People v. Meyers

2018 IL App (1st) 140891

• Court: Appellate Court of Illinois
• Decided: March 4, 2019
• Docket: 1-14-0891
• Status: Unpublished

Opinion

2018 IL App (1st) 140891 No. 1-14-0891

Opinion filed December 3, 2018 Modified upon denial of rehearing March 4, 2019

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court of ) Cook County, Criminal Division. Plaintiff-Appellee, ) ) v. ) No. 09 CR 13562 ) BRANDON MEYERS, ) Honorable Stanley J. Sacks ) Judge Presiding. Defendant-Appellant. )

JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Pierce concurred in the judgment and opinion.

OPINION

¶1 Chicago Police officers Jason Bala, Francisco Iza, and Marc Debose were on patrol in an

unmarked squad car when they saw a grey car run a red light. When the officers pulled the car

over, defendant Brandon Meyers and codefendant Riley Fleming exited and fled on foot. Officer

Iza and Officer Debose chased after defendant and Fleming as they ran across a street and into a

vacant lot. Fleming ran through the lot diagonally and down a gangway, successfully evading

Officer Debose. Defendant tripped over the curb before reaching the vacant lot but got up and

kept running. About halfway through the vacant lot, defendant allegedly turned to his right,

pulled a handgun, and fired a single shot. Officer Iza returned fire. Defendant fell to the ground

and dropped his gun. Officer Iza placed defendant under arrest.

¶2 As it turned out, defendant and Fleming were in the process of fleeing an armed robbery

when they ran the red light in the grey car and were pulled over. The robbery victims positively

identified defendant and Fleming, and they were charged with a host of criminal offenses related No. 1-14-0891

to the armed robbery. None of the charges related to the armed robbery are under consideration

here, and Fleming is not a party to this appeal.

¶3 In connection with defendant’s alleged discharge of a firearm at Officers Iza and Debose,

he was separately charged with four counts of attempted first degree murder (counts I through

IV) (720 ILCS 5/8-4(a), 9-1(a) (West 2008)) and two counts of aggravated discharge of a firearm

in the direction of a peace officer (counts V and VI) (720 ILCS 5/24-1.2(a)(3) (West 2008)). A

jury acquitted defendant of the attempted first degree murder charges (720 ILCS 5/8-4(a), 9-1(a)

(West 2008)) but found defendant guilty of both counts of aggravated discharge of a firearm in

the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008). The trial court sentenced

defendant to two concurrent 19-year terms of imprisonment.

¶4 Defendant appeals his convictions for aggravated discharge of a firearm in the direction

of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008). He argues that (1) the evidence failed

to prove defendant guilty beyond a reasonable doubt, (2) the trial court abused its discretion

when it admitted testimonial and photographic evidence of a bullet hole in the siding of a garage

at the scene of the shooting, (3) the trial court erred when it limited defendant’s cross-

examination, and (4) the prosecutor’s closing arguments deprived defendant of a fair trial. We

affirm.

¶5 BACKGROUND

¶6 On July 1, 2009, Chicago Police officers Bala, Iza, and Debose were on patrol in an

unmarked squad car when they saw a grey car run a red light. Officer Bala made a U-turn,

activated his emergency lights, and pulled the car over. Defendant and codefendant Riley

Fleming exited the car. As defendant exited, Officer Bala saw him place a handgun in his

waistband. Officer Bala yelled to his fellow officers that defendant was armed. Fleming and

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defendant fled on foot, and a chase ensued: Officer Bala followed the driver in his squad car,

while Officer Iza and Officer Debose pursued defendant and Fleming on foot.

¶7 With officers close behind, defendant and Fleming ran across a street and headed for a

vacant lot. Fleming, followed by Officer Debose, ran through the lot diagonally and down a

gangway, successfully evading capture. Defendant, followed by Officer Iza, tripped over the

curb before reaching the lot but quickly got up and kept running. When defendant reached the

lot’s halfway point, he stopped, turned to his right, and fired one shot from a gun held in his left

hand. Officer Iza returned fire, and defendant fell to the ground. Defendant’s gun fell from his

hand. Officer Iza placed defendant under arrest, and a Chicago police detective placed paper

bags over defendant’s hands to preserve gunshot residue evidence. Defendant was then

transported to a hospital. Fleming was later found hiding under a car and placed under arrest.

