People v. Maldonado

Opinion

SIXTH DIVISION June 18, 2010

No. 1-07-2222

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) Nos. 99 CR 23858 ) MARCELINO MALDONADO, ) Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge Presiding.

USTICE ROBERT E. GORDON delivered the opinion1 of the court:

Defendant, Marcelino Maldonado, was convicted on M ay 1, 2007, by a jury

of the first-degree murder of Maribel Jiminez, his former lover, and the attempted

first-degree murder of William Saquimux, Jiminez’s then current lover. The State’s

theory of the case was that defendant became enraged when he learned that Jiminez,

1 Pursuant to our supreme court’s supervisory order of November 25, 2009,

the opinion filed on August 10, 2009, was vacated on December 8, 2009, and the

following opinion is now filed in its stead. No. 1-07-2222

who had jilted him the day before, was with another lover, and he went to her

apartment, found the two lovers and stabbed them both, killing Jiminez and

wounding Saquimux. Defendant was sentenced on June 4, 2007, to consecutive

terms of 60 and 30 years’ imprisonment.

After the trial court denied his posttrial motion for a new trial, he filed this

direct appeal. On appeal, defendant claims that the trial court abused its discretion:

(1) by overruling defense objections to the admission into evidence of gruesome

photographs of the victim’s body; (2) by overruling a defense objection to a remark

during the State’s closing that defendant’s brother “knew”; (3) by overruling an

objection to testimony by a forensic scientist that he had received defendant’s

fingerprint card from the Bureau of Identification; (4) by granting the State’s motion

to bar the defense from arguing during its closing that the father of the murder

victim’s children could have committed the charged crimes; and (5) by refusing to

answer a question from the jury during its deliberations. For the following reasons,

we affirm.

In addition, defendant claims that he is entitled to a $15 reduction in the costs

and fees that he was ordered to pay, and the State agrees. In an opinion filed on

August 10, 2009, and vacated on December 8, 2009, we had found that defendant

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was not entitled to the reduction. On August 20, 2009, defendant moved to

supplement the appellate record concerning this issue; and on August 31, 2009, the

appellate court denied defendant’s motion as untimely. In a supervisory order, the

Illinois Supreme Court directed this court on November 25, 2009, to permit

defendant to supplement the record and to reconsider our judgment concerning this

issue in light of the supplemented record. For the reasons discussed below, we now

order defendant’s fines and fees reduced by $15 from $895 to $880, and order that

his mittimus be corrected accordingly.

BACKGROUND

1. Procedural History

Defendant was arrested on October 1, 1999, in connection with the stabbing

deaths of Maribel Jiminez and William Sauimux, which occurred earlier that same

day. On October 22, 1999, defendant was indicted on 14 counts, but the State

proceeded to trial on only 3 counts: (1) first-degree murder for intentionally or

knowingly stabbing and killing Jiminez; (2) first-degree murder for stabbing and

killing Jiminez knowing that the stabbing created a strong probability of death or

great bodily harm; and (3) attempted first-degree murder for stabbing Saquimux

with the intent to kill him. After the jury returned verdicts of guilty, the trial court

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merged count II into count I, and entered the convictions.

A short note of explanation is needed about why a crime committed on

October 1, 1999, did not proceed to trial until eight years later on May 1, 2007.

Between December 15, 1999, and March 25, 2005, this case was continued 51

times. On April 4, 2005, the trial court held a hearing on defendant’s motion, filed

October 6, 2004, to declare defendant ineligible for the death penalty due to mental

retardation. On April 4, 2005, the motion was denied.

Between May 3, 2005, and August 8, 2006, there were 31 more

continuances. On August 28, 2006, the trial court held a hearing on defendant’s

motion to preclude the State from seeking a sentence in excess of 45 years and

denied the motion on the same day. Between October 16, 2006, and April 17, 2007,

there were 12 more continuances. On April 20, 2007, jury selection began, and the

trial concluded on May 1, 2007, with the jury’s verdicts of guilt.

2. Evidence at Trial

Since defendant does not challenge the sufficiency of the evidence against

him, we do not need to describe it in detail. In addition, as explained below, we do

not find that the trial court committed any error. Thus, we do not need to analyze

whether overwhelming evidence rendered an error harmless.

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In sum, the State called 11 witnesses: (1) Romana Puente, who was Jiminez’s

sister and who identified Jiminez’s body; (2) Assistant State’s Attorney Joan Kuruc,

who took defendant’s statement; (3) Tiffany Blake, who lived in the same apartment

as Jiminez and who testified that Jiminez had broken up with defendant the day

before the murder; (4) William Saquimux, the surviving victim and the man with

whom Jiminez was sleeping at the time of her death; (5) Detective Jeong Park, who

responded to the initial call about a stabbing; (6) Detective Steven Kostecki, a

forensic investigator, who recovered a bent knife from behind Jiminez’s bedroom

door, a bloody knife from her backyard, a bloody T-shirt from defendant’s home,

defendant’s shoes from defendant’s person, and blood that was located on

defendant’s right shin and left ankle; (7) Detective Thomas Conley, who observed

the crime scene and participated in defendant’s arrest; (8) Amy Hart, a fingerprint

examiner, who testified that none of the prints submitted to her for examination

matched defendant’s prints; (9) Dr. Scott Denton, a forensic pathologist, who

testified that Jiminez’s death resulted from stab wounds; (10) Gregory DiDomenic,

a forensic scientist, who testified that blood removed from defendant’s ankle, T-shirt

and shoe revealed DNA that matched Jiminez’s DNA; and (11) Detective Randy

Troche, who witnessed the taking of defendant’s statement by the assistant State’s

5 No. 1-07-2222

Attorney.

The State’s evidence included: DNA evidence that blood removed from

defendant’s person matched the victim; and a written confession from defendant

describing the crimes in detail. Saquimux, the surviving victim, testified at trial.

However, at trial, he claimed not to know the identity of his attacker. Before trial,

he had provided a statement to the police saying that the assault on him had

occurred at another location and was gang-related.

In defendant’s confession, which was written down by Assistant State’s

Attorney Joan Kuruc, defendant stated the following. He met Jiminez about a

month ago and they started dating “right away.” Defendant slept at Jiminez’s

apartment approximately two or three times a week. Defendant stated that

sometimes he felt confused and that Jiminez would make him angry “by playing

games with his heart.” On September 30, 1999, Jiminez told defendant that she was

“breaking up with him.” Shortly after midnight on the following day, October 1,

1999, defendant ran into Jiminez’s housemates, Tiffany and Orlando, on the street.

Orlando informed defendant that Jiminez was with another man. Defendant then

walked over to Jiminez’s apartment and approached by “the back way.”

Defendant further stated that, after knocking on the door and receiving no

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response, defendant climbed into the apartment through the pantry window. He

retrieved two knives from Jiminez’s kitchen and knocked on her closed bedroom

door. When he received no answer, he opened the door and, apparently in the dark,

felt in front of him with his hand until he felt Jiminez’s leg. Jiminez said, “what are

you doing here, get out.” Defendant stated that he then stabbed Jiminez in the chest

near her shoulder. He stabbed her a couple of more times, and then she fell off the

bed onto the floor. After Jiminez fell to the floor, defendant kicked her near her

face, and then stabbed her some more while she was on the floor.

Defendant then stated that he saw a man sit up in Jiminez’s bed. Defendant

stabbed the man approximately three or four times. W hen defendant was stabbing

the man, the knife broke, cutting defendant’s right hand in two places. Defendant

then threw the broken knife on the floor and walked out of the bedroom. Defendant

entered the room in which Tiffany and Orlando lived, and he took Orlando’s radio,

because defendant had never liked Orlando. Defendant threw the second knife into

the yard and washed the blood off his hands in the kitchen sink. On his way home,

defendant threw Orlando’s radio into an alley.

The defense case consisted of three stipulations, which concerned

defendant’s IQ and defendant’s lack of apparent injuries on October 2, 1999, the

7 No. 1-07-2222

day after the crimes.

