People v. King

2023 IL App (4th) 220228-U

• Court: Appellate Court of Illinois
• Decided: July 21, 2023
• Docket: 4-22-0228
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220228-U This Order was filed under FILED NO. 4-22-0228 July 21, 2023 Supreme Court Rule 23 and is not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County ANZIO KING, ) No. 18CF3109 Defendant-Appellant. ) ) Honorable ) Debra D. Schafer, ) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Presiding Justice DeArmond and Justice Turner concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding (1) by stipulating to the State’s motion in limine regarding the forensic scientist’s testimony, defendant waived any argument his sixth amendment confrontation right was violated; (2) defense counsel’s stipulation, with defendant’s consent, did not constitute ineffective assistance of counsel; and (3) plain error review is not available because defendant invited the error he now challenges.

¶2 In June 2020, defendant, Anzio King, was convicted of armed robbery (720 ILCS

5/18-2(a)(1) (West 2018)); home invasion causing injury (id. § 19-6(a)(2)); residential burglary

(id. § 19-3); two counts of criminal sexual assault (id. § 11-1.20(a)(1)); aggravated battery while

concealing his identity (id. § 12-3.05(f)(2)); and unlawful restraint (id. § 10-3(a)). The trial court

sentenced defendant to an aggregate 80 years’ imprisonment. Defendant timely filed a notice of

appeal, alleging his sixth amendment right to confrontation was violated when the trial court

granted the State’s motion in limine. In the motion, the State alleged the forensic scientist from the Illinois State Police crime laboratory (ISP crime lab) who conducted the deoxyribonucleic acid

(DNA) testing in defendant’s case was unavailable to testify at trial. Accordingly, the State

requested a different forensic scientist from the ISP crime lab be allowed to testify regarding the

procedures utilized at the lab and her agreement with the conclusions of the unavailable forensic

scientist.

¶3 We affirm the trial court’s judgment, concluding (1) defendant waived any

argument that his sixth amendment right to confrontation was violated when the court granted the

State’s motion in limine; (2) defense counsel’s stipulation, with defendant’s consent, did not

constitute ineffective assistance of counsel; and (3) plain error review is not available because

defendant invited the error he now challenges.

¶4 I. BACKGROUND

¶5 Defendant was charged in Winnebago County with armed robbery (id.

§ 18-2(a)(1)); home invasion while armed with a dangerous weapon (id. § 19-6(a)(1)); home

invasion causing injury (id. § 19-6(a)(2)); residential burglary (id. § 19-3); criminal sexual assault

by oral penetration (id. § 11-1.20(a)(1)); criminal sexual assault by vaginal penetration (id.

§ 11-1.20(a)(1)); criminal sexual assault by anal penetration (id. § 11-1.20(a)(1)); aggravated

battery with a deadly weapon (id. § 12-3.05(f)(1)); aggravated battery while concealing his identity

(id. § 12-3.05(f)(2)); and unlawful restraint (id. § 10-3(a)). Following a bench trial, defendant was

convicted of armed robbery, home invasion causing injury, residential burglary, criminal sexual

assault by oral penetration, criminal sexual assault by vaginal penetration, aggravated battery while

concealing his identity, and unlawful restraint. As defendant was acquitted on the remaining

charges, we include only those facts necessary to address the issues raised on appeal.

¶6 A. Pretrial

-2- ¶7 In January 2020, defendant waived his right to a jury trial and the trial court

scheduled a bench trial. Before trial, the State filed a motion in limine, requesting the court “admit

testimony of [a] non-testing expert.” In its motion, the State alleged Dexter McElhiney, the

scientist from the ISP crime lab who performed the DNA analysis in defendant’s case, was

unavailable to testify. The State requested the court allow Laurie Lee, another scientist from the

same lab, to testify about the standard procedures utilized by McElhiney in DNA analysis and her

opinion of his conclusions. To support its motion, the State cited People v. Anderson, 2013 IL App

(2d) 111183, 922 N.E.2d 539, and Williams v. Illinois, 567 U.S. 50 (2012). Defense counsel, Kunal

Kulkarni, objected to the motion, arguing Lee’s testimony was inadmissible hearsay. The court

granted the motion over Kulkarni’s objection.

¶8 B. Bench Trial

¶9 1. A.N.’s Testimony

¶ 10 A.N. and her boyfriend moved into an apartment on November 30, 2018.

Immediately after moving in, her boyfriend became incarcerated, leaving A.N. alone in the

apartment. The apartment building had two units, and A.N.’s unit was upstairs. The first few days,

A.N. was friendly with her downstairs neighbors: Smooth (later identified as Mario Craig), Peggy,

Jennifer, Rambo (later identified as Randy Bray), Deanna, and Cody. However, A.N. quickly

became annoyed with her neighbors because they were constantly “bugging [her]” and asking for

“constant rides and stuff.” A.N. tried to distance herself, hoping they would leave her alone.

¶ 11 In the early morning of December 3, 2018, A.N. awoke to knocking at her door.

A.N. answered the door and saw Jennifer, who requested some food. After A.N. gave Jennifer a

half gallon of milk, Jennifer went back downstairs. About an hour later, A.N. heard more knocking.

