People v. Henderson

2016 IL App (1st) 142259

• Court: Appellate Court of Illinois
• Decided: April 27, 2017
• Docket: 1-14-2259
• Status: Unpublished

Opinion

2016 IL App (1st) 142259 No. 1-14-2259 Fifth Division March 31, 2017

__________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

__________________________________________________________________

) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit ) Court of Cook County Plaintiff-Appellee, ) ) v. ) No. 09 CR 16803 (03) ) RONALD HENDERSON, ) The Honorable ) William G. Lacy, Defendant-Appellant. ) Judge Presiding. ) __________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Ronald Henderson was convicted after a jury trial of the

attempted first degree murder of Andre Turner and Joe Walker and the first

degree murder of Chastity Turner during a drive-by shooting on June 24, 2009, No. 1-14-2259

and sentenced to a total of 100 years with the Illinois Department of

Corrections.

¶2 On this appeal, defendant claims: (1) that the State failed to prove

defendant guilty beyond a reasonable doubt; (2) that the trial court erred by

allowing testimony by a police officer that he issued an investigative alert for

defendant's arrest after a photo array and statement by a witness who did not

testify at trial; (3) that defendant was denied a fair trial when the State was

permitted to introduce evidence of allegedly unrelated guns and other allegedly

unrelated information; (4) that defendant was denied a fair trial by being tried

jointly with codefendant Kevin Stanley when the evidence against Stanley was

allegedly greater; (5) that defendant was denied a fair trial by allegedly

inaccurate or misleading jury instructions; and (6) that the State committed

prosecutorial misconduct during its closing arguments.

¶3 For the following reasons, we affirm defendant's conviction and sentence.

¶4 BACKGROUND

¶5 I. Procedural History

¶6 On September 15, 2009, a grand jury indicted defendant, and

codefendants Kevin Stanley and Davionne Whitfield for the first degree murder

of nine-year-old Chastity Turner, as well as for the attempted first degree

No. 1-14-2259

murder of Chastity’s father, Andre Turner; and Joe Walker. All three were shot

in front of Andre Turner's home on June 29, 2004.

¶7 On October 29, 2012, defendant filed a motion for severance, arguing

that both of his co-defendants might assert a defense antagonistic to him in the

joint trial, which would then prejudice him and violate his right to confront

witnesses if he could not cross-examine his co-defendants. However, on May

13, 2013, when the motion was heard, the trial court asked defendant's counsel

who defendant wanted to be severed from, and counsel replied only “I want to

be severed from Mr. Whitefield [sic],” but did not mention Kevin Stanley.

¶8 As a result, the trial court stated that it was granting defendant's motion

and severed defendant and Stanley’s trial from Whitfield’s trial. Thus,

defendant and Stanley were tried together before a single jury, while Whitfield

had his own trial.

¶9 II. State Witness Testimony

¶ 10 At the trial, which began on March 18, 2014, the State called fifteen

witnesses: (1) Dr. Lauren Woertz; (2) Andre Turner; (3) Julius Davis; (4)

Donise Robertson; (5) Tawanda Sterling; (6) Joe Walker; (7) Officer Edward

Garcia; (8) Officer John Sanders; (9) Officer Nancy DeCook; (10) Paul

Presnell; (11) Mike Mazurski; (12) Aaron Horn; (13) Detective Timothy

O’Brien; (14) Detective Michael O’Donnell; (15) Lakesha Edwards.

¶ 11 Codefendant Kevin Stanley called four witnesses: (1) Darren Keith

Paulk; (2) Keyon Taylor; (3) Alfonzo Deadwiler; and (4) Sergeant John

Nowakowski.

¶ 12 The State's theory of the case was that defendant was the driver of the

van used in the drive-by shooting. The evidence showed that a van approached

Andre Turner's home and that shooters inside the van opened fire, killing

Andre's nine-year old daughter Chastity and also hitting Andre Turner and Joe

Walker.

¶ 13 No physical evidence linked defendant to the shootings. The evidence

against him consisted primarily of identifications by three eyewitnesses: (1)

Andre Turner; (2) Andre's girlfriend, Tawanda Sterling; and (3) Julius Davis.

At the time of the shooting, Andre Turner and Tawanda Sterling were in front

of Andre's home,1 with the passenger side of the van facing them, while Julius

Davis was across the street with the driver's side of the van facing him.

¶ 14 We provide below a detailed description of the evidence at trial because

defendant argues on appeal that the three witnesses who identified him at trial

all had obstructed or distracted views, that they did not identify him

immediately after the shooting even though they had all known him for years,

1 Since both Chastity and her father, Andre, share the same last name, we will refer to them by their first names from this point on, to avoid confusion.

and that they all had a motive to frame him due to their connection to a rival

gang. Defendant argues that, since their identifications were all weak or tainted,

the scales were tipped against him by a police officer's testimony that a

nontestifying witness viewed a photo array and the officer then immediately

issued an alert for defendant's arrest.

¶ 15 We also provide a description of the evidence against codefendant Kevin

Stanley and the evidence presented by Stanley, since one of defendant's claims

is that he was denied a fair trial by being tried jointly with Stanley.

¶ 16 1. Dr. Lauren Woertz

¶ 17 Dr. Lauren Woertz testified that she has been an assistant medical

examiner with the Cook County medical examiner’s office since 2009, and that

she is a forensic pathologist.

¶ 18 Dr. Woertz testified that, on June 25, 2009, a postmortem examination of

Chastity Turner was performed by Dr. Valerie Arangelovich, who no longer

works for the Cook County medical examiner’s office. Dr. Woertz reviewed the

postmortem examination performed by Dr. Arangelovich, since it is common

practice for forensic pathologists to review examinations by colleagues who

have left the medical examiner’s office.

¶ 19 The examination of Chastity’s body revealed that she had a bullet

entrance wound on the right side of her back. Given the lack of gun powder

stippling, Dr. Woertz opined that this gunshot wound was not the result of close

range firing. A bullet was recovered from the right side of Chastity’s neck.

¶ 20 With a reasonable degree of medical and scientific certainty, Dr. Woertz

opined that the cause of death was a gunshot wound to the back and that the

manner of death was a homicide. These opinions were consistent with those of

Dr. Arangelovich in her postmortem exam of Chastity.

¶ 21 Dr. Woertz testified that Dr. Arangelovich noted some bruising on

Chastity’s body as well as three other healed wounds, none of which were

gunshot wounds. Dr. Woertz noted that, given the “classic straightforward

entrance wound,” she was able to determine that this bullet was not a ricochet.

The parties stipulated that a proper chain of custody was maintained at all times

with regard to the sealed envelope containing the lead bullet fragment removed

from Chastity’s body.

¶ 22 2. Andre Turner

¶ 23 Andre Turner testified that Chastity was his nine-year-old daughter and

that Lakesha Edwards was Chastity’s mother. He identified both defendant and

Kevin Stanley in the courtroom, and testified that had had known defendant for

10 or 11 years, and had known Stanley almost all of his life.

¶ 24 Andre testified that, in June 2009, he was the leader of a set of the

Gangster Disciples (“GD”) gang on the block of 7400 South Stewart Avenue,

which was also where he lived. Andre knew a man named Gargamel, who was

defendant’s brother and the leader of the same set of GDs that occupied the

7500 block of South Normal Street, which was a short distance from Andre’s

block. Andre also knew Davionne Whitfield, otherwise known as Gucci, who

was affiliated with the Normal block of GDs. At some point before June 2009,

defendant and Whitfield were friendly with Andre and the Stewart block of

GDs. However, by June 2009, they were no longer friendly with each other.

¶ 25 A few weeks prior to the shooting, Andre met with Gargamel,

defendant's brother, to discuss a territorial proposition regarding the drug

business between each other’s blocks. Andre testified that he declined

Gargamel’s offer and, afterwards, Gargamel appeared to be upset.

¶ 26 Andre also testified that, in the few weeks before the shooting, there were

several fights and shootings between his faction and Gargamel’s faction, which

revolved around disputes between the young members of each faction. Andre

testified that he was present for some of these fights and shootings, and that at

one point he had won a fight between himself and defendant.

¶ 27 On June 24, 2009, at 6:45 p.m., there was a sizeable group of both adults

and children outside Andre’s home on South Stewart Avenue, including his

girlfriend, Tawanda Sterling. Andre and Chastity were in the process of

washing their three dogs. Andre was standing in his driveway in front of his

house and facing the street when he received a phone call from Deannosha

Sharkey,2 and then observed a van that he had never observed before driving on

his street. Andre is colorblind, so he could not provide the accurate color of the

van but he observed it was moving toward himself, southbound, at a high rate

of speed. When the van pulled up to where Andre was standing, the passenger’s

side was facing him, and the passenger side sliding door was already open. In

addition, the front passenger side window was down.

¶ 28 Andre testified that, as the van approached, he was able to observe the

front of the van and identified defendant as the driver. He also identified

codefendant Kevin Stanley as the person in the front passenger seat, who was

hanging a little out of the open window and who began shooting at him. Andre

believed that he heard over 10 shots fired, not all of which sounded the same.

Andre witnessed only Kevin Stanley shooting, and observed that Stanley was

using a rifle with a wooden stock.

¶ 29 Andre testified that, after the shooting started, he began grabbing the

children and throwing them over a nearby fence. Andre had his back toward the

van while he was in the process of placing the children behind the fence. While

2 Deannosha Sharkey is the nontestifying witness who is the subject of defendant's hearsay claim on appeal. As we will describe later, Detective Michael O'Donnell testified at trial that he conducted a photo array with Sharkey who also provided a statement, and that after the photo array and statement, he issued an investigative alert for defendant's arrest. 8 No. 1-14-2259

he was placing the children over the fence, he was struck by a bullet in his left

bicep. He tried to jump over the fence, but was unsuccessful, so he ran towards

the van. The van sped off southbound when Andre came within 15 feet of it. As

the van sped off, Andre observed Davionne Whitfield closing the passenger

side sliding door.

¶ 30 Andre testified that, shortly after the van fled, a friend named Tim pulled

up in front of his house. Andre’s arm was gushing blood from a gunshot wound,

so Andre asked Tim to drive him to the hospital. Tim transported Andre to St.

Bernard’s Hospital. However, Andre testified that he later woke up at Stroger

Hospital in the intensive care unit (“ICU”) at some point during the night on

June 24, 2009. Chicago police officers visited Andre in the ICU and notified

him that Chastity had died. Andre believed from the officers’ tone of voice that

they were blaming him for Chastity’s death, and that they were not on his side.

As a result, Andre refused to cooperate with the officers.

¶ 31 In the days and weeks following the shooting, Detectives Michael

O’Donnell and Timothy O’Brien became involved in the murder investigation.

Andre testified that his feelings toward the investigation changed after these

detectives became involved because they were asking questions about the

individuals who did the shooting rather than focusing on him. The detectives

also were present at Chastity’s funeral, which made a good impression on

Andre.

¶ 32 Andre testified that, after he met with an assistant State’s Attorney

(“ASA”), he decided to cooperate with the investigation. On August 7, 2009,

Andre was contacted by the detectives and travelled to the Area 1 Violent

Crimes Office in order to view a lineup of suspects. During the first lineup,

Andre identified Kevin Stanley as the shooter in the front passenger seat of the

van. That same night, Andre met with an ASA and provided a typewritten

statement. About ten days later, Andre visited a courthouse and provided sworn

testimony in front of a grand jury.

¶ 33 Andre testified that, on August 28, 2009, the detectives contacted him

again, and he returned to the Area 1 Violent Crimes Office to view another

lineup. Andre identified defendant as the driver of the van. Andre testified that

he never identified defendant as a shooter, and did not ever observe a gun in

defendant’s hands.

¶ 34 Upon cross-examination by counsel for Kevin Stanley, Andre testified

that, around the time of the shooting, Andre was selling crack-cocaine and

using marijuana. However, Andre could not recall if he had used marijuana on

the day of the shooting. Andre also testified that, when he received the phone

call from Deannosha Sharkey, prior to the van pulling up, his back was facing

the street.

¶ 35 Upon cross-examination by counsel for defendant, Andre again testified

that he was not facing the street when he received the phone call from

Deannosha Sharkey. When Andre received the call, he heard Julius Davis

scream, “put you head up on that van,” which means pay attention. After that

statement, Andre was facing the street, and the shooting started. Andre’s view

of the van’s driver was not obstructed by any glare from the sunlight.

Defendant’s counsel asked Andre about the statement he provided to an ASA

on August 7, 2009, in which Andre stated that shots were fired before he could

turn around and face the street. Andre testified that he did, in fact, state this in

his statement to the ASA.

¶ 36 Upon redirect examination by the State, Andre testified that the sun was

not in his eyes when he identified defendant as the driver. He also told the ASA

in his statement on August 7, 2009, that he identified defendant as the driver.

¶ 37 3. Julius Davis

¶ 38 Julius Davis testified that he recalled being on the 7400 block of South

Stewart Avenue around 7 p.m. on June 24, 2009. At the time, Davis was

standing on the southbound corner which was down the block and across the

street from Andre’s house. Davis observed many people in front of Andre’s

home, when he also observed a van heading down South Stewart Avenue

toward Andre’s home. When he observed the van pulling up, he yelled “on that

van,” which meant to pay attention to it. Davis observed that the van stopped in

front of Andre’s home and that the occupants of the van began to shoot in the

direction of the residence. Davis testified that he had known defendant for six

or seven years, and he identified defendant as the driver of the van. As the van

drove away from Andre’s house, defendant shot at Davis from the driver’s side.