ANALYSIS

On appeal, defendant claims that the trial court abused its discretion: (1) by

admitting gruesome photographs of the victim’s body into evidence; (2) by

overruling a defense objection to a remark in the State’s closing argument that

defendant’s brother “knew”; (3) by admitting into evidence testimony by a forensic

scientist that he had received defendant’s fingerprint card from the Bureau of

Identification; (4) by granting the State’s motion to bar the defense from arguing in

its closing that the father of the murder victim’s children could have committed the

charged crimes; and (5) by refusing to answer a question from the jury during its

deliberations. For the following reasons, we affirm.

1. Gruesome Photographs

Defendant claims that the trial court abused its discretion when it admitted

into evidence photographs of the murder victim’s body taken both at the crime

scene and at the morgue. Defendant argues, first, that the only issue at trial was the

identity of the attacker and that these photographs had limited probative value on

this issue; and, second, that, even if the photographs had probative value, their

probative value was substantially outweighed by their unfair prejudice.

8 No. 1-07-2222

a. Standard of Review

There is no dispute about the appropriate standard of review. Evidentiary

rulings, like the one at issue here, are within the sound discretion of the trial court;

and we will not reverse them on appeal unless the trial court abused its discretion.

People v. Caffey, 205 Ill. 2d 52, 89 (2001). “An abuse of discretion will be found

only where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no

reasonable person would take the view adopted by the trial court.” Caffey, 205 Ill.

2d at 89. Our supreme court has specifically held that whether or not a jury is

allowed to see the photographs of a stabbing victim, taken at both the crime scene

and at the morgue, is “a decision made be a trial judge in the exercise of his sound

discretion.” People v. Henderson, 142 Ill. 2d 258, 319-321 (1990) (finding no

abuse of discretion in the admission of 18 crime scene and morgue photographs of a

murder victim, who had been stabbed 40 times).

However, there is a dispute about whether plain error review applies and, if

so, to what issues. The State claims that our review is limited to a plain error

review with respect to (1) the morgue photographs; and (2) the admission of any of

the photographs into evidence. First, although defendant objected at trial,

defendant’s posttrial motion specified only the crime scene photographs, and did not

9 No. 1-07-2222

refer to the morgue photographs. Second, the State observes that defendant’s

posttrial motion objected only to the publication of the photographs to the jury, and

not to their admission into evidence. Thus, the State claims that defendant waived

any issues with respect to the admission of any photographs into evidence.

The Illinois Supreme Court has held that a “defendant must both specifically

object at trial and raise the specific issue again in a posttrial motion to preserve any

alleged error for review.” People v. Woods, 214 Ill. 2d 455, 470 (2005); People v.

Piatkowski, 225 Ill. 2d 551, 564 (2007). When a defendant has failed to preserve an

error for review, we may still review for plain error. Piatkowski, 225 Ill. 2d at 562-

63; 134 Ill. 2d R. 615(a) (“Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the trial court”).

“[T]he plain-error doctrine allows a reviewing court to consider unpreserved

error when (1) a clear or obvious error occurs and the evidence is so closely

balanced that the error alone threaten[s] to tip the scales of justice against the

defendant, regardless of the seriousness of the error, or (2) a clear or obvious error

occurs and that error is so serious that it affected the fairness of the defendant’s trial

and challenged the integrity of the judicial process, regardless of the closeness of the

evidence.” Piatkowski, 225 Ill. 2d at 565; Woods, 214 Ill. 2d at 471. With a plain

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error analysis, “it is the defendant who bears the burden of persuasion with respect

to prejudice.” Woods, 214 Ill. 2d at 471.

The State is correct that the defendant’s posttrial motion failed either to

mention the morgue photographs or to contest the admission into evidence of any

photographs. In his posttrial motion, defendant claimed with respect to photographs

only that “[t]he Court erred in permitting publication of People’s Exhibits Numbers

28, 29, 30, 31, 32, 33, 34, 35 and 36.” The photographs specified in this list are

only the photographs taken of the murder victim at the crime scene. The exhibit

numbers of the photographs taken at the morgue are omitted from the list. Also, as

this quote indicates, the defendant contested “publication” rather than “admission.”

In response, defendant claims that our review is not limited to plain error

review because (1) defendant’s objection was, in part, to the cumulative impact of

all 23 photographs on the jury, and thus all the photographs come within the scope

of this court’s review; and (2) whether defendant used the word “publication” or

“admission” is irrelevant, because the issue is what the jury saw and its impact on

them.

However, in order to find plain error, we must first find that the trial court

committed some error. Piatkowski, 225 Ill. 2d at 565 (“the first step is to determine

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whether error occurred”). As discussed in the section below, since we do not find

error, we do not reach the question of whether the claimed error rose to the level of

plain error.

b. Probative Value and Unfair Prejudice

The trial court did not err in admitting photographs of the victim, because

they were relevant, and their probative value was not outweighed by unfair

prejudice to defendant.

Generally, evidence must be relevant to be admitted. People v. W illiams, 384

Ill. App. 3d 327, 333 (2008). To establish the relevance of a piece of evidence, a

party must: (1) identify the “fact” that it is seeking to prove with the piece of

evidence; (2) explain how this fact is “of consequence” to the determination of the

action; and (3) show how the evidence “tends to make the existence” of this fact

“more or less probable than it would be without the evidence.” People v. Beaman,

229 Ill. 2d 56, 75-76 (2008). Even after a party establishes relevance, the trial court

may still exclude the evidence, if the evidence creates an unfair prejudice that

substantially outweighs its probative value. Williams, 384 Ill. App. 3d at 333.

The State claims that the photographs were relevant to show (1) the truth and

accuracy of defendant’s confession, and thus his identity as the perpetrator; and (2)

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the required mental state, specifically, defendant’s intent to kill. Our supreme court

has held:

“Among the valid reasons for admitting photographs of a

decedent is to prove the nature and extent of injuries and

the force needed to inflict them; the position, condition,

and location of the body; the manner and cause of death;

to corroborate a defendant’s confession; and to aid in

understanding the testimony of a pathologist or other

witness.” Henderson, 142 Ill. 2d at 319-20.

Thus, the reasons offered by the State fall within the list of valid reasons given by

our supreme court.

At trial, defense counsel made the following objection to publication of the

morgue photographs, specifically, People’s exhibit Nos. 2 and 62 through 71:

“DEFENSE COUNSEL: Judge, the State’s next

witness, I believe is Dr. Denton, the interim chief medical

examiner [and forensic pathologist], and they’re going to

put the protocol in through him. They, also being the

State, are intending to publish the morgue photos. The

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morgue photos have been numbered already as 62 through

71.

Judge, [People’s exhibit No.] 2 has been identified

but not published, so none of these have been published.

Judge, our objection to publishing them would be that

they are close-up photographs of the deceased during the

autopsy showing gruesome injuries and also of course

she’s unclothes [sic] clothed [sic]. We have made this

objection to the photos of her at the scene and we

understand the Court’s ruling.

I would suggest based on the Court’s ruling, that

the jury has all the probative evidence they need. This

adds nothing in a probative manner that couldn’t be

testified to without resorting to gruesome photos.

The doctor certainly can describe injuries that were

documented or photographed without the jury having to

look at them. W e do believe that they are more

prejudicial than probative, and we would ask that you bar

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the State from publishing 2 and 61.”

In response, the trial court made the following ruling:

“THE COURT: Your objection is overruled. Most

of them are just photos of the cuts that are up close. He

can describe the cuts. They’re just pictures of the

wounds, they’re close-up of the wounds. We have one

where the cuts are on the face. There’s just a large

number of cuts on the face. I don’t think they’re

particularly gruesome, quite frankly. And they show the

cuts. As I indicated, the nature and number and manner of

infliction of these wounds is important to the case ***.”

To support its contention that the photographs were unfairly prejudicial,

defense counsel cites: (1) the 30-year-old case of People v. Garlick, 46 Ill. App. 3d

216 (1977); and (2) the more recent opinion in People v. Jackson, 372 Ill. App. 3d

112 (2007), which was reversed on other grounds by our supreme court in People v.

