2022 IL App (1st) 192509 No. 1-19-2509 Opinion filed March 9, 2022
THIRD DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 16 CR 18865 ) JAVION HARRIS, ) The Honorable ) Maura Slattery Boyle, and Defendant-Appellant. ) Stuart P. Katz, Judges, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Justice Ellis concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant Javion Harris was convicted of the first degree murder of
Yvonne Nelson and the attempted murder of James Clark. Defendant, who was 15 years old at
the time of the offense, was sentenced to 29 years for the murder and 6 years for the attempted
murder, for a total of 35 years with the Illinois Department of Corrections. The convictions
stemmed from a shooting on May 20, 2016, shortly before 4 p.m., on South State Street in
Chicago, in which the shooter was shooting at Clark while Nelson, a bystander, had just exited
a nearby Starbucks. No. 1-19-2509
¶2 On this direct appeal, defendant claims (1) that the juvenile court erred in transferring
his case to adult criminal court, (2) that the trial court committed plain error where the evidence
in the case was closely balanced and the court failed to comply with Illinois Supreme Court
Rule 431(b) (eff. July 1, 2012), and (3) that the trial court erred in admitting certain hearsay
statements under the course-of-investigation exception to the hearsay rule. The State concedes
that the trial court failed to comply with Rule 431(b) but argues that the evidence in the case
was not closely balanced and the claimed error was forfeited.
¶3 For the following reasons, we affirm.
¶4 BACKGROUND
¶5 The State’s evidence at trial established that, on May 20, 2016, at 3:53 p.m., a shooter
opened fire on South State Street. Clark testified that the shooter was shooting at him. Although
wounded, Clark survived, but Nelson, a bystander, did not. Nelson died shortly after the
shooting from a single gunshot wound to the chest.
¶6 Videos obtained from street surveillance cameras recorded the shooting, as well as the
shooter’s flight from the scene. Video footage established that the shooter wore a black hooded
sweatshirt and entered a nearby apartment building less than a minute after the shooting. Teon
Spencer, 1 a resident of the apartment building, testified that defendant was a friend of his and
visited Teon that afternoon. The police later retrieved a black hooded sweatshirt from Teon’s
bedroom and submitted it for forensic testing. The tests revealed that the cuffs of the sweatshirt
contained gunshot residue and that the inside collar contained DNA that matched defendant’s
DNA. Although the cuffs, collar, and front pocket of the sweatshirt contained DNA mixtures
1 Teon’s mother was also mentioned at trial. Since they share the same last name, we refer to Teon by his first name. 2 No. 1-19-2509
belonging to at least three to five individuals, only one major profile was suitable for
comparison, and it belonged to defendant.
¶7 Teon testified that he and defendant subsequently exited Teon’s building, and video
footage depicted Teon and defendant exiting the building at 5 p.m., with defendant wearing a
blue hooded sweatshirt. Teon identified defendant as the person in the blue hooded sweatshirt
who exited with him.
¶8 Earlier footage established that Teon had entered the building at 3:48 p.m., shortly
before the shooting and did not exit until after it.
¶9 Teon testified that he did not place the black hooded sweatshirt on his bed. Teon
unlocked the apartment door to let defendant inside after defendant knocked and then Teon
immediately went downstairs to talk to his mother. As a result, Teon did not observe defendant
until Teon subsequently entered his bedroom, where defendant was already waiting. Teon
never observed defendant wearing a black hooded sweatshirt that day and never observed
defendant changing clothes. However, according to Teon’s testimony, defendant was initially
alone in Teon’s bedroom for 5 or 10 minutes while Teon spoke with his mother.
¶ 10 Clark, the subject of the shooting, could not identify the shooter. Video footage showed
that the shooter had the hood of his sweatshirt pulled tightly over his head and that the hood
formed a large, odd shape, indicating a lot of hair underneath. The video that depicted
defendant and Teon exiting the apartment building also showed defendant with a hood drawn
tight, forming a similar odd shape.
¶ 11 Using still photographs obtained from the video footage, detectives showed images of
the shooter to individuals familiar with defendant. The head of security at defendant’s school
recognized the shooter as a student who had the nickname of “Lenny Kravitz,” due to his “afro”
3 No. 1-19-2509
hairstyle. When the head of security asked the dean of students to pull up a picture of “Lenny
Kravitz,” the dean provided defendant’s school photo. Unlike the head of security, the dean
was unsure whether the photo of the shooter was a photo of defendant. Defendant’s physics
teacher, who had defendant in class daily, could not identify the photo of the shooter as a photo
of defendant.
¶ 12 Prior to trial, Daniel Mitchell provided a recorded statement in which he stated that he
ran a taxi service, that he transported defendant to 35th Place near South State Street, that
defendant paid his fare and began running toward State Street, and that Mitchell then heard
gunshots but did not observe the shooting. Mitchell identified an image of the shooter taken
prior to the shooting as defendant. However, when shown an image of the shooter taken after
the shooting, Mitchell stated that he was “not a hundred percent sure” whether it was a photo
of defendant. At trial, Mitchell testified that he could not recall the day of the shooting or recall
providing a recorded statement. Over defendant’s objection, the recorded statement was
admitted as substantive evidence at trial and published to the jury.