Davis observed that defendant had a gun, but Davis was unable to provide a

description of the gun. Davis observed the van drive southbound, and then

make a westbound turn in the direction of Normal Street.

¶ 39 Davis testified that, during the evening of July 4, 2009, he met Detectives

O’Brien and O’Donnell at the Area 1 Violent Crimes Office in order to view a

photo array, from which he identified defendant. On August 28, 2009, Davis

returned to Area 1 to view a physical lineup.

¶ 40 Upon cross-examination by counsel for defendant, Davis testified that the

corner on which he stood was halfway down the block from Andre’s house, on

the opposite side of the street. He was standing by a liquor store on the corner,

and was drinking alcohol, but he did not state the type of alcohol. Even though

Stewart Avenue allows parking on either side, Davis testified that there were

probably not many vehicles parked at the time “because there don’t be that

many cars out there like that.” He observed the van coming down the street and

stopping in front of Andre’s house. When the shots started, Davis took cover

behind a nearby tree. Davis heard bullets ricochet off the tree which he was

using for cover, and he tried to duck under some bushes in an attempt to escape

from the bullets. Davis testified that the van drove past him at the same time he

was moving away from the bullets. The van was not moving fast, but the whole

incident lasted only a few seconds.

¶ 41 4. Donise Robertson

¶ 42 Donise Robertson testified that, on June 24, 2009, she resided on South

Stewart Avenue, on the opposite side of the street from Andre’s home.

Robertson had babysat two of Andre’s children on June 24, 2009, and at around

5:45 p.m., Robertson and the children departed her home and walked across the

street to Andre’s home. Thirteen or fourteen people were present at that time.

¶ 43 Robertson testified that she and others went to purchase snow-cones for

the children. Chastity was outside preparing to wash Andre’s dogs. Andre and

Chastity were near the front fence and in the driveway which was close to the

sidewalk in front of the house. After returning, Robertson remained at Andre’s

home where she sat at the top of the porch with other people to watch the

children playing in the front yard.

¶ 44 Robertson testified that she was still sitting on the porch at 6:50 p.m.

when gunshots drew her attention to a teal green van traveling southbound on

Stewart Avenue toward her at Andre’s house, with the passenger side of the van

facing her. Robertson first observed the van when it was near the garbage

receptacles next door to Andre’s home. She was not able to observe the driver,

but was able to identify Kevin Stanley as the shooter in the front passenger seat.

She observed Stanley hanging out of the front passenger window as he was

shooting. Robertson testified that she had known Stanley for four or five years

at this point, and that she had a clear, unobstructed view of Stanley during the

shooting.

¶ 45 Robertson testified that she observed another individual, Davionne

Whitfield, shooting from the right-side passenger sliding door of the van. She

identified him as “Gucci Man.” Robertson’s eldest son was friends with

Whitfield, and she recognized him as someone who had come in and out of her

home during the past two or three years.

¶ 46 Robertson testified that, when the shooting began, she dropped to the

floor of the porch, and thus was unable to observe what happened to the van

after the shooting started. Following the shooting, Robertson took the two

children she was babysitting back to her house across the street. After a couple

of minutes, the police arrived. She went back to the scene after the police asked

to talk to her. Robertson informed the first responding officers that she knew

who did it and provided them with the nicknames of the shooters—“Kevo” for

Kevin Stanley and “Gucci” for Davionne Whitfield.

¶ 47 Robertson testified that, at around 8:30 p.m. that same night, she went to

the Area 1 Violent Crimes Office, where she met with Detective Timothy

O’Brien. Robertson received a set of photographs to review and identified

Whitfield from the first photo array. Approximately three hours later, Robertson

met with another detective, Detective Brian Lutzow, and viewed a second photo

array, from which she identified Kevin Stanley as the shooter in the front

passenger seat. About an hour after that, Robertson viewed a physical lineup

and identified Whitfield as the shooter in the back of the van.

¶ 48 Robertson testified that, on June 26, 2009, she met with an ASA and a

detective, and gave a handwritten statement. On July 9, 2009, Robertson

appeared before a grand jury. On August 7, 2009, Robertson returned to Area 1

to view another physical lineup, from which she identified Kevin Stanley as the

other shooter.

¶ 49 5. Tawanda Sterling

¶ 50 Tawanda Sterling testified that, on June 24, 2009, she was living with

Andre Turner and his mother on South Stewart Avenue, and was in a

relationship with Andre. Sterling was at Andre’s home at 6:50 p.m. on June 24,

and there were many people, both on the porch and in the front yard. Around

6:50 p.m., Sterling was at the bottom of the porch and observed Andre and his

daughter washing their three dogs in the driveway, near the sidewalk.

¶ 51 While sitting on the bottom step of the porch, Sterling’s attention was

drawn to the van when Julius Davis shouted “on that van,” which meant to pay

attention to the van. The passenger side of the van was facing the house.

Sterling turned around and looked at that van, which had already stopped in

front of the house. Then shots began firing from the van. The van’s passenger

side sliding door was open, allowing Sterling to identify Davionne Whitfield

kneeling and shooting. Sterling was unable to obtain a clear view of the person

shooting from the front passenger seat, but she was able to observe the driver,

whom she identified as defendant. Sterling had known defendant for a couple of

years at this point. Sterling then attempted to corral the children, but Andre was

already in the process of doing that, so she ran into the house through the front

door.

¶ 52 Sterling testified that, later that same evening, she went to the Area 1

Violent Crimes Office in order to talk to some detectives. At around 1 a.m., she

viewed a physical lineup, from which she identified Gerald Lauderdale and

Davionne Whitfield. However, Sterling identified Lauderdale only because he

hangs around with Whitfield, and she made the detective aware of her mistake

after she viewed the lineup.

¶ 53 Sterling testified that, on June 26, 2009, she gave a handwritten statement

to an ASA. On July 9, 2009, she testified before a grand jury. On August 28,

2009, she returned to Area 1 in order to view another lineup. From this lineup,

Sterling identified defendant as the driver of the van.

¶ 54 Upon cross-examination by counsel for defendant, Sterling was shown

the statement she had provided to the ASA on the night of June 24, 2009, and

Sterling recognized her signature on every page. Counsel for defendant noted

that, in the statement, Sterling stated that “she noticed the driver of the van had

a gun, but did not recognize who he was[.]” Counsel for defendant and counsel

for the State agreed to stipulate that this was indeed in the statement. However,

when asked if she had in fact stated this, Sterling testified that she did not. Next,

Sterling was asked if she had mentioned defendant’s name during her grand

jury testimony. Counsel for each side agreed to stipulate that she did not, but

Sterling testified that she remembered mentioning his name.

¶ 55 Returning to the events of the shooting Sterling testified that it was a hot

day, and while sitting outside, she was drinking from a pint of Amsterdam

Vodka, but added that it “wasn’t enough to get me super drunk.”

¶ 56 Upon redirect examination by the State, Sterling testified that, right after

the shooting, she travelled to the hospital to be with Andre. At Stroger Hospital,

Sterling provided a statement to detectives and an ASA while Andre was lying

in a bed next to her. She stated that she observed the driver and thought he had

a gun. Sterling then testified that, before the grand jury on July 9, 2009, she was

never asked about defendant, and had not identified defendant at that point.

¶ 57 Upon recross-examination by counsel for defendant, Sterling testified

that the first time she mentioned defendant’s name to the police was when she

visited the police station in August.

¶ 58 6. Joe Walker

¶ 59 Joe Walker testified that, on June 24, 2009, he had known Andre Turner

for almost 20 years. Walker was at Andre’s home on June 24, 2009, at 6:50

p.m., when many people were also present. Walker recalled facing the house

and conversing with Andre in the driveway, near the sidewalk, with Andre

facing South Stewart Avenue. Andre received a phone call and, approximately

at that moment, Walker heard gunshots coming from behind him. Walker was

shot in his back and fell in the driveway, where he remained until the

paramedics arrived to take him to Stroger Hospital. Since he remained on the

ground after he was shot, he was unable to identify anybody in the van.

¶ 60 7. Officer Edward Garcia

¶ 61 Officer Edward Garcia testified that he is a Chicago police officer

stationed in the Englewood neighborhood. During the evening of June 24,

2009, he was patrolling the Englewood area with his partner, Officer Torres. At

7:20 p.m., Garcia received information over his radio concerning a green van

believed to be involved in a shooting earlier that day. Garcia and his partner

found a van matching the radio description in an alley off of South Parnell

Street, approximately three blocks from the crime scene. The van was parked

on the grass in the alley with its doors open and the engine still running. Garcia

observed a man named Christopher Cannon walking away from the van, and

approximately 50 or 60 feet from the van. Garcia did not observe Cannon or

anyone else inside the van. While Garcia and his partner secured the van,

another police vehicle transported Cannon to Area 1 around 7:30 p.m.

¶ 62 8. Officer John Sanders

¶ 63 Officer John Sanders testified that he was a Chicago police officer

assigned to the Englewood police district. On June 24, 2009, at 10:40 p.m.,

Sanders was on patrol in the area of the 7400 block of Normal Street with his

partner, Derrick Patterson, when Sanders noticed multiple people enter a dark

colored van at a quick pace and drive off. Sanders was aware of the shooting

that had occurred a few hours before.

¶ 64 When the van disobeyed a stop sign, Sanders pulled the van over. As he

approached the stopped van, Sanders observed four individuals in the van,

including Gerald Lauderdale, who was a known associate of Davionne

Whitfield. Sanders observed a bag in the van and what he believed to be a

handle of a weapon protruding from it.

¶ 65 Sanders testified that he detained all of the individuals in the van.

Lauderdale was transported to Area 1 Violent Crimes Office. A rifle was

recovered from the bag that Sanders had observed in the van.

¶ 66 9. Officer Nancy DeCook

¶ 67 Officer Nancy DeCook testified that she is a Chicago police officer and

forensic investigator. On June 24, 2009, around 7 p.m., she received an

assignment at South Stewart Avenue with her partner, John Miller.

¶ 68 On the scene, DeCook observed fired cartridge cases from a .22 caliber

rifle in the street in front of Andre Turner’s home. She also found two spent .40

caliber cartridges, one at the top landing of the porch and one on top of the

steps.

¶ 69 DeCook testified that she recovered two weapons from the scene. First,

she recovered a Smith & Wesson .38 caliber revolver from within the barbecue

grill under the back porch. Second, she recovered a .40 caliber Kel-Tec

semiautomatic weapon from the top of the roof. The firearms and casings were

identified, photographed, and inventoried. From the time the evidence was

recovered, it was in the sole possession of the Chicago police department.

¶ 70 DeCook testified that she was then directed to Stroger Hospital to

photograph and collect evidence from Joe Walker, Andre Turner, and Ricardo

Foster.3 DeCook performed a gunshot residue test on all three men and also

collected Walker’s clothing.

¶ 71 Upon cross-examination by counsel for Kevin Stanley, DeCook testified

that gunshot residue may be washed off one's hands. DeCook did not know

whether or not any of the three men had washed their hands or if the hospital

had disinfected their hands prior to her administration of the gunshot residue

test.

¶ 72 10. Paul Presnell

¶ 73 Paul Presnell testified that he is a forensic investigator for the Chicago

police department and was on duty on June 24, 2009, when he received an

assignment to perform a gunshot residue test on Davionne Whitfield at Area 1

Detective Division. Presnell arrived at Area 1 at 10:25 p.m. and performed the

test. In addition, Presnell collected Whitfield’s shirt to inventory as evidence.

3 Ricardo Foster was one of the men whom eyewitness Donise Robertson identified as the apparent targets of the drive-by shooting. However, Foster did not testify at trial, and the trial did not involve charges concerning him. 21 No. 1-14-2259

¶ 74 11. Mike Mazurski

¶ 75 Mike Mazurski testified that he was an evidence technician with the

Chicago police department and that he was on duty at 9:46 a.m. on June 25,

2009, when he received an assignment to recover a tote bag containing a

handgun and ammunition. The bag was recovered on top of a barbecue grill in

the backyard of Andre’s residence on South Stewart Avenue. After

photographing the tote bag as it appeared at the scene, Mazurski transported the

tote bag back to his office. At his office, Mazurski removed all the items and

photographed them individually. Afterwards, he inventoried each item.

¶ 76 12. Aaron Horn

¶ 77 Aaron Horn testified that he was a forensic scientist with the Illinois State

Police, specializing in the area of firearms. Horn examined: (1) a Serrifile

Incorporated Model Terrier One .32-caliber Smith & Wesson revolver, (2) a

Smith & Wesson Model 10-5 revolver, (3) a Ruger 1022 semiautomatic rifle,

and (4) a Kel-Tec Model P40 semiautomatic pistol. Horn determined that all

four firearms were functional.

¶ 78 Horn testified as follows about the difference between a revolver and a

semiautomatic firearm. Revolver cartridges must be manually removed after

being discharged. In contrast, a semiautomatic firearm automatically ejects

spent cartridges out of the weapon after being discharged. Semiautomatic rifles

and pistols work in the same fashion. Though the ejection port on a

semiautomatic firearm is supposed to eject the spent cartridge in one direction,

Horn testified that, due to numerous variables, there was no reliable way to

determine if the cartridge ejects in the same direction every time. Shooter

position, type of ammunition used, and the surface the cartridge hits all affect

where the spent cartridge ultimately lands.

