People v. Kraybill

2014 IL App (1st) 120232, 14 N.E.3d 1131

• Court: Appellate Court of Illinois
• Decided: June 30, 2014
• Docket: 1-12-0232
• Status: Unpublished

Opinion

2014 IL App (1st) 120232

THIRD DIVISION June 30, 2014

No. 1-12-0232

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 04 CR 1044001 ) DAVID KRAYBILL, ) Honorable ) Garritt E. Howard, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court with opinion. Presiding Justice Hyman and Justice Pucinski concur in the judgment and opinion.

OPINION

¶1 Defendant David Kraybill appeals his conviction for the first-degree murder of Joel

Cacharelis following a jury trial.1 Kraybill raises the following evidentiary rulings as a basis for

the reversal of his conviction: (1) preclusion of evidence of Cacharelis's criminal activities; (2)

preclusion of evidence relating to the destruction of a detective's interview notes; (3) preclusion

of a tape recorded interview between Kraybill and a detective; and (4) admission of photographs

of collector coins and evidence of a .22-caliber silencer discovered in his house. Kraybill claims

that the cumulative effect of the trial court's erroneous evidentiary rulings warrants a reversal of

his conviction. We disagree and affirm.

¶2 BACKGROUND

¶3 Cacharelis was murdered in Winnetka, Illinois, on February 24, 2003. Cacharelis and

Kraybill were childhood friends who kept in touch after Kraybill moved to Madison, Wisconsin.

1 This appeal relates to Kraybill's second jury trial. Following the appeal of his first jury trial where he was convicted of the same charges, this court reversed and remanded the case for another trial finding that testimony addressing Kraybill's silence during police questioning and the State's arguments relating to that silence denied him a fair trial. People v. Kraybill, No. 1-06- 0872 (2008) (unpublished order under Supreme Court Rule 23). No. 1-12-0232

Kraybill visited Cacharelis at his home in Winnetka on February 24 and left with him in his car

later that evening. Cacharelis's body was discovered on a remote road in Winnetka shortly after

11 p.m. Approximately one year later, a grand jury indicted Kraybill on one count of first-

degree murder (720 ILCS 5/9-1(a)(2) (West 2002)) and one count of unlawful possession of a

weapon by a felon (720 ILCS 5/24-1.1(a) (West 2002)).

¶4 A. Motions in Limine

¶5 Prior to trial, Kraybill filed a motion in limine to exclude evidence relating to a .22-

caliber silencer recovered from his house following a search, arguing that the silencer was

irrelevant and the probative value, if any, was substantially outweighed by the danger of unfair

prejudice. During the hearing on the motion, Kraybill acknowledged that he was connected to

the silencer because it was recovered from his house, but argued that the State failed to present

evidence that a silencer was used in the murder. The State responded that the silencer was

relevant because it was purchased in the same transaction as Kraybill's .22-caliber Beretta

handgun, the type of weapon used to murder Cacharelis, and no residents who lived in the

vicinity of the crime scene heard approximately 11 gunshots or called 911, rendering it likely

that a silencer was used to commit the murder. After hearing arguments, the trial court denied

Kraybill's motion in limine finding that the silencer was relevant and the probative value

outweighed any prejudicial impact.

¶6 During trial, Kraybill filed another motion in limine requesting the court to bar from

evidence reference to and photographs of collector coins found in his home. Kraybill argued the

evidence relating to the coins was irrelevant, unfairly prejudicial and would invite speculation

regarding a connection between certain unique coins recovered from Cacharelis's vehicle and the

coins discovered in Kraybill's house. Kraybill further argued that if the trial court allowed the

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State to reference the photographs of the collector coins, then he should be permitted to introduce

evidence relating to pending burglary charges against Cacharelis and other burglary-related facts.

¶7 The State responded that the collector coins were relevant not to suggest that Kraybill

was part of a burglary ring, but to establish the reasonable inference that Kraybill may have

placed the coins in Cacharelis's vehicle. The trial court denied Kraybill's motion in limine,

finding that: (1) unique coins were found underneath the floor mat on the passenger's side of

Cacharelis's vehicle and (2) Kraybill's fingerprint was found on that side of Cacharelis's vehicle

indicating that in all likelihood he was sitting in the passenger seat. In rendering its decision, the

trial court specifically stated that it would have been inclined to grant Kraybill's motion but for

the fact that the defense first argued the relevancy of the coins in Cacharelis's vehicle. The trial

court also stated that its ruling did not render relevant evidence relating to Cacharelis's pending

burglary charges.

¶8 Before trial, the State filed a motion in limine to bar Kraybill from mentioning that

Cacharelis had burglary charges pending at the time of his death and that a ring discovered in his

vehicle was stolen. At the hearing, Kraybill argued that Cacharelis's pending charges were

relevant because they suggested that Cacharelis's involvement in illegal conduct, and not

Kraybill's actions, caused his death. The trial court granted the State's motion but ruled that if

Kraybill could produce new evidence linking the victim's alleged criminal activities to his

murder, the court would revisit the issue.

¶9 In the same motion in limine, the State sought to preclude Kraybill from discussing a

tape-recorded conversation between Kraybill and Sergeant James Christensen of the Winnetka

police department that occurred on February 21, 2004. The State argued the conversation was

hearsay unless: (1) the State questioned Christensen about that conversation during his direct

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examination or (2) Kraybill decided to testify. Kraybill responded that Christensen recorded the

conversation with a concealed recording device that was unknown to Kraybill and the recorded

conversation was not hearsay. Kraybill claimed that the recorded conversation addressed

statements Kraybill allegedly made to Christensen in 2003 and explained the interaction between

the two individuals during the 2003 interviews. The trial court granted the State's motion but

noted that the conversation could be admitted if Kraybill took the stand and denied making the

earlier statements.