¶ 13 After considering the evidence, the parties’ arguments and the jury instructions, the
jury found defendant guilty of first degree murder and attempted murder. The trial court denied
his posttrial motion for a new trial, and defendant was sentenced on June 20, 2019, to a total
of 35 years. The trial court denied his motion to reconsider sentence on November 7, 2019,
and a notice of appeal was filed the same day. This timely appeal followed.
¶ 14 ANALYSIS
¶ 15 I. Transfer to Adult Court
¶ 16 Defendant’s first claim is that the juvenile court erred by transferring his case to adult
criminal court. In Illinois, a minor who is 13 years old or older may be prosecuted as an adult
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under the laws of this state (1) if the State files a transfer motion and (2) if the juvenile court
“finds that there is probable cause to believe that the allegations in the [State’s] motion are true
and that it is not in the best interests of the public to proceed under” the Juvenile Court Act of
1987 (Act) (705 ILCS 405/5-805(3)(a) (West 2016)).
¶ 17 A. Standard of Review
¶ 18 While defendant concedes that reviewing courts normally review a juvenile court’s
transfer decision only for an abuse of discretion, he argues that a de novo standard should apply
to this particular case because all the evidence at the transfer hearing was in the form of exhibits
and proffers. Since there were no live witnesses at the transfer hearing, defendant argues that
this court is in the same position as the juvenile court was and, therefore, this court should owe
no deference to the juvenile court. People v. Anderson, 2021 IL App (1st) 200040, ¶ 41 (under
de novo review, “we owe no deference to the trial court”).
¶ 19 De novo review means that the reviewing court performs the same analysis that a trial
judge would perform and owes no deference to the trial court. Anderson, 2021 IL App (1st)
200040, ¶¶ 40-41. In contrast, an abuse of discretion is found only where the trial court’s ruling
is arbitrary, fanciful, unreasonable or where no person would take the view adopted by the trial
court. People v. Khan, 2021 IL App (1st) 190679, ¶ 55.
¶ 20 In response, the State argues that the title of the statutory provision at issue is
“[d]iscretionary.” 705 ILCS 405/5-805(3) (West 2016). Defendant was transferred to adult
criminal court pursuant to the “[d]iscretionary transfer” provision. 705 ILCS 405/5-805(3)
(West 2016). This section provides that, if the juvenile court finds (1) probable cause to believe
the State’s allegations and (2) that a juvenile proceeding is not in the public’s best interest, “the
court may enter an order permitting prosecution” in adult criminal court. (Emphasis added.)
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705 ILCS 405/5-805(3)(a) (West 2016). “Except in very unusual circumstances affecting the
public interest, the legislature’s use of the word ‘may’ indicates that the statute is permissive
as opposed to mandatory.” Canel v. Topinka, 212 Ill. 2d 311, 326 (2004).
¶ 21 With statutory construction, our primary goal is to ascertain the legislators’ intent, and
the best indication of that intent is the plain and ordinary meaning of the words they chose to
use. Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, ¶ 40. In light of the
legislature’s use of the words “[d]iscretionary” and “may,” as well as our precedent on this
subject, we find that the decision to transfer under this provision is a matter of judicial
discretion. 705 ILCS 405/5-805(3) (West 2016); e.g., People v. Moore, 2011 IL App (3d)
090993, ¶ 29 (transfer reversed where the juvenile “court’s transfer order was an abuse of
discretion”); People v. Clark, 119 Ill. 2d 1, 14 (1987) (transfer reversed due to an abuse of
discretion). We observe that defendant does not cite a single case where a reviewing court
applied de novo review to a transfer under the discretionary transfer provision.
¶ 22 While “[t]he decision to permit prosecution of a juvenile under the criminal law is a
matter of judicial discretion, *** that discretion is limited and controlled by the Act.” Moore,
2011 IL App (3d) 090993, ¶ 21; see also People v. Morgan, 197 Ill. 2d 404, 422-23 (2001).
“To affirm an order transferring a minor to criminal court,” a reviewing “court must determine
if there was sufficient evidence in the record as to each statutory factor to support the transfer
order.” Moore, 2011 IL App (3d) 090993, ¶ 21 (citing Morgan, 197 Ill. 2d at 428). “The mere
recitation” by the juvenile court “that all statutory factors have been considered is not enough
to affirm a discretionary transfer order.” Moore, 2011 IL App (3d) 090993, ¶ 21 (citing Clark,
119 Ill. 2d at 18). However, “in reviewing a juvenile court’s order transferring a minor,” a
reviewing “court does not reweigh the factors.” Morgan, 197 Ill. 2d at 428.