¶ 79 Horn testified that he examined a fired bullet from the medical

examiner’s office and determined that the bullet was a .22 caliber and that this

bullet could not have been fired from any of the four firearms which he had

previously examined.

¶ 80 Horn testified that he determined that all five .22-caliber long rifle

casings recovered from South Stewart Avenue were fired from the same

firearm. These five .22-caliber long rifle casings could not have been fired from

any of the four firearms which he previously examined. Seven other .22-caliber

long rifle cartridges were also fired from the same weapon as the previous five

.22 cartridges. None of the 12 total .22-caliber cartridges were fired from any of

the four firearms examined. Another cartridge casing recovered was a .223

caliber which could not have been fired from any of the four firearms

examined.

¶ 81 Horn testified that two .40 caliber cartridge casings found on the front

porch of Andre’s home were fired from the same firearm and only the Kel-Tec

Model P40 could have fired these cartridges. After further examination, he

determined that the two .40 caliber cartridges found at the scene were fired

from the Kel-Tec.

¶ 82 Horn testified that a carbine is a generalized term for a short-barrel rifle,

though there is no specific length requirement. The two .40 caliber cartridges

came from the Kel-Tec, but it is possible for the .22-caliber long rifle or .223

caliber cases to have been fired from a carbine type rifle. The .22 caliber

cartridge casings could also have been fired from a semiautomatic pistol as well

as a revolver designed to fire that caliber. It was possible that the bullet he

received from the medical examiner’s office could have been fired from a

revolver.

¶ 83 Horn testified that bullets typically cannot be compared to casings as

“any markings transferred from the casing to the bullet would be obliterated by

the time it travels down the barrel.” However, bullets can be compared to

firearms. Horn opined that, based upon the number of shell casings he

examined, there was a minimum of two firearms in this incident and a

maximum of three.

¶ 84 13. Detective Timothy O’Brien

¶ 85 Detective Timothy O’Brien testified that he was a homicide detective

with the Chicago police department and was assigned to the Area 1 Detective

Division on June 24, 2009, which is the police district where the incident

occurred. During the ten years that he worked as a detective in Area 1, he had

personally investigated nearly 1000 murders and shootings. In the course of his

investigations, O’Brien worked with other detectives assigned to the area, as

well as beat officers and witnesses.

¶ 86 O’Brien testified that he was familiar with the street gangs in the

Englewood area. Based on his investigations in Area 1, O’Brien testified that, in

June 2009, the Gangster Disciples street gang had control of the 74th Street and

Stewart Avenue block and the 75th Street and Normal Street block. However,

on June 24, 2009, the Gangster Disciples from these two blocks were not a

unified group due to an internal gang conflict.

¶ 87 O’Brien testified that he was on duty at 7:10 p.m. on June 24, 2009, and

was assigned to the shooting on South Stewart Avenue with his partner,

Michael O’Donnell. While en route to the scene, he received information that

three males had been shot and transported to Stroger Hospital and that one

young girl had also been shot and transferred to Comer Children’s Hospital.

¶ 88 O’Brien testified that, when he arrived at the scene, there was already a

heavy police presence and the area was cordoned off from the public with red

and yellow crime scene tape. There were two Chicago police department pod

security cameras, one at each end of the 7400 block of South StewartAvenue,

and he obtained footage of the pod cameras’ recordings. Unfortunately, those

recordings were not useful in providing footage of the shooting.

¶ 89 O’Brien testified that he inspected the scene and observed numerous

areas of biological and physical evidence. At 8:15 p.m., O’Brien received

information from a detective who had been canvassing possible witnesses

regarding a potential offender, which he relayed to tactical officer Tom

Gorman. After speaking with Gorman, O’Brien learned that the name of the

potential offender was Davionne Whitfield.

¶ 90 While on the scene, O’Brien was notified that a van had been recovered

at 75th Street and Parnell Street. When O’Brien went to the area, he observed a

teal-colored van in the alley with its engine still running. It was obvious that a

key was not used to start the van because the column was removed. O’Brien

observed “the passenger sliding door was open and there was numerous

expended shell cartridge casing evidence inside the vehicle.”

¶ 91 O’Brien testified that, at around 9:00 p.m. that same evening, he met with

Donise Robertson at Area 1 Detective Division in order to show her a photo

array. A photograph of Whitfield was included in the six-photograph array.

From the array, Robertson identified Whitfield as one of the shooters. O’Brien

testified that this photo array was lost after it was placed into a file.

¶ 92 O’Brien testified that he learned that Whitfield had been arrested at

approximately 9:00 p.m. that night and transported to Area 1 for questioning.

O’Brien then questioned Whitfield. At approximately 11:00 p.m. that night,

O’Brien requested that forensic investigators administer a gunshot residue test

to Whitfield’s hands. Since this was around 3 1/2 hours after the shooting,

O’Brien admitted that he had no idea if Whitfield had washed his hands or

changed his clothes in the meantime.

¶ 93 In addition to Robertson, O’Brien testified that the following witnesses

were brought to Area 1 on the night of the shooting: Tawanda Sterling,

Dominique Turner, and Christopher Cannon. O’Brien questioned Cannon and

released him later that night because Cannon provided an alibi that was

corroborated by his mother. O’Brien stated that Cannon was “not a suspect to

begin with *** [h]e was brought in because he was in the vicinity of the vehicle

used in the shooting was [sic] and he was brought in and then he was

subsequently released.” Cannon appeared in two lineups, but was not identified

by any of the witnesses.

¶ 94 Upon cross-examination by counsel for Kevin Stanley, O’Brien testified

that during his interview with Donise Robertson, she stated that she had

observed Stanley carrying a silver firearm, which O’Brien included in his

report.

¶ 95 Upon cross-examination by counsel for defendant, O’Brien testified that,

after all of the witness interviews and investigation on the night of the incident,

including his interview with Tawanda Sterling at Area 1, he did not know the

identity of the driver of the van.

¶ 96 14. Detective Michael O’Donnell

¶ 97 Detective Michael O’Donnell testified that he was a detective for the

Chicago police department assigned to Area 1. On June 24, 2009, he was

assigned to investigate a shooting in the 7400 block of South Stewart Avenue

with his partner, Detective Tim O’Brien. O’Donnell viewed the crime scene at

Andre’s home, as well as the van in the alley off South Parnell Street before

returning to Area 1 to interview witnesses. O’Donnell was present for

O’Brien’s interview of Donise Robertson. O’Donnell was also present when

Robertson viewed the photo array and identified Davionne Whitfield as one of

the shooters inside the van.

¶ 98 O’Donnell testified that at 12:09 a.m. on June 25, 2009, he was made

aware of Donise Robertson’s identification of Kevin Stanley from a photo array

conducted by Detective Lutzow. Approximately an hour and a half later,

O’Donnell conducted a physical lineup for witness Tawanda Sterling, which

included both Davionne Whitfield and Gerald Lauderdale. Sterling identified

both Whitfield and Lauderdale, but shortly afterward she changed her

identification of Lauderdale, explaining that she had identified him because “he

was always with Whitfield and she just assumed he had been one of the people

in the van.” After Sterling viewed the lineup, Robertson viewed it and identified

Whitfield, but made no mention of Lauderdale. O’Donnell testified that, when

multiple witnesses are present at the police station to view a lineup, the

witnesses are kept separate at all times.

¶ 99 O’Donnell testified that, on June 25, 2009, at 4:30 p.m., he conducted a

photo array at Area 1 with Deannosha Sharkey. Following the photo array,

Sharkey offered to provide a handwritten statement. After he met with Sharkey,

O’Donnell testified that investigative alerts were issued for (1) DeShawn Walls,

(2) Kevin Stanley, and (3) defendant. Both defense attorneys objected to this

portion of O’Donnell’s testimony, but were overruled.

¶ 100 DeShawn Walls was arrested on June 26, 2009, and subsequently brought

to Area 1 where O’Donnell interviewed him. After the interview with Walls,

O’Donnell contacted Walls’ girlfriend, Krystal Terry, and another woman with

respect to the alibi Walls provided. O’Donnell released Walls without charges

after Terry traveled to Area 1 for an interview and corroborated the alibi.

¶ 101 O’Donnell testified that he interviewed Julius Davis at Area 1 on July 4,

2009. Following that interview, Davis viewed a photo array and identified

defendant as the driver of the van. Davis stated that he observed defendant point

a gun and shoot at him as the van fled the scene.

¶ 102 O’Donnell testified that he and O’Brien, along with officers from the

gang investigation section and fugitive apprehension section, had been visiting

known addresses of Kevin Stanley in order to locate him. Stanley was arrested

on August 7, 2009, and included in a physical lineup viewed by Andre Turner

and Donise Robertson at Area 1. Andre viewed the lineup first and identified

Stanley as the shooter in the front passenger seat of the van. After Andre,

Robertson viewed the lineup, and also identified Stanley as the shooter in the

front passenger seat of the van. O’Donnell testified that, prior to viewing the

lineup, Andre and Robertson were kept separate until both had fully completed

the viewing process.

¶ 103 O’Donnell testified that, on August 28, 2009, he was notified that

defendant was arrested. O’Donnell then conducted physical lineups that

included defendant. At approximately 2:30 p.m., Julius Davis was the first

person to view this lineup. After viewing the lineup, Davis identified defendant

as the driver of the van who shot at Davis. Counsel for defendant objected to

this portion of O’Donnell’s testimony, but was overruled.

¶ 104 O’Donnell testified that defendant was allowed to choose his position in

the lineup before each viewing. When Davis viewed the lineup and made his

identification, defendant occupied position four. After that first lineup,

defendant chose a different position. The next person to view the lineup was

Andre Turner, at 5:25 p.m. and he also identified defendant as the driver of the

van. After Andre, Tawanda Sterling viewed the lineup and also identified

defendant as the driver of the van. Andre and Sterling were kept separate until

both of them completed the lineup viewing process.

¶ 105 O’Donnell testified that he had asked forensic investigator Kathleen

Gauhagen to process the van found in the Parnell Street alley, and specifically

to look for fingerprints. No fingerprints were recovered from the van, including

the registered owner’s prints. O’Donnell testified that, in his experience, the

absence of fingerprints indicated that “the vehicle had either been wiped down

or the occupants of the vehicle had covered their hands to prevent leaving

fingerprints.”

¶ 106 Upon cross-examination by counsel for Kevin Stanley, O’Donnell

testified that no fingerprint evidence was found in the van located in the Parnell

Street alley, which suggested that the van may have been wiped down in order

to erase fingerprints. O’Donnell also testified that he had spoken to a total of

four people when he was verifying the alibi provided by Gerald Lauderdale.

¶ 107 Upon cross-examination by counsel for defendant, O’Donnell testified

that the first time he had contact with Julius Davis was when Davis was brought

to Area 1 by Andre Turner for an interview on July 4, 2009. In addition,

O’Donnell testified that, on August 28, 2009, Andre and Tawanda Sterling

arrived at Area 1 together to view lineups that included defendant. O’Donnell

was aware that Andre and Sterling were in a relationship.

¶ 108 15. Lakesha Edwards

¶ 109 Lakesha Edwards testified that Chastity Turner was her youngest child,

and Andre Turner was Chastity’s father. On June 20, 2009, Edwards gave

Chastity permission to stay at Andre’s house, where she stayed until June 24,

2009. On the morning of June 24, Edwards spoke to Chastity and made plans

for Chastity to return home. Edwards testified that later that day, her uncle,

Lavelle Johnson, notified her that Chastity had been shot. When she learned

that Chastity had been taken to Comers Children’s Hospital, Edwards

immediately ran to the hospital. Upon her arrival, Edwards was informed that

Chastity had died.

¶ 110 16. Stipulations Introduced by the State

¶ 111 All parties agreed to stipulate that the Secretary of State records showed

that, on June 24, 2009, a certain green 1995 Oldsmobile van was owned by an

unrelated individual, and that, at 6:30 a.m. on June 24, this individual reported

her van stolen. This green 1995 Oldsmobile van was the van which the State

argued was used in the shooting.

¶ 112 The parties also stipulated that forensic investigator Donald Fanelli

photographed the same green 1995 Oldsmobile van and collected eight fired

cartridges from inside the van and forwarded them to the Illinois State Police

Forensic Services for firearms testing. Fanelli also photographed a second van,

which was the van that Lauderdale was stopped in. The parties stipulated that

Fanelli recovered the rifle discovered in this second van, and that this rifle was

inventoried and submitted to Forensic Services for firearms testing. A proper

chain of custody was maintained at all times.

¶ 113 The parties also stipulated that, on July 1, 2009, forensic investigator

Kathleen Gauhagen processed the 1995 Oldsmobile van,4 specifically looking

for any possible fingerprints and DNA evidence. Gauhagen found no

fingerprints inside the van. DNA swabs were taken from various locations

inside the van and inventoried with the Chicago police department. Gauhagen

4 Her stipulation did not note that the van was green or teal. 33

also recovered a shell casing from the front passenger seat, which was sent to

the Illinois State Police Forensic Services for firearms testing. A proper chain of

custody was maintained at all times.