¶ 10 B. Trial Evidence

¶ 11 Cacharelis lived with his mother, Charlotte, in Winnetka. Charlotte had known Kraybill

for most of his life because he grew up close by and was her son's childhood friend. Around

1990, Kraybill moved to Madison, Wisconsin, but remained in contact with Cacharelis and

visited him approximately every six to eight weeks.

¶ 12 On February 24, 2003, at approximately 9 p.m., the front door bell rang at the Cacharelis

home. Charlotte began walking toward the front door from her bedroom on the second floor.

Before she reached the front door, she saw Kraybill coming up the stairs. Kraybill was wearing

a red and black puffy winter jacket. Kraybill looked at Charlotte, but he did not say hello or

acknowledge her in any way, which was unusual since he had previously always greeted her.

After Kraybill reached the top of the stairs, he went toward Cacharelis's bedroom, walking past

Charlotte, who was not expecting to see him that night. Cacharelis was home at the time and

was in his bedroom.

¶ 13 After about 10 minutes, Charlotte heard Cacharelis and Kraybill walk down the wooden

front stairs. Charlotte assumed that they left through the back door because that door was near

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Cacharelis's vehicle, a Mercury Cougar, which he typically parked at the rear of the house. No

one other than Cacharelis had a set of keys to his car.

¶ 14 At approximately 10:30 p.m., Charlotte went to bed. Neither Cacharelis nor Kraybill

returned to the house by the time she fell asleep and she did not hear Cacharelis's vehicle return

home. At approximately 3 a.m., the police arrived at the house and told her that her son had

been killed. Charlotte told the police that Kraybill was at the house earlier and that Cacharelis

left the house with him.

¶ 15 On February 22, 2003, Russell Sundsmo, Kraybill's co-worker who was interested in

buying a vehicle from Kraybill, called Kraybill to arrange a time on Monday, February 24 to

view the vehicle. Kraybill told Sundsmo that he would have to come early that day because

Kraybill planned to go to Chicago to visit an old friend. Kraybill did not mention the friend's

name.

¶ 16 The parties stipulated that at approximately 11:09 p.m. on February 24, 2003, Heidi

Lubin was driving northbound on Forestway Drive in Winnetka when she swerved to avoid

hitting what she believed to be a body in the road. Forestway Drive is a winding, paved road in a

fairly secluded area, although there are some homes nearby. Lubin swerved a second time when

she saw a pair of gloves in the road. Lubin did not see anyone else in the area. After she arrived

home, Lubin called the Glencoe police department at approximately 11:20 p.m. to report what

she had seen.

¶ 17 After receiving Lubin's call, Glencoe police notified the Winnetka police department.

Apart from Lubin's call, no one called 911 that night to report hearing gunshots.

¶ 18 Daniel Weber was a detective and evidence technician for the Winnetka police

department and was eventually called to investigate the scene. When Weber arrived, he noticed

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Cacharelis's body on the roadway and saw bullet wounds to the back of his head and wet,

pooling blood around his head. Near Cacharelis's body, Weber found seven .22-caliber shell

casings, which suggested that the bullets had been fired from a semiautomatic weapon. North of

Cacharelis's body, Weber discovered two leather gloves. Folded inside each leather glove was a

purple nitrile glove, which is very similar to a latex medical examination glove. The purple

gloves appeared to be unworn.

¶ 19 At a nearby garbage can, Weber located three additional shell casings from a .22-caliber

handgun, as well as three sets of distinct footwear impressions and four distinct tire impressions

that were left on the snow. One set of the footwear impressions was discovered in three areas at

the murder scene and had a triangular outsole pattern. In one area, the impressions were made

where a vehicle's passenger door would have been located; the impressions formed a small arch-

like path to the same nearby garbage can and then returned to the same passenger door. In

another area, the footwear impressions went from where the vehicle's passenger door would have

been around what would have been the back of the vehicle onto the roadway of Forestway Drive

and then the footwear impressions stopped. In the last area, the footwear impressions went from

Forestway Drive near where Cacharelis's body was found to the same garbage can merging to the

area where the vehicle's passenger door would have been located. This same footwear

impression was later discovered on the ground outside the Cacharelis home. Photographs of the

triangular footwear impressions were sent to the FBI in an attempt to match the outsoles to a

manufacturer in its database, but the results produced no match.

¶ 20 The murder scene investigation also included the area at the nearby garbage can. Inside

the garbage can were chicken wings, a barbecue wings container, an East Bank Club food store

plastic bag, a Starbucks coffee cup and two napkins. These items were inventoried for potential

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evidentiary value because there was no snow covering them, while snow covered all the other

trash in the garbage can.

¶ 21 Officer Jim Chartier, a forensic specialist with the Village of Lincolnwood police

department, arrived at Cacharelis's house on February 25, 2003, at approximately 7 a.m. to

investigate the murder. Cacharelis's car was parked in the driveway. He walked around the car

and noticed a .22-caliber shell casing melted into the snow on the trunk's lid. He also noticed

that the driver's and passenger's door handles were wiped clean in that they did not have road and

salt film on them. Chartier, however, discovered partial fingerprint evidence on the upper

driver's side door frame, as well as another fingerprint impression on the passenger side door

frame above the cleaned handle. Chartier found rings, jewelry, gold coins and a jewelry box

underneath the floor mat on the passenger side of the vehicle. He also noticed numerous bullet

strikes within the vehicle's center console armrest, including one into the passenger's side of the

center console. The path of the bullet strikes within the center console indicated that the bullets

came from the direction of the vehicle's front passenger door, which would have been open.