Jackson, 232 Ill. 2d 246 (2009).

In the appellate court opinion in Jackson, this court stated that the trial court

did not abuse its discretion in admitting autopsy photographs, even though we found

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the photographs to be “grisly.” Jackson, 372 Ill. App. 3d at 126-27. In Jackson, we

found no abuse of discretion, because the issue of guilt and the issue of whether the

crime was brutal or heinous were addressed in the same proceeding, and “the grisly

autopsy photographs shed light on whether the crime was brutal.” Jackson, 372 Ill.

App. 3d at 126-27. However, we “observe[d]” that if the trial had been bifurcated,

then certain photographs “may” have been unduly prejudicial if admitted during the

phase devoted solely to guilt. Jackson, 372 Ill. App. 3d at 126-27.

However, the ambiguous “may” statement in Jackson does little to aid

defendant’s argument. First, in Jackson, this court reached the opposite conclusion

that defendant is seeking; namely, in Jackson, we found no abuse of discretion.

Jackson, 372 Ill. App. 3d at 126-27. Second, in Jackson, we stressed that our

statements about the photographs were merely dicta, because they were “not

determinative of our ultimate decision in this case.” Jackson, 372 Ill. App. 3d at

124. Third, the photographs at issue in Jackson were taken during an autopsy and

“depict[ed] grisly autopsy details,” making them particularly “grisly,” and thus,

different in kind and degree than the photographs at issue here which were taken at

the crime scene and at the morgue. Jackson, 372 Ill. App. 3d at 118, 126.

In Garlick, as in Jackson, the appellate court’s comments about the

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photograph were mere dicta, since the appellate court had already decided that a

new trial was warranted on other grounds. Garlick, 46 Ill. App. 3d at 223. In

addition, in Garlick, there was no issue concerning the identity of the perpetrator,

since the defendant had admitted the murder. His sole defense, and the sole issue in

the case, was his claimed insanity. By contrast, in the case at bar, defendant claims

that he was not the perpetrator, and thus, the State needed the photographs to

corroborate defendant’s confession and confirm his identity.

After reviewing the photographs in question, we agree with the assessment of

the trial court that the probative value of the photographs outweighed any unfair

prejudice. First, we note that defendant on appeal poses no objection to People’s

exhibit No. 2, which depicted the victim’s face and shoulders. Defendant objects to

the remaining 23 photographs, namely 10 photographs of the body taken at the

morgue 2 and 13 photographs of the body taken at the crime scene.3

Second, the 10 morgue photographs are not particularly gruesome. They are

cropped to show only discrete parts of the body. M ost of the wounds appear to

2 The 10 morgue photographs at issue are People’s exhibit Nos. 62 through 71. 3 The 13 crime scene photographs at issue are People’s exhibit Nos. 11, 20,

22, 25 and 28 through 36.

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have been cleaned; and thus, though they are red, they are practically bloodless.

Third, the crime scene photographs aid in depicting the events. People’s

exhibit No. 11 depicts the hallway in the victim’s apartment, and a portion of the

victim’s body is barely discernible through an open doorway. People’s exhibit No.

20 depicts the bed with a bloody sheet and mattress, and only a portion of the

victim’s legs are visible next to the bed. People’s exhibit No. 22 shows the victim’s

entire body, as she was found lying on her bedroom floor. However, the number

and extent of the individual wounds are not discernible from this photograph.

People’s exhibit No. 25 shows the hallway, which is also depicted in exhibit No. 11,

but from a different angle. As with exhibit No. 11, a portion of the victim’s body is

shown in exhibit No. 25 through an open doorway, but there is almost no blood in

the photograph, except for a smudge on one wall of the hallway. Exhibit Nos. 28

and 29 are gruesome: they show stab wounds to the victim’s face. However, they

are no more gruesome than the crime itself, and they are probative in understanding

the motive and intent of the perpetrator. Exhibit Nos. 30 through 36 depict the

individual wounds. Although a number of the crime scene photographs are

gruesome, they were highly probative in portraying the event, and thus their

probative value outweighed any unfair prejudice.

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For these reasons, we find no abuse of discretion. People v. Henderson, 142

Ill. 2d 258, 319-21 (1990) (finding no abuse of discretion in the admission of 18

crime scene and morgue photographs of a murder victim, who had been stabbed 40

times).

2. State’s Closing Argument

Defendant claims that the trial court erred by overruling a defense objection

to a remark during the State’s closing. A detective had testified at trial that, after

the defendant’s brother provided detectives with a bloody shirt worn by defendant,

the brother started crying. The remark at issue is a comment during the state’s

rebuttal closing that defendant’s brother “knew.”

It is not clear whether the appropriate standard of review for this issue is de

novo or abuse of discretion. This court has previously made this same observation

in both People v. Phillips, No. 1-07-0985 (June 15, 2009), and People v. Johnson,

385 Ill. App. 3d 585, 603 (2008). The Second District has agreed with our

observation that the standard of review for closing remarks is an unsettled issue.

People v. Robinson, 391 Ill. App. 3d 822 (2009).

The confusion stems from an apparent conflict between two supreme court

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cases: People v.Wheeler, 226 Ill. 2d 92, 121 (2007), and People v. Blue, 189 Ill.

2d 99, 128, 132 (2000). In Wheeler, our supreme court held: “Whether statements

made by a prosecutor at closing argument were so egregious that they warrant a new

trial is a legal issue this court reviews de novo.” Wheeler, 226 Ill. 2d at 121.

However, the supreme court in Wheeler cited with approval Blue, in which the

supreme court had previously applied an abuse of discretion standard. Wheeler,

226 Ill. 2d at 121. In Blue and numerous other cases, our supreme court had held

that the substance and style of closing argument are within the trial court’s

discretion, and will not be reversed absent an abuse of discretion. Blue, 189 Ill. 2d

at 128, 132 (“we conclude that the trial court abused its discretion” by permitting

certain prosecutorial remarks in closing); People v. Caffey, 205 Ill. 2d 52, 128

(2001); People v. Emerson, 189 Ill. 2d 436, 488 (2000); People v. W illiams, 192 Ill.

2d 548, 583 (2000); People v. Armstrong, 183 Ill. 2d 130, 145 (1998); People v.

Byron, 164 Ill. 2d 279, 295 (1995). Our supreme court had reasoned: “Because the

trial court is in a better position than a reviewing court to determine the prejudicial

effect of any remarks, the scope of closing argument is within the trial court’s

discretion.” People v. Hudson, 157 Ill. 2d 401, 441 (1993). Following Blue and

other supreme court cases like it, this court had consistently applied an abuse of

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discretion standard. People v. Tolliver, 347 Ill. App. 3d 203, 224 (2004); People v.

Abadia, 328 Ill. App. 3d 669, 678 (2001).

Since Wheeler, appellate courts have been divided regarding the appropriate

standard of review. The First District has applied an abuse of discretion standard,

while the Third and Fourth Districts have applied a de novo standard of review.

Compare People v. Love, 377 Ill. App. 3d 306, 313 (1st Dist. 2007), and People v.

Averett, 381 Ill. App. 3d 1001, 1007 (1st Dist. 2008), with People v. McCoy, 378

Ill. App. 3d 954, 964 (3d Dist. 2008), and People v. Palmer, 382 Ill. App. 3d 1151,

1160 (4th Dist 2008). However, we do not need to resolve the issue of the

appropriate standard of review at this time, because our holding in this case would

be the same under either standard. This is the same approach that we took in both

Phillips and Johnson, and the same approach taken by the Second District in its

Robinson opinion. Phillips, No. 1-07-0985; Johnson, 385 Ill. App. 3d at 585;

Robinson, 391 Ill. App. 3d at 840, (“In any event, like the Johnson court, we leave

the resolution of this issue to another day, as our conclusion would be the same

applying either standard.”).

b. Substantial Prejudice

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A State’s closing will lead to reversal only if the prosecutor’s remarks created

“substantial prejudice.” Wheeler, 226 Ill. 2d at 123, People v. Johnson, 208 Ill. 2d

53, 64 (2003); People v. Easley, 148 Ill. 2d 281, 332 (1992) (“The remarks by the

prosecutor, while improper, do not amount to substantial prejudice”). Substantial

prejudice occurs “if the improper remarks constituted a material factor in a

defendant’s conviction.” Wheeler, 226 Ill. 2d at 123.