¶8 Shortly after defendant and Fleming’s arrest, two individuals approached police officers

in the vicinity of the shooting to report that they had recently been robbed at gunpoint. Defendant

and Fleming were positively identified as the robbers and charged, as codefendants, with various

criminal offenses related to the armed robbery. Defendant was separately charged with four

counts of attempted first degree murder of Officer Iza and Officer Debose (counts I through IV)

(720 ILCS 5/8-4(a), 9-1(a) (West 2008)) and two counts of aggravated discharge of a firearm in

the direction of a peace officer (counts V and VI) (720 ILCS 5/24-1.2(a)(3) (West 2008)).

Defendant and Fleming 1 proceeded to a consolidated trial before a single jury.

¶9 We highlight only those facts necessary to the resolution of the issues raised in

defendant’s appeal.

1 Fleming is not a party to this appeal, but his convictions were, nevertheless, affirmed on appeal. See People v. Fleming, 2014 IL App (1st) 113004.

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¶ 10 At defendant’s trial, Officer Debose testified that he and his fellow officers pulled over a

grey Ford Focus for running a red light. Defendant and Fleming exited the car, and Officer

Debose heard Officer Bala yell that defendant had a gun. Defendant and Fleming fled on foot,

and a chase ensued: Officer Debose followed Fleming while Officer Iza followed defendant.

Officer Debose testified that he announced his office “9 or 10 times,” but defendant continued to

run. Defendant had his arms at his waistband, “like he had something there.” After defendant

tripped over the curb, Officer Debose saw defendant get up and “put his hands back towards his

waistband.” Though his focus was directed to Fleming, who took a “hard right” through the

vacant lot and ran down a gangway, Officer Debose testified that he heard a single gunshot and

then a “whizzing sound.” Officer Debose ducked, got up, and turned to see defendant holding a

gun in his left hand. Defendant’s right hand was on his left wrist. Officer Debose testified that he

heard Officer Iza return “four or five shots” at defendant and saw him fall to the ground. Officer

Debose admitted that he did not see defendant fire his gun.

¶ 11 Officer Iza testified that he never saw a gun in defendant’s waistband but did see

defendant hold onto his side as he ran. Officer Iza saw defendant trip over the curb, get up, and

keep running. When defendant reached the vacant lot’s halfway point, Officer Iza testified that

defendant turned to the right and fired one shot at him from a gun held in defendant’s left hand.

Officer Iza testified that he was within 10 feet of defendant when he saw the muzzle of

defendant’s gun “flash” and then heard a “whizzing sound.” Officer Iza returned “three or four

shots” at defendant and saw defendant fall to the ground. Officer Iza testified that he then placed

defendant under arrest.

¶ 12 During the direct examinations of Officer Iza and Officer Debose, the State played a

surveillance video that had recorded part of the foot chase. The video captured Fleming and

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defendant running across the street with Officers Iza and Debose close behind. However, the

video was stationary and did not capture the shooting. The trial court permitted the officers to

narrate the events depicted in the video, but when defendant asked Officer Debose to describe

the events captured on the video, the State objected. The trial court sustained the State’s

objections and explained that the video “speaks for itself.” The trial continued.

¶ 13 The State introduced a photograph of a hole in the siding of a garage into evidence at

trial. Officer Iza testified that the hole depicted in the photograph was the “entry wound” of the

bullet discharged from defendant’s gun. Officer Iza further testified that the bullet hole aligned

with the trajectory of the shot fired by defendant and that the hole “looked like it was fresh”

because he did not observe any “rust” around the hole. Defendant repeatedly objected to the

State’s line of questioning as speculative, but the trial court overruled defendant’s objections. On

cross-examination, Officer Iza testified that he had “no way of knowing” whether the bullet

discharged from defendant’s gun created the hole depicted in the photograph.