She was reluctant to answer, but the knocking continued. Eventually she heard Jennifer say,

-3- “ ‘Come on. Let me in. I need to talk to you. I need help.’ ” When A.N. answered the door, “a man

with a white mask and white gloves” pushed Jennifer into the wall and entered A.N.’s apartment.

Another man wearing a “blue hoodie” and “black over his face” entered behind him.

¶ 12 The men ransacked A.N.’s apartment and demanded money and guns. A.N.

recognized the voice of the man in the blue hoodie as Randy and later identified the man in the

white mask as defendant. A.N. denied having guns, and in response, defendant struck A.N. in the

face with a blue metal rod and said he “wasn’t f*** around.” The metal rod cut A.N.’s lip. The

men dragged A.N. and Jennifer into the bedroom and defendant pushed A.N. down. The men again

requested money. As instructed, A.N. gave her automatic teller machine (ATM) card to Jennifer,

but Jennifer returned it to her. Randy ripped the card out of A.N.’s hand and A.N. elbowed and

punched Randy, whereafter he ran downstairs with her card. Subsequently, Cody entered A.N.’s

apartment, took Jennifer, and went downstairs.

¶ 13 After Cody and Jennifer left, A.N. continued to physically struggle with defendant.

A.N. fled downstairs into the building foyer and tried to run outside, but defendant dragged her

back inside. Again, A.N. attempted to fight defendant off and screamed for help. Defendant

slapped her multiple times and said, “ ‘I’ll slice your throat.’ ” He then forced her onto the foyer

stairs and told her he “ ‘want[ed] sex.’ ” Attempting to dissuade him, A.N. insinuated she might

have a sexually transmitted disease, but defendant simply tore some plastic off a nearby broken

window and “wrapped it on his penis.” Defendant then forced A.N. to put his penis in her mouth

before telling her to lie on the stairs and remove her pants. He vaginally penetrated her while she

told him to stop and “ ‘[d]on’t do this.’ ” During the assault, defendant removed his mask, lifted

A.N.’s shirt, and began sucking on her breasts. After removing the mask, defendant said, “ ‘I’m

Anzio.’ ” A.N. believed defendant ejaculated inside her vagina. Defendant then told her to “get up

-4- and get [her] f*** pants on.” A.N. complied and defendant kissed her on the mouth. After the kiss,

defendant requested money, so A.N. gave him the $3 she had in her pocket.

¶ 14 A.N. eventually got away from defendant and went into her apartment, where she

locked the door and called her brother. She told him that two men had attacked her, and her brother

told her to “get out of there.” A.N. grabbed her keys and ran outside toward her van, but defendant

followed her. Since defendant followed her, A.N. avoided the van and walked toward her brother’s

house. Defendant continued to follow her, and as the pair walked down the street, the police

arrived. The police took defendant into custody and A.N. spoke with the officers. A.N. told Officer

Aaron Murphy that defendant beat and raped her. Thereafter, A.N. was transported to the hospital

and a rape kit was performed.

¶ 15 On cross-examination, A.N. admitted defendant came to her door on December 2,

2018, and asked for Leslie Peavy, but A.N. told him, “ ‘I don’t know anything about her, and shut

the door. (This witness referred to the individual as both Leslie Peavy and Lisa Peavy during her

testimony. However, defendant consistently refers to the individual as Leslie. For the sake of

clarity, we refer to her as Leslie.) A.N. denied smoking crack with defendant on December 3 or

asking defendant to retrieve her ATM card from Randy. A.N. acknowledged that Deanna came

upstairs on December 3 and threatened to fight her after A.N. called her brother. However, A.N.

denied that a fight occurred with either Deanna or Jennifer and insisted Jennifer was a victim in

the attack by Randy and defendant.

¶ 16 2. Officers’ Testimony

¶ 17 Officer Aaron Murphy was dispatched around 3 a.m. on December 3 to a possible

sexual assault. When he arrived, he spoke with A.N., whose lips were “covered in blood.” In

addition to her visible injuries, A.N. had no coat and her sweatpants were on backwards. During

-5- the conversation, A.N. began crying and said she was “hit with a broom.” A.N. was transported to

the hospital, where Murphy continued the interview. She told Murphy that defendant and Randy

attacked her. On cross-examination, Murphy agreed that he asked A.N. “if she had been struck by

a person named Jennifer or Jenny.” Murphy explained he asked that question based on information

he received from dispatch. He did not recall whether A.N.’s blouse or sweatpants were torn.

¶ 18 Officer Johnny Vazquez received a dispatch call around 3 a.m. that a woman was

sexually assaulted. The caller identified himself as the victim’s brother. When Vazquez arrived,

he observed two individuals walking in the street. He identified defendant as one of the individuals

and noted that he was “listed as the suspect in the initial call for service.” When Vazquez

illuminated the pair with his spotlight, defendant began walking in the opposite direction. Officers

took defendant into custody and patted him down for weapons. Vazquez then spoke to A.N., who

was shaking, had blood “coming from her mouth,” and had a “thousand-yard stare.” After

defendant and A.N. were secured in squad cars, Vazquez entered the apartment building and

noticed the front door was made of “several small windows.” One of the small windows was

broken and had plastic taped to it, but the plastic appeared to be freshly torn. Vazquez then went

upstairs into A.N.’s apartment and observed it to be in disarray. On cross-examination, Vazquez

admitted defendant did not have any weapons or a mask when he was arrested.