Chartier also noticed footwear impressions displaying a predominant triangular impression

leading to the front of the house, and the same impression in the back of the house that pointed

toward where Cacharelis's vehicle would have been parked earlier.

¶ 22 At the time of the murder, Jennifer Heggesta was Kraybill's live-in girlfriend and they

shared a single-family home in Madison, Wisconsin. Kraybill collected guns and kept the guns

secure under lock and key in the house.

¶ 23 During the afternoon of February 23, 2003, Heggesta and Kraybill went to a hospital in

Madison, Wisconsin, where her mother had just been admitted. Heggesta recalled seeing purple

examination gloves in her mother's room that were in open boxes. There was nothing to prevent

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someone from reaching into the boxes to remove the purple gloves, but Heggesta did not see

Kraybill take any gloves.

¶ 24 The next day, Heggesta returned to the hospital and Kraybill remained at home. When

she returned home at approximately 9 p.m., Kraybill's vehicle was not in the garage, he was not

home and he did not leave a note or a message on the answering machine indicating his

whereabouts.

¶ 25 At approximately 10 or 10:30 p.m., Heggesta went to sleep and Kraybill had not returned

home. Heggesta woke up at approximately 10 a.m., and Kraybill was in his bedroom sleeping;

she did not know what time he returned home.

¶ 26 On February 25, 2003, two messages were left on Kraybill's answering machine while he

was still sleeping: one from a friend in Illinois and the other from Kraybill's mother. Heggesta

listened to the messages with Kraybill after he woke up. The friend's voice in her message

sounded urgent and she indicated that she wanted to talk to Kraybill. Kraybill's mother's

message stated that Cacharelis had been killed and that she was going to call Cacharelis's mother

to express condolences. According to Heggesta, Kraybill had no reaction to the messages.

Kraybill did not tell Heggesta where he had been the night before or what time he got home.

Later on February 25, Kraybill took Heggesta's car and a gas can to go get gas for his car because

the fuel was so low.

¶ 27 Kraybill regularly smoked Marlboro Reds cigarettes. Kraybill retained the cigarette

packaging displaying the bar code or UPC code because Marlboro had a campaign where proofs

of purchase could be exchanged for merchandise displaying the Marlboro logo at a discounted

price. Kraybill ordered a Chiller System jacket from Marlboro, which consisted of an outer shell

and a removable fleece jacket that is worn underneath the outer shell. The jacket was two-toned

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– black with a red stripe. Heggesta recalled Kraybill wearing the jacket during the winter of

2001 and 2002, but did not see him wearing the jacket after February 24, 2003. Heggesta also

saw Kraybill previously wearing a pair of leather gloves, but did not see him wearing the gloves

after February 24, 2003. The leather gloves recovered at the murder scene were similar to the

leather gloves she had previously seen Kraybill wearing, but looked more used. Heggesta,

however, had not seen the leather gloves that Kraybill owned for a few years prior to the murder.

¶ 28 Shortly after the murder, police obtained a warrant to search Kraybill's home. On

February 28, 2003, Lieutenant Dave Macaluso, an evidence technician for the Lincolnwood

police department, assisted with the search of Kraybill's house. During the search, Macaluso

discovered in cardboard boxes in the basement an owner's manual for a Beretta pistol, which

listed a .22-caliber model 87 among several other models. The Beretta handgun was not located

during the search, but accessories associated with a .22-caliber handgun were recovered,

including a screw-on .22-caliber sound suppresser, which muffles or suppresses the sound of a

fired weapon. Also recovered was a receipt dated April 21, 1999, which showed that both a

Beretta model 87 weapon and suppressor were purchased by Kraybill for $500 each.

¶ 29 Over 3,600 rounds of .22-caliber ammunition were discovered mainly in the basement in

and around a gun safe and approximately 350 rounds were located in Kraybill's bedroom.

Remington, CCI and Fiocchi manufactured some of the bullets recovered from Kraybill's house.

A search of Kraybill's house also uncovered collector coins, which were photographed, but not

inventoried.

¶ 30 The parties stipulated to Kraybill's purchase of a semiautomatic Beretta model 87 .22-

caliber handgun and a .22-caliber sound silencer and that the handgun was threaded to accept the

sound silencer.

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¶ 31 Chris Luckie, an expert in firearm and tool mark examinations, examined the evidence

relating to Cacharelis's death that included the 12 shell casings recovered during the

investigation. Based on his examination, Luckie determined that the recovered shell casings

were discharged from a single .22-caliber weapon. Luckie identified Remington, CCI and

Fiocchi as manufacturers of the shell casings. Luckie also examined 10 bullets that were

recovered and determined that they were all discharged from a .22-caliber weapon. Luckie was

unable to determine whether a single weapon discharged all of the bullets because they had

insufficient markings for identification purposes. Luckie determined that a Beretta model 87 was

one of six manufacturers out of thousands capable of discharging the recovered bullets.

¶ 32 According to Luckie, if a Berreta model 87 was properly threaded, a silencer may be used

with that type of weapon. Luckie, however, did not examine the silencer that was recovered

from Kraybill's house because he needed the actual murder weapon in order to determine

whether Kraybill's silencer was used to discharge the recovered bullets. Luckie did not think that

conducting a controlled test where a gun, any gun, would discharge a bullet with and without use

of the recovered silencer would provide very useful information.