¶ 114 The parties also stipulated that Mary Wong was a forensic scientist

employed by the Illinois State Police. On June 25, 2009, Wong received a white

t-shirt recovered from Davionne Whitfield, as well as gunshot residue collection

kits administered to Davionne Whitfield, Ricardo Foster, Andre Turner, and Joe

Walker. Wong analyzed the gunshot residue kits and, with a reasonable degree

of scientific certainty, opined that the tests indicated that four individuals may

not have discharged a firearm. A proper chain of custody was maintained at all

times.

¶ 115 The parties also stipulated that Nicholas Richert was a forensic scientist

employed by the Illinois State Police Division of Forensic Services and

qualified as an expert in the field of DNA analysis. On October 6, 2010, Richert

received DNA swabs taken by Kathleen Gauhagen on July 1, 2009. Richert

examined the DNA swabs and, with a reasonable degree of scientific certainty,

opined that no positive associations could be made between the DNA swabs

and the DNA profiles of defendant and Kevin Stanley. A proper chain of

¶ 116 The parties also stipulated that Detective Brian Lutzow was employed by

the Chicago police department as a homicide detective assigned to Area 1

Violent Crimes. On June 24, 2009, he was assigned to the shooting

investigation of Chastity Turner. He canvassed witnesses at the scene, and

afterward transported Donise Robertson to Area 1. Lutzow prepared a photo

array to show to Robertson. A photo of Kevin Stanley was included in the photo

array. From this photo array, Robertson identified Stanley as one of the

shooters.

¶ 117 III. Defense Witness Testimony

¶ 118 1. Darren Keith Paulk

¶ 119 After the State rested, counsel for Kevin Stanley called Darren Keith

Paulk, who testified that he is Stanley’s cousin and has known Stanley his entire

life. Paulk testified that, on June 24, 2009, he was celebrating the birthday of

Erica Stevenson, a friend, when he received a call “from the area saying a little

girl got killed.” The birthday party occurred on West 59th Street, and Stanley

was at the party. Paulk and his cousin, Keyon Taylor, along with a friend named

Boo, picked up Stanley between 1:00 p.m. and 2:30 p.m. and brought Stanley to

the party. Paulk picked up Stanley around 85th Street and Wallace Street, near

Simeon High School.

¶ 120 Paulk testified that he was living at the house where the birthday party

was held, so he was present throughout the entire day. He observed Stanley

enter a vehicle and leave the party between 5:00 p.m. and 6:30 p.m., with

Alfonzo Deadwiler and a woman named Nicole. Deadwiler and Nicole’s

children were also in the vehicle.

¶ 121 Paulk testified that he was convicted of delivery of a controlled substance

in 2009. In 2012, he was convicted of possession of a controlled substance, for

which he was incarcerated for one year in the Department of Corrections.

¶ 122 Upon cross-examination by the State, Paulk testified that in January or

February 2010 he learned that Stanley had been arrested for murder after a

family member told him about it, but he did not remember which family

member. Paulk never knew Chastity. Paulk also was never told what day the

murder occurred. However, since he recalled hearing about a girl being killed in

the Englewood area, he linked that to the day of the birthday party.

¶ 123 Paulk testified that he did not attempt to contact the authorities in 2010 to

relay the information that Stanley was with him on June 24, 2009. However, he

provided this information to the police on August 8, 2011. He was not contacted

by the police prior to August 8, 2011, regarding Stanley’s involvement in the

shooting. During his meeting with a State investigator on August 8, Paulk stated

that he did not remember the exact date in question. Paulk told the investigator

that he observed Stanley at the birthday party up until 5:00 p.m. Paulk next

spoke to a defense investigator on December 20, 2013, and stated that he

observed Stanley at the party until 6:45 p.m. Paulk testified that he was not sure

of the time, but believed his observation of Stanley at the party fell between

5:00 p.m. and 6:45 p.m.

¶ 124 Paulk testified that he had never spoken with Stanley regarding the

murder charge or about this alibi. Paulk did previously discuss the alibi twice

with counsel for Stanley and with other witnesses present at the birthday party.

¶ 125 2. Keyon Taylor

¶ 126 Next, counsel for Kevin Stanley called Keyon Taylor, who testified that

he was a friend of Stanley and had known him for 16 years. In June 2009,

Taylor was at a barbecue and birthday party for Erica Stevenson, who is the

mother of Taylor’s two daughters. Taylor’s uncle, Herman Payton, told him that

evening about the shooting, and he recalled that party specifically because it

was the same day as the shooting. Taylor testified that he received this call

sometime in the evening.

¶ 127 Taylor testified that there were many people at the party, including

Stanley, whom Taylor picked up with Darren Paulk and “Boo.” Taylor picked

up Stanley at about 1:30 p.m. near 81st Street and Wallace Street and drove to

the party. Taylor was at the party throughout the day and observed Stanley

leave the party with Alfonzo Deadwiler, Deadwiler's wife Nicole, and their

kids, around 5:00 p.m. or 5:30 p.m. Stanley did not return to the party after he

left.

¶ 128 Taylor testified that, on August 8, 2011, he spoke with a State’s Attorney

investigator. He was not contacted by the police before August 8. Taylor also

testified that he was convicted of felony aggravated unlawful use of a weapon

in 2008, for which he received probation for two years.

¶ 129 Upon cross examination by the State, Taylor testified that he learned

from a friend that Stanley was arrested on the day it happened, and then later

said that he learned of Stanley’s arrest a week or two afterwards. Taylor did not

learn what Stanley was arrested for until investigators spoke with him a few

months after Stanley’s arrest. He knew that the murder occurred on the day of

the birthday party because he remembered being at the party when his uncle

called him and told him about the murder. Taylor never contacted authorities

regarding this alibi.

¶ 130 3. Alfonzo Deadwiler

¶ 131 Counsel for Kevin Stanley called Alfonzo Deadwiler, who testified that

he had known Stanley for six years and had met him through Keyon Taylor and

Darren Paulk. In June 2009, Deadwiler’s mother, Carolyn Lowe, threw a

barbecue for Erica Stevenson at her house. Stevenson’s birthday was June 24.

Deadwiler arrived at the party around 2:30 p.m. or 2:45 p.m., and Stanley

arrived shortly after with Paulk and Taylor, who had driven Stanley to the party.

Deadwiler was at the party throughout the day, and Stanley never left while

Deadwiler was there. Deadwiler left the party between 6:30 p.m. and 7:00 p.m.

with his wife, Nicole, their children, and Stanley, and they all traveled to

Deadwiler’s home in East Chicago, Indiana. The drive took approximately 25 to

30 minutes. After they arrived at Deadwiler’s home, Deadwiler and Stanley

stayed at the house, drinking and watching television. Stanley stayed the night

at Deadwiler’s home.

¶ 132 Deadwiler testified that he spoke with Stanley’s counsel a couple of

months after Stanley was incarcerated. Deadwiler also testified that he spoke

with an investigator from the State’s Attorney’s Office on September 20, 2011.

¶ 133 Upon cross-examination by the State, Deadwiler testified that, when he

spoke with a State investigator on September 20, 2011, he did not remember the

exact day in question, but believed the date to have been "the 23rd, 24th, or the

25th." Deadwiler also testified that he was with Stanley on the day he was

arrested, but dropped him off just before the arrest. Deadwiler learned the next

morning from his mother that Stanley had been arrested, and was told that

Stanley had been arrested for sitting in front of an abandoned building.

Deadwiler did not learn that Stanley was arrested for murder until a couple of

days afterwards.

¶ 134 Deadwiler testified that he remembered this particular barbecue because

he had just moved from Wisconsin to East Chicago, Indiana, and he went to his

mother’s house only for special occasions, and this birthday party was one of

them. In August or September 2010, Deadwiler learned that Stanley was

charged with the murder of Chastity Turner when he spoke with Stanley’s

lawyer. Deadwiler testified that he had not spoken with Stanley or any other

witnesses regarding this alibi. Deadwiler never contacted the authorities

¶ 135 4. Sergeant John Nowakowski

¶ 136 Next, counsel for Kevin Stanley called Sergeant John Nowakowski, who

testified that he was employed by the Chicago police department and that he

met with Andre Turner at Stroger Hospital the day after the shooting. Andre

told Nowakowski that he knew the occupants of the van and had also been told

their names.

¶ 137 Upon cross-examination by the State, Nowakowski testified that Andre

did not reveal their names to him. Nowakowski believed that Andre was still

upset with the police at this time.

¶ 138 All parties agreed to stipulate that Kim Taylor worked as an investigator

for Whitfield's counsel on December 8, 2010, and that, if Kim Taylor were to

testify, she would state that in her capacity as an investigator, she spoke with

Andre Turner, who told her that the backseat passenger was either DeShawn

Walls or “Pistol Pete.”

¶ 139 IV. Jury Instructions

¶ 140 After all the parties rested, a jury instruction conference was held off the

record. Since the conference was held off the record, we do not know what the

parties or the court discussed during it. However, on the next day of trial, the

trial court read the results of the conference on the record. Since defendant

challenges several of the jury instructions on appeal, we provide here a detailed

description of the trial court's ruling.

¶ 141 The trial court indicated that counsel for defendant had objected to the

circumstantial evidence instruction offered by the State, on the ground that it

was poorly worded and confusing. The court read the instruction on the record

as follows:

“Circumstantial evidence is the proof of facts or circumstances which

give rise to a reasonable inference of other facts which tend to show the

guilt or innocence of the defendant. Circumstantial evidence should be

considered by you together with all the other evidence in the case in

arriving at your verdict."

This is also verbatim how the pattern jury instruction is worded. Illinois Pattern

Jury Instructions, Criminal, No. 3.02 (4th ed. 2000) (hereinafter IPI Criminal

4th). Defense counsel did not offer an alternative instruction, and the trial court

overruled the defense’s objection. The defense also objected to IPI Criminal 4th

Nos. 6.07X and IPI 7.02 offered by the State, the instructions for attempted

first-degree murder and first-degree murder, respectively, on the ground that

they were confusing.

¶ 142 Specifically, counsel objected to the language at the end of the fourth and

fifth paragraphs of each instruction that stated “you should find the defendant

guilty” or “you should find the defendant not guilty.” (Emphases added). IPI

Criminal 4th Nos. 6.07X, 7.02. Since there were two defendants at trial, the

defense argued that the instruction suggested that “if you find for one, you

could find for the other.” Counsel argued that the phrase “the defendant” in the

two sentences should be changed to “that defendant” in order to indicate a

difference between the two defendants. The trial court overruled the objection,

stating (1) that the word “that” would have to refer back to something and there

was nothing for “that” to refer back to, and (2) that one of the initial instructions

was that each defendant should be considered separately by the jury.

¶ 143 V. Closing Arguments

¶ 144 On appeal, defendant claims that the State engaged in prosecutorial

misconduct throughout the State's closing argument. Thus, we describe the

parties' closing arguments, focusing on the remarks challenged on appeal.

¶ 145 In its initial closing argument, the State described the gang disputes that

occurred in the Englewood neighborhood between the two rival factions, and

how they culminated in the death of Chastity Turner. The State’s primary

argument concerning defendant focused on the eyewitness testimony which

corroborated their respective accounts and identified defendant as the driver.

Julius Davis identified defendant as the driver, which was later corroborated by

Andre Turner. In addition, Tawanda Sterling identified defendant as the driver.

The State emphasized that these identifications were significant since all three

people knew defendant.

¶ 146 The State also detailed the thoroughness of the police investigation. The

State argued that the police did everything that they could possibly do regarding

the recovered evidence. In addition, they recovered several guns and other

evidence, and investigated persons of interest and eliminated them as suspects

once they had proper grounds. The State discussed Gerald Lauderdale and how

he was brought in by the police, but not positively identified by any of the

witnesses. Lauderdale had a gun when he was arrested, and the State opined

that “Lauderdale had this gun because why? He’s either getting out of town.

He’s getting out of town because you know what, some bad stuff happened on

Stewart that evening. *** Getting out of town, got to have something to defend

himself because there’s going to be hell to pay.” Counsel for defendant

objected, but was overruled by the trial court.

¶ 147 In his closing argument, counsel for defendant argued that the identifying

witnesses were unreliable, and had a motive to collude in their identifications.

Andre Turner was physically turned around for part of the time when the van

pulled up. He was distracted. His identification of defendant “happened in a

fleeting second or seconds through the front window of the van” and Andre had

a problem with defendant. Tawanda Sterling spoke with police on June 24, but

did not mention defendant’s name. The first time she told authorities that she

knew the identity of the driver was on August 28, when Andre brought her to

the police station. Also, she was drinking when the incident occurred, which

counsel argued affected her ability to observe. Julius Davis made his

identification of defendant while hiding behind a tree to protect himself from

gunfire. Counsel argued that Davis' judgment was off because he left the cover

of the tree to hide behind a bush, when a tree provides better cover. Counsel

stated that “he’s ducking, he’s running, he’s not seeing.”