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¶ 23 B. Statutory Factors
¶ 24 To determine whether a discretionary transfer is warranted, a juvenile court must
consider the following statutory factors:
“(i) the age of the minor;
(ii) the history of the minor, including:
(A) any previous delinquent or criminal history of the minor,
(B) any previous abuse or neglect history of the minor, and
(C) any mental health, physical, or educational history of the minor or combination
of these factors;
(iii) the circumstances of the offense, including:
(A) the seriousness of the offense,
(B) whether the minor is charged through accountability,
(C) whether there is evidence the offense was committed in an aggressive and
premeditated manner,
(D) whether there is evidence the offense caused serious bodily harm,
(E) whether there is evidence the minor possessed a deadly weapon;
(iv) the advantages of treatment within the juvenile justice system including whether
there are facilities or programs, or both, particularly available in the juvenile system;
(v) whether the security of the public requires sentencing under Chapter V of the
Unified Code of Corrections:
(A) the minor’s history of services, including the minor’s willingness to participate
meaningfully in available services;
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(B) whether there is a reasonable likelihood that the minor can be rehabilitated
before the expiration of the juvenile court’s jurisdiction;
(C) the adequacy of the punishment or services.” 705 ILCS 405/5-805(3)(b) (West
2016).
¶ 25 C. Balancing the Factors
¶ 26 The statute further provides that, in balancing the above factors, the juvenile “court
shall give greater weight to the seriousness of the alleged offense, [and] the minor’s prior
record of delinquency than to the other factors listed in this subsection.” (Emphasis added.)
705 ILCS 405/5-805(3)(b) (West 2016).
¶ 27 Citing the 1987 case of Clark and cases citing Clark, defendant argues that the juvenile
court must balance the best interests of the juvenile against society’s interest in being protected.
Clark, 119 Ill. 2d at 12. However, the Clark court was interpreting an earlier version of the
statute that stated just that. The earlier statute required the juvenile court to determine
“ ‘whether the best interest of the minor and the security of the public’ ” required a transfer.
(Emphasis omitted.) Clark, 119 Ill. 2d at 8 (quoting Ill. Rev. Stat. 1983, ch. 37, ¶ 702-7(3)).
¶ 28 Since the 1987 Clark case, the legislature enacted the balancing provision quoted
above. 705 ILCS 405/5-805(3)(b) (West 2016); see In re Rodney H., 223 Ill. 2d 510, 518-19
(2006) (the legislature’s “retool[ing] Article V of the Act” in 1999 marked a fundamental shift
toward the overriding goal of protecting the public); People v. Fiveash, 2015 IL 117669, ¶ 21.
“The legislature created the juvenile court and defined its authority. No other right to
adjudication in juvenile court exists.” Fiveash, 2015 IL 117669, ¶ 21. The power to define the
limits of the juvenile court’s jurisdiction rests with the legislature, and the legislature is entitled
to define, and redefine, the applicability of the statute. Fiveash, 2015 IL 117669, ¶ 31. “[N]o
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constitutional right to juvenile court proceedings exists.” Fiveash, 2015 IL 117669, ¶ 31. Given
the legislature’s power to define and redefine juvenile jurisdiction, we apply the balancing
provision as written.
¶ 29 The balancing provision quoted above took effect on January 1, 1999, and was in effect
on the day of the trial court’s transfer decision on December 2, 2016, and is still in effect today.
See 705 ILCS 405/5-805(3)(b) (West 1998); 705 ILCS 405/5-805(3)(b) (West 2016). Both a
trial court and a reviewing court must apply “the provisions of the Act in effect at the time of
[the defendant’s] transfer.” Morgan, 197 Ill. 2d at 423.
¶ 30 The legislators who passed the balancing provision also provided a “Legislative
Declaration,” in which they expressed their intent as follows:
“The General Assembly finds that a substantial and disproportionate amount of serious
crime is committed by a relatively small number of juvenile offenders. *** [I]n all
proceedings under [the transfer section] *** the community’s right to be protected shall
be the most important purpose of the proceedings.” 705 ILCS 405/5-801 (West 2016).
¶ 31 D. Mental Health
¶ 32 The finding primarily disputed by defendant on appeal is the juvenile court’s finding
regarding his mental health history. 705 ILCS 405/5-805(3)(b) (West 2016) (the “court shall
consider *** any mental health *** history of the minor”). “In a transfer hearing under the
Act, the State need only present evidence sufficient to sustain a finding of probable cause.”
Morgan, 197 Ill. 2d at 426.
¶ 33 At defendant’s transfer hearing, held on Monday, November 28, 2016, the trial court
received exhibits and proffers from both sides and heard argument. Defendant’s exhibits
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included the report at issue on appeal, which is a 30-page report prepared at defense counsel’s
request by Phyllis Gould, a licensed clinical social worker.
¶ 34 In her report, Gould stated that she first met defendant on August 25, 2016, while he
was being held at a juvenile detention center for this offense. Gould met with defendant a total
of five times between August and October 2016 and spoke on the phone with family members.
Gould also met in person with two of his teachers at the detention center and reviewed his
present and past school and juvenile records. Over half of her 30-page report details the
conversations that she had with defendant and others.
¶ 35 Gould administered 7 different diagnostic tests to defendant but then disagreed with
the results of almost all the tests she had administered. Gould administered (1) the Beck
Depression Inventory (BDI), (2) the Beck Anxiety Inventory (BAI), (3) the Drug Abuse
Screening Test (DSAT-10), (4) Short Michigan Alcohol Screening Test (SMAST), (5) the
Screen for Child Anxiety Related Disorders (SCARED), (6) the ADHD Symptom Checklist—
Child and Adolescent Version, and (7) the Child PTSD Symptom Scale (CPSS). The only
result that Gould did not disagree with was the result of the DSAT-10, which revealed that
defendant had “a moderate level problem with drugs (marijuana).”