When reviewing claims of prosecutorial misconduct in closing argument, a

reviewing court will consider the entire closing arguments of both the prosecutor

and the defense attorney, in order to place the remarks in context. Wheeler, 226 Ill.

2d at 122; People v. Johnson, 208 Ill. 2d 53, 113 (2003); People v. Tolliver, 347 Ill.

App. 3d 203, 224 (2004). A prosecutor has wide latitude during closing argument.

Wheeler, 226 Ill. 2d at 123; Blue, 189 Ill. 2d at 127. “In closing, the prosecutor may

comment on the evidence and any fair, reasonable inferences it yields.” People v.

Nicholas, 218 Ill. 2d 104, 121 (2005). Thus, this court will also consider the

evidence that led to the remarks at issue.

In the case at bar, the remark at issue was based on the testimony of

Detective Thomas Conley. Conley testified that when he and his partner went to

search defendant’s bedroom, they were accompanied by defendant’s brother, Donny

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Maldonado. Conley described the interaction between the brother and the police

officers, as follows:

“PROSECUTOR: When Donnie was in the

bedroom with you, did you say anything to Donnie?

DETECTIVE: Yes, I did.

PROSECUTOR: What was that?

DETECTIVE: I asked Donnie what Marcelino was

wearing when he came home in the early morning hours.

PROSECUTOR: Now, without telling us anything

Donnie said, what did Donnie do at that point?

DETECTIVE: Donnie immediately went to the closet and

picked up a shirt that was on top of the pile of clothes on the

floor. The shirt was inside out, he immediately turned it right

side out.

PROSECUTOR: What did he do with the shirt

then?

DETECTIVE: He then gave it to me and I held it

up to examine the shirt.

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PROSECUTOR: When you held this shirt up and

examined it, did you notice anything about it?

PROSECUTOR: What did you notice?

DETECTIVE: It was a beige shirt with a

Roadrunner Looney Tunes character on it. There was

what appeared to me to be blood on the left sleeve and

then down by the bottom of the shirt on the right side.

PROSECUTOR: What happened next?

DETECTIVE: We immediately called for the

crime lab to come and photograph and inventory the shirt.

PROSECUTOR: When you turned and looked and

examined the shirt, was Donnie still in the room?

DETECTIVE: Yes, he was.

PROSECUTOR: What happened?

DETECTIVE: Donnie started crying.”

Based on the above testimony, the prosecutor during rebuttal argued: “And

the defendant’s own brother started crying because he knew, ladies and gentlemen,

24 No. 1-07-2222

at that moment that the defendant had done what he did.” Defense counsel

objected, and the trial court sustained the objection. The trial court specifically

instructed the jury “to disregard the last remark.”

After the trial court’s instruction, the prosecutor continued:

“PROSECUTOR: Donnie M aldonado was crying,

ladies and gentlemen, because as Detective Conley saw it,

there was blood on the shirt. Donnie Maldonado was at

4910 Spaulding [the home of defendant and his mother

and brother] when the police came to find out what it was

that the defendant was wearing. The defendant had

already been taken away by the police in that morning

hours, approximately 10 o’clock in the morning. Donnie

Maldonado knew, ladies and gentlemen.

DEFENSE COUNSEL: Objection, your honor.

THE COURT: You may continue. Overruled.”

After closing arguments and jury instructions were completed, defense

counsel moved for a mistrial, in part, because the prosecutor’s remark “left it

hanging [about] what it was he knew.” Denying the motion, the trial court stated:

25 No. 1-07-2222

“THE COURT: W ith regard to Donnie

Maldonado, I sustained your objection. The one reference

to him that I did not because it was properly argued from

the facts that you could infer that he was aware of

something, although not exactly what he was aware of,

but it was argued in a proper manner so I did not sustain

the objection to that.”

We agree with the trial court that the prosecutor’s second remark argued that

the brother knew “something, although not exactly what.” The “something” is

ambiguous. It could be that the brother “knew,” as did the detectives, that the shirt

had blood on it. One highly ambiguous remark is not enough to warrant a mistrial

or to create substantial prejudice.

Thus, under either a de novo or an abuse of discretion standard of review, we

find that the trial court did not err by overruling defendant’s objection to the State’s

comment that the brother “knew.”

3. Defendant’s Fingerprint Card

Defendant claims that the trial court abused its discretion by overruling an

objection to testimony by a fingerprint examiner that she obtained defendant’s

26 No. 1-07-2222

fingerprint card from the “Bureau of Identification in Joliet.” Defendant argues that

the jury was likely to infer from this testimony that defendant had a prior criminal

record, and thus, that is why the Bureau of Identification had a fingerprint card on

file for him.

Our standard of review for this issue is abuse of discretion. Our supreme

court has held that a trial court’s decision to allow a limited reference to a database,

such as the one in this case, is reviewed under an abuse of discretion standard.

People v. Jackson, 232 Ill. 2d 246, 266-67 (2009).

Defendant’s claim concerns testimony by Amy Hart, a fingerprint examiner

employed by the Illinois State Police. Even though Hart was called as a State

witness, she provided testimony favorable to the defense, namely that none of the

exhibits submitted to her for examination revealed prints that matched defendant’s

prints. Hart testified that, in connection with defendant’s case, she received a

drinking glass, a cigarette package, a pair of sunglasses, two knives and “then at an

even later date I received some fingerprint cards.”

Hart’s testimony about the Bureau of Identification card occurred during her

testimony about the sunglasses:

“PROSECUTOR: And what did your examination

27 No. 1-07-2222

reveal with respect to the sunglasses, People’s Exhibit

Number 81 B?

HART: I compared it to fingerprint cards, that one

was submitted by the Chicago Police Department and one

fingerprint card I requested from the Bureau of

Identification in Joliet.

PROSECUTOR: And the fingerprint card, was that

of a Marcelino Maldonado, is that correct?

HART: The one that I requested from the Bureau of

Identification was marked Marcelino Maldonado.

DEFENSE ATTORNEY: Objection.

THE COURT: Objection overruled. The answer

may stand.” (Emphasis added.)

After Hart finished her direct examination, defense counsel requested “a sidebar

based on the objection,” and the following discussion occurred outside the presence

of the jury:

“DEFENSE ATTORNEY: At the earliest possible

time we make a motion for a mistrial based on Bureau of

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Identification. W e have a DCFS 4 on there. They called

for fingerprints, Bureau of Identification. The Court

knows what it is, the Prosecutor knows what it is. She

repeated it. She brought it out of the witness. It could

have been handled a number of ways.

PROSECUTOR: Your Honor I believe counsel has

already brought out that the defendant has been arrested

and taken into custody. This is after the arrest. Any

fingerprinting that the defendant had after the arrest could

have this particular item. It’s an innocuous term. And

I’m not sure because I could not hear counsel, there was

no reference to BC.

DEFENSE COUNSEL: Bureau of Identification is

different as counsel knows from the – after the arrest of

the defendant on this matter. It’s completely different.

4 This apparent reference to the Department of Children and Family Services

(DCFS) is puzzling. The presentence report does not indicate any juvenile offenses,

or prior contacts or involvement with DCFS

29 No. 1-07-2222

THE COURT: I grant you it could have been

handled differently. However, the testimony here is that

she’s doing –

DEFENSE ATTORNEY: No –

THE COURT: – the examination six months after

the arrest in this case, so it could be from the arrest in this

case for all they know.

DEFENSE ATTORNEY: The problem is DCFS. I

still say that it was done wrong, Judge.

THE COURT: Motion for mistrial is denied for that

reason.”

After the sidebar, the defense attorney cross-examined Ms. Hart and elicited

the following testimony about the fingerprint card received from the Bureau of

Identification:

“PROSECUTOR: Now, who submitted the first

cards from the Chicago Police Department? That was the

Chicago Police Department, correct?