¶ 19 Detective Spencer Berke collected evidence and photographed the apartment

building. Berke collected a blue metal rod from A.N.’s apartment and two pieces of cellophane

from the foyer; he located one piece on the foyer floor and the other attached to a window on the

front door. The piece attached to the window appeared to have been “torn away from the area that

it was originally covering.” On cross-examination, Berke admitted he was unable to locate

fingerprints on the blue metal rod or the cellophane. Berke acknowledged he did not locate a mask

-6- but stated he didn’t “recall anybody referencing anything about a mask.”

¶ 20 Sergeant David Paterson interviewed defendant on December 3 at the police

department. Defendant was wearing a black hoodie and a black stocking cap. Officers searched

defendant before the interview and found $3 in his pocket. During the interview, defendant

voluntarily agreed to provide a DNA sample. On cross-examination, Paterson acknowledged

defendant did not have a mask or weapon on him when he was searched.

¶ 21 3. Nurse Groene’s Testimony

¶ 22 Renee Groene worked as a registered nurse at SwedishAmerican Hospital on

December 3, 2018. Around 5 a.m., she treated A.N., who alleged she was sexually assaulted.

Groene, along with a physician, performed a sexual assault kit on A.N. As part of the kit, DNA

swabs were obtained from A.N.’s vagina and breasts. During the exam, A.N. was “very afraid”

and “anxious.” On cross-examination, Groene acknowledged there was no “bleeding, tear[ing], or

bruising” to A.N.’s vaginal area.

¶ 23 4. Stipulation

¶ 24 On the second day of trial, the parties informed the trial court there was a stipulation

as to the DNA evidence. Laurie Lee was present and ready to testify. The court directly inquired

of defendant whether his attorney discussed the stipulation with him, and defendant indicated he

had. Then, the court explained what a stipulation was, in general, and explained, in detail, the

proposed stipulation. After those explanations, the court asked defendant if he understood the

stipulation. After a discussion between defendant and Kulkarni, defendant said he understood. A

written copy of the stipulation, signed by the State, Kulkarni, and defendant was tendered to the

court. Defendant acknowledged that no force, threat, or promise was made in exchange for his

agreement to the stipulation. The court then inquired whether defendant wanted the court to accept

-7- the stipulation and defendant responded, “Yes, ma’am.”

¶ 25 Before accepting the stipulation, the trial court inquired whether the stipulation was

“to what Laurie Lee would say or what Dexter would say if called to testify.” The State responded,

“The stipulation would be to what Dexter would say if called to testify as relayed by Laurie Lee.”

The following colloquy then occurred:

“THE COURT: Okay. All right. Then, I think I do have to bring this up.

You had objected to Ms. Lee testifying.

[DEFENSE COUNSEL]: Yes.

THE COURT: I, over your objection, allowed her—or am going to allow

her to testify. I believe that by entering into the stipulation, you would be waiving

that objection that it’s her as opposed to Dexter testifying.

[DEFENSE COUNSEL]: That would be correct. We did object to the—for

the record. Obviously, we did feel that. But in this case, as the Court over—or

overruled our objection and was going to allow her testimony, in that case we—

since based on the Court’s ruling and the fact that she would testify, we would agree

to the stipulation is the way I would phrase it.

THE COURT: Okay. So you’re maintaining your objection?

THE COURT: But in light of my ruling—

THE COURT: —are entering into the stipulation?

THE COURT: Okay. Is that your understanding as well, Mr. Getty?

-8- [THE STATE]: Yes, Judge. And, you know, to be clear, too, best practice

obviously would be to have Dexter here to testify—

THE COURT: Sure.

[THE STATE]: —as to his findings.

So what the stipulation is essentially doing is allowing both defense and the

State to admit the evidence we expected to elicit and testimony we expected to elicit

from Dexter in the form of the stipulation.

THE COURT: Okay. I guess I’m not making any prediction whether this is

preserving it or not. I mean, you’re agreeing to what Dexter would say.

[DEFENSE COUNSEL]: Yes.”

¶ 26 After the discussion, the trial court accepted the stipulation, which included a copy

of McElhiney’s report. The relevant portions of the stipulation read as follows:

“10. Based upon Dexter McElhiney’s education, training and experience in

DNA and forensic science and as a result of the testing Dexter McElhiney formed

the expert opinion to a reasonable degree of scientific certainty that item 1A, the

vaginal swabs, that the non-sperm fraction of that sample was not amplified and a

DNA contributor was not indicated. Further, the sperm fraction of that sample was

not amplified and a DNA contributor was not indicated. See attachment 49A.

11. Based upon Dexter McElhiney’s education, training and experience in

DNA and forensic science and as a result of the testing, Dexter McElhiney formed

the expert opinion to a reasonable degree of scientific certainty that item lB, the

oral swab, and the non-sperm fraction of that sample contained 1 female

contributor. The sperm fraction was not amplified and a DNA contributor was not

-9- indicated. See Attachment 49A.

12. Based upon Dexter McElhiney’s education[,] training and experience in

DNA and forensic science and as a result of the testing Dexter McElhiney formed

the expert opinion to a reasonable degree of scientific certainty that item 1C, the

left breast nipple contained 2 contributors. [Defendant] is included as a DNA

contributor with the statistical frequency of 1 in 5.9 Decillion. Further, any other

samples of DNA not belonging to [defendant] were excluded as contributors to the

sample taken of item 1C. See Attachment 49A.”