¶ 36 Although the BDI and BAI showed that defendant’s depression and anxiety were
“mild,” Gould found these results not credible. Similarly, Gould found the SMAST result “not
accurate” and stated that she “disagree[d] with his scores on SCARED, as well as his scores
on the ADHD and CPSS tests. All of these results, including those she disagreed with, were
from tests that Gould had administered herself.
¶ 37 Gould diagnosed defendant with five disorders: (1) chronic post-traumatic stress
disorder, (2) attention deficit disorder without hyperactivity, (3) adolescent-onset conduct
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disorder, (4) dissociative amnesia, (5) and cannabis dependency which was presently in
remission due to his controlled environment. There is no evidence that defendant had been
diagnosed with any of these disorders by anyone else at any time. At the transfer hearing,
defense counsel argued that these disorders “were previously missed” by others.
¶ 38 At the transfer hearing the State proffered the following facts regarding Gould that the
court admitted without defense objection. Gould charged $150 per hour and billed 65.5 hours
on this case, for a total of $9,825. Her caseload consisted of private psychotherapy clients,
court evaluations in divorce and immigration proceedings, and sentencing mitigation reports.
In criminal proceedings, Gould had never worked on behalf of the prosecution; she worked
exclusively on behalf of the defense. She had worked with only one prior juvenile offender,
and she had never previously evaluated a juvenile defendant for possible transfer to adult
criminal court.
¶ 39 With respect to Gould’s report, the trial court observed that she provided details from
both her own interviews and tests, as well as from her reviews of “reports from Chicago Public
School, Chicago Police Department, and all juvenile court documents.” After reviewing all the
facts compiled in Gould’s report, the trial court found:
“In her interviews with [sic] family and friends she found little to no indication of
mental health issues beyond anger management at school. There were no reports from
anyone of any symptoms of PTSD, of attention deficit disorder, of conduct disorder.
The mother noted, at most, that he was not his usual self after the deaths of several
family and friends which might indicate to some slight degree post-traumatic stress
disorder. But that’s the total extent of any reporting from anybody in his background
of any kind of mental health issue.
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There were no mental health diagnoses from any other professional prior to Ms.
Gould, nothing from any doctor, nothing from the Chicago Public Schools. There were
no prior hospitalizations. There were no prior hospitalizations. There was no prior
mental health treatment, no reports of any systems of mental health. In fact, the teachers
at the JTDC *** report that he has no behavioral problems, no issues in their classes,
which runs counter to her diagnoses of any attention deficit disorder, depressed or
conduct disorder.
In fact, there’s no indication anywhere of any mental health issues. She tested him
herself for depression and anxiety. The test scores came back in the mild to normal
range. She presented tests called the DAST and SMAST, and came up with moderate
cannabis abuse. She also did tests that are called SCARE, S-C-A-R-E-D, and ADHD
and child PTSD tests all scored within the mild to normal range.
Despite all of the evidence to the contrary, including her own testing, she still finds
that he suffers from the five DSM-5 diagnoses and she bases this solely on her own
observations and determinations that he was in denial and demonstrated emotional
detachment. And she apparently ignores or disavows all historical evidence and all
testing data in order to come to her conclusions.” (Emphasis in original.)
Where the facts relied on by the juvenile court for its findings are taken primarily from the
expert’s own report, and where the expert’s own diagnoses are contrary to the results of almost
all the tests that she chose to administer and that she administered herself, we cannot find that
the juvenile court abused its discretion in not accepting the defense’s argument that their expert
had found what everyone else had “missed.”
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¶ 40 Defendant argues that his lack of any prior mental diagnoses is not dispositive of
whether or not he has mental health issues. However, his lack of prior diagnoses is relevant to
whether or not he has a mental health “history,” which is what the statute required the juvenile
court to consider. 705 ILCS 405/5-805(3)(b)(ii)(C) (West 2016). The statute requires the
juvenile court to consider “(ii) the history of the minor, including: *** (C) any mental health
*** history.” 705 ILCS 405/5-805(3)(b)(ii)(C) (West 2016).
¶ 41 For all the foregoing reasons, we cannot find that the juvenile court abused its discretion
in evaluating defendant’s mental health history.
¶ 42 E. Other Factors
¶ 43 Defendant acknowledges that the statute requires the juvenile court to place the most
weight on the seriousness of the offense and defendant’s prior record, and we find that the
juvenile court did just that. 705 ILCS 405/5-805(3)(b) (West 2016) (in balancing the statutory
factors, the juvenile “court shall give greater weight to the seriousness of the alleged offense,
[and] the minor’s prior record of delinquency than to the other factors listed in this
subsection”).
¶ 44 At the transfer hearing, the defense counsel conceded that the statutory factors
concerning the offense “apply to him”—the offense was serious, and he was charged as a
principal and with using a deadly weapon and causing great bodily harm. 705 ILCS 405/5-
805(3)(b)(iii) (West 2016). Other than to argue that defendant should receive a presumption of
innocence, the defense did not dispute that the State had established probable cause for the
allegations of the charged offense. 705 ILCS 405/5-805(3)(a) (West 2016).