HART: The Chicago Police Department actually

30 No. 1-07-2222

submitted only a card. I believe marked Maribel Jiminez

[the victim]. And then I spoke with a state’s attorney who

indicated that there might be a suspect and gave me a

state ID number so I could request a card from the Bureau

of Identification.”

The law with respect to database references, such as the one at issue in this

case, is well-established. Generally, evidence of other crimes is not admissible

unless it is relevant to connect the defendant with the specific crime charged at trial.

Jackson, 232 Ill. 2d at 268-69. However, a witness’ isolated reference to obtaining

defendant’s DNA profile or fingerprint card from a database is not reversible error,

if (1) necessary to explain the course of the investigation (Jackson, 232 Ill. 2d at 265

(reference to the DNA database was “necessary to explain” defendant’s

identification years after the offense)); or (2) ambiguous, concerning whether the

source of the entry was a prior criminal offense. Jackson, 232 Ill. 2d at 271 (“any

inference of past criminal wrongdoing” from testimony that defendant’s profile was

in a DNA database was purely “speculative”); People v. Jackson, 304 Ill. App. 3d

883, 895 (1999) (same, with respect to fingerprints); People v. Hopkins, 229 Ill.

App. 3d 665, 676 (1992) (same, with respect to fingerprints).

31 No. 1-07-2222

The reference is considered isolated if “neither direct evidence nor argument

at trial” concerns defendant’s prior criminal offenses. Jackson, 232 Ill. 2d at 269,

discussing with approval People v. Hayes, 139 Ill. 2d 89, 146 (1990), 5 and People v.

Lewis, 165 Ill. 2d 305 (1995). For example, in Hayes, our supreme court held that

an “isolated statement” was not “so prejudicial” as to require a new trial, where “no

direct evidence” of prior criminal conduct was presented at trial. Hayes, 139 Ill. 2d

at 146. The Hayes court found no prejudice, although it acknowledged that the

witness’ prior identification of defendant from a photograph book at a “Violent

Crimes” unit “may have raised an inference in the jurors’ minds that the defendant

had a criminal history.” Hayes, 139 Ill. 2d at 146. Similarly, in Lewis, our supreme

court found that defendant was not unduly prejudiced by evidence showing that “an

FBI fingerprint check” revealed that he was in custody in California. Lewis, 165 Ill.

2d at 345, 347. Defendant was not unduly prejudiced because “the jury heard

neither direct evidence nor argument” concerning defendant’s other convictions.

Lewis, 165 Ill. 2d at 347. See also People v. Jackson, 304 Ill. App. 3d 883, 895

5 Hayes was overruled, but on completely different grounds, by People v.

Tisdel, 201 Ill. 2d 210, 219 (2002) (finding that “the Hayes court erred in limiting

‘statements of identification’ to a witness’ actual identification of a defendant”).

32 No. 1-07-2222

(1999) (witness’ testimony that he obtained defendant’s fingerprints from a database

was not unduly prejudicial, where the prosecution made no reference to prior

arrests, convictions or relations with law enforcement).

In addition to the isolated nature of the statement, an appellate court will

consider whether the defense requested a limiting instruction or asked that the jury

be informed about sources, besides arrests, for the database in question. Jackson,

232 Ill. 2d at 273-74. For example, in another case, the jury was informed that the

fingerprint database included not only arrested individuals, but also police officers

and government employees. Jackson, 304 Ill. App. 3d at 895.

In the case at bar, the State does not claim that the reference was necessary to

explain the course of the investigation, but rather only that it was ambiguous. W ith

fingerprints, in particular, any connection to a prior crime is speculative at best,

since jurors are well aware that fingerprints are required for reasons besides an

arrest, such as to obtain a government job. Jackson, 304 Ill. App. 3d at 894-95;

Hopkins, 229 Ill. App. 3d at 676 (fingerprinting for employment is “one of the

‘common experiences’ in life that many jurors have had or know about”). Thus, this

court has previously held that “[a] law enforcement officer’s isolated and ambiguous

statement that he obtained defendant’s fingerprints from a state agency’s database

33 No. 1-07-2222

does not by itself indicate that a defendant has a criminal background.” Jackson,

304 Ill. App. 3d at 894, quoted with approval in Jackson, 232 Ill. 2d at 270;

Hopkins, 229 Ill. App. 3d at 676.

In the case at bar, any leap in logic from the fingerprint card to a prior offense

was even more speculative, since the evidence at trial indicated that the scientist

obtained the card, only after defendant was already in custody for this offense.

During the sidebar, the trial court ruled that the reference was innocuous, because

the scientist received the card after defendant was already in custody, and thus the

jury could infer that his custody, in connection with this case, led to the creation of

the fingerprint card, rather than some prior case. Instead of requesting a limiting

instruction, defense counsel elicited from the scientist a clarification that she

received the card from the Bureau of Identification, only after the prosecution

already had a suspect, thus further supporting an inference that the card was

obtained after defendant’s arrest. As a result, the jury was much more likely to

conclude that the source of the fingerprint card was defendant’s arrest in this case,

rather than a prior arrest.

We affirm the trial court’s ruling that a mistrial was not required because,

first, the remarks were isolated. Defendant does not claim that either direct

34 No. 1-07-2222

evidence or argument at trial concerned his prior offenses. Second, the defense did

not seek a limiting instruction or ask that the jury be informed about other sources

for the database, but instead chose to elicit clarifying information on cross-

examination. Third and most importantly, the connection between a fingerprint card

and a prior offense is often tenuous, but it is particularly so where, as in the case at

bar, the evidence indicates that the card was obtained after defendant’s arrest.

Thus, we find no error occurred.

4. Defense Argument of Another Perpetrator

Defendant claims on appeal that the trial court abused its discretion by

granting the State’s motion in limine to bar the defense from arguing in its closing

that Michael Lewis, the father of the murder victim’s children, could have

committed the charged crimes. The motion was made immediately before closing

statements.

On appeal, defendant cites cases for the general proposition that a trial court

may exclude a defendant’s proposed evidence that another person committed the

crime, if the defendant’s proposed evidence is remote or speculative. People v.

Simmons, 372 Ill. App. 3d 735, 749 (2007); People v. Sykes, 341 Ill. App. 3d 950,

978-79 (2003). However, that is not the issue on appeal. In the case at bar,

35 No. 1-07-2222

defendant did not seek to introduce evidence that the trial court then barred. Instead

the issue in this case is what arguments could the defense counsel make from the

evidence that had already been admitted.

It is well established that a prosecutor has wide latitude during closing

argument. Wheeler, 226 Ill. 2d at 123; Blue, 189 Ill. 2d at 127. Certainly, the

latitude afforded the defense counsel cannot be any less. Like the prosecutor, a

defense counsel may comment on the evidence and draw any reasonable inferences

that the evidence will support. Nicholas, 218 Ill. 2d at 121(discussing what a

prosecutor may do). However, a trial court has the discretion to bar a defense

counsel from making comments during closing argument that are speculative.

People v. Harris, 132 Ill. 2d 366, 391 (1989). Thus, for example, our supreme court

upheld a trial court that precluded the defense from making a “speculative”

argument during closing. Harris, 132 Ill. 2d at 391. When a trial court places limits

on the scope of a defendant’s closing, a reviewing court will reverse only if the trial

court abused its discretion. Harris, 132 Ill. 2d at 391

In its written motion, the State moved to bar the defense from arguing that the

charged crimes could have been committed by either Michael Lewis, who was the

father of the murder victim’s children, or Orlando Santana, who had been sexually

36 No. 1-07-2222

involved with the murder victim. Ruling in defendant’s favor in part, the trial court

held that the defense could argue both (1) that Santana could have committed the

murder of Jiminez and the attempted murder of Saquimux; and (2) that Saquimux

could have committed the murder of Jiminez. The trial court prohibited the defense

from arguing only that Lewis could have committed the charged crimes.