¶ 14 Edwin Huels, an evidence technician for the Chicago Police Department, was assigned to

recover evidence from the scene of the shooting and testified for the State. Technician Huels

testified that he photographed the bullet hole in the siding of the garage and described it as “free

of rust and debris,” but he admitted that he did not access the garage or recover the bullet.

Technician Huels did, however, recover defendant’s firearm and four 9-millimeter cartridge

cases from the scene of the shooting. Each bullet casing was later determined by a forensic

scientist to have been fired from Officer Iza’s gun. The bullet casing discharged from

defendant’s gun was not recovered.

¶ 15 Robert Berk, a trace evidence analyst, testified that he received and analyzed the gunshot

residue kit administered to defendant’s hands. Analyst Berk testified that in order to find a

5 No. 1-14-0891

positive presence of gunshot residue, he must find three “unique” gunshot residue particles: a

unique gunshot residue particle is one composed of “lead, barium and antimony” elements.

Analyst Berk found three unique particles on defendant’s right hand and two unique particles on

defendant’s left hand. Analyst Berk testified that defendant’s right hand tested positive for the

presence of gunshot residue, which allowed him to make three conclusions: (1) defendant

discharged a firearm, (2) defendant contacted an item that had gunshot residue on it, or

(3) defendant had his hands in the environment of a firearm that was discharged. Analyst Berk

testified that defendant’s left hand did not test positive.

¶ 16 The State rested its case, and defendant moved for a directed verdict. The trial court

denied defendant’s motion. Defendant rested without calling any witnesses, and the parties

proceeded to closing arguments.

¶ 17 During closing argument, the prosecutor commented that the photograph of the bullet

hole in the garage was “circumstantial evidence” of defendant’s firing a gunshot in the direction

of both Officer Iza and Officer Debose: “The whiz of the bullet goes right between [Officers Iza

and Debose], lands right there in that garage.” The prosecutor also commented on the gunshot

residue evidence, indicating that the gunshot residue kit administered to defendant’s hands

identified him as left-handed. Defendant objected, arguing that the State’s comment lacked an

evidentiary basis in the record. The trial court sustained defendant’s objection and instructed the

jury to “disregard the comments.”

¶ 18 The prosecutor then highlighted the results of analyst Berk’s analysis, commenting that

she “couldn’t call” defendant’s left hand “a positive” for the presence of gunshot residue

“because there were two unique particles of gunshot residue, *** [b]ut it’s certainly not negative.

It’s certainly[,] I submit to you[,] consistent with having fired a gun from his left hand.”

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Defendant did not object.

¶ 19 The jury found defendant guilty of two counts of aggravated discharge of a firearm in the

direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)). The jury found defendant not

guilty of attempted first degree murder of Officer Iza and Officer Debose (720 ILCS 5/8-4(a), 9-

1(a) (West 2008)). Defendant filed a motion for a new trial, which was denied. The trial court

sentenced defendant to two concurrent 19-year terms of imprisonment. Defendant appeals his

convictions.

¶ 20 JURISDICTION

¶ 21 On March 4, 2011, a jury found defendant guilty of two counts of aggravated discharge

of a firearm in the direction of a peace officer. 720 ILCS 5/24-1.2(a)(3) (West 2008). The trial

court sentenced defendant on October 3, 2011. On July 12, 2013, defendant filed a

postconviction petition alleging that his trial counsel was ineffective for failing to file a notice of

appeal. On March 11, 2014, the trial court granted defendant leave to file a late notice of appeal

and dismissed his postconviction petition without prejudice. Defendant filed his notice of appeal

on the same day. We have jurisdiction to hear defendant’s appeal. Ill. Const. 1970, art. VI, § 6;

Ill. S. Ct. R. 603 (eff. Feb. 6, 2014); Ill. S. Ct. R. 606 (eff. July 1, 2014).