The stipulation made no reference to Lee or the contents of her testimony if she were called as a

witness. Because the stipulation was entered, Lee never testified at trial.

¶ 27 5. Motion for a Directed Verdict

¶ 28 After the trial court accepted the stipulation, the State rested. Kulkarni moved for a

directed verdict, arguing the State failed to present sufficient evidence to sustain the charges. In

response, the State conceded it had not proven criminal sexual assault by anal penetration but

asserted it had proven all other charges. The court granted the motion for a directed verdict on the

charge of criminal sexual assault by anal penetration and entered the corresponding verdict of not

guilty. The court denied the motion as to all other charges.

¶ 29 6. Defendant’s Testimony

¶ 30 On December 1, 2018, while at Mario’s apartment, defendant saw A.N. and her

boyfriend moving into the upstairs apartment. He and Mario helped them move boxes upstairs.

Afterward, defendant introduced himself, saying, “ ‘My name is Anzio, and I hang out with

Mario.’ ” A.N. responded that she knew who he was because he had a son with Leslie Peavy.

¶ 31 Two days later, defendant was at Mario’s apartment drinking with Mario and

- 10 - Randy. Defendant had cocaine, heroin, and $8 in cash with him. After drinking for around 30

minutes, they ran out of alcohol, so defendant, Cody, and Jennifer walked to the liquor store.

Defendant bought four beers for $5 and went back to Mario’s apartment. Mario, Randy, and

defendant continued drinking, and about 20 minutes later, Jennifer and Deanna left the apartment.

When they returned, Jennifer said she was “going to kick the b*** a*** upstairs” because she “got

smart with [Jennifer] and cussed her out.” Jennifer and Deanna left again, and a few minutes later,

Peggy went after them. Peggy immediately returned and told Cody, “Jennifer [is] fighting with the

girl upstairs.” In response, Cody and Randy left, leaving Mario and defendant in the apartment. A

few minutes later, defendant told Mario he was “ ‘fittin’ to go out here and see what they doing.’ ”

¶ 32 Defendant exited Mario’s apartment and ascended the first flight of stairs toward

A.N.’s apartment. From the landing, defendant saw Jennifer and A.N. arguing in front of A.N.’s

apartment. During the argument, he saw Jennifer punch A.N. “in the mouth,” to which A.N.

responded, “ ‘You f*** b***. I’m going to call my brother, and he’s going to come over here and

kick all of your a***.’ ” He then saw Randy exit A.N.’s apartment. A.N. entered her apartment,

and as Jennifer began walking downstairs, Cody went upstairs and walked into A.N.’s apartment.

¶ 33 Defendant watched Cody grab speakers from A.N.’s apartment and then follow

Jennifer downstairs. As Jennifer and Cody walked downstairs, A.N. exited her apartment and

yelled, “ ‘Cody, I know you’ve got my speakers. Give me my f*** speakers and tell Randy that I

know he’s got my credit card. He’s the only one that’s been in here.’ ” Jennifer and Cody continued

downstairs and into Mario’s apartment. At that point, defendant and A.N. were the only people in

the stairwell. Defendant walked to the bottom of the stairs, sat down, and told A.N. he was “fittin’

to get high.” He then took a “bump” of heroin and a “hit” from his crack pipe. A.N. came

downstairs and stood next to defendant, so he offered her some heroin. She declined, and defendant

- 11 - handed her his crack pipe. A.N. did two “hits” and returned the pipe. Defendant set the pipe on the

banister and began putting away the remainder of his drugs.

¶ 34 Before defendant finished putting the drugs away, A.N. asked what he wanted for

the crack. Defendant replied, “ ‘Well, just give me $7. I got 3. That would be 10. I can go right

across the street and I [sic] get another bag and I [sic] give you some of that too.’ ” A.N. responded

that she did not have any money because Randy stole her card. She then offered to let defendant

see her breasts in exchange for the crack, but defendant said, “ ‘let me suck your breast.’ ” A.N.

pulled out her breasts and defendant “licked on one for like about two or three seconds” then said,

“ ‘You know what, I’ll be up here tomorrow. Just give me $5 and we can call it even.’ ” Defendant

denied any other sexual activity with A.N. and insisted A.N. consented to defendant licking her

breast.

¶ 35 A.N. took the crack and asked defendant if he would retrieve her card from Randy.

Defendant told her he did not want to get involved, but A.N. offered defendant $20 to get it back,

so defendant agreed to talk to Randy. Defendant went into Mario’s apartment and asked Randy for

A.N.’s card. Randy said he did not have it, and Cody yelled, “ ‘tell [A.N.] we broke it and flushed

it down the toilet.’ ” Defendant accused Randy and Cody of lying and told them A.N. was going

to call the police. However, Randy and Cody maintained that they did not have A.N.’s card.