¶ 148 In its rebuttal closing argument, the State characterized defendant’s

argument as speculative. The State argued that the defense’s arguments were

“not based on any admissible evidence, not based on the evidence you heard,

and basically not supported by the law.” The State argued that the identifying

witnesses were all credible. Andre was credible because he testified that he was

a “drug-dealing gang member” and could not deny that fact in the future since it

was recorded. Julius Davis was credible because he would likely be labeled as a

“gang snitch” for providing his testimony and would now have to fear

retaliation from Gargamel, defendant’s brother. Tawanda Sterling and Donise

Robertson were credible because “they violated rule number one of the street,

they didn’t stop snitching.”

¶ 149 Responding to the defense argument that the identifying witnesses were

mistaken, the State argued: “All four main witnesses misidentified the same

three defendants. What are the chances of that?” The State argued that this was

impossible.

¶ 150 The State argued that the defense’s tactic regarding the identifying

witnesses was to “deny, deflect, and offer a disingenuous defense.” The trial

court sustained counsel for defendant’s objection when the State characterized

the defense’s argument as “when everything is against you, you just come up

with stuff. Collusion.” The State later argued that the theory that this was a

conspiracy of which Andre was the “puppeteer” was “another big pile of

hooey.” The State argued that it would have to be Donise Robertson, not Andre,

who was at the center of any conspiracy because she made identifications to the

police at the crime scene while Andre was at the hospital:

“I mean, picture the scene. It’s ridiculous. Picture the scene. Grandma

Donise out there, everyone gather around, get those dogs, get them to stop

crying, I’ll be in shock. Gather around. I know we’re all sorry about

Chastity. But you know what, Ronald and the boys, they’ve been

crowding in on my baby-sitting business and this is a great time for us to

set up a conspiracy against them. Now, Tawanda, you run along and you

let Andre know this is what we’re gonna do. We’re gonna put Old Ronnie

in the van, Kevin in the van, [Whitfield] in the van. This is where they’re

gonna be. Run off, let me know, so we all get together. It’s ridiculous. It’s

ridiculous.”

¶ 151 The State argued against the reliability of the alibi witnesses provided by

Kevin Stanley, arguing: “Remember every alibi has a little bit of a lie in it, and

this one has a lot of lie.” The State stressed that the alibi witnesses were not

certain of dates, did not visit Stanley in prison, and did not contact authorities to

tell them about the alibi. The State also observed that counsel for Kevin Stanley

did not offer further evidence to corroborate the testimony of the alibi

witnesses. The State argued that Stanley's alibi witnesses were not believable:

“They have a constitutional right to get up there and tell you the biggest bunch

of garbage that they can come up with, and that’s exactly what they did, ladies

and gentlemen.” Later, the State argued: “Those alibi witnesses might as well

have been Elvis, the Easter Bunny, and Santa Clause [sic] for the amount of

credibility they had and they want you to rely on that testimony in setting them

free.” The trial court sustained counsel for defendant’s objection, but only as to

the word “them.”

¶ 152 VI. Jury Verdict and Sentencing

¶ 153 The jury found defendant guilty of all counts, and on May 7, 2014,

counsel for defendant filed a posttrial motion for a new trial. Defendant argued

that the State failed to prove his guilt beyond a reasonable doubt and that he

was denied due process when the trial court overruled objections to several

arguments made by the State during its rebuttal closing argument. On July 9,

2014, the trial court denied the motion.

¶ 154 On July 9, 2014, the trial court sentenced defendant to 50 years for the

first degree murder of Chastity Turner, 25 years for the attempted first degree

murder of Joe Walker, and 25 years for the attempted first degree murder of

Andre Turner. These sentences were to be served consecutively for a total of

100 years.

¶ 155 On July 9, 2014, defendant filed a timely notice of appeal, and this appeal

followed

¶ 156 ANALYSIS

¶ 157 On this appeal, defendant claims: (1) that the State failed to prove

defendant guilty beyond a reasonable doubt; (2) that the trial court erred by

allowing testimony by a police officer that he issued an investigative alert for

defendant's arrest after a photo array and statement by a witness who did not

testify at trial; (3) that defendant was denied a fair trial when the State was

permitted to introduce evidence of allegedly unrelated guns and other allegedly

unrelated information; (4) that defendant was denied a fair trial by being tried

jointly with codefendant Kevin Stanley when the evidence against Stanley was

allegedly greater; (5) that defendant was denied a fair trial by allegedly

inaccurate or misleading jury instructions; and (6) that the State committed

¶ 158 For the following reasons, we affirm defendant's conviction.

¶ 159 I. Sufficiency of the Evidence

¶ 160 First, defendant argues that the State's evidence was insufficient.

Although three occurrence eyewitnesses identified defendant as the driver of

the van, and all three witnesses knew defendant prior to the shooting, defendant

argues that the State's evidence was insufficient because: these witnesses did

not identify him until a week or more after the shooting; they had limited

opportunities to view the driver; and they had a motive to fabricate since

defendant belonged to a rival gang faction.

¶ 161 When assessing a challenge to the sufficiency of the evidence, a court

considers " 'whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.' " (Emphasis omitted.) People

v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)). If we find that the evidence meets this standard, we must

affirm the conviction (People v. Herrett, 137 Ill. 2d 195, 203 (1990)); we will

not retry the defendant (People v. Beauchamp, 241 Ill. 2d 1, 8 (2011); People v.

Wheeler, 226 Ill. 2d 92, 114 (2007); People v. Smith, 185 Ill. 2d 532, 541

(1999)).

¶ 162 On review, this court must consider all the evidence in the light most

favorable to the State (Collins, 106 Ill. 2d at 261), and we will not substitute our

judgment for that of the trier of fact unless the sufficiency of the evidence is so

improbable, unsatisfactory, or unreasonable that it justifies a reasonable doubt

of defendant's guilt (Wheeler, 226 Ill. 2d at 115; Smith, 185 Ill. 2d at 541).

¶ 163 As we observed, three eyewitnesses identified defendant as the driver of

the van during the June 24, 2009, shooting. First, Andre Turner testified that he

had known defendant for 10 or 11 years and that, as the van approached, Andre

was able to observe the front of the van and could identify defendant as its

driver. Andre testified that he later viewed a lineup on August 28, 2009, and

identified defendant as the driver. Defense counsel cross-examined Andre

about his lack of cooperation with the police immediately after the shooting and

about his ability to view the van's driver. Andre testified that his view of the

driver was not obstructed by any glare from sunlight, and that he had informed

the ASA in his statement on August 7, 2009,that defendant was the driver.

¶ 164 Second, Julius Davis testified that he had known defendant for six or

seven years and that, as the van was driving away from Andre's house,

defendant shot at Davis from the driver's side. Defense counsel also cross-

examined Davis about his opportunity to view, and Davis admitted that the

whole incident lasted a few seconds and that, during the incident, Davis was

trying to duck behind a tree and then some bushes to avoid being shot.

¶ 165 Third, Tawanda Sterling testified that, although she was unable to obtain

a clear view of the person shooting from the front passenger seat, she was able

to observe the driver whom she identified as defendant. She testified that she

had known defendant for a couple of years. Defense counsel cross-examined

Sterling about the fact that she had provided a statement to the ASA on June 24,

2009, and that, in that statement, she had stated that "she noticed the driver of

the van had a gun, but did not recognize who he was."

¶ 166 The witnesses' delay in identification and their ability to view were

explored by defense counsel on cross examination and the jury was able to

weigh their answers. A jury's findings are accorded great weight because the

jurors observed and heard the wtinesses firsthand and, thus, the jurors are best

equipped to determine the witnesses' credibility, weigh their testimony, draw

reasonable inferences from the evidence, and ultimately choose among

conflicting accounts of events. See Wheeler, 226 Ill. 2d at 114-15; Smith, 185

Ill. 2d at 541-42; People v. Williams, 193 Ill. 2d 306, 338 (2000).

¶ 167 Defendant also argues that the witnesses had a motive to lie in their

identification of defendant since he was a rival gang member. However, the

witnesses, who were all targets of the drive-by shooting, also had every motive

to see the real culprits brought to justice. The victims would not want to leave

the real culprits on the street free to try again another day. In addition, the

claimed motive for fabrication was also the motive for the shooting itself. By

defendant's logic, the same rivalry which motivated a drive-by shooting would

also always serve as a motive to fabricate an identification. Lastly, defendant's

membership in a rival gang faction was a fact that was presented and weighed

by the jury.

¶ 168 As a result, considering the evidence in the light most favorable to the

State as we must, we cannot find that the evidence against defendant was

insufficient to identify him as the driver of the van, as he argues on appeal.

¶ 169 II. Hearsay Evidence from Detective O’Donnell.

¶ 170 Second, defendant argues that the trial court erred by allowing hearsay

testimony by a police officer that he issued an investigative alert for defendant's

arrest after conducting a photo array and receiving a statement from a witness

who did not testify at trial.

¶ 171 Detective Michael O'Donnell testified that, on June 24, 2009, the day of

the shooting, he viewed both the crime scene and the van, and then returned to

Area 1 where he was present for the interview with Donise Robertson and her

identification of Davionne Whitfield from a photo array. He testified that,

shortly after midnight on June 25, he was informed that Robertson had also

identified codefendant Kevin Stanley from a photo array. O'Donnell then

conducted physical lineups from which Tawanda Sterling and Robertson

separately identified Whtifield. Both Sterling and Robertson testified at trial.

¶ 172 Detective Michael O'Donnell testified that, at 4:30 p.m. on June 25, 2009,

he conducted a photo array with Deannosha Sharkey and that, after viewing the

photo array, Sharkey also provided a statement. O'Donnell testified that he then

issued an investigative alert for three individuals: (1) defendant; (2) DeShawn

Walls; and (3) codefendant Kevin Stanley. O'Donnell testified that an

investigative alert warns an officer that the subject is "considered dangerous"

and that "they're wanted in this case for the homicide and that they are to be

arrested and brought to Area 1 for that purpose." Sharkey did not testify at trial,

and codefendant's counsel objected to this portion of O'Donnell's testimony.

When codefendant's counsel asked to approach the bench, the trial court asked

if he wanted the court reporter present and he replied no. As a result, the

discussion by the trial court and the attorneys concerning the objection was held

off the record. Back on the record, defendant's counsel stated that he joined the

objection on the "[b]asis of hearsay," and the trial court stated that their

objections were overruled.

¶ 173 On appeal, defendant argues that the admission of O'Donnell's testimony

regarding Sharkey was prejudicial since the other three identifications against

him were weak and that its admission also violated his sixth amendment right to

confront the witnesses against him. People v. Whitfield, 2014 IL App (1st)

123135, ¶ 25 ("a defendant is guaranteed the right to confront witnesses against

him by the confrontation clause of both the United States and Illinois

Constitutions"); U.S. Const. amend VI; Ill. Const. 1970, art I, § 8.

¶ 174 In response, the State argues: that this portion of the detective's testimony

was not hearsay because it was admitted to show the steps of the officer's

investigation rather than for the truth of the matter asserted; and that, even if

this testimony was hearsay and was admitted in error, any alleged error was

harmless. In addition, the State argues that, since the testimony was not

hearsay, the confrontation clause does not apply. Crawford v. Washington, 541

U.S. 36, 59 (2004) ("The [Confrontation] Clause also does not bar the use of

testimonial statements for purposes other than establishing the truth of the

matter asserted.").

¶ 175 Hearsay is an out-of-court statement that is offered to prove the truth of

the matter asserted. People v. Edgecombe, 317 Ill. App. 3d 615, 627 (2000).

When hearsay is excluded from evidence, it is "primarily because of the lack of

an opportunity to cross-examine the declarant." People v. Whitfield, 2014 IL

App (1st) 123135, ¶ 25. When hearsay is admitted into evidence pursuant to

some exception to the rule against hearsay, the value of the statement depends

on the credibility of the out-of-court declarant. Edgecombe, 317 Ill. App. 3d at

627.

¶ 176 However, an out-of-court statement that is offered for a purpose other

than to prove the truth of the matter asserted is not hearsay in the first place,

and thus it does not implicate the confrontation clause. Whitfield, 2014 IL App

(1st) 123135, ¶ 25.

¶ 177 When a police officer recounts the steps of his or her investigation for the

limited purpose of showing only the course of the investigation, that testimony

is not hearsay, because it is not being offered for its truth. Whitfield, 2014 IL

App (1st) 123135, ¶ 25. Although courts sometimes loosely refer to this type of

statement as an "exception" to the rule against hearsay (Edgecombe, 317 Ill.

App. 3d at 627), this type of statement is not an exception, but rather it is not

hearsay in the first place. See Whitfield, 2014 IL App (1st) 123135, ¶ 25.

¶ 178 A police officer may recount the steps taken in the investigation of a

crime and may describe the events leading up to the defendant's arrest only " '

"where such testimony is necessary and important" ' " to the jury's

comprehension of the State's case. Edgecombe, 317 Ill. App. 3d at 627 (quoting

People v. Warlick, 302 Ill. App. 3d 595, 598-99 (1998) (quoting People v.

Simms, 143 Ill. 2d 154, 174 (1991)); see also Whitfield, 2014 IL App (1st)

123135, ¶ 25 (admissible only "where such testimony is necessary to fully

explain the State's case to the trier of fact"). The police officer may not testify

to information beyond what is necessary to explain the officer's actions.