¶ 22 ANALYSIS

¶ 23 The issues on appeal are (1) whether the evidence presented at trial was sufficient to

convict defendant of aggravated discharge of a firearm in the direction of a peace officer (720

ILCS 5/24-1.2(a)(3) (West 2008)) beyond a reasonable doubt, (2) whether the trial court abused

its discretion when it allowed Officer Iza and technician Huels to testify about the bullet hole in

the siding of the garage and admitted the photograph of the bullet hole into evidence, (3) whether

the trial court erred when it limited defendant’s cross-examination of Officer Debose, and

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(4) whether the prosecutor’s closing arguments deprived defendant of a fair trial.

¶ 24 We review the evidence presented at defendant’s trial in the light most favorable to the

State to determine whether any rational trier of fact could have found the essential elements of

aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3)

(West 2008)) beyond a reasonable doubt. People v. Johnson, 2014 IL App (1st) 120701, ¶ 21;

Jackson v. Virginia, 443 U.S. 307, 318 (1979); 720 ILCS 5/24-1.2(a)(3) (West 2008). It is the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from the facts. People v. Bradford, 2016 IL 118674, ¶ 12. We will

not reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory

that it raises a reasonable doubt of defendant’s guilt. People v. Jones, 2017 IL App (1st) 143403,

¶ 26.

¶ 25 In order to convict defendant of aggravated discharge of a firearm in the direction of a

peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)), the jury was required to find that the State

proved all of the elements of the offense beyond a reasonable doubt: defendant intentionally or

knowingly discharged a firearm in the direction of a person he knew to be a peace officer while

that officer was executing his official duties.

¶ 26 We hold that the evidence presented at defendant’s trial was sufficient to convict. The

testimony of a single witness, if positive and credible, is sufficient to convict, even though it is

contradicted by the defendant. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). Here, the

testimony of Officer Iza or Officer Debose alone could have supported defendant’s convictions.

¶ 27 At trial, Officer Iza testified that he was within 10 feet of defendant when he saw the

muzzle of defendant’s gun flash and heard the bullet “whizz” past him. Officer Debose testified

that he was standing three feet from Officer Iza when he heard defendant fire a shot, the bullet

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“whizz’ past him, and Officer Iza return fire. Officer Debose further testified that he saw

defendant holding a gun after the shot was fired. Defendant’s gun was recovered at the scene.

¶ 28 The jury credited the testimony of the officers and, after hearing all the evidence and the

parties’ arguments based upon that evidence, convicted defendant of the charged offenses. See

People v. Daheya, 2013 IL App (1st) 122333, ¶ 76 (credible eyewitness testimony that defendant

fired four shots into vehicle sufficient alone to convict defendant of aggravated discharge of a

firearm). The evidence upon which the jury based its decision was not unreasonable, improbable

or unsatisfactory and did not raise a reasonable doubt of defendant’s guilt.

¶ 29 We note, at the outset, that Officer Iza’s testimony that he saw defendant fire his gun and

Officer Debose’s testimony that he saw defendant holding his gun after the shot was fired

reflects an evidentiary disparity, not an evidentiary insufficiency. The jury could have found

defendant guilty of the offenses beyond a reasonable doubt based on the direct or circumstantial

evidence presented by Officers Iza or Debose, respectively. People v. Fleming, 2013 IL App

(1st) 120386, ¶ 74 (circumstantial evidence is sufficient to sustain a criminal conviction).

¶ 30 Nevertheless, defendant argues that this evidentiary disparity is consistent with the

hypothesis that Officer Debose heard Officer Iza shoot first and turned to see defendant with his

gun drawn in self-defense. The jury rejected this hypothesis and so do we. People v. Milka, 336

Ill. App. 3d 206, 228 (2004) (the jury decides whether or not to accept a reasonable hypothesis of

innocence and elevate it to the status of reasonable doubt).