¶ 45 The juvenile court rejected the State’s argument that the offense was premediated,
finding instead that the shooting was “a spur-of-the-moment type of offense.” However, the
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juvenile court found that the offense was “seriously aggressive,” where defendant “chase[d]
down an apparent target and sho[t] at him several times.” See 705 ILCS 405/5-805(3)(b)(iii)
(West 2016).
¶ 46 Defendant had two prior findings of delinquency for two separate armed robberies
committed on the same day, for which he received a single term of probation. The robberies
occurred when he was 14 years old. After receiving a five-year term of probation on June 23,
2015, he committed the instant offense less than a year later. On May 20, 2016, the day of this
offense, defendant was 25 days short of his sixteenth birthday, when he would have been
subject to the automatic transfer statute. At the transfer hearing, defense counsel conceded, as
was clear from this case, that defendant was “not successful on probation.”
¶ 47 The juvenile court acknowledged that defendant “does do well in a structured penal
setting as evidenced by his exemplary discipline records at the [juvenile detention center] and
the reports of his teachers there.” The court found “[t]hat factor” regarding the advantages of
treatment within the juvenile justice system “goes to the Defense.” See 705 ILCS 405/5-
805(3)(b)(iv) (West 2016). Similarly, in its brief to this court, the State acknowledged that the
factor of “rehabilitative potential favors defendant.”
¶ 48 However, there were no DCFS findings of abuse or neglect, no record of a learning
disability, and no evidence that defendant was ever placed in special education.
¶ 49 Given this record and the legislative imperative to “give greater weight” to the
seriousness of the offense and the minor’s prior criminal history, we cannot find that the trial
court abused its discretion in balancing the statutory factors. 705 ILCS 405/5-805(3)(b) (West
2016); see also 705 ILCS 405/5-801 (West 2016) (“in all proceedings under [the transfer
section] *** the community’s right to be protected shall be the most important purpose of the
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proceedings).” “[I]n reviewing a juvenile court’s order transferring a minor,” a reviewing
“court does not reweigh the factors.” Morgan, 197 Ill. 2d at 428. Since we find that the trial
court did not abuse its discretion in balancing the statutory factors, we need not address
defendant’s argument to remand the matter to the trial court for a hearing pursuant to People
v. Fort, 2017 IL 118966, ¶ 41. 2 See 705 ILCS 405/5-130(1)(c)(ii) (West 2018).
¶ 50 II. Failure to Comply With Rule 431(b)
¶ 51 Defendant argues that the trial court failed to comply with Illinois Supreme Court Rule
431(b) (eff. July 1, 2012). The State concedes that the trial court failed to comply with this rule
but argues that the error did not rise to the level of plain error.
¶ 52 Rule 431(b) requires a trial court to ask each juror whether that juror understands and
accepts four basic principles: (1) that the defendant is presumed innocent, (2) that the State
must prove the defendant guilty beyond a reasonable doubt, (3) that the defendant is not
required to offer any evidence, and (4) that a defendant’s decision not to testify cannot be held
against him or her. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). In the case at bar, defendant argues
that the trial court failed to ask about the fourth principle and that this failure is particularly
concerning since he exercised his right not to testify at trial.
¶ 53 Defendant concedes that he forfeited this claim by not raising it in the court below, but
he asks this court to consider it under the plain error doctrine.
¶ 54 When a claim has been forfeited, the plain error doctrine permits us to still review it, if
a clear and obvious error occurred and either (1) the evidence is so closely balanced that this
2 In Fort, our supreme court found “that the trial court erred in imposing an adult sentence” on a juvenile defendant. Fort, 2017 IL 118966, ¶ 41. The court found “that the proper resolution is to remand the cause to the trial court with directions [1] to vacate defendant’s sentence,” [2] to allow the State to file a petition for adult sentencing, and [3] to determine whether the juvenile defendant is subject to adult sentencing. Fort, 2017 IL 118966, ¶ 41. 15 No. 1-19-2509
error alone threatened to tip the scales of justice against the defendant or (2) the error is so
serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence. People v. Sebby, 2017 IL 119445,
¶ 48. Defendant argues error solely under the first or closely-balanced prong of the plain error
doctrine. See Sebby, 2017 IL 119445, ¶ 52 (“A Rule 431(b) violation is not cognizable under
the second prong of the plain error doctrine, absent evidence that the violation produced a
biased jury.”). “The initial analytical step under either prong of the plain error doctrine is
determining whether there was a clear or obvious error at trial.” Sebby, 2017 IL 119445, ¶ 49.
¶ 55 Our supreme court has found that Rule 431(b) “requires questioning on whether the
potential jurors both understand and accept each of the enumerated principles.” People v.
Thompson, 238 Ill. 2d 598, 607 (2010). In the case at bar, the trial court failed to ask about the
fourth principle, which constituted a clear and obvious error. People v. Wilmington, 2013 IL
112938, ¶ 32 (a trial court’s failure to ask potential jurors about the fourth principle was clear
error).