Edgecombe, 317 Ill. App. 3d at 627; People v. Hunley, 313 Ill. App. 3d 16, 33

(2000). The State may not use this "limited investigatory procedure" to place

into evidence the substance of any out-of-court statement that the officer hears

during his investigation, but may elicit only the substance of a conversation to

establish the police investigative process. Edgecombe, 317 Ill. App. 3d at 627;

Hunley, 313 Ill. App. 3d at 33-34.

¶ 179 The admission of such police investigative testimony is usually within

the sound discretion of the trial court, and a reviewing court will generally not

reverse a trial court absent an abuse of discretion. Whitfield, 2014 IL App (1st)

123135, ¶ 25; see also People v. Ciborowski, 2016 IL App (1st) 143352, ¶ 88

(speaking of evidentiary rulings in general). An abuse of discretion occurs

where the trial court's decision is arbitrary, fanciful, or unreasonable, or where

no reasonable person would agree with the position adopted by the trial court.

Ciborowski, 2016 IL App (1st) 143352, ¶ 88.

¶ 180 However, defendant argues on appeal that the issue of whether a

defendant's constitutional right of confrontation was violated is reviewed de

novo, since the issue does not involve disputed facts. In support, defendant

cites People v. Leach, 2012 IL 111534, ¶ 64, in which our supreme court

applied a de novo standard of review to the question of whether the admission

of an autopsy report, without the author's appearance at trial, violated a

defendant's right of confrontation. In Leach, the facts were undisputed. The

declarant's statement, ie. the report, and the attorney's objections at trial were

before the supreme court.5 By contrast, in the case at bar, the declarant's actual

statement—namely, the statement by Sharkey—is not before us, nor is the

discussion by the attorneys concerning their objections. What the parties are

arguing about on appeal are the possible inferences which the jury might have

drawn from O'Donnell's testimony. Thus, in this case, an abuse-of-discretion

standard makes more sense since we, as an appellate court, are reviewing a cold

record and we do not even know the explanation of the objection offered by

defense counsel or the reasons given by the trial court for its ruling. However,

under either a de novo or abuse-of-discretion standard, our ultimate conclusion

is the same, as we explain below.

¶ 181 Even when admission of this type of testimony is in error, the error is

subject to harmless error analysis. The error does not require reversal under

either the rule against hearsay or the confrontation clause, if the error was

harmless beyond a reasonable doubt. People v. Stechly, 225 Ill. 2d 246, 304

(2007) (citing People v. Patterson, 217 Ill. 2d 407, 427-28 (2005)). "The test is

whether it appears beyond a reasonable doubt that the error at issue did not

contribute to the verdict obtained." Stechly, 225 Ill. 2d at 304 (citing Patterson,

217 Ill. 2d at 428).

5 In Leach, defendant filed a motion in limine and the trial court held a pretrial hearing on the issue. The supreme court quoted the parties' arguments from both their filings and the pretrial hearing. Leach, 2012 IL 111534, ¶¶ 4-5. 57

¶ 182 In the case at bar, the jurors could have reasonably inferred, by a process

of elimination, that it was Sharkey who had identified defendant. First, of the

three eyewitnesses who identified defendant at trial, none had identified him by

June 25, 2009, when O'Donnell issued the investigative alert. Andre Turner

testified that he initially refused to cooperate with the police and that he did not

identify defendant as the driver until August 2009. Julius Davis testified that he

identified defendant in July 2009, and Tawanda Sterling testified that the first

time she mentioned defendant's name to the police was in August 2009. Thus,

the jurors knew that none of the testifying witnesses had identified defendant

before O'Donnell issued his alert for defendant on June 25, 2009. Second,

Detective O'Brien testified that Whitfield had been arrested at 9 p.m. on June

24, 2009, and transported to Area 1 for questioning. However O"Brien also

testified that, after all the witness interviews and investigations on the night of

June 24, he still did not know who the driver was. Thus, based on all this

information, the jury could have reasonably inferred that Sharkey, who was

interviewed during the late afternoon on June 25, 2009, was the person who

provided the identification which led to O'Donnell's subsequent alert for

defendant.

¶ 183 However, we still cannot say that the trial court abused its discretion by

admitting this testimony as a description of the police investigative process.

First, O'Donnell was recounting the steps that he had taken in the immediate

aftermath of the shooting, and this was one of the steps. Second, O'Donnell

issued an alert for three different individuals; thus Sharkey's statement could

have concerned any one of the three, and not necessarily defendant. Third,

Detective O'Brien testified that he was familiar with the street gangs in the

Englewood area and that, in June 2009, there was an internal gang conflict

between the Gangster Disciples from two different blocks. O''Brien, who was

O'Donnell's partner, testified that his knowledge was based on his 10 years of

experience during which he had investigated nearly 1000 murders and

shootings in Englewood. Thus, the jury could have also reasonably inferred that

it was O'Brien's expertise and knowledge which had provided the basis for a

motive and made defendant a suspect. Third, as a general rule, "[w]here the

content of the nontestifying witness' statement is not revealed, the mere fact that

the jury could infer" the fact that "something the nontestifying witness said

caused the police to suspect the defendant" does not necessarily mean "that the

defendant has the right to cross-examine the nontestifying witness." People v.

Alvarez, 344 Ill. App. 3d 179, 188 (2003).

¶ 184 Even if the trial court abused its discretion by admitting O'Donnell's

testimony about Sharkey as part of the police investigative process, or even if a

de novo standard applies, we must find that any error was harmless. The

claimed error, with respect to a fourth identification received by the police, was

harmless in light of the three eyewitness identifications that were presented and

subjected to cross-examination at trial. As we observed above,"[t]he test is

whether it appears beyond a reasonable doubt that the error at issue did not

contribute to the verdict obtained." Stechly, 225 Ill. 2d at 304 (citing Patterson,

217 Ill. 2d at 428). In light of the three eyewitness identifications of defendant,

which were all subjected to cross-examination and which were uncontradicted

at trial, it appears beyond a reasonable doubt that any error with respect to an

additional fourth identification received by the police did not contribute to the

verdict obtained. For these reasons, we do find this claim persuasive.

¶ 185 III. Admission of Guns and Other Evidence.

¶ 186 Third, defendant claims that he was denied a fair trial by the admission of

(1) evidence showing that the State arrested Christopher Cannon and Gerald

Lauderdale and then determined that they were not involved in the shooting;

and (2) evidence of gangs, guns and bad associates.

¶ 187 A criminal defendant, whether guilty or innocent, is entitled to a fair,

orderly and impartial trial conducted according to law. People v. Blue, 189 Ill.

2d 99, 138 (2000). This right to due process is guaranteed by both the federal

and state constitutions. Blue, 189 Ill. 2d at 138; U.S. Const., amend. XIV, §1;

Ill. Const. 1970, art. 1, §2. Due process requires that a defendant's guilt may be

proved only by legal and competent evidence, uninfluenced by the bias or

prejudice that can be raised by irrelevant evidence. Blue, 189 Ill. 2d at 129.

¶ 188 " 'Evidence is relevant if it tends to prove a fact in controversy or render a

matter in issue more or less probable." People v. Wilcox, 407 Ill. App. 3d 151,

169 (2010) (quoting People v. Nelson, 235 Ill. 2d 386, 432 (2009)); Ill. R. Evid.

401 (eff. Jan. 1, 2011). In addition, even when evidence is relevant, a trial court

may exercise its discretion to exclude it, " 'if its prejudicial effect substantially

outweighs its probative value.' " Wilcox, 407 Ill. App. 3d at 169 (quoting People

v. Walker, 211 Ill. 2d 317, 337 (2004)); Ill. R. Evid. 403 (eff. Jan. 1, 2011).

Defendant argues both that evidence was irrelevant (Ill. R. Evid. 401 (eff. Jan.

1, 2011)); and that, even if it was relevant, it should have been excluded as

prejudicial (Ill. R. Evid. 403 (eff. Jan. 1, 2011)).

¶ 189 Defendant argues, first, that the State used evidence concerning the

investigation and release of Cannon and Lauderdale in order to bolster its case

against defendant, by showing that it had conducted a thorough investigation.

Defendant argues that this evidence should have been barred as not relevant to

the State's prosecution of defendant. This is a situation where the State is

confounded if it does not, and confounded if it does. If the State had failed to

show that it had thoroughly investigated Cannon and Lauderdale before

excluding them as suspects, then the defense would have argued that the State

had failed to investigate two viable, alternative suspects. See e.g. Alvarez, 344

Ill. App. 3d at 187 (defendant claimed that he was denied a fair trial when he

was prevented from showing that the police had investigated other suspects

prior to his arrest). As a result, we do not find this argument persuasive.

¶ 190 Defendant argues, second, that the State's introduction of evidence

concerning gangs and bad associates was both irrelevant and highly prejudicial;

and he cites in support People v. Decaluwe, 405 Ill. App. 3d 256, 268 (2010), in

which this court found that it was error to admit evidence where "the State has

not advanced a reasonable explanation regarding how the [exhibits] were

relevant to the crime charged."

¶ 191 In the case at bar, the State's theory of the case was that this was a drive-

by shooting motivated by an internal gang conflict between two warring

factions of the same gang. As a result, the different gang memberships and

associates of both the victims and the accused were relevant to proving the

State's case.

¶ 192 Defendant argues, lastly, that the trial court erred by admitting evidence

of four guns that were shown by the State to be either not involved in the

shooting or not connected to defendant. The four guns were: two guns

recovered from victim Andre Turner's property, which was also the crime

scene; one gun recovered from a van in which Lauderdale, an initial suspect,

was riding; and one gun recovered from a different residence on Andre Turner's

block.

¶ 193 The State's ballistics evidence showed: (1) that the bullet recovered

during the autopsy from Chastity Turner's body was a .22 caliber bullet; (2) that

twelve .22 caliber cartridge casings were recovered from the street in front of

Andre Turner's house; (2) that neither the bullet nor the casings were fired from

the four guns (listed above); and (3) that two .40 caliber cartridge casings,

found near Andre Turner's front porch, were fired from the Kel-Tec

semiautomatic pistol found on top of his roof.

¶ 194 Defendant admits that he waived this issue for appeal by failing to object

at trial, and asks us either to consider the issue under the plain error doctrine

(People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)) or to consider his failure to

object as ineffective assistance of his trial counsel (Strickland v. Washington,

466 U.S. 668, 686 (1984)).

¶ 195 The plain error doctrine allows a reviewing court to consider an

unpreserved error when: (1) a clear or obvious error occurred and the evidence

is so closely balanced that the error alone threatened to tip the scales of justice

against the defendant, regardless of the seriousness of the error, or (2) a clear or

obvious error occurred and that 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. Piatkowski, 225 Ill. 2d at 565.

¶ 196 Under Strickland, to prevail on a claim of ineffective assistance of

counsel, a defendant must show both: (1) that his counsel's performance was

objectively unreasonable under prevailing professional norms; and (2) that there

is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. In re Edgar C., 2014 IL

App (1st) 141703, ¶¶ 77-78 (citing People v. Domagala, 2013 IL 113688, ¶ 36).

See also Strickland, 466 U.S. at 687.

¶ 197 Under either theory, we must determine whether any error occurred.

Under the plain error doctrine, "the first step" is to determine whether any error

occurred at all Piatkowski, 225 Ill. 2d at 565. Similarly, to succeed on a claim

of ineffective assistance of counsel, defendant must show errors by counsel that

were so "serious" that counsel cannot be said to have been "functioning" as

counsel. Strickland, 466 U.S. at 687. Under either theory, defendant must show

that the admission of this evidence constituted a clear error that counsel should

have objected to.

¶ 198 In the case at bar, if the State had not presented these four guns in its

case-in-chief, and defendant had then introduced evidence of the seizure of all

these guns from the crime scene or from a nearby residence or from another

suspect, it would have looked as though the State had something to hide.

Considering the proximity of these guns to either the crime scene or a possible

suspect, it was reasonable for the State to try to rule them out as the murder

weapon both during the unfolding investigation and before the jury. Since we

cannot find any error, the issue does not implicate either the plain error doctrine

or suggest ineffectiveness on the part of trial counsel for not objecting.

¶ 199 IV. Joint Trial with Codefendant Kevin Stanley.

¶ 200 Defendant argues that he was denied a fair trial by being tried jointly

with codefendant Kevin Stanley.

¶ 201 The trial court has broad discretion in deciding whether or not to sever

codefendants for trial and, as a reviewing court, we will affirm, unless that

decision constitutes an abuse of discretion. People v. Fleming, 2014 IL App

(1st) 113004, ¶ 38. An abuse of discretion occurs where the trial court's

decision is arbitrary, fanciful, or unreasonable, or where no reasonable person

would agree with the position adopted by the trial court. Ciborowski, 2016 IL

App (1st) 143352, ¶ 88.

¶ 202 A defendant does not have a right to be tried separately from his

codefendants when charged with an offense arising out of a common

occurrence. People v. Leak, 398 Ill. App. 3d 798, 829 (2010) (citing People v.

Ruiz, 94 Ill. 2d 245 257 (1982)); People v. Byron, 116 Ill. 2d 81, 92 (1987)

("There is no automatic right to be tried separately from one's codefendants.").