During argument on the motion, the trial court asked defense counsel “[w]hat

evidence are you relying on that Michael Lewis did this, could have done this?” In

response, defense counsel stated only “[t]he initial testimony of the first witness

from the State’s case,” who was Romana Puente, the murder victim’s sister.

Defense counsel argued that Puente “said in fact on the cross examination that she

believed in fact he [Lewis] had slashed the tires [of Jiminez’s car], she believed he

had hostile acts towards in fact her [Jiminez].”

Despite defense counsel’s representation, Puente did not testify that she

believed that Lewis had slashed Jiminez’s vehicle tires. She testified only that she

had “suspicions.” Jiminez’s testimony that she had her “suspicions” occurred after

defense counsel, in a compound question, asked whether Jiminez had problems with

Lewis such as “[s]lashing tires, beating [Jiminez] up, [or] hurting her when she’s

with other men.” As a result of the compound question, the record is not clear about

37 No. 1-07-2222

exactly what “problems” Puente had her “suspicions.”

Specifically, on cross examination, defense counsel asked Puente if she

recalled whether Jiminez had problems with her vehicle. Puente responded that she

remembered “somebody busting out her window or slashing her tires and busting

her windows, but I don’t remember when that was.” Then defense counsel tried,

unsuccessfully, to elicit testimony that Lewis had behaved violently towards

Jiminez:

“DEFENSE COUNSEL: And your sister, in fact,

had a conversation with you concerning the slashing of

those tires, did she?

PUENTE: No, all she told us was that, in fact, her

tires were slashed.

DEFENSE COUNSEL: Well, didn’t she, in fact,

say that she was having problems with the father of her

children?

PUENTE: She’s always had problems with the

father of her children.

DEFENSE COUNSEL: And those problems were

38 No. 1-07-2222

always of a violent nature, correct? Slashing tires, beating

her up, hurting her when she’s with other men?

PUENTE: I had suspicions but I didn’t know for

sure.

DEFENSE COUNSEL: When you say you had

suspicions, that’s because she would always make

excuses for the father of her children and never called the

police, correct?

PUENTE: I don’t know.

DEFENSE COUNSEL: Well, when you say

suspicious, your suspicions was [sic], in fact, that the

father of her children had threatened to harm her and, in

fact, harmed her property, correct?

PUENTE: But I didn’t know for sure.

DEFENSE COUNSEL: Right, you didn’t know

beyond a reasonable doubt?

PROSECUTOR: Objection.

THE COURT: Objection sustained.

39 No. 1-07-2222

DEFENSE COUNSEL: You didn’t know for sure,

correct, but you had your suspicions?

PUENTE: Um-hum.

DEFENSE COUNSEL: I’m sorry, we’re going to

have –

PUENTE: I’m sorry. Yes.”

Responding to the defense’s argument which was based on the above

testimony, the trial court ruled:

“THE COURT: There is nothing in the record that

is the basis of her belief. There is nothing in the record

that Michael Lewis is even [within] a thousand miles of

Cook County at the time of this. No. There is no evidence

that Michael Lewis did anything.”

On appeal, the defense cites additional evidence in support of its argument

that it did not cite to the trial court, namely: (1) testimony by Tiffany Blake,

Jiminez’s apartment mate, that Jiminez had tried to reconcile with Lewis and had

“recently” slept with him; (2) testimony by Detective Troche corroborating that

Blake had told him that Lewis had been at Jiminez’s apartment “recently”; and (3)

40 No. 1-07-2222

items of debris recovered from the back porch of Jiminez’s apartment on the

morning after her murder (People’s exhibit No. 74) that included pieces of paper

which stated “M ichael Lewis and M aribel Jiminez, Best Friends” and “Love you,

miss you, want you. Love, Mike.”

None of this evidence counters the trial court’s concern that the record

contains no evidence that Lewis was within “even a thousand miles of Cook

County” on the day of the murder. Blake’s testimony that Lewis was present

“recently” failed to establish any time frame. “Recently” could be one day, one

week, one month or more. Similarly, the scraps of paper found on the porch bear no

dates. Thus, we cannot find that the trial court abused its discretion when it

foreclosed this speculative line of argument. Harris, 132 Ill. 2d at 391 (no abuse of

discretion when the trial court foreclosed a “speculative” line of argument from a

defense closing).

5. Jury’s Question

Defendant claims on appeal that the trial court erred by allegedly failing to

answer a question from the jury during its deliberations.

“The general rule when a trial court is faced with a question from the jury is

that the court has a duty to provide instruction to the jury when the jury has posed

41 No. 1-07-2222

an explicit question or requested clarification on a point of law arising from the facts

about which there is doubt or confusion.” People v. Millsap, 189 Ill. 2d 155, 160

(2000); People v. Brooks, 187 Ill. 2d 91, 138 (1999). Despite this general rule, a

trial court has the discretion not to answer the jury’s question “under appropriate

circumstances.” Millsap, 189 Ill. 2d at 161. To illustrate what constitutes

“appropriate circumstances,” our supreme court has provided the following

examples: (1) “when the instructions are readily understandable and sufficiently

explain the relevant law”; (2) “where further instructions would serve no useful

purpose or would potentially mislead the jury”; (3) “when the jury’s inquiry

involves a question of fact”; (4) “where the giving of an answer would cause the

court to express an opinion that would likely direct a verdict one way or the other”;

or (5) where the court’s answer would “submit new charges or new theories to the

jury after the jury commence[d] its deliberations.” Millsap, 189 Ill. 2d at 161.

An appellate court may find an abuse of discretion either where the trial court

refused to answer an appropriate question; or where the trial court chose to answer,

in the face of “appropriate circumstances” that warranted restraint. Millsap, 189 Ill.

2d at 163 (trial court’s answer was an abuse of discretion).

In the case at bar, the jury sent out two notes on the second day of jury

42 No. 1-07-2222

deliberations. The first note stated: “We’d like to request Tiffany’s and Detective

Conley’s testimony, also Detective Troche.” Both parties agreed that the jury

should receive all three transcripts when all three became available.

The second note stated:

“W e’d like to request Joan Kuruc’s testimony.

Legal question: In 1999 was it possible for the suspect to

write out their own statement instead of

having it taken down for them.

In 1999, was it possible for a detective to

take a signed confession instead of

waiting for a district attorney.”

(Emphasis in original.)

In response to the request for transcripts, the trial court stated that it would

instruct the jury: “The transcripts you have requested will be available in

approximately one hour. At that time they will all be provided to you.” The defense

objected to naming a precise time, but the trial court overruled this objection.

However, this objection is not at issue on appeal.

In response to the “legal question[s]” in the second note, the trial court wrote

43 No. 1-07-2222

by hand on the bottom of the note:

“You have heard the evidence and have been

instructed as to the law. Please continue your

deliberations.”

Defense counsel objected, arguing that the trial court should answer both questions

in the affirmative. Defense counsel stated: “by not answering it, the Court is

directing the verdict in the State’s favor.” The trial court overruled the objection. It

is the trial court’s ruling on this objection that defendant appeals.

The “evidence” referred to by the trial court in its above response was, in

part, the testimony of the assistant State’s Attorney who reduced defendant’s

statement to writing. On direct examination, she testified that she offered defendant

three options to memorialize his statement: (1) that the assistant State’s Attorney

could write down the substance of what defendant told her, and then defendant

would have an opportunity to review what she had written and to make changes; (2)

a court reporter could transcribe, word for word, the assistant State’s Attorney’s

questions and defendant’s answers; and (3) a videographer could film her questions

and his answers. The assistant State’s Attorney testified that defendant chose the

first option.

44 No. 1-07-2222

During cross-examination, defense counsel questioned the assistant State’s

Attorney about why defendant was not offered a fourth option, namely the option of

writing his own statement:

“DEFENSE COUNSEL: Have you ever let a

defendant write out their own statement?

WITNESS: Absolutely not.

DEFENSE COUNSEL: When you say absolutely

not, that is, in fact the – Well, let me ask you. Why do

you say absolutely not?

THE COURT: Overruled. You may answer.

WITNESS: W hy did I not let a defendant write his

own statement out?