¶ 36 As defendant exited Mario’s apartment, he saw Deanna and Jennifer had A.N.

pinned against a wall in the foyer. Jennifer was slapping A.N. and saying, “ ‘B***, why you

blaming our boyfriends for having your s***? We ain’t got to take s*** from you.’ ” Defendant

yelled to Randy, “ ‘Man, come get your girlfriend.’ ” When Randy entered the foyer, Deanna and

Jennifer turned around and went into Mario’s apartment. Defendant told Randy, “ ‘That girl is

going to call the cops, man. You better give her her stuff.’ ” Randy denied having A.N.’s card and

- 12 - returned to Mario’s apartment.

¶ 37 Defendant went to find A.N. and saw her outside talking on the phone. When A.N.

saw defendant, she started “cussing [him] out, saying [he] sent them out there to attack her, [he’s]

the one who told them that she was out there.” Defendant denied the accusation and told A.N. that

Cody broke her card and flushed it. A.N. called defendant a liar and said he was “in on it with

them” and she was going to “ ‘say [he] attacked [her].’ ” Defendant denied being “in on it” but

A.N. kept calling him a liar. While they argued, defendant saw police cars approaching them, so

he took some steps backward and threw away the rest of his drugs. The officers arrested defendant

and transported him to the station. Defendant was interviewed and voluntarily agreed to a DNA

swab. He denied striking A.N., entering her apartment, or sexually assaulting her.

¶ 38 On cross-examination, defendant acknowledged he did not tell detectives he licked

A.N.’s breast but insisted that he was never asked about it. Defendant admitted that during the

interview, he told detectives, “Hell, yeah, I’m under the influence, both alcohol and drugs.”

¶ 39 7. Verdict

¶ 40 The trial court found defendant guilty of armed robbery; home invasion while

armed with a dangerous weapon; home invasion causing injury; residential burglary; criminal

sexual assault by oral penetration; criminal sexual assault by vaginal penetration; aggravated

battery while concealing his identity; and unlawful restraint. The court found defendant not guilty

of aggravated battery with a deadly weapon, opining that a metal pole was not a deadly weapon.

¶ 41 C. Posttrial

¶ 42 Kulkarni filed “Defendant’s Motion for New Trial/Judgement Not Withstanding

Verdict.” Defendant later retained new counsel, Glenn Jazwiec. Jazwiec filed an “Amended

Motion for Judgment Notwithstanding Verdict or, Alternatively, for a New Trial” in May 2021.

- 13 - The motion alleged, in pertinent part, as follows:

“That the Court erred in granting the State’s Motion in Limine #1 to allow the

testimony of Laurie Lee as to the findings and conclusion of forensic scientist

Dexter McElhiney who was not able to testify at the time of the trial. That such

error was further compounded by the attorney for [defendant] then stipulating to

the testimony of Laurie Lee for purposes of the Bench Trial and if such stipulation

is found to have waived the objection that was properly made to the State’s Motion

in Limine #1, then such agreement to enter into said stipulation would have

represented ineffective assistance of counsel in this matter…”

The State filed a written response, contending the trial court properly granted the State’s motion

in limine and defense counsel waived any claims of error by agreeing to the stipulation. Further, it

was not ineffective assistance of counsel to agree to the stipulation. To support its argument, the

State asserted as follows:

“[T]he stipulation was reviewed by the Defendant, signed by the Defendant and his

counsel, and addressed on the record. The stipulation involved favorable evidence

to the Defendant, consistent with the Defendant’s theory of the case; that is, the

Defendant’s DNA was not a contributor to the samples taken from A.N.’s vagina

or mouth. The fact the Defendant’s DNA was a contributor from the sample taken

from A.N.’s breast was also consistent with the Defendant’s theory of the case. The

Defendant testified he sucked on A.N.’s breast after she offered it to him in

exchange for drugs.”

After granting a continuance for each party, the motion was set for hearing in September 2021.

¶ 43 At the hearing, the parties stated there would be no evidence and the trial court

- 14 - instructed them to begin arguments on the motion. However, any arguments regarding Kulkarni

would be set over to another date so Jazwiec could subpoena Kulkarni. Jazwiec argued the court

erred in granting the State’s motion in limine, which “substitute[d] the testimony of Laurie Lee for

that of Mr. McElhiney.” Furthermore, this error was compounded by Kulkarni’s agreement to the

stipulation regarding Lee’s testimony because it potentially waived defendant’s argument on

appeal. He contended if Kulkarni’s agreement waived defendant’s appeal argument, it was

ineffective assistance of counsel by Kulkarni.

¶ 44 The State responded when Kulkarni agreed to the stipulation, he waived

defendant’s appeal argument regarding Lee’s testimony. However, Kulkarni was not ineffective

because “the [DNA] results could be argued in favor of the defendant as well as the State” and

“defendant also wanted to get out that there was nothing located in the vaginal canal of the

defendant’s DNA with [A.N.]. So there was an incentive that was reasonable for the defense to

want to have that come in by stipulation versus having no testimony whatsoever regarding it.”

¶ 45 The second day of the hearing, Jazwiec called Kulkarni to testify. Kulkarni

acknowledged that he argued against the State’s motion in limine regarding Lee’s testimony.

However, Kulkarni contended he agreed to the stipulation for two reasons. First, defendant was

eager to proceed with trial and did not want any additional delay due to McElhiney’s unavailability.

Second, the stipulation was favorable to defendant’s theory of events. Kulkarni asserted he “did

not believe *** waiving the issue *** hurt [their] trial strategy in any shape or form.” Further,

Kulkarni noted he only agreed to the stipulation “after a full discussion with [defendant] about the

implications of the testimony, what the testimony meant, and how it fitted [sic] into [their] trial

strategy.”