¶ 33 William Bodziak specializes in questioned-document examination, footwear-impression

evidence and tire-impression evidence. Bodziak examined photographs of the footwear

impressions discovered at the murder scene and at Cacharelis's house. He concluded that the

same shoe made the triangular impressions at Cacharelis's house and at the murder scene and the

impressions at both locations were consistent with each other. Bodziak also examined shoes

previously worn by Cacharelis and Kraybill, and measured Kraybill's feet. Bodziak compared

the size of Cacharelis's shoes and Kraybill's feet to the foot size of the footwear impressions at

the murder scene and at Cacharelis's house. Bodziak determined that Kraybill's foot size ranged

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from 8 to 9 and that size was consistent with the general dimensions of the impressions at the

murder scene and at Cacharelis's house. Regarding the tire impressions, Bodziak opined that

Cacharelis's vehicle with Goodyear GT+4 tires corresponded in tread design, dimension and

pitch to the tire impressions left at the murder scene and at Cacharelis's house.

¶ 34 Forensic scientist Kenneth Pfoser examined the leather and plastic gloves recovered at

the murder scene. A full DNA match existed between Kraybill and both leather gloves. The

chance of an unknown individual having the same DNA profile found on the evidence in this

case would be 1 in 174 quadrillion Caucasians. Pfoser acknowledged that an individual's DNA

could be found on an object that he never touched because of the phenomenon of transference,

whereby an individual can touch one object leaving DNA that is transferred onto another object

that the person never touched. Pfoser was unable to recover any DNA from the purple gloves.

Both Cacharelis's and Kraybill's DNA were excluded from the DNA profile obtained from the

chicken bones and East Bank Club bag located in the garbage can at the murder scene.

¶ 35 Before his retirement, Theatrice Patterson was a latent print examiner for the Chicago

police department. Patterson examined the 43 fingerprints recovered from Cacharelis's vehicle.

Patterson concluded that the fingerprint that was obtained from the passenger side of Cacharelis's

vehicle matched the print of Kraybill's right middle finger.

¶ 36 During the investigation of Cacharelis's murder, Sergeant James Christensen interviewed

Kraybill several times. On March 5, 2003, during an interview with Christensen, Kraybill said

Cacharelis "was manipulative, egocentric and cared for no one other than his own self." Kraybill

repeated his characterization of Cacharelis during other interviews with Christensen. Kraybill

also stated that "you and I both know that at some point I'm going to have to face charges in

Illinois." During an interview on March 11, 2003, after Kraybill learned that his fingerprint was

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found on Cacharelis's vehicle and his DNA was located at the murder scene, Kraybill "stated that

perhaps the offender brought along a pistol for nothing more than his own personal protection."

Kraybill continued by stating that, "If I tell you guys everything, I want to tell you *** I don't

know if I'm ready to make that leap of faith to tell you guys everything and to spend the rest of

my life in jail." Kraybill sighed, lowered his head and stated, "I've had a great 40 years, no one

can take that away from me." After learning that numerous shell casings were recovered at the

murder scene, Kraybill said, "Joel was selfish. I can almost see his last little smirk." Kraybill

also said, "it's hard for me to give you guys the whole pie. I might be able to give you a piece of

the pie, but I think you guys are going to find out the truth."

¶ 37 Nearly a year later, on February 20, 2004, Kraybill was arrested in Wisconsin and

charged with murder. Kraybill spent five weeks in the Dane County Jail in Wisconsin before he

was extradited to Illinois. Before his extradition and while he was in jail, Heggesta and Kraybill

spoke on the telephone fairly often and their calls were recorded. Heggesta also visited him at

the jail and their conversation during the visit was likewise recorded. On February 21, 2004,

Heggesta told Kraybill that she received a grand jury subpoena from Illinois. Kraybill referred to

the Illinois investigators and detectives as "those jerks from Illinois" and tried to tell Heggesta

what to say to those "chumps." On February 22, 2004, Kraybill advised Heggesta to cry the

whole time while talking to the Illinois authorities because it is impossible to question someone

who is crying. On February 28, 2004, Kraybill told Heggesta to "just say f*** you" to the

Illinois authorities regarding his whereabouts on the night of the murder. During conversations

on March 14 and March 27, 2004, Kraybill became angry when he learned that Heggesta had

provided the authorities with a handwritten statement and accused her of not reading the

statement thoroughly and only signing the last page of the statement implying that she did not

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know what she was signing. Kraybill also implied that she gave the statement under duress.

Kraybill told Heggesta that if she was pregnant, he would not receive the death penalty because

no jury would convict a man who had a pregnant girlfriend or wife. Kraybill further stated that

she may save his life because the jury would unlikely kill him if he had a baby.

¶ 38 Although Kraybill did not testify on his own behalf at trial, his mother testified that when

she called Charlotte to express her condolences, Charlotte indicated that Kraybill arrived at her

house the previous night at approximately 6:30 p.m. and left at approximately 7 p.m. Kraybill

also presented the testimony of the East Bank Club's director of building facilities who stated

that the club sold barbeque chicken wings to a club member on the day before the murder and

made a second sale to an unidentified individual on the day of the murder at approximately 8:41

p.m.