With severance, the primary questions are whether the defenses of the

respective defendants are so antagonistic to each other that they could not

receive a fair trial without a severance (Leak, 398 Ill. App. 3d at 830; Byron,

116 Ill. 2d at 92) and whether the statement of a nontestifying codefendant will

implicate defendant. People v. James, 348 Ill. App. 3d 498, 507 (2004)

("severance is necessary when one defendant has made out-of-court admissions

that implicate a codefendant"); Bruton v. United States, 391 U.S. 123, 137

(1968) (the admission of a statement at a joint trial by a nontestifying

codefendant that implicates the defendant in the crime violates the defendant's

constitutional right of confrontation).

¶ 203 In the case at bar, defendant does not deny – nor could he – that the

charges against both himself and Stanley arose out of a common occurrence.

Not only was there a common occurrence, but the jury was also instructed about

accountability, and the State argued that defendant was accountable for

Stanley's shootings since defendant drove the van from which Stanley fired his

weapon. Defendant does not argue that Stanley's defense was antagonistic to

his own defense; and the State did not introduce statements by Stanley

implicating defendant.

¶ 204 In addition, even if there was any error, defendant invited it, as the

following facts show. On October 29, 2012, defendant filed a motion seeking to

be severed from both Whitfield and Stanley. However, on May 13, 2013, when

defendant's severance motion was heard, the trial court asked:

"THE COURT: Who do you want to be severed from?"

DEFENDANT'S COUNSEL: I want to be severed from Mr. Whitfiled."

The trial court then asked defendant's counsel if he wanted to argue his motion,

and he replied that he did. Defendant's counsel then spent several pages

explaining why his client's trial should be severed from Whitfield's trial,

concluding with: "we believe, your Honor, that the trial should be severed from

Mr. Whitfield." Not once did he mention codefendant Kevin Stanley.

¶ 205 Whitfield's counsel then argued that her client should be severed from

both Stanley and defendant, because a joint trial would violate the other

defendants' due process rights. The trial court interjected "Not your client," and

Whitfield's counsel responded "Right." The ASA agreed that it "might be just

easier to sever Davionne Whitfield's case from the other two." The trial court

then stated that defendant's "motion for severance will be granted."

¶ 206 Whitfield's counsel then inquired how they were "proceeding from here,"

and the trial court ruled as follows:

"THE COURT: I just severed [defendant] from your client [Whitfield].

That's all. My intention would be [defendant] at this point unless

[Stanley's counsel] files his own motion, then I will take a look at it. But

I don't think you have grounds to ask for a motion for severance based on

what you told me. If you want me to rule on your motion, your motion

for severance is denied."

While the "you" in the above paragraph is ambiguous, the "you" seems to refer

to Whitfield's counsel and the motion that she made, in essence, on behalf of

Stanley for severance.

¶ 207 In any event, defendant's counsel did not object to the trial court's ruling

to try defendant and Stanley together, and instead inquired only whether there

would be one trial with two juries:

"ASA: I think in effect then it would be Stanley and [defendant] being

tried with one jury.

THE COURT: One jury, and Mr. Whitfield will have his own jury.

DEFENDANT'S COUNSEL: Is it the Court's desire at this time or maybe

you don't know, double jury or –

THE COURT: Let's do it one time. Yeah."

Defendant's counsel again offered no objection to this ruling. As a result,

defendant and Stanley were tried together in front of a single jury.

¶ 208 A party may not ask the trial court to proceed in one manner and then

later contend on appeal that this course of action was in error. Ciborowski,

2016 IL App (1st) 143352, ¶ 99; People v. Chatman, 2016 IL App (1st) 152395,

¶ 39 n.15; Lozman v. Putnam, 379 Ill. App. 3d 807, 828-29 (2008) (citing

People v. Harvey, 211 Ill. 2d 368, 385 (2004) (citing People v. Carter, 208 Ill.

2d 309, 319 (2003)). To permit a party to use, as a vehicle for reversal, the

exact action that it procured in the trial court would offend all notions of fair

play and encourage duplicity by litigants. Ciborowski, 2016 IL App (1st)

143352, ¶ 99; Lozman, 379 Ill. App. 3d at 829 (citing Harvey, 211 Ill. 2d at

385 (citing People v. Villarreal, 198 Ill. 2d 209, 227 (2001)). When a party

procures or invites a particular ruling by the trial court, even if the ruling was

improper, he cannot later contest that same ruling on appeal. Ciborowski, 2016

IL App (1st) 143352, ¶ 99 (citing People v. Bush, 214 Ill. 2d 318, 332 (2005)).

¶ 209 This is even more true when the issue before the trial court is subject only

to an abuse-of-discretion review. Cf. Ciborowski, 2016 IL App (1st) 143352, ¶

99. How can this court find that the trial court abused its discretion toward a

defendant when the court did the very thing which the defendant asked for? See

People v. Johnson, 2013 IL App (2d) 110535, ¶ 46 (when the parties agree to

joinder, a reviewing court has "no application of discretion to review for

abuse").

¶ 210 In the case at bar, the trial court specifically asked defendant's counsel

who defendant wanted to be severed from, and he stated only Whitfield, with no

mention of Stanley. The trial court then gave defense counsel exactly what he

had asked for: severance from Whitfield. The doctrine of invited error blocks

defendant from raising this issue on appeal, absent ineffective assistance of

counsel.

¶ 211 On appeal, defendant asks us to review the issue of his joint trial with

Stanley under the plain error doctrine or as ineffective assistance of counsel.

We described the plain error doctrine in the prior section, and we will not repeat

it here. As we observed above, the first step in the plain error doctrine is to

determine whether there was any error at all. Piatkowski, 225 Ill. 2d at 565

(under the plain error doctrine, "the first step" is to determine whether any error

occurred at all). As we just explained, under the invited error doctrine, we

cannot find any.

¶ 212 As for the Strickland ineffective-assistance test, the first prong requires

us to determine whether counsel's performance was objectively unreasonable

under prevailing professional norms. Edgar C., 2014 IL App (1st) 141703, ¶¶

77-78 (citing Domagala, 2013 IL 113688, ¶ 36). See also Strickland, 466 U.S.

at 687. "In order to establish deficient performance, the defendant must

overcome the strong presumption that the challenged action or inaction may

have been the product of sound trial strategy." (Internal quotation marks

omitted.) People v. Manning, 241 Ill. 2d 319, 327 (2011). "Matters of trial

strategy are generally immune from claims of ineffectiveness of counsel."

(Internal quotation marks omitted.) Manning, 241 Ill. 2d at 327.

¶ 213 In the case at bar, defendant's counsel decision to seek severance only

from Whitfield and to not object to a joint trial with Stanley could have been a

matter of trial strategy. Defendant does not argue that he and Stanley had

antagonistic defenses or that statements by Stanley were used against him.

Counsel could have reasonably thought that being tried with the more culpable

Stanley would make his client look less culpable by comparison. In addition,

the initial identification of Stanley occurred a number of days before the initial

identification of defendant, which bolstered defendant's counsel's argument that

the identification of his client came too late to be believed.6

¶ 214 Defendant quotes in support Byron, 116 Ill. 2d at 93, which in turn was

quoting United States v. Sampol, 636 F.2d 621, 647 (D.C. Cir. 1980), which

stated:

"In such cases when there is a gross disparity in the quantity and venality

of the testimony against the respective joint defendants it is fair to inquire

6 Donise Robertson identified Stanley on June 24, 2009, the night of the shooting, as the shooter in the front passenger seat. By contrast, Julius Davis did not identify defendant until July 4, 2009. 71 No. 1-14-2259

'whether the jury can reasonably be expected to compartmentalize the

evidence as it relates to separate defendants in the light of its volume and

limited admissibility.' [Citations.]" Sampol, 636 F.2d at 647.

The above quote states that "it is fair to inquire," which is undoubtedly true.

Sampol, 636 F.2d at 647. However, it still does not support the idea that a trial

court must order a severance from one codefendant when counsel argues only

for severance from a different codefendant – which the trial court grants – or

the idea that a joint trial can never be part of a counsel's reasonable trial

strategy. In addition, in Byron, the Illinois Supreme Court's primary reason for

finding that the trial court erred by not granting the defendant's requested

severance is that his " 'defense was clearly antagonistic to' " his codefendant's

defense (Byron, 116 Ill. 2d at 92 (quoting People v. Bean, 109 Ill. 2d 80, 96

(1985))), which is not a factor in this case.

¶ 215 For these reasons, we do not find defendant's severance arguments

persuasive.

¶ 216 V. Jury Instructions

¶ 217 Defendant also challenges three of the jury instructions given by the trial

court.

¶ 218 The trial court's decision to give, or not give, a particular instruction is

within the sound discretion of the trial court. People v. Anderson, 2012 IL App

(1st) 103288, ¶ 34. Generally, a reviewing court will review jury instructions

only for an abuse of discretion. People v. Mohr, 228 Ill. 2d 53, 66 (2008); In re

Dionte J., 2013 IL App (1st) 110700, ¶ 64. An abuse of discretion occurs

where the trial court's decision is arbitrary, fanciful, or unreasonable, or where

no reasonable person would agree with the position adopted by the trial court.

¶ 219 Although jury instructions are generally reviewed for an abuse of

discretion, our standard of review is de novo when the question is whether the

given instructions accurately explained the applicable law to the jury.

Anderson, 2012 IL App (1st) 103288, ¶ 34. See also Barth v. State Farm Fire

& Casualty Co., 228 Ill.2d 163, 170 (2008). De novo consideration means that

we perform the same analysis a trial court would perform. Condon & Cook,

L.L.C. v. Mavarakis, 2016 IL App (1st) 151923, ¶ 55.

¶ 220 1. Circumstantial Evidence Instruction

¶ 221 Defendant claims that the trial court erred by giving IPI Criminal 4th No.

3.02, the circumstantial evidence instruction, over his objection. This

instruction states:

"Circumstantial evidence is the proof of facts or circumstances which

give rise to a reasonable inference of other facts which tend to show the

guilt or innocence of the defendant. Circumstantial evidence should be

considered by you together with all the other evidence in the case in

arriving at your verdict." IPI Criminal 4th No. 3.02.

¶ 222 Defendant argues that the trial court erred by giving this instruction

because all the evidence against him was direct, namely, the eyewitness

identifications of himself and of Stanley, for whom the State argued defendant

was accountable. However, the State's evidence was more than just

identification testimony. For example, the witnesses testified about the

circumstances leading up to the shooting which thereby provided its motive,

namely, the internal gang dispute between two factions of the same gang. Also,

the circumstances concerning the dispute, the nature of the shooting, and the

differing but coordinated roles of the individuals in the van could permit the

jury to reasonably infer defendant's accountability for Stanley's actions. Thus,

we cannot find that the trial court abused its discretion by deciding to include

this pattern jury instruction.

¶ 223 2. Offense Instructions

¶ 224 Defendant claims that the trial court erred by denying his request to

provide modified versions of two pattern jury instructions. Specifically, he

contests the trial court's decision to give, as written, IPI Criminal 4th No. 6.07x,

which describes the elements for attempted first-degree murder and IPI

Criminal 4th No. 7.02, which describes the elements for first degree murder.

¶ 225 Both instructions include the following sentence:

"If you find from your consideration of all the evidence that each one of

those propositions has been proved beyond a reasonable doubt, you

should find the defendant guilty." (Emphasis added.) IPI Criminal 4th

Nos. 6.07X, 7.02

Defendant argues that the trial court should have changed the phrase "the

defendant" to "that defendant" because otherwise the instruction does not

distinguish between defendants and thereby allows the jury to "consider[] all

the evidence" – whether or not it applies to defendant – in finding him guilty.

¶ 226 First, Supreme Court Rule 451 provides that: "Whenever Illinois Pattern

Jury Instructions, Criminal, contains an instruction applicable in a criminal case

*** and the court determines that the jury should by instructed on the subject,

the IPI Criminal instruction shall be used, unless the court determines that it

does not accurately state the law." (Emphasis added.) Ill. S. Ct. R. (eff. Apr. 8,

2013). Neither the instructions nor their committee notes provide for

modification in the event of a joint trial, and a joint trial is not an uncommon

occurrence.

¶ 227 Supreme Court Rule 451's use of the word 'shall' means that the wording

of an instruction is not optional – unless it does not accurately state the law.

See People v. Donminguez, 2012 IL 111336, ¶ 17 ("The use of the word 'shall'

means that it is mandatory"); People v. Robinson, 217 Ill. 2d 43, 51 (2005) ("

'shall means shall," and thus is "obligatory"); People v. Lampitok, 207 Ill. 2d

231, 261 (2001) ("[T]he primary definition of 'shall' is '[h]as a duty to; more

broadly, is required to.' Black's Law Dictionary 1379 (7th ed. 1999)"). See

also Berz v. City of Evanston, 2013 IL App (1st) 123763, ¶ 36 (the use of the

word 'shall' means that it is mandatory) (internal quotation marks omitted).

¶ 228 Second, when a reviewing court considers a challenge to any one

instruction, we do not examine the instruction in isolation but rather we

examine the instructions "as a whole," in order to determine whether, in their

entirety, they "fairly, fully and comprehensively apprised the jury of the

relevant legal principles." People v. Banks, 237 Ill. 2d 154, 208 (2010). In

considering this question, we exercise de novo review. As we explained above,

although jury instructions are generally reviewed for an abuse of discretion, our

standard of review is de novo when the question is whether the given

instructions accurately explained the applicable law to the jury. Anderson, 2012

IL App (1st) 103288, ¶ 34.