¶ 46 After Kulkarni’s testimony, Jazwiec again argued Kulkarni was ineffective by

- 15 - agreeing to the stipulation and thus waiving defendant’s argument for appeal. Jazwiec contended

“there was [no] basis or trial strategy *** to stipulate to the Court regarding these findings after

the Court granted a motion that [Kulkarni] argued against.” The State maintained its position that

the stipulation contained favorable information for defendant, and thus, it was “a rational decision

and reasonable under professional norms” for Kulkarni to agree to the stipulation.

¶ 47 In its decision, the trial court began by opining that the State failed to prove

defendant was armed with a dangerous weapon when he entered A.N.’s apartment. Consequently,

the court changed its verdict on the charge of home invasion while armed with a dangerous weapon

to not guilty. It then found that defendant’s appeal argument regarding Lee’s testimony was

“waived when the defendant testified” and the stipulation was consistent with defendant’s

testimony. Therefore, defendant failed to prove Kulkarni was ineffective for agreeing to the

stipulation.

¶ 48 At defendant’s sentencing hearing, the trial court sentenced defendant to an

aggregate 80 years’ imprisonment.

¶ 49 Jazwiec filed a “Motion to Reconsider Sentence,” which was denied after a hearing.

Defendant timely filed a notice of appeal.

¶ 50 This appeal followed.

¶ 51 II. ANALYSIS

¶ 52 Defendant argues his sixth amendment right to confrontation was violated when the

trial court granted the State’s motion in limine, which would have allowed Lee to provide

“surrogate testimony” regarding McElhiney’s forensic testing and conclusions. In response, the

State contends defendant waived his sixth amendment right, and consequently, his right to raise

this issue on appeal, when defense counsel agreed to the stipulation on McElhiney’s testimony and

- 16 - report. Alternatively, the State asserts if we find defendant has not waived his appeal right on this

issue, any error by the court was harmless beyond a reasonable doubt. Defendant counters that if

we determine he waived his appeal right, it was ineffective assistance for Kulkarni to agree to the

stipulation. We begin by determining whether defendant waived his sixth amendment right to

confrontation.

¶ 53 A. Waiver of Sixth Amendment Right to Confrontation

¶ 54 The sixth amendment provides, “In all criminal prosecutions, the accused shall

enjoy the right *** to be confronted with the witnesses against him.” U.S. Const., amend. VI. This

portion of the sixth amendment, designated the “confrontation clause,” applies to the states through

the fourteenth amendment (U.S. Const., amend. XIV). People v. Barner, 2015 IL 116949, ¶ 40, 30

N.E.3d 271. The United States Supreme Court held, in Crawford v. Washington, 541 U.S. 36, 68-

69 (2004), that the confrontation clause prohibits the use of out-of-court statements made by

witnesses which are “testimonial,” unless the witness is unavailable and the defendant had prior

opportunity to cross-examine the witness.

¶ 55 Although a defendant’s sixth amendment right is absolute, the Illinois Supreme

Court has determined “counsel in a criminal case may waive his client’s sixth amendment right of

confrontation by stipulating to the admission of evidence as long as the defendant does not object

to or dissent from his attorney’s decision, and where the decision to stipulate is a matter of

legitimate trial tactics or prudent trial strategy.” People v. Campbell, 208 Ill. 2d 203, 220-21, 802

N.E.2d 1205, 1215 (2003).

¶ 56 1. Objection by Defendant

¶ 57 In this case, it is clear from the record that defendant did not object to the stipulation

regarding McElhiney. In fact, defendant affirmatively agreed to the stipulation after an extended

- 17 - colloquy with the trial court about the stipulation and what it meant. The court also inquired of

Kulkarni whether the stipulation was accurate and if it was discussed with defendant. Lastly,

defendant acknowledged there were no threats or promises made to induce his agreement to the

“THE COURT: For—well, has anyone forced you or threatened you to get you to

sign the stipulation?

THE DEFENDANT: No.

THE COURT: Has anyone promised you anything?

THE COURT: All right. So you’re just doing it, really it’s a matter of making things

go smoother—

THE DEFENDANT: Yes, ma’am.

THE COURT: —shortening up the testimony, and then we’ll move on with you

making a decision regarding whether or not your wish to present any evidence in

your case.

DEFENDANT: Yes, ma’am.

THE COURT: Okay. And do you wish me to accept the stipulation?

THE DEFENDANT: Yes, ma’am.”

The State then presented the written stipulation, which was signed by the State, Kulkarni, and

defendant, to the court. Defendant had ample opportunity to object to the stipulation and chose not

to do so, even after being advised as to the stipulation and its implications.

¶ 58 2. Trial Strategy

¶ 59 Because defendant did not object to the stipulation, the question is whether

- 18 - Kulkarni’s agreement to the stipulation was “legitimate trial tactics or prudent trial strategy.” Id.

Defendant’s theory of the case was that he consensually licked A.N.’s breast in exchange for drugs.