DEFENSE COUNSEL: In his own words.

WITNESS: The statement I reported is in his own

words. Anytime a handwritten statement is taken —

45 No. 1-07-2222

DEFENSE COUNSEL: Motion to strike as

unresponsive.

THE COURT: She hasn’t finished her answer yet.

DEFENSE COUNSEL: I’m sorry. Finish your

answer.

WITNESS: The statement itself is going to become

evidence. The assistant state’s attorney writes it in the

presence of the person speaking, whether it’s a witness or

a defendant or a suspect. I’ve never, never asked a

defendant to write his own statement.

unresponsive. The question was why.

THE COURT: Well, overruled. That answer may

stand. You may continue, if you wish.

DEFENSE COUNSEL: Well, now do you

understand I asked you why don’t you let them write it in

their own words?

WITNESS: This statement is in his own words, the

46 No. 1-07-2222

statement that I took.

DEFENSE COUNSEL: So he referred to himself in the

third person?

WITNESS: No, he did not.”

In the above colloquy, defense counsel did not ask the assistant State’s

Attorney if there was a law that prevented her from asking defendant to write down

his own statement or if there was a law that prevented the detective, who first heard

defendant’s statement, from writing it down. In essence, the jury note was asking

the trial court to fill in the blanks left open by the defense’s cross-examination.

Simply put, the jury was asking for additional evidence.

The defense had two opportunities to fill in these blanks, first when the

assistant State’s Attorney testified, and later during the testimony of the detective

who initially received defendant’s statement. However, the defense also chose not

to ask the detective if any law or protocol prevented him from writing it down.

During the cross-examination of the detective, the defense elicited the following

information:

“DEFENSE COUNSEL: But the things that he was

telling you and [your partner] which you say he said, you

47 No. 1-07-2222

did not write those down and have him sign off on those,

correct?

DETECTIVE: No, I write that stuff in my G.P.R.’s

and notes, he doesn’t sign my notes.

DEFENSE COUNSEL: Did you show him your

notes?

DETECTIVE: No.

DEFENSE COUNSEL: You didn’t say I want to

make sure I have this right, read this over, correct?

DETECTIVE: That’s correct.

DEFENSE COUNSEL: You didn’t say Mr.

Maldonado, I want to put this in your own words, here is

a pencil, here is a paper, write this down?

DETECTIVE: No, we don’t do that.”

Later during the cross-examination of the detective, defense counsel elicited

that the standard protocol of the Chicago Police Department with respect to

statements had changed. However, defense counsel chose not to ask what it had

changed from:

48 No. 1-07-2222

“DEFENSE COUNSEL: And this in fact is before

the continuous video taping of interrogations took place

re[:] the Chicago Police Department?

DETECTIVE: What is now their standard operating

procedure, yes.”

By noting that defense counsel chose not to ask what the law or protocol was

in 1999, we intend no criticism of counsel. Counsel may have had valid strategic

reasons for not asking. In fact, in the defense closing, defense counsel exploited this

ambiguity by arguing:

“First of all, if you’re going to take a true statement, do

you want me interpreting your words, do I want you

interpreting your words. No. I want to put down in my

own words what I want to say. Ask the State’s Attorney,

was he allowed to do that. No. Why? I don’t know.

That’s their procedure. That’s why they’re called the

prosecution. They had him and wanted to prosecute him.”

In Brooks, our supreme court held that a trial court’s answer was not an

abuse of discretion, where “the trial judge accurately repeated [a witness’]

49 No. 1-07-2222

testimony, which the jury heard earlier that day.” Brooks, 187 Ill. 2d at 138. By

contrast, in the case at bar, there was no testimony that the trial court could have

repeated to answer the jury’s question. Defendant has not cited us a case, nor can

we find one, that permits a trial court, after the close of evidence and closing

arguments, to fill in evidentiary blanks left by a party. Thus, we find that the trial

court’s answer was not an abuse of discretion.

6. Fines and Fees

Defendant claims that he is entitled to a $15 reduction in the costs and fees

that he was ordered to pay; and the State agrees. For the reasons discussed below,

we order defendant’s fines and fees reduced by $15 from $895 to $880, and order

that his mittimus be corrected accordingly. E.g. People v. Cleveland, 393 Ill. App.

3d 700, 715 (2009) (ordering that defendant’s fines and fees be reduced by a certain

amount and that “his mittimus be corrected accordingly”).

Specifically, defendant claims that he is entitled to a monetary credit that

should be offset against certain fees ordered by the trial court. In an order dated

June 4, 2007, the trial court directed defendant to pay $895 in various court costs

and fees. On appeal, defendant does not dispute the assessment of these costs and

fees. Instead, defendant claims that, pursuant to section 110-14 of the Code of

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Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2006)), he is entitled to a

credit of $5 per day for the 2,804 days that he spent in custody, between his arrest

and sentencing. People v. Caballero, 228 Ill. 2d 79, 88-89 (2008) (credit pursuant

to section 110-14 applies anytime a person is incarcerated between arrest and

sentencing); People v. Rivera, 378 Ill. App. 3d 896, 898-900 (2008).

a. Amount of Available Credit

Section 110-14 of the Code of Criminal Procedure of 1963 is entitled “Credit

for Incarceration on Bailable Offense” and it provides in full:

“(a) Any person incarcerated on a bailable offense

who does not supply bail and against whom a fine is

levied on conviction of such offense shall be allowed a

credit of $5 for each day so incarcerated on application of

defendant. However, in no case, shall the amount so

allowed or credited exceed the amount of the fine.

(b) Subsection (a) does not apply to a person

incarcerated for sexual assault as defined in paragraph (1)

of subsection (a) of Section 5-9-1.7 of the Unified Code

of Corrections.” 725 ILCS 5/110-14 (W est 2006).

51 No. 1-07-2222

According to section 110-14, the amount of the available credit is calculated

by multiplying $5 by the number of days of incarceration. 725 ILCS 5/110-14 (a)

(West 2006). During sentencing, the trial court calculated that defendant was

entitled to a credit against his term of imprisonment of 2804 days. Multiplying $5

by this number of days yields a total of $14,020.

b. Fine

Section 110-14 specifies that this credit is available only against a “fine.” On

appeal, defendant argues that the mental health vourt fee (55 ILCS 5/5-1101 (d-5)

(West 2006) and the youth diversion/peer court fee (55 ILCS 5/5-1101(e) (West

2006)) qualify as fines, and that they should be offset against the $14,020 credit. In

People v. Price, 375 Ill. App. 3d 684 (2007), this court held that these particular

fees were appropriately characterized as “fines” where there was “no relevant

connection between the offense committed by defendant and mental health or

juvenile justice.” Price, 375 Ill. App. 3d at 700; People v. Jones, 223 Ill. 2d 569,

600 (2006) (a charge is a fine, despite the legislature’s label of it as a fee, if it “does

not seek to compensate the state for any costs incurred as the result of prosecuting

the defendant”). In Price, we found no relevant connection between the weapons

charge at issue in that case on the one hand, and mental health and juvenile justice

52 No. 1-07-2222

on the other. Price, 375 Ill. App. 3d at 700. We therefore held that, in that particular

case, the charges were actually fines, despite being labeled as “ ‘fee[s]’ ” by the

legislature. Price, 375 Ill. App. 3d at 700. Similarly, in the case at bar, these

charges, although labeled as “fees” on the trial court’s order, are also fines, for the

same reason: there is no relevant connection between the murder and attempted

murder offenses committed by defendant on the one hand, and mental health and

juvenile justice on the other. Thus, they are the type of fees that are eligible for an

offset against the credit.

The written order of costs and fees entered against defendant on June 4,

2007, indicates a $10 charge for “M ental Health Court” and a $5 charge for “Youth

Diversion/Peer Court.” Thus, even though defendant has a much larger credit,

defendant’s appeal asks for only a $15 reduction in the costs and fees that he was

ordered to pay.

c. Bailable Offense

Section 110-14 provides that the credit is available only when a person is

incarcerated “on a bailable offense.” 725 ILCS 5/110-14 (West 2006). Since the

statute is limited to bailable offenses, there must also be nonbailable offenses for

purposes of this statute. Otherwise, this limiting language would be superfluous;

53 No. 1-07-2222

and a statute must be interpreted so that no part of it is rendered meaningless or

superfluous. Jones, 223 Ill. 2d at 581 (“W e construe statutes as a whole, so that no

part is rendered meaningless or superfluous”).