¶ 31 Defendant also claims that Officer Debose’s testimony was inconsistent and

demonstrated that Officer Iza shot first. Insofar as there was an inconsistency as to whether

Officer Debose saw defendant on the ground or upright after he heard the single shot fired, it was

resolved by the jury against defendant. People v. Cunningham, 212 Ill. 2d 274, 284 (2004)

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(despite inconsistency and flaws, witnesses’ testimony as a whole was not unworthy of belief);

People v. Gray, 2017 IL 120958, ¶ 47 (even contradictory testimony does not necessarily destroy

the credibility of a witness, and it is the task of the trier of fact to determine when, if at all, a

witness testified truthfully).

¶ 32 Defendant argues that the physical and forensic evidence presented at trial contradicted

the officers’ testimony and raised reasonable doubt of his guilt. Specifically, defendant argues

that (1) the surveillance video showed he did not have a gun, (2) he never fired his gun because

the only bullet casings recovered from the scene matched Officer Iza’s gun and the number of

casings recovered corresponded to the number of shots Officer Bala heard as he arrived on scene,

and (3) the gunshot residue evidence contradicted the officers’ testimony that he fired his gun

from his left hand.

¶ 33 Defendant’s first argument is, essentially, that the officers fabricated their testimony

altogether. We reject this argument. The jury watched the surveillance video in open court and

was in the best position to judge the credibility and accuracy of the officers’ testimony. We will

not substitute our judgment for that of the jury. People v. Cooper, 194 Ill. 2d 419, 431 (2000)

(reviewing court will not substitute its judgment for that of the trier of fact on the credibility of

witnesses).

¶ 34 Defendant’s next argument also raises questions that the jury decided against him:

(1) whether there was a connection between the four bullet casings ejected from Officer Iza’s

gun and Officer Bala’s testimony that he heard four shots fired upon arriving at the scene and

(2) whether this connection gave rise to reasonable doubt that defendant fired a gun. We decline

defendant’s invitation to draw a connection between the evidence that was reasonably not drawn

by the jury after hearing the evidence presented and ascribe to that connection a reasonable doubt

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of defendant’s guilt. People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007) (reviewing court will not

retry defendant when considering a sufficiency of the evidence challenge).

¶ 35 Defendant finally argues that the gunshot residue evidence demonstrated that he fired a

gun from his right hand, not his left hand as the officers had told the jury. Viewing the evidence

in the light most favorable to the State, we find that the testimony of analyst Berk could have

supported the jury’s verdict. The positive presence of gunshot residue on defendant’s right hand

did not conclusively establish that defendant did not discharge a firearm from his left hand.

Rather, the positive test allowed analyst Berk to arrive at three conclusions, one of which the jury

could have determined was not inconsistent with the officers’ testimony: defendant “had his right

hand in the environment of a discharged firearm.” Viewed in a light most favorable to the State,

the jury could have found that defendant’s right hand was in the environment of the firearm that

defendant discharged from his left hand. People v. Hinton, 402 Ill. App. 3d 181, 183 (2010)

(reviewing court resolves all reasonable inferences in favor of the State).

¶ 36 Defendant attempts to offer an explanation as to why his right hand tested positive for

gunshot residue, namely, that the gunshot residue was transferred to his right hand when he

discharged his gun in an attempt to rob his victim before encountering the officers. The gunshot

residue issues presented in this case were extensively litigated and the jury answered in the

negative the question of whether defendant’s hypothesis of innocence raised reasonable doubt of

his guilt. See Milka, 336 Ill. App. 3d at 228.

¶ 37 Defendant further argues that the combination of the officers’ testimony about the

location of defendant’s hand when he fired the shot and positive presence of gunshot residue on

his right hand raises reasonable doubt of his guilt. But any inconsistency, as to the location of

defendant’s right hand when he fired his gun and, moreover, whether there was a connection

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between such an inconsistency and the gunshot residue evidence that raised reasonable doubt,

was simply decided against defendant. Gray, 2017 IL 120958, ¶ 47 (contradictory testimony

does not necessarily destroy the credibility of a witness, and it was the task of the jury to

determine if the officers testified truthfully (citing Sparling v. Peabody Coal Co., 59 Ill. 2d 491,

498-99 (1974)); Wheeler, 226 Ill. 2d at 114-15.