Moreover, while he admitted consensually licking her breast, he adamantly denied assaulting A.N.

or having additional sexual contact with her. He also testified A.N. threatened to “say [defendant]

attacked [her].” The stipulation fits within defendant’s version of events. The stipulation stated

defendant’s DNA was located solely on A.N.’s left nipple and not in her vagina or mouth. Kulkarni

utilized the stipulation to discredit A.N.’s version of events due to the lack of DNA in her mouth

or vagina. Furthermore, as conceded by defendant, the stipulation did not prove any element of

any charged offense, as defendant was not charged with criminal sexual assault by placing his

mouth on A.N.’s breast. Kulkarni’s testimony at the posttrial motion hearing further supports the

argument that the decision to agree to the stipulation was “prudent trial strategy.” Id. Kulkarni

specifically stated that he did not agree to the stipulation until he fully discussed it with his client

and discussed how the stipulation “fitted [sic] into [their] trial strategy.”

¶ 60 The facts in this case are analogous to Campbell. In Campbell, defense counsel

objected to the State’s request for a continuance due to the unavailability of a witness. Id. at 206.

The trial court granted the request over defense counsel’s objection but continued the trial to the

next day. Id. That next day, the State and defense counsel presented a stipulation regarding the

unavailable witness’s testimony. Id. at 208. Following trial, the defendant was convicted, and he

appealed, asserting his sixth amendment right to confrontation was violated by the stipulated

testimony. Id. at 208-09. Our supreme court determined the defendant’s sixth amendment right

was waived when his counsel agreed to stipulate to the unavailable witness’s testimony. Id. at 217.

Further, the court found it was legitimate trial strategy for defense counsel to do so, stating

“[d]efense counsel used the stipulation to establish defendant’s lack of any criminal intent,” and

- 19 - “the stipulation also allowed defense counsel to present evidence that there was a reasonable and

legitimate explanation for defendant’s entry into the premises.” Id. at 220. In this case, Kulkarni

utilized the DNA evidence, admitted through the stipulation, to discredit A.N.’s version of events

and bolster defendant’s version of events.

¶ 61 Here, defendant did not object to the stipulation, and the stipulation was “legitimate

trial tactics or prudent trial strategy.” Id. at 221. Accordingly, defendant, through his counsel,

waived his sixth amendment right to confrontation by agreeing to the stipulation which

encompassed McElhiney’s forensic testing and conclusions.

¶ 62 B. Invited Error Doctrine

¶ 63 Having concluded Kulkarni’s agreement to stipulate to the DNA evidence waived

defendant’s sixth amendment right to confrontation, we must now determine whether that decision

also waived defendant’s ability to appeal any error by the trial court in granting the State’s motion

in limine, pursuant to the invited error doctrine.

¶ 64 Under the invited error doctrine, “a party cannot complain of error which that party

induced the court to make or to which that party consented.” In re Detention of Swope, 213 Ill. 2d

210, 217, 821 N.E.2d 283, 287 (2004). Furthermore, the Illinois Supreme Court has determined

even when evidence is improper, a defendant who “procures, invites, or acquiesces in the

admission of [the] evidence *** cannot contest the admission on appeal.” People v. Bush, 214 Ill.

2d 318, 332, 827 N.E.2d 455, 463 (2005). “The rationale behind this well-established rule is that

it would be manifestly unfair to allow a party a second trial upon the basis of error which that party

injected into the proceedings.” Swope, 213 Ill. 2d at 217.

¶ 65 In this case, defendant, through his counsel, agreed to a stipulation regarding

McElhiney and his report. Before accepting the stipulation, the trial court had the following

- 20 - colloquy with Kulkarni:

“THE COURT: Okay. All right. Then, I think I do have to bring this up. You had

objected to Ms. Lee testifying.

THE COURT: I, over your objection, allowed her—or am going to allow her to

testify. I believe that by entering into the stipulation, you would be waiving that

objection that it’s her as opposed to Dexter testifying.

[DEFENSE COUNSEL]: That would be correct. We did object to the—for the

record. Obviously, we did feel that. But in this case, as the Court over—or overruled

our objection and was going to allow her testimony, in that case we—since based

on the Court’s ruling and the fact that she would testify, we would agree to the

stipulation is the way I would phrase it.

THE COURT: Okay. Is that your understanding as well, Mr. Getty?

[THE STATE]: Yes, Judge. And, you know, to be clear, too, best practice obviously

would be to have Dexter here to testify—

- 21 - So what the stipulation is essentially doing is allowing both defense and the State

to admit the evidence we expected to elicit and testimony we expected to elicit from

Dexter in the form of the stipulation.

THE COURT: Okay. I guess I’m not making any prediction whether this is

preserving it or not. I mean, you’re agreeing to what Dexter would say.

[DEFENSE COUNSEL]: Yes.” (Emphases added.)

Kulkarni chose to enter the stipulation, even after the court advised that the stipulation may waive

any appeal issue regarding Lee’s testimony. (We again note that while the parties and the court

discuss the stipulation being to Lee’s testimony, there is no mention of Lee in the stipulation. It

appears to be a stipulation to McElhiney’s testimony and report.) While Kulkarni affirmatively

stated he was maintaining his objection (to the court’s prior ruling on the State’s motion in limine),

the objection had been only to Lee’s surrogate testimony due to McElhiney’s unavailability, not

McElhiney’s report. Furthermore, the court specifically advised that it was “not making any

prediction whether this is preserving it or not.” This acquiescence to the stipulation by Kulkarni

and defendant invokes the invited error doctrine. Defendant now contests the admission of the

DNA evidence that he and his counsel stipulated to at trial, which is precisely the type of error the

invited error doctrine prohibits.