What is, and what is not, “a bailable offense” is defined in section 110-4 of

the Code of Criminal Procedure. 725 ILCS 5/110-4 (West 2006); Ill. Const. 1970,

art. I, §9 (amended in 1986 to expand the list of nonbailable offenses); Rivera, 378

Ill. App. 3d at 900 (to define the term “bailable offense” for purposes of section

110-14, a court must look to section 110-4). Section 110-4 is entitled “Bailable

Offenses,” and it provides that “[a]ll persons shall be bailable before conviction”

with the exception of certain categories of offenses. 725 ILCS 5/110-4 (West

2006); Rivera, 378 Ill. App. 3d at 900 (noting “the exception of five categories of

offenses”).

The listed categories of offenses include: (1) capital offenses; (2) offenses

eligible for life imprisonment; (3) felony offenses requiring imprisonment without

conditional and revocable release; (4) stalking offenses; and (5) weapons offenses at

or near a school or on a school conveyance. 725 ILCS 5/110-4 (West 2006). In

2008, the section was amended to add a sixth category: (6) terrorism offenses. Pub.

Act 95-052, eff. August 29, 2008.

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Of these listed categories, the two which pertain to the case at bar are: (1)

capital offenses; and (3) felonies without conditional release. The case at bar was a

capital case from October 1, 1999, when defendant was arrested, until April 29,

2007, when the State declared it would not seek the death penalty. On October 6,

2004, defendant filed a motion to declare defendant ineligible for the death penalty

due to mental retardation; and on April 4, 2005, the motion was denied. On April

29, 2007, the State filed a notice of intent not to seek the death penalty.

After April 29, 2007, this case switched from the first category of capital

offenses to the third category of felonies without conditional release.6 The crimes

with which defendant was charged, first-degree murder and attempted first-degree

6 Defendant’s offenses did not qualify for the second category, offenses

eligible for natural life imprisonment. For defendant’s first-degree murder

conviction to be eligible for natural life imprisonment, the State would have had to

allege and prove “wanton cruelty” or an aggravating circumstance, which it did not.

730 ILCS 5/5-8-1 (a) (1) (b) (West 2006). As a result, for the first-degree murder

conviction, defendant had to receive “a determinate sentence set by the court” that

was “not less than 20 years and not more than 60 years.” 730 ILCS 5/5-8-1 (a) (1)

(a) (West 2006).

55 No. 1-07-2222

murder, are both felony offenses requiring imprisonment, which are not eligible for

conditional discharge. 730 ILCS 5/5-5-3(c)(2) (A) (West 2006) (“First degree

murder where the death penalty is not imposed”), (B) (“Attempted first degree

murder”).

With respect to these two categories, section 110-4 states in relevant part:

“All persons shall be bailable before conviction,

except the following offenses where the proof is evident

or the presumption great that the defendant is guilty of the

offense: [1] capital offenses; *** [3] felony offenses for

which a sentence of imprisonment, without conditional

and revocable release, shall be imposed by law as a

consequence of conviction, where the court after a

hearing, determines that the release of the defendant

would pose a real and present threat to the physical safety

of any person or persons [.]” 725 ILCS 5/110-4 (a) (West

2006).

For offenses to be nonbailable, they must fall into one of the listed categories,

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and the proof must be “evident or the presumption great” that defendant was guilty.7

725 ILCS 5/110-4 (a) (West 2006). For the third category, there is an additional

requirement, that “the court, after a hearing, determine that the release of the

defendant would pose a real and present threat to the physical safety of any person

or persons.” 725 ILCS 5/110-4(a) (West 2006).

In People v. Purcell, 201 Ill. 2d 542 (2002), our supreme court upheld the

validity of subsections (a) and (c), while placing the burden of proof under these two

sections squarely on the State. Purcell, 201 Ill. 2d at 549-52.8 In the case at bar,

defendant was granted bail, which means that the state either failed or did not

attempt to satisfy its burden. For this reason, we find that defendant’s offenses

7 However, courts have held that an offense can still qualify as a bailable

offense even after a defendant is found guilty. E.g., Rivera, 378 Ill. App. 3d at 899-

900, citing People v. M cNair, 325 Ill. App. 3d 725, 726 (2001), People v. Smith,

258 Ill. App. 3d 261, 268-69 (1994), People v. Bennett, 246 Ill. App. 3d 550, 551-

52 (1993), and People v. Raya, 250 Ill. App. 3d 795, 802-03 (1993), 8 The version of the statute discussed in Purcell (725 ILCS 5/110-4 (West

2000)) is identical to the version of the statute discussed in our opinion (725 ILCS

5/110-4 (West 2006)).

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qualified as bailable offenses, and thus defendant was entitled to the credit

described in section 110-14 (725 ILCS 5/110-14 (a) (West 2006)).

CONCLUSION

In sum, we find, first, that the trial court did not abuse its discretion by

overruling defense objections to the admission of 23 crime scene and morgue

photographs that depicted the victim’s body. A careful review of each photograph

convinced us that their probative value outweighed any unfair prejudice. The 10

morgue photographs were not particularly gruesome, since they had been cropped to

show only discrete parts of the body, and most of the wounds had been cleaned,

making them appear practically bloodless. Several of the crime scene photographs

showed the victim’s apartment from different angles and perspectives, with only

portions of the victim’s body visible. Although a number of the crime scene

photographs were gruesome, they were highly probative in portraying the event.

Second, under either an abuse of discretion or a de novo standard of review,

we find that the trial court did not err by overruling a defense objection to a remark

during the State’s closing that defendant’s brother “knew.” One highly ambiguous

remark in the State’s closing is not enough to warrant a mistrial or to create

substantial prejudice to a defendant.

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Third, the trial court did not abuse its discretion by overruling a defense

objection to testimony by a forensic scientist that he had received defendant’s

fingerprint card from the Bureau of Identification. No direct evidence or argument

at trial concerned his prior offenses. In addition, the defense did not seek a limiting

instruction or ask that the jury be informed about other sources for the database, but

instead chose to elicit clarifying information on cross-examination. Last and most

importantly, the connection between a fingerprint card and a prior offense is often

tenuous, but it is particularly so where , as in the case at bar the evidence indicates

that the card was obtained after defendant’s arrest.

Fourth, the trial court did not abuse its discretion by granting the State’s

motion to bar the defense from arguing during its closing that the father of the

murder victim’s children could have committed the charged crimes. Although

defendant cited evidence to support its theory, none of it countered the trial court’s

concern that the record contained no evidence that the father was within “even a

thousand miles of Cook County” on the day of the murder.

Fifth, the trial court did not abuse its discretion by telling the jury that they

had “heard the evidence” in response to a jury question. The jury question had

asked whether it was possible for either a police detective or the defendant himself

59 No. 1-07-2222

to write out the defendant’s confession. While defense counsel had cross-examined

the assistant State’s Attorney about why defendant had not written out his own

statement, counsel had chosen not to elicit the particular information requested by

the jury. In essence, the jury note was asking the trial court to fill in the blanks left

open by the defense’s cross-examination. Defendant did not cite us a case, nor

could we find one, that permits a trial court, after the close of evidence and closing

arguments, to fill in evidentiary blanks left by a party.

Sixth, defendant was entitled to the monetary credit described in section 110-

14 (725 ILCS 5/110-14 (a) (West 2006)), since his offenses were bailable

offenses. We order defendant’s fines and fees reduced by $15 from $895 to $880,

and order that his mittimus be corrected accordingly.

For the foregoing reasons, we affirm the conviction and order a $15 reduction

in defendant’s fines and fees.

Affirmed with instructions.

McBRIDE and GARCIA, JJ., concur.