¶ 56 Although we find a clear and obvious error occurred, we cannot find plain error where
defendant has failed to carry his burden to show that the evidence was closely balanced. See
Sebby, 2017 IL 119445, ¶ 48. While a defendant has no burden at trial to present any evidence
at all, a defendant does bear the burden on review when claiming plain error “to show that the
evidence is closely balanced.” People v. Piatkowski, 225 Ill. 2d 551, 567 (2007); see also
Sebby, 2017 IL 119445, ¶ 51.
¶ 57 On the issue of what constitutes “closely balanced,” defendant cites the supreme court
case of People v. Nelson, 193 Ill. 2d 216 (2000). In Nelson, the defendant presented three alibi
witnesses who “accounted for defendant’s whereabouts.” Nelson, 193 Ill. 2d at 222. There was
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no physical evidence linking defendant to the crime, and defendant’s sole “link to the crime
was established through a single witness on mild sedation.” Nelson, 193 Ill. 2d at 222-23.
Reviewing this evidence, our supreme court found it “very closely balanced.” Nelson, 193 Ill.
2d at 222. Defendant, in his brief, quotes the Nelson court’s statement that “it can hardly be
said that reasonable juries could only draw from [the evidence] a conclusion of guilt.” Nelson,
193 Ill. 2d at 223.
¶ 58 Defendant argues that the evidence here was closely balanced because no witness
testified to observing defendant shoot a gun, defendant did not confess, and no murder weapon
was found. In addition, the State did not present evidence that defendant knew Clark and did
not offer any motive for the shooting. Defendant argues that the only physical evidence linking
defendant to the crime was the DNA evidence, but there were other unidentified DNA profiles
found on the sweatshirt. Defendant argues that his DNA could have been transferred to the
sweatshirt while he was in Teon’s room. Mitchell, the taxi driver, could identify defendant
from only one of two photos of the shooter, and Mitchell recanted at trial. As for the employees
at defendant’s school, only the head of security recognized the shooter as defendant. The dean
of students was unsure, and defendant’s physics teacher could not identify him as defendant.
Defendant argues that the State’s case relied primarily on circumstantial evidence.
¶ 59 While the evidence in this case was largely circumstantial, this court has often observed
that a conviction “may be sustained on circumstantial evidence alone.” E.g., People v.
Eubanks, 2021 IL App (1st) 182549, ¶ 38; People v. Aljohani, 2021 IL App (1st) 190692, ¶ 79;
see also People v. Beauchamp, 241 Ill. 2d 1, 9 (2011). In addition, motive is not an element of
the crime of murder, and the State has no burden to prove motive to sustain a murder
conviction. Aljohani, 2021 IL App (1st) 190692, ¶ 93; People v. Saulsberry, 2021 IL App (2d)
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181027, ¶ 49 (“the State need not prove motive to sustain a murder conviction”). Defendant
argues that “a lot of closely balanced evidence creates a closely-balanced case.” However, that
is not necessarily so. “[A]n individual item of evidence is merely a brick, one of many bricks
used to build the wall that is the fact at issue.” People v. McKown, 236 Ill. 2d 278, 304 (2010).
“Each individual item of evidence does not have to prove the fact at issue beyond a reasonable
doubt” in order to contribute to a solid wall. McKown, 236 Ill. 2d at 304; see also People v.
Cerda, 2014 IL App (1st) 120484, ¶ 36 (“The State’s evidence” may be “in the details which
form an interlocking pattern.”).
¶ 60 Although the taxi driver recanted at trial, his statement confirmed that he drove
defendant near the scene of the shooting, that defendant began running toward where the
shooting subsequently occurred, and that the driver heard shots shortly after dropping
defendant off. The surveillance videos established that the shooter, in a black hooded
sweatshirt, fled the crime scene and entered Teon’s building less than a minute after the
shooting. Teon confirmed that defendant did, in fact, enter Teon’s building that afternoon. The
DNA evidence connected the black hooded sweatshirt found on Teon’s bed to defendant.
Gunshot residue was found on both cuffs of the sweatshirt. The head of security at defendant’s
school recognized defendant from a photo of the shooter. While no one piece of evidence is
overwhelming, the totality firmly establishes a wall of evidence, such that we cannot find this
case closely balanced.
¶ 61 III. Course of Investigation Exception
¶ 62 Lastly, defendant claims that the trial court erred in its application of the course of
investigation exception to the rule against hearsay.
18 No. 1-19-2509
¶ 63 “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid.
801(c) (eff. Oct. 15, 2015). The rule against hearsay provides that “[h]earsay is not admissible
except as provided by these rules” or by statute. Ill. R. Evid. 802 (eff. Jan. 1, 2011). After
articulating the rule, our evidentiary rules then provide numerous exceptions to it pursuant to
which hearsay may still be admitted. Ill. Rs. Evid., art. VIII.