¶ 39 In its closing argument, the State did not mention evidence regarding the coins found in

Kraybill's home or connect them to those in Cacharelis's car. In his closing argument in

reference to the coins found in Cacharelis's car, defense counsel stated:

"Wouldn't it be nice to know where those [coins and jewelry] came from? Did you hear

anything? Was there any evidence, was there any follow-up? No, there wasn't. Might

that not explain to you what Joe Cacharelis was doing on that lonely road in Winnetka

almost at midnight way back then, this private man who believes his phones were tapped

who died with $300 in his pocket, but we didn't hear."

In its rebuttal closing, the State responded:

"Defense made a big deal about what was found on the floor boards of the victim's car.

Okay. There are some gold coins on the bottom of his car. We know he wasn't robbed

when he was killed, so what do these have to do with anything. I don't know, they are

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just found in his car. By the way, they are found on the side of the car that the defendant

was in on the passenger side. Defendant collects coins. Big deal. We are not saying

those coins are his, but again, something that has nothing to do with this crime, like the

chicken wings. Was it there? Yes. Did it have any evidentiary value? No. They [the

police] collected it anyway."

¶ 40 The jury returned a verdict finding Kraybill guilty of first-degree murder. The jury also

found that during the commission of that offense, he personally discharged a firearm that

proximately caused the death of another person. The trial court sentenced Kraybill to 65 years'

imprisonment. Kraybill filed a motion for a new trial, which the trial court denied. Kraybill

timely appealed.

¶ 41 ANALYSIS

¶ 42 On appeal, Kraybill's claims of error all relate to the trial court's rulings on the admission

of evidence. The same standards of review apply to each claimed error. A trial court's ruling

regarding the admissibility of evidence is reviewed for an abuse of discretion. People v. Villa,

2011 IL 110777, ¶ 44; People v. Morgan, 197 Ill. 2d 404, 455 (2001). A trial court abuses its

discretion where its ruling "is arbitrary, fanciful, or unreasonable to the degree that no reasonable

person would agree with it." People v. Rivera, 2013 IL 112467, ¶ 37. A trial court is charged

with the responsibility of determining whether evidence is relevant and admissible. Morgan, 197

Ill. 2d at 455. Evidence is deemed relevant "if it has any tendency to make the existence of any

fact that is of consequence to the determination of an action either more or less probable than it

would be without the evidence." Id. at 455-56. It is within a trial court's discretion to reject

evidence if the evidence is remote, uncertain or speculative. Id. at 456. Evidence is considered

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speculative if an insufficient nexus exists to connect the offered evidence to the crime. People v.

Makiel, 263 Ill. App. 3d 54, 70-71 (1994).

¶ 43 A. Evidence Connecting Cacharelis to Criminal Activity

¶ 44 Kraybill notes Cacharelis was murdered on a desolate road and that stolen property was

in his car. Kraybill claims the trial court erred in granting the State's motion in limine excluding

evidence demonstrating Cacharelis's participation in burglary activities. Kraybill argues this

evidence was relevant because it supported his defense that Cacharelis was murdered, not by

Kraybill, but by an individual associated with his illegal burglary activities.

¶ 45 We disagree. Kraybill proposed to adduce evidence regarding Cacharelis's burglary

activities that consisted of: (1) pending charges against Cacharelis for burglary; (2) a court

appearance scheduled for the day after Cacharelis was murdered; (3) Cacharelis's possession of

approximately $400,000 in safe deposit boxes at the time of his death; (4) Cacharelis's

possession of a stolen ring discovered in his vehicle at the time of his death; and (5) testimony

from a neighbor who routinely saw Cacharelis leave in his car late at night. But even considered

cumulatively, this evidence does not have a sufficient connection to Cacharelis's murder to be

considered relevant. Admitting the evidence identified by Kraybill would not have established

any connection between Cacharelis's death and those burglary activities.

¶ 46 Although a defendant in a criminal case may offer evidence that tends to show another

individual committed the offense, such evidence is inadmissible as being irrelevant if it is too

remote or speculative. People v. Kirchner, 194 Ill. 2d 502, 539-40 (2000).

¶ 47 In People v. Wheeler, 226 Ill. 2d 92, 133-34 (2007), our supreme court found speculative

comparatively more descriptive evidence of another suspect identified by the defendant. In

Wheeler, the defendant named a specific individual who was the highest ranking Gangster

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Disciple in Decatur, Illinois, as having a motive to kill the victim. Id. at 133. The Wheeler court

held that the proffered evidence linking the other individual to the murder was speculative

because no connection to the murder scene was established, especially where the individual was

in prison at the time of the murder, and no evidence was offered that the individual otherwise

arranged for the victim's death. Id. at 133-34. See also People v. Fort, 248 Ill. App. 3d 301, 314

(1993) (finding the defendant's evidence that an individual named "Duke" may have killed the

victim was too speculative because no evidence was presented to establish "Duke's" identity, his

presence at the murder scene, or his involvement in the murder); People v. Bruce, 185 Ill. App.

3d 356, 364, 367 (1989) (finding testimony about whether the victims were involved with drugs

and whether they may have been murdered by someone also involved with drugs was too

speculative, conjectural and remote because the defendant failed to specifically identify any

other person who may have murdered the victims).

¶ 48 Here, Kraybill failed to offer any information regarding the identity of another individual

present at the murder scene or involved with Cacharelis who may have murdered him. As the

record reveals, Kraybill did argue to the jury that the unexplained presence of coins and jewelry

in Cacharelis's car coupled with the recently deposited garbage containing the DNA of someone

other than Kraybill or Cacharelis pointed to a perpetrator other than Kraybill. Thus, Kraybill's

theory that someone else was responsible for the murder was considered and rejected by the jury.

