of the

person raising the challenge; therefore, it is important that the record be sufficiently developed

regarding the facts and circumstances of the claim. Harris, 2018 IL 121932, ¶ 39. Our supreme

court has repeatedly stated that “ ‘ “ ‘a court is not capable of making an “as applied”

determination of unconstitutionality when there has been no evidentiary hearing and no findings

of fact. [Citation.] Without an evidentiary record, any finding that a statute is unconstitutional

27 “as applied” is premature.’ ” ’ ” Harris, 2018 IL 121932, ¶ 39 (quoting People v. Rizzo, 2016 IL

118599, ¶ 26, quoting People v. Mosley, 2015 IL 115872, ¶ 47, quoting In re Parentage of John

M., 212 Ill. 2d 253, 268 (2004)).

¶ 70 The circumstances of defendant’s sentence are similar to the facts of Harris. In Harris,

the defendant was convicted of first degree murder, attempted first degree murder, and

aggravated battery with a firearm and was sentenced to a mandatory minimum aggregate term of

76 years in IDOC. Harris, 2018 IL 121932, ¶ 1. At the time of the offenses, the defendant was

18 years and 3 months of age. Harris, 2018 IL 121932, ¶ 1. At the defendant’s sentencing, the

defendant offered evidence in mitigation, which included that the defendant had no prior

criminal history, obtained his general education diploma (GED) and several educational

achievement certificates while in pretrial custody, and had a stable and supportive family.

Harris, 2018 IL 121932, ¶ 16.

¶ 71 On appeal, the defendant challenged his 76-year sentence under both the eighth

amendment and the proportionate penalties clause. Harris, 2018 IL 121932, ¶ 17. The appellate

court rejected the defendant’s eighth amendment claim but vacated his sentence under the

proportionate penalties clause and remanded the case for resentencing. Harris, 2018 IL 121932,

¶ 18. Our supreme court reversed the appellate court’s decision regarding the defendant’s

proportionate penalties clause claim because the appellate court did not have a developed

evidentiary record and the defendant’s as-applied challenge was premature. Harris, 2018 IL

121932, ¶ 47. The supreme court expressed its belief that the defendant’s constitutional

challenge would be more appropriately raised in another proceeding, such as one under the Post-

Conviction Hearing Act. Harris, 2018 IL 121932, ¶ 48.

28 ¶ 72 Here, defendant was 18 years and 2 months of age at the time of his offense. Defendant

was also convicted of first degree murder and found to have personally discharged a firearm that

resulted in Nelson’s death, thus triggering the sentencing enhancement. At his sentencing

hearing, defendant offered evidence in mitigation regarding his background, but did not offer any

evidence as to how the emerging science regarding juvenile maturity and brain development that

formed the basis for Miller applies to him. See Harris, 2018 IL 121932, ¶ 46. Moreover, posttrial

counsel did not make any constitutional challenge to defendant’s sentence. Rather, posttrial

counsel “encourage[d] the court to go with the minimum sentence of 45 years.” Thus, we have

no evidentiary record to support defendant’s constitutional claim, and we decline to consider

defendant’s as-applied constitutional challenge to his sentence. “Consistent with Harris, we do

not intend for our disposition to preclude defendant from advancing his claim through other

available proceedings.” People v. Figueroa, 2020 IL App (2d) 160650, ¶ 89; see also Harris,

2018 IL 121932, ¶ 48.

¶ 73 III. CONCLUSION

¶ 74 For the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 75 Affirmed.

29 No. 5-16-0454

Decision Under Review: Appeal from the Circuit Court of Alexander County, No. 15-CF- 35; the Hon. Mark H. Clarke, Judge, presiding.

Attorneys James E. Chadd, Ellen J. Curry, and Lawrence J. O’Neill, of State for Appellate Defender’s Office, of Mt. Vernon, for appellant. Appellant:

Attorneys E. Zachary Gowin, State’s Attorney, of Cairo (Patrick for Delfino, Patrick D. Daly, and Michael R. Lennix, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.