¶ 229 Here, as defendant observes in his brief to us, the trial court also

instructed the jury to give separate consideration to each defendant and that any

evidence limited to one defendant should not be considered as to the other.

Thus, when we consider the instructions in their entirety, as we must, we cannot

find that they failed to accurately explain the applicable law to the jury.

¶ 230 Thus, for these reasons, we do not find defendant's arguments concerning

the jury instructions persuasive.

¶ 231 VI. Closing Arguments

¶ 232 Lastly, defendant argues that the State committed prosecutorial

misconduct during its closing arguments.

¶ 233 1. Standard of Review

¶ 234 It is not clear whether the appropriate standard of review for this issue is

de novo or abuse of discretion. We have previously made this same observation

in several cases, including People v. Sandifer, 2016 IL App (1st) 133397, ¶ 54

("The standard of review for closing arguments is currently unclear."); People

v. Alvidrez, 2014 IL App (1st) 121740, ¶ 26; People v. Land, 2011 IL App (1st)

101048, ¶¶ 149-51; and People v. Phillips, 392 Ill. App. 3d 243, 274-75 (2009).

The Second District Appellate Court has agreed with our observation that the

standard of review for closing remarks is an unsettled issue. People v. Burman,

2013 IL App (2d) 110807, ¶ 26; People v. Robinson, 391 Ill. App. 3d 822, 839­

40 (2009).

¶ 235 Our supreme court has found: “Whether statements made by a prosecutor

at closing argument were so egregious that they warrant a new trial is a legal

issue this court reviews de novo.” People v. Wheeler, 226 Ill. 2d 92, 121 (2007).

However, the supreme court in Wheeler cited with approval People v. Blue, 189

Ill. 2d 99 (2000), in which the supreme court had previously applied an abuse of

discretion standard. Wheeler, 226 Ill. 2d at 121. In Blue and numerous other

cases, our supreme court had found that the substance and style of closing

argument is within the trial court’s discretion, and will not be reversed absent

an abuse of discretion. Blue, 189 Ill. 2d at 132 (“we conclude that the trial court

abused its discretion” by permitting certain prosecutorial remarks in closing);

People v. Caffey, 205 Ill. 2d 52, 128 (2001); People v. Williams, 192 Ill. 2d 548,

583 (2000); People v. Armstrong, 183 Ill. 2d 130, 145 (1998); People v. Byron,

164 Ill. 2d 279, 295 (1995). Our supreme court has reasoned: “Because the trial

court is in a better position than a reviewing court to determine the prejudicial

effect of any remarks, the scope of closing argument is within the trial court’s

discretion.” People v. Hudson, 157 Ill. 2d 401, 441 (1993). Following Blue and

other supreme court cases like it, this court had consistently applied an abuse of

discretion standard. People v. Tolliver, 347 Ill. App. 3d 203, 224 (2004); People

v. Abadia, 328 Ill. App. 3d 669, 678 (2001).

¶ 236 Since Wheeler, appellate courts have been divided regarding the

appropriate standard of review. Alvidrez, 2014 IL App (1st) 121740, ¶ 26

(noting that the issue remains divided). The First and Third Divisions of the

First District have applied an abuse of discretion standard, while the Third and

Fourth Districts and the Fifth Division of the First District have applied a de

novo standard of review. Compare People v. Love, 377 Ill. App. 3d 306, 316

(1st Dist. 1st Div. 2007) and People v. Averett, 381 Ill. App. 3d 1001, 1007 (1st

Dist. 3d Div. 2008) with People v. McCoy, 378 Ill. App. 3d 954, 964 (3d Dist.

2008), People v. Palmer, 382 Ill. App. 3d 1151, 1160 (4th Dist. 2008), and

People v. Ramos, 396 Ill. App. 3d 869, 874 (1st. Dist. 5th Div. 2009). However,

we do not need to resolve the issue of the appropriate standard of review at this

time, because our holding in this case would be the same under either standard.

E.g. Sandifer, 2016 IL App (1st) 133397 (1st Dist. 4th Div.) (declining to chose

a standard of review and finding that it "need not resolve the appropriate

standard of review because" under either standard the "holding is identical").

¶ 237 2. Substantial Prejudice

¶ 238 In order to “preserve claimed improper statements during closing

argument for review, a defendant must object to the offending statements both

at trial and in a written posttrial motion.” Wheeler, 226 Ill. 2d at 122. A State’s

closing will lead to reversal only if the prosecutor’s remarks created

“substantial prejudice.” Wheeler, 226 Ill. 2d at 123; People v. Johnson, 208 Ill.

2d 53, 64 (2003); People v. Easley, 148 Ill. 2d 281, 332 (1992) (“The remarks

by the prosecutor, while improper, do not amount to substantial prejudice”).

Substantial prejudice occurs “if the improper remarks constituted a material

factor in a defendant’s conviction.” Wheeler, 226 Ill. 2d at 123.

¶ 239 When reviewing claims of prosecutorial misconduct in closing argument,

a reviewing court will consider the entire closing arguments of both the

prosecutor and the defense attorney, in order to place the remarks in context.

Wheeler, 226 Ill. 2d at 123; Johnson, 208 Ill. 2d at 113; People v. Tolliver, 347

Ill. App. 3d 203, 224 (2004). A prosecutor has wide latitude during closing

argument. Wheeler, 226 Ill. 2d at 123; Blue, 189 Ill. 2d at 127. “In closing, the

prosecutor may comment on the evidence and any fair, reasonable inferences it

yields ***.” People v. Nicholas, 218 Ill. 2d 104, 121 (2005).

¶ 240 “Statements will not be held improper if they were provoked or invited

by the defense counsel’s argument.” People v. Glasper, 234 Ill. 2d 173, 204

(2009). For example, in Glasper, defendant argued that the prosecutor had

“shifted the burden of proof to defendant” when, in response to defendant’s

claim of a coerced confession, the prosecutor had argued in rebuttal closing:

“’Where’s the evidence of that?’” Glasper, 234 Ill. 2d at 212. Our supreme

court found that the comment “did not shift the burden to defendant,” but that it

merely “pointed out that no evidence existed in this case to support defendant’s

theory” and that it was “invited by defense counsel’s argument.” Glasper, 234

Ill. 2d at 212.

¶ 241 3. Parties' Arguments

¶ 242 Defendant argues that the State engaged in prosecutorial misconduct in

closing arguments in three specific ways: (1) by asserting that counsel

fabricated its argument that identifying witnesses had colluded against

defendant; (2) by applying evidence to defendant that was applicable only to his

codefendant in order to “bridge the gap in evidence” and convict defendant; and

(3) by using arguments that were designed to inflame the passions of the jury in

order to distract from the issue of whether the identifying witnesses’ testimony

was credible.

¶ 243 In response, the State argues that defendant failed to preserve for review

most of the statements objected to during closing argument by including only

two of the objected-to comments in his posttrial motion. In addition, the State

argues that its comments during closing argument either drew proper inferences

from the evidence or responded to comments made during the defense's closing

arguments.

¶ 244 Defendant concedes that he did not preserve for review all of the

comments that he now claims constituted prosecutorial misconduct. However,

he asks us to review them either pursuant to the plain error doctrine or as

ineffective assistance of counsel.

¶ 245 4. Conspiracy Arguments

¶ 246 The first set of remarks that defendant challenges on appeal concern the

prosecutor's response in its rebuttal to the defense's conspiracy argument. In his

closing, defendant argued that all three identifying witnesses shared a motive to

falsely identify defendant, who belonged to a rival gang faction, and that all

three identified defendant too late to be believed. In response, the State argued

that, "when everything is against you, you just come up with stuff. Collusion."

Defendant objected, and the trial court sustained the objection. Later, the State

argued that the defense's conspiracy argument was a "big pile of hooey," and

that it was "Grandma Donise," who would have had to be at the center of any

alleged conspiracy, not Andre Turner, since Donise Robertson was the first

person to identify people in the van. Defendant did not object to the comments

regarding "hooey" and "Grandma Donise."

¶ 247 On appeal, defendant argues that his conspiracy theory was not a "pile of

hooey," because it was supported by reasonable inferences drawn from the

evidence—essentially, the same arguments that the defense made during its

closing. Defendant also argues that the prosecutor was mistaken in suggesting

that Donise Robertson identified defendant when she did not.

¶ 248 We do not find defendant's arguments persuasive because, first, defense

counsel had an opportunity to explain to the jury during his closing why

defendant's conspiracy theory was based on reasonable inferences drawn from

the facts, and thus the jury was not deprived of an opportunity to hear and

consider both sides of this issue. Second, the prosecutor did, in fact, state

during the State's rebuttal that "Grandma Donise never identifies the driver."

Thus, we find that these comments did not create substantial prejudice.

¶ 249 5. Conflating Defendants

¶ 250 Next, defendant argues that the prosecutor committed misconduct during

the State's rebuttal by mistakenly lumping the defendants together. The

prosecutor argued: "All four main witnesses misidentified the same three

defendants. Let me say that again. All four main witnesses misidentified the

same three defendants. What are the chances of that?" Although the defense

did not object to these remarks at the time, defendant argues now that these

remarks were factually inaccurate, since only three of the main witnesses

identified defendant. Defendant is correct that only three of the main witnesses

identified defendant. However, since attacking these three identifications was

the main subject of the defense's closing, we cannot find that these remarks

created substantial prejudice.

¶ 251 The prosecutor also argued that codefendant Stanley's alibi witnesses

were as credible as a belief in "the Easter Bunny" and "they want you to rely on

that testimony in setting them free." (Emphasis added.) Defendant's counsel

objected, and the trial court ruled: "As to 'them,' I'll sustain it." Counsel also

preserved his objection to this remark in his posttrial motion. In light of the fact

that the State argued that defendant was liable for Stanley's actions under an

accountability theory, we cannot find that this remark created substantial

prejudice.

¶ 252 6. Allegedly Irrelevant Evidence

¶ 253 Defendant argues that the State cited evidence in closing that was

irrelevant with respect to defendant. First, defendant contests the following

remarks made in the State's initial closing argument:

"And I want you to think about the investigation in this case. You

heard about all these guns and you saw all these guns here. You've heard

about different people that were brought in, put in line-ups in relation to

evidence. The police in this case did everything you would ever ask

them to do. They cast a wide net. Who is this? Why did [they do] this?

Anybody. Let's find out who it is. Let's get every gun that's associated

with anything, find out if it's the murder weapon."

¶ 254 Defendant argues that these remarks were improper because they asked

the jurors to focus on the thoroughness of the State's investigation rather than

the primary issue, which was the credibility of the three identification

witnesses. Defendant did not object to these comments at trial, and thus failed

to preserve them as an issue for our review. However, this issue is just a

recasting of defendant's earlier argument that this evidence was irrelevant,

which we addressed earlier and found unpersuasive. Supra ¶ 197.

¶ 255 Defendant also contests the following remarks made by the State in

rebuttal:

"All the evidence in this case, testimony, physical, scientific, medical,

expert demonstrative, photographic, paints one picture, ladies and

gentlemen, you know what it is, that there was a dispute, an intra-gang

rival dispute between the defendants and others.

They stole a van, they surprise attack, they fired on unsuspecting,

unarmed individuals at that time and innocent people. They drove off,

ditched the car, and ran into their neighborhood and they're still trying to

run today. That's the State's case. Okay."

Although defendant did not object at trial to these remarks, defendant argues

now that all the "physical, scientific, medical, expert demonstrative,

photographic" evidence in this case was irrelevant with respect to defendant and

that the only relevant question for him was whether the three identification

witnesses were credible. What defendant overlooks is that the other evidence

was relevant to proving the circumstances of the drive-by shooting – the

physical evidence of the fired cartridge cases recovered at the scene and in the

van; the scientific and expert evidence that these cases were fired from at least

two different guns; the medical and expert evidence that Chastity Tuner died

from a gunshot wound that was not fired at close range; and the photographic

evidence concerning the photo arrays and identifications. Thus, we do not find

this argument by defendant persuasive.

¶ 256 7. Remarks About Gangs

¶ 257 Defendant argues that the State emphasized gang violence in both its

opening and closing remarks.

¶ 258 How do you prosecute a drive-by shooting by one gang faction against

another faction without talking about gangs? Defendant argues that the State

improperly emphasized gang violence in the neighborhood. This is a case

where a 9-year old child was gunned down while washing her pet dogs in her

own driveway. The emphasis was inherent in the crime itself. Thus, we cannot

find this argument persuasive.

¶ 259 CONCLUSION

¶ 260 On this appeal, defendant claimed: (1) that the State failed to prove

defendant guilty beyond a reasonable doubt; (2) that the trial court erred by

allowing hearsay testimony by a police officer that he issued an investigative

alert for defendant's arrest after a photo array and statement by a witness who

did not testify at trial; (3) that defendant was denied a fair trial when the State

was permitted to introduce evidence of allegedly unrelated guns and other

allegedly unrelated information; (4) that defendant was denied a fair trial by

being tried jointly with codefendant Kevin Stanley when the evidence against

Stanley was allegedly greater; (5) that defendant was denied a fair trial by

allegedly inaccurate or misleading jury instructions; and (6) that the State

committed prosecutorial misconduct in its closing arguments.

¶ 261 For the foregoing reasons, we do not find these arguments persuasive and

affirm.

¶ 262 Affirmed.