Nothing in the excluded evidence would have made that argument any more persuasive or, for

our purpose, any less speculative.

¶ 49 An insufficient connection exists between the evidence relating to Cacharelis's alleged

illegal conduct and his death rendering this evidence speculative and inadmissible. Therefore,

the evidence was properly excluded.

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¶ 50 B. Silencer

¶ 51 Kraybill also contends that the trial court erred in allowing the State to inform the jury

that authorities seized a .22-caliber silencer from his house among his weapons collection.

Kraybill claims that the silencer was inadmissible because no evidence existed connecting that

silencer to the murder or even that a silencer was used during the murder. Kraybill contends that

the State unfairly argued that a .22-caliber Beretta handgun that he owned, which theoretically

was capable of firing the bullets that killed Cacharelis, was threaded to fit a silencer. Kraybill

maintains that the probative value of admitting the silencer in an effort to tie him to the offense

was minimal, but the prejudicial impact great given the negative inferences associated with

silencers.

¶ 52 Generally, a weapon may not be admitted into evidence unless proof exists connecting it

to the defendant and the crime or unless the defendant possessed the weapon when arrested for

the crime. People v. Maldonado, 240 Ill. App. 3d 470, 478 (1992). Admitting into evidence

unconnected weapons is improper because it would arouse the jury and prejudice the defendant.

People v. Evans, 373 Ill. App. 3d 948, 960 (2007). Thus, weapons not proved to be in the

defendant's possession or under his control should not be admitted into evidence. Id. A

sufficient connection exists where the weapon is suitable for the crime charged, but it need not

be shown that it was actually used to commit the crime. Maldonado, 240 Ill. App. 3d at 479.

¶ 53 In this case, the State established the required connection between the silencer and

Cacharelis's murder. The State offered the following evidence to connect the silencer to Kraybill

and the crime: (1) a receipt shows and Kraybill stipulated that he purchased both a silencer and a

.22-caliber Beretta model 87 handgun on April 21, 1999, and that the Beretta was threaded to

accept the silencer; (2) a .22-caliber weapon was used to murder Cacharelis; (3) the types of .22-

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caliber ammunition recovered at the murder scene were also the types of ammunition located in

Kraybill's house; (4) the Berretta handgun was one of six handguns out of potentially thousands

of manufacturers of .22-caliber weapons that could have fired the ammunition recovered at the

scene; and (5) despite the remote location of the murder scene, residences were close by and no

one called 911 to report hearing repeated gunshots. Based on the forgoing evidence, the State's

evidence was sufficient to establish the required connection between the silencer, the crime and

Kraybill.

¶ 54 Although Kraybill contends that additional tests could have been performed to determine

whether the silencer recovered from his house was actually used to murder Cacharelis, forensic

scientist Luckie testified that the actual weapon that discharged the bullets, which was never

located, was necessary to accurately perform additional testing of the silencer. Kraybill also

contends – for the first time on appeal – that additional testing could have been performed to

determine whether the recovered silencer contained the same gunshot residue found near the

bullet wounds on Cacharelis's body. Because Kraybill failed to raise this contention during trial,

we will not consider it for the first time on appeal. People v. Robinson, 167 Ill. 2d 397, 404

(1995).

¶ 55 Kraybill relies on Maldonado and People v. Babiarz, 271 Ill. App. 3d 153 (1995), but

both cases are distinguishable. In each of these cases, the weapons admitted into evidence were

not "suitable" for the commission of the offense with which the defendant was charged, one

because it was a different type of weapon altogether (Maldonado, 240 Ill. App. 3d at 479) and

the other because the caliber of the weapon recovered did not match the bullets recovered from

the victim's body (Babiarz, 271 Ill. App. 3d at 160). The evidence here established that the

silencer that Kraybill owned was threaded to fit the Berretta handgun that he also owned and that

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the Berretta was the same type of weapon used to fatally shoot Cacharelis. Thus, the trial court

did not abuse its discretion by ruling that the silencer discovered at Kraybill's house was

admissible.

¶ 56 C. Conversations with Sergeant Christensen

¶ 57 Kraybill next claims that the trial court erred in finding both that Sergeant Christensen's

alleged violation of the investigatory note disclosure law and his tape-recorded conversation with

Kraybill in 2004 were inadmissible. Kraybill claims Christensen's destruction of his

investigatory notes revealed his bias as a witness. Kraybill also claims the tape recording of the

2004 conversation was relevant because, in reference to the 2003 conversations, he denied

stating: (1) he knew he would be facing charges in Illinois; (2) he would give the investigating

officers a "piece of the pie;" and (3) he did not know if he was ready to make that leap of faith to

tell the authorities everything and spend the rest of his life in jail. According to Kraybill, he

maintained his innocence during the tape-recorded conversation and asserted his belief he would

not receive a fair trial because the investigating authorities were interjecting words into his

statements or lying.

¶ 58 During oral arguments, defense counsel asserted the 2004 conversation was relevant

because Kraybill explained the meaning of his 2003 statements that were admitted into evidence

through Christensen's testimony. Specifically, Kraybill explained he was not referring to facing

charges in Illinois for Cacharelis's murder, but was referencing his attorney attempting to reach a

deal with Illinois authorities related to gun charges and getting his guns back. Kraybill also

explained when he said the perpetrator may have brought a gun for his own personal protection,

he was merely speculating about how the murder may have occurred, "like we were cops or

something." Regarding the "piece of the pie" statement, Kraybill explained he did not state he

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would not give the authorities the whole thing because he would go to prison, but that he would

help them out as much as a "piece of pie." Kraybill claims the tape recording should have been

admitted even though Christensen did not discuss the recorded interview during trial because the

jury would learn Kraybill's version of what transpired during prior interviews.