¶ 64 Although commonly referred to as an “exception,” statements admitted by police
officers concerning the course of their investigation are not hearsay at all. People v. Rush, 401
Ill. App. 3d 1, 15 (2010); People v. Armstead, 322 Ill. App. 3d 1, 12 (2001); People v. Sample,
326 Ill. App. 3d 914, 920 (2001). Hearsay is limited to statements admitted “to prove the truth
of the matter asserted.” Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). By contrast, statements made
by others to officers during the course of the officers’ investigation are not admitted for the
purpose of proving the truth of the matters asserted in those statements but rather are admitted
for the purpose of showing why the officers then did what they did. Rush, 401 Ill. App. 3d at
15; Armstead, 322 Ill. App. 3d at 12; Sample, 326 Ill. App. 3d at 920. Since the truth or falsity
of these statements should not be at issue, the discussion of these statements at trial should be
limited simply to the fact that a statement was made, without disclosing the content of the
statement itself. See People v. Sardin, 2019 IL App (1st) 170544, ¶ 117.
¶ 65 This court has previously instructed trial courts: “with respect to course-of-
investigation testimony, ‘the testimony should be limited [1] to the fact that there was a
conversation, without disclosing its content, and [2] to what the police did after the
conversation concluded.’ ” Sardin, 2019 IL App (1st) 170544, ¶ 117; see also Rush, 401 Ill.
App. 3d at 15 (normally “an officer’s testimony that he acted upon information received, or
19 No. 1-19-2509
words to that effect, should be sufficient”); Sample, 326 Ill. App. 3d at 921. If the content of
an out-of-court statement is nonetheless introduced, the trial court should “ ‘specifically
instruct the jury’ ” that the statement was introduced “ ‘for a limited purpose’ ” of explaining
the officers’ subsequent course of investigation and “ ‘that the jury is not to accept the
statement for the truth of its contents.’ ” Rush, 401 Ill. App. 3d at 15 (quoting Armstead, 322
Ill. App. 3d at 12).
¶ 66 Defendant argues that the trial court erred both in admitting certain statements and in
failing to provide a limiting instruction. To these errors, defendant argues that we should apply
a de novo review.
¶ 67 Defendant acknowledges that it is generally within the trial court’s discretion to decide
whether evidence is relevant and admissible. Morgan, 197 Ill. 2d at 455. A trial court’s decision
concerning whether evidence is relevant and admissible will not generally be reversed absent
a clear abuse of discretion. Morgan, 197 Ill. 2d at 455. An abuse of discretion occurs only
when the trial court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable
person would take the trial court’s view. Morgan, 197 Ill. 2d at 455.
¶ 68 Nonetheless, defendant argues that we should apply de novo review in this particular
case because the issue involves interpreting the rules of evidence regarding hearsay, and
interpreting the meaning of rules generally calls for de novo review. E.g., Robidoux v.
Oliphant, 201 Ill. 2d 324, 332 (2002) (the construction of statutes and rules is a question of
law that we review de novo). Under de novo review, the reviewing court owes no deference to
the trial court’s judgment or reasoning and performs the same analysis that a trial judge would
perform. People v. Begay, 2018 IL App (1st) 150446, ¶ 34.
20 No. 1-19-2509
¶ 69 We do not find defendant’s argument for de novo review persuasive because there is
no confusion here regarding what the rule embodied in Rule 801 states or what any individual
word in the rule means. Ill. R. Evid. 801(c) (eff. Oct. 15, 2015); see People v. Caffey, 205 Ill.
2d 52, 89 (2001) (an “exception to the general rule of deference applies” only when the trial
court’s discretion was “ ‘frustrated by an erroneous rule of law’ ” (quoting People v. Williams,
188 Ill. 2d 365, 369 (1999))). The question is whether the trial court abused its discretion in
applying it.
¶ 70 Defendant argues that the trial court erred in admitting, pursuant to the course of
investigation doctrine, a detective’s testimony about what Teon and Teon’s mother told the
detective regarding the black hooded sweatshirt found on Teon’s bed.
¶ 71 Detective Enrique Pacheco testified that, shortly after the shooting, he interviewed
Teon and his mother, Fredericka, at their apartment. Detective Pacheco asked Teon for
identification and followed Teon to his bedroom as Teon went to obtain his identification. In
Teon’s bedroom, Detective Pacheco observed a black hooded sweatshirt on the bed. Detective
Pacheco testified that, when he asked Teon if the sweater belonged to him, Teon “wasn’t able
to give *** an explanation as to how” it “got there or that it was his.” The defense objected,
and the trial court overruled the objection.
¶ 72 Detective Pacheco testified that, while wearing latex gloves, he “took the sweatshirt
down to show it to” Teon’s mother, Fredericka, “and she was not able to—.” At that point,
defense counsel interjected: “Objection. This is all hearsay.” The trial court stated: “Overruled
in regards to the course of investigation. Overruled. You may continue with your answer.”
Detective Pacheco continued: “She was not able to give me an explanation how that got in her
son’s bedroom and said that it did not belong to anybody in that house.” Defense counsel again
21 No. 1-19-2509
objected, and that trial court again overruled the objection. Detective Pacheco testified that he
submitted the sweatshirt for DNA and gunshot residue testing.
¶ 73 The State argues that the trial court did not abuse its discretion because the objected-to
statements were cumulative to evidence already admitted at trial. Prior to Detective Pacheco’s
testimony, Teon testified that, on the day of the offense, he did not place a black hooded
sweatshirt on his bed.