¶ 66 We are not persuaded by defendant’s argument this issue was preserved for appeal

through Kulkarni’s objection prior to trial and Jazwiec’s posttrial motion on the issue. First, as has

been mentioned, the objection to the State’s motion in limine was based upon an objection to Lee’s

surrogate testimony and the stipulation appeared to only relate to McElhiney. Second, even if the

stipulation included Lee’s surrogate testimony, as suggested by the parties and court, any argument

the court erroneously granted the State’s motion in limine was waived through the invited error

- 22 - doctrine when Kulkarni agreed to the stipulation during trial. Defendant relies on People v. Wright,

2012 IL App (1st) 073106, 971 N.E.2d 549, for the position that if a defendant objects prior to trial

and again in a posttrial motion, the issue is preserved for appellate review. However, Wright is

factually distinguishable from this case. The issue in Wright was not whether there was invited

error, but rather, whether the issue had been forfeited on appeal based on the defendant’s failure to

obtain a ruling on his DNA motion and subsequently file a posttrial motion. Id. ¶¶ 68-74. See

People v. Schwandt, 2022 IL App (4th) 200583, ¶ 20 (determining the appellate court need not

address an invited error argument when a defendant forfeited his argument for appeal). Defendant

concedes this distinction when discussing Wright, stating, “[n]o issue of waiver was raised or

addressed, but the court did find that defendant had not forfeited the issue for review because he

raised the issue in a pretrial motion in limine and again in a posttrial motion.” In this case, it is true

that Kulkarni objected to the State’s motion in limine and Jazwiec filed a posttrial motion on the

issue. However, during the trial, Kulkarni and defendant agreed to the stipulation regarding

McElhiney’s analysis and conclusions. This stipulation waived defendant’s right to raise any error

with respect to DNA evidence.

¶ 67 We note although the State failed to mention invited error in its argument, it argued

defendant waived the issue. This court finds the error was invited.

¶ 68 C. Ineffective Assistance of Counsel

¶ 69 Defendant contends if we determine he has waived his right to appeal this issue,

that Kulkarni provided ineffective assistance of counsel by agreeing to the stipulation. He argues

a reasonable attorney would not have (1) agreed to the stipulation, thus failing to preserve his claim

for appellate review or (2) agreed to stipulate to “highly prejudicial testimony” that violated

defendant’s sixth amendment right to confrontation. Defendant asserts he was prejudiced by the

- 23 - stipulation because the DNA was “the only piece of physical evidence that supported that any

sexual contact occurred between A.N. and [defendant].” (Emphasis omitted.)

¶ 70 A defendant’s claim of ineffective assistance of counsel is analyzed under the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach, 2017

IL 120649, ¶ 29, 89 N.E.3d 366. To prevail on a claim, “a defendant must show both that counsel’s

performance was deficient and that the deficient performance prejudiced the defendant.” People v.

Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To establish deficient performance,

the defendant must show “counsel’s performance ‘fell below an objective standard of

reasonableness.’ ” People v. Valdez, 2016 IL 119860, ¶ 14, 67 N.E.3d 233 (quoting Strickland, 466

U.S. at 688). Prejudice is established when a reasonable probability exists that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. People v. Evans, 209

Ill. 2d 194, 219-20, 808 N.E.2d 939, 953 (2004). A defendant must satisfy both prongs of the

Strickland standard, and the failure to satisfy either prong precludes a finding of ineffective

assistance of counsel. People v. Clendenin, 238 Ill. 2d 302, 317-18, 939 N.E.2d 310, 319 (2010).

¶ 71 For the same reasons we find it was reasonable trial strategy for Kulkarni to agree

to the stipulation, we find that Kulkarni’s performance did not constitute ineffective assistance of

counsel. “Allegations arising from matters of judgment or trial strategy will not support a claim of

ineffective assistance of counsel.” People v. Beard, 356 Ill. App. 3d 236, 244, 825 N.E.2d 353, 361

(2005). Further, “[t]rial strategies themselves are unsound only when no reasonably effective

criminal defense attorney, facing similar circumstances, would pursue them.” Id. In this case, the

stipulation contained evidence which specifically fit within defendant’s version of events and was

utilized to discredit A.N.’s version of events. It is clear from the record Kulkarni’s decision to

stipulate to the DNA evidence was a matter of reasonable trial strategy. Thus, defendant’s claims

- 24 - fail to satisfy the first prong of the Strickland test.

¶ 72 D. Plain Error

¶ 73 Lastly, defendant argues in his reply brief that this court should review the violation

of his sixth amendment right under the plain error doctrine. However, it is well-settled that “invited

errors are not subject to plain-error review.” People v. Ramirez, 2013 IL App (4th) 121153, ¶ 79,

996 N.E.2d 1227. Because we have determined defendant waived his appeal argument as to his

sixth amendment confrontation right through the invited error doctrine, we decline to conduct a

plain error analysis.

¶ 74 III. CONCLUSION

¶ 75 For the reasons stated, we affirm the judgment of the trial court.

¶ 76 Affirmed.

- 25 -