¶ 59 We reject Kraybill's claim that the trial court abused its discretion by precluding the

questioning of Christensen about notes he took of his interview with Kraybill. According to

Kraybill, the testimony was relevant because Christensen's destruction of interview notes

violated section 114-13(b) of the Illinois Code of Criminal Procedure of 1963 (725 ILCS 5/114-

13(b) (West 2004)), which became effective on November 19, 2003. Section 114-13(b)

precludes the destruction of interview notes in homicide cases and requires the notes to be given

to the prosecuting authorities. Id. Kraybill claims that cross-examining Christensen regarding

the interview notes would have revealed his bias, interest and motive to testify falsely. We

disagree.

¶ 60 First, Kraybill never established that a violation of this provision occurred. Christensen's

conversations with Kraybill occurred in February and March 2003, shortly after Cacharelis's

murder. Christensen testified that he did not take notes during these conversations, that he and

another detective memorialized their recollection of the conversations after each one of them and

ultimately incorporated their notes into a formal police report. The report regarding these

conversations is dated March 6, 2003. Christensen testified that once he prepared the formal

report, he destroyed the notes. Thus, nothing in the foregoing scenario establishes a violation of

section 114-13(b), which did not become effective until months later.

¶ 61 Further, with respect to Christensen's investigation after November 2003, it was beyond

the scope of his direct examination and, consequently, the trial court had discretion to preclude

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this inquiry. In any event, Kraybill has not provided evidence that Christensen took notes during

any interview after November 2003 and if and when those notes would have been destroyed.

Nothing in the record reveals that Kraybill requested this information in pretrial discovery.

Consequently, the predicate for the proposed cross-examination of Christensen – an alleged

violation of section 114-13(b) – has not been shown to exist.

¶ 62 Moreover, the testimony Kraybill hoped to elicit through Christensen is inadmissible. As

noted above, Christensen did not testify on direct examination about the investigative steps he

took after November 2003, when the law became effective. Nonetheless, Kraybill sought to

elicit testimony regarding a 2004 conversation he had with Christensen ostensibly to show that

Christensen destroyed notes of his conversations with Kraybill. Kraybill failed to sufficiently

explain how expanding the scope of Christensen's cross-examination to address post-2003

investigative steps would discredit him or show his bias; likewise, Kraybill failed to demonstrate

the relevance of that testimony or the prejudice he would suffer absent that testimony. See

People v. Lewis, 223 Ill. 2d 393, 404 (2006) (recognizing that the limitation on the scope of

cross-examination is liberally construed to permit inquiry into subjects tending to explain,

discredit, or destroy the witness' testimony on direct examination). Here, no basis in the record

exists to conclude that the trial court abused its discretion in limiting Kraybill's cross-

examination of Christensen to preclude questioning of investigative steps taken in 2004.

¶ 63 We also disagree with Kraybill that the trial court erred in granting the State's motion in

limine precluding discussion of the 2004 interview between Kraybill and Christensen during

which Kraybill denied either making the statements or the meaning attributed to those prior

statements. The State sought to preclude, as inadmissible hearsay, the conversation Kraybill had

with Christensen on February 21, 2004, when Christensen was recording the conversation unless

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either the State raised that conversation on Christensen's direct examination or Kraybill decided

to testify on his own behalf. We agree with the State that Kraybill's statements were

inadmissible hearsay.

¶ 64 The mere fact that Kraybill's 2004 statements were recorded and that he could lay a

foundation for the recording does not render his proposed use of otherwise inadmissible hearsay

statements proper. The State's use of Kraybill's statements was admissible under the admissions

by party opponent exception to the hearsay rule. People v. Kidd, 175 Ill. 2d 1, 29 (1996). In

contrast, Kraybill's desired use of his own exculpatory statements to Christensen does not fall

within a recognized exception to the rule against hearsay; rather, "[s]elf-serving statements by an

accused are inadmissible hearsay." People v. Patterson, 154 Ill. 2d 414, 452 (1992). Self-

serving statements "are considered inadmissible hearsay because their relevance depends upon

the truth of the matter asserted or the declarant's belief in the truth or falsity of the matter

asserted." Id.

¶ 65 Kraybill sought to admit statements he made to Christensen in 2004 to contradict his

earlier statements and establish his belief that the authorities were trying to frame him.

Kraybill's intended use of the statements was self-serving and, therefore, inadmissible. For these

reasons, the cases that Kraybill cites as support for the introduction of his statements into

evidence are readily distinguishable because the relevant statements were first introduced into

evidence by the prosecution and not the defendant. See People v. Theis, 2011 IL App (2d)

091080, ¶ 32 (defendant asserted that a videotaped police interview was erroneously admitted as

hearsay); People v. Griffin, 375 Ill. App. 3d 564, 570 (2007) (defendant asserted that the taped

conversation was erroneously introduced); People v. Harvey, 95 Ill. App. 3d 992, 998 (1981)

(prosecution offered tapes as evidence). Consequently, because Kraybill, and not the State,

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sought to introduce the tape recording into evidence to support his defense, the trial court did not

abuse its discretion in granting the State's motion in limine barring introduction of the taped

conversation into evidence. The substance of Kraybill's 2004 statements did not explain the

earlier interviews or put prior statements in context; they were merely contradictory statements

attempting to bolster his defense.