¶ 74 We do not find this argument persuasive because, while Teon testified that he did not
place a black hooded sweatshirt on his bed, the statement provided by Detective Pacheco
supplies more information. Detective Pacheco reported that Teon was unable to provide an
explanation of how the sweatshirt wound up on his bed or “that it was his.” In addition,
Detective Pacheco reported that Fredericka asserted that no one living in her house owned that
sweatshirt. However, Fredericka did not testify at trial, and no one at trial but Detective
Pacheco testified to the effect that no one living in her house owned that sweatshirt. On the
witness stand, Teon did not deny or admit ownership of the sweatshirt; rather, he denied
placing it on his bed on the day of the offense. Thus, we do not find persuasive the State’s
argument that the substance of the objected-to statements was already in evidence at trial.
¶ 75 We find that the admission of the out-of-court statements went beyond what was
required to explain the officer’s course of investigation. The relevance of a black hooded
sweatshirt was already established by the surveillance video of the shooting, which showed the
shooter wearing a black hooded sweatshirt, and Teon had already testified and denied that he
placed the sweatshirt on the bed that day. No further explanation was required in order for the
jury to comprehend why the officer was seizing the sweatshirt with latex gloves and submitting
it for gunshot and DNA testing.
22 No. 1-19-2509
¶ 76 The State argues that the any error was harmless. Generally, a defendant forfeits review
of an error if he does not both object at trial and raise the issue in a posttrial motion. Piatkowski,
225 Ill. 2d at 564. In the case at bar, defendant preserved the issue for our review, by objecting
to the admission of the out-of-court statements during trial and raising the issue again in a
posttrial motion. We quoted above defendant’s objections at trial; and defendant quoted these
same questions and answers in his posttrial motion, thereby preserving the issue for our review
on appeal. When a defendant preserves an issue for review, “the reviewing court conducts a
harmless-error analysis in which the State has the burden of persuasion with respect to
prejudice.” People v. McLaurin, 235 Ill. 2d 478, 495 (2009) (citing People v. Herron, 215 Ill.
2d 167, 181 (2005)). “ ‘In other words, the State must prove beyond a reasonable doubt that
the jury verdict would have been the same absent the error.’ ” Herron, 215 Ill. 2d at 181-82
(quoting People v. Thurow, 203 Ill. 2d 352, 363 (2003)).
¶ 77 Admission of hearsay is harmless if there is no “reasonable possibility the verdict
would have been different had the hearsay been excluded.” (Internal quotation marks omitted.)
Sample, 326 Ill. App. 3d at 925.
¶ 78 In the instant case, the out-of-court statements concerned the ownership of the
sweatshirt. However, no matter who owned the sweatshirt, there was still only one major DNA
profile suitable for comparison and that one profile belonged to defendant. The profile was not
on the outside of the sweatshirt, but on the inside collar, where the wearer of the shirt would
have been likely to make contact with it. Megan Neff, a forensic DNA analyst with the Illinois
State Police, 3 testified that it was “likely” that someone who wore a sweatshirt throughout the
3 Neff was tendered by the State “as an expert in the field of forensic DNA analysis” and accepted as an expert without objection by the defense. 23 No. 1-19-2509
course of a day and ran while wearing it would “leave behind DNA on the collar.” Neff further
testified that, if the sweatshirt was worn “right side out” and “put down” on the bed that way,
then she “wouldn’t expect” another’s “DNA to be transferred to the inside of it.” Even if
someone else owned the sweatshirt, the DNA analysis firmly established a connection between
defendant, on the one hand, and the wearing of the sweatshirt, on the other hand. Thus, we find
there was no reasonable possibility that the verdict would have been different had the hearsay
been excluded. Sample, 326 Ill. App. 3d at 925.
¶ 79 Defendant further argues that the trial court erred by failing to provide sua sponte a
limiting instruction regarding the admitted out-of-court statements. However, this issue is
forfeited because defendant did not request a limiting instruction at trial. Rush, 401 Ill. App.
3d at 16 (“at no time did defense counsel request a limiting instruction” regarding course of
investigation testimony “and, therefore, the matter is waived”). When a claim has been
forfeited, the plain error doctrine permits us to still review it, if a clear and obvious error
occurred and either (1) the evidence is so closely balanced that this error alone threatened to
tip the scales of justice against the defendant or (2) the error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless
of the closeness of the evidence. Sebby, 2017 IL 119445, ¶ 48. Having found that the admission
of the statements themselves was harmless, we cannot find that the lack of a limiting instruction
regarding those same statements rose to the level of plain error.
¶ 80 CONCLUSION
¶ 81 For the foregoing reasons, we do not find defendant’s arguments persuasive and must
affirm his conviction and sentence.
¶ 82 Affirmed.
24 No. 1-19-2509
No. 1-19-2509
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-CR- 18865; the Hon. Maura Slattery Boyle and the Hon. Stuart P. Katz, Judges, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Andrew Thomas Moore for (Joseph Crawford, law student), of State Appellate Defender’s Appellant: Office, of Chicago, for appellant.
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Matthew Connors, and Noah Montague, Assistant Appellee: State’s Attorneys, of counsel), for the People.