¶ 66 Although Kraybill argues his statements during the 2004 interview were relevant and

necessary to explain statements made during the 2003 interviews, this contention alone does not

equate to a claim that either the completeness doctrine or Illinois Rule of Evidence 106 (eff. Jan.

1, 2011) applies. Kraybill's cursory reference to a completeness argument in his opening brief

lacks citations to relevant legal authority and the issue is not fully developed. Consequently, any

argument relating to the application of the completeness doctrine and Rule 106 is forfeited. Ill.

S. Ct. Rule 341(h)(7) (eff. Feb. 6, 2013). See People v. Sanchez, 169 Ill. 2d 472, 500 (1996)

(declining review of contentions not supported by argument or authority).

¶ 67 Forfeiture aside, both the completeness doctrine and Rule 106 are inapplicable. Under

the common law completeness doctrine, the remainder of a writing, recording or oral statement

is admissible to prevent the jury from being mislead, to place the admitted evidence in context to

convey its true meaning or to shed light on the meaning of the admitted evidence. People v.

Craigen, 2013 IL App (2d) 111300, ¶ 42. Because Kraybill seeks to admit statements made

during an entirely different interview, the completeness doctrine does not apply. Rule 106

codified, in part, the completeness doctrine and provides: "When a writing or recorded statement

or part thereof is introduced by a party, an adverse party may require the introduction at that time

of any other part or any other writing or recorded statement which ought in fairness to be

considered contemporaneously with it." (Emphasis added.) Ill. R. Evid. 106 (eff. Jan. 1, 2011);

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Craigen, 2013 IL App (2d) 111300, ¶ 42. Based on Rule 106's express language, either a written

or recorded statement must be introduced by a party in order for an adverse party to invoke the

rule to admit the remaining portion or another written or recorded statement. Kraybill seeks to

admit the 2004 recorded interview to explain oral statements he made during the 2003

interviews. The State did not introduce any written or recorded statements of the 2003

interviews. For this reason, Rule 106 is also inapplicable. Consequently, for the reasons stated,

the 2004 tape recorded interview was inadmissible and the trial court did not err in excluding it

from evidence.

¶ 68 D. Collector coins

¶ 69 Finally, Kraybill claims the trial court ruled inconsistently in excluding evidence of

Cacharelis's criminal activities and possession of stolen property when he was murdered while

admitting photographs of collector coins discovered inside Kraybill's house. Kraybill contends

that the photographs of the collector coins unfairly linked him to the coins recovered underneath

the floor mats on the passenger side of Cacharelis's vehicle. Kraybill also claims that he was

prejudiced by the State's rebuttal closing argument because it invited the jury to infer that

Kraybill possessed the coins and left them in Cacharelis's vehicle despite the lack of evidence

supporting such a contention. Lastly, Kraybill claims that the State's rebuttal closing argument

was prejudicial because it alluded to a motive for Cacharelis's murder and tied Kraybill to

criminal activity apart from the pending charges.

¶ 70 We agree with Kraybill that the photographs of the collector coins found in his home

were not relevant. The State sought to connect the photographs of the collector coins to Kraybill

and the murder by inferring that because coins similar to those found in Kraybill's home were

discovered on the passenger side of Cacharelis's vehicle, Kraybill was responsible for placing

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them there. But the State never established this connection by, for example, showing that coins

were missing from the coin catalogues discovered in Kraybill's home. Any probative value

associated with the photographs of the collector coins was minimal, at best. Moreover, the State,

in essence, conceded in its rebuttal closing argument that the collector coins were irrelevant.

Thus, the trial court erroneously admitted the photographs of the collector coins into evidence.

¶ 71 As we have rejected Kraybill's other claims of error, we must consider whether this single

error in his trial warrants reversal. When reviewing an error to determine whether it is harmless,

this court may "(1) focus on the error to determine whether it might have contributed to the

conviction; (2) examine the other properly admitted evidence to determine whether it

overwhelmingly supports the conviction; or (3) determine whether the improperly admitted

evidence is merely cumulative or duplicates properly admitted evidence." People v. Becker, 239

Ill. 2d 215, 240 (2010) (citing In re Rolandis G., 232 Ill. 2d 13, 43 (2008)). An error does not

require reversal of a conviction unless it appears that real justice has been denied or the jury's

verdict may have resulted from the error. People v. Tranowski, 20 Ill. 2d 11, 17 (1960). In a

criminal case, a defendant is entitled to a fair trial, but not a perfect one. People v. Herron, 215

Ill. 2d 167, 177 (2005). Where the record reveals that the jury's verdict is supported by properly

admitted evidence, errors in the admission of evidence do not warrant reversal. Tranowski, 20

Ill. 2d at 17.

¶ 72 Reviewing the record, we conclude that the evidence properly admitted into evidence

proves Kraybill guilty beyond a reasonable doubt and demonstrates that no fair minded jury

could have reasonably found him not guilty. The evidence as we have summarized it above

overwhelmingly supports the jury's verdict. Kraybill's connection to Cacharelis and the type of

weapon and ammunition used to murder him, his presence at the Cacharelis home just hours

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before Cacharelis was murdered, the fingerprint, footprint and DNA evidence and, finally, his

own words to Christensen and to his girlfriend all point to his guilt. On this record, particularly

since the State suggested to the jury that it should ignore evidence regarding the coins, we are

confident that the single error we have identified did not influence the jury's verdict.

¶ 73 CONCLUSION

¶ 74 For the reasons stated, we affirm Kraybill's convictions.

¶ 75 Affirmed.

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