¶ 38 We disregard defendant’s argument that Officer Iza had a “significant incentive to lie”

because he “had to justify the fact that he shot [defendant] from behind” in order to survive an

Illinois Police Review Authority investigation and keep his job. Defendant advances this

argument without citation to the record and has failed to show that even the most basic

foundational requirements necessary to question Officer Iza about such an investigation were

satisfied in the trial court.

¶ 39 The evidence was not so unreasonable, improbable, or unsatisfactory as to raise a

reasonable doubt of defendant’s guilt. Gray, 2017 IL 120958, ¶ 35. Our review of the officers’

eyewitness testimony does not compel the conclusion that the jury’s verdict was unreasonable.

People v. Cunningham, 212 Ill. 2d 274, 280 (2004) (only where the record evidence compels the

conclusion that no reasonable person could accept it beyond a reasonable doubt may testimony

be found insufficient to convict). Accordingly, the evidence presented at defendant’s trial was

sufficient to convict defendant of both counts of aggravated discharge of a firearm in the

direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)).

¶ 40 We now turn to consider defendant’s argument that Officer Iza’s and technician Huels’

testimony regarding the bullet hole in the siding of the garage was irrelevant and prejudicial. We

review the trial court’s decision for an abuse of discretion. People v. Morris, 2013 IL App (1st)

111251, ¶ 85 (the admissibility of evidence lies within the sound discretion of the trial court).

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¶ 41 We hold that the trial court did not abuse its discretion when it allowed Officer Iza to

testify about the bullet hole. Officer Iza’s testimony was relevant and admissible. Evidence is

relevant if it has any tendency to make the existence of a fact that is of consequence to the

determination of the action more or less probable than it would be without the evidence. People

v. Pikes, 2013 IL 115171, ¶ 21; Ill. R. Evid. 401 (eff. Jan. 1, 2011). Officer Iza testified that

defendant fired one shot in a northerly direction and that he later observed a hole in the siding of

a garage that was consistent with the trajectory of the bullet discharged from defendant’s gun.

This evidence was relevant and probative of the direction of the bullet discharged from

defendant’s gun.

¶ 42 Moreover, the testimony was admissible. It was (1) rationally based on Officer Iza’s

perception; (2) helpful to a clear understanding of his testimony and the determination of

whether defendant discharged a firearm in his direction or the direction of Officer Debose; and

(3) not based on scientific, technical, or other specialized knowledge. Ill. R. Evid. 701 (eff. Jan.

1, 2011); People v. Stokes, 95 Ill. App. 3d 62, 66 (1981) (police officer’s opinion as to the

trajectory of gunshot and as to the point of origin of the gunfire clearly based upon observation

of the scene of the crime and within the realm of perception of which the average man is

capable). The trial court did not err in admitting this testimony into evidence.

¶ 43 The trial court also did not err when it allowed Officer Iza and technician Huels to testify

that the hole in the garage appeared to have been created by a bullet. See People v. Ortiz, 96 Ill.

App. 3d 497, 504 (1981) (although detective was not qualified as a ballistics expert, he was

qualified to testify that certain holes in a wall, the ceiling, and a curtain appeared to be bullet

holes). Defendant argues that Officer Iza and technician Huels should not have been allowed to

testify that the bullet hole was “fresh” and free of “rust or debris” because “aluminum does not

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rust.” However, this argument is unavailing as it was based on research absent from the record

and not presented at his trial.

¶ 44 We hold that the trial court’s decision to admit the photograph of the bullet hole into

evidence was not an abuse of discretion. The photograph was relevant in light of Officer Iza’s

testimony and admissible given Officer Iza’s and technician Huels’ identification of the

photograph as a fair and accurate representation of what they personally observed in the garage

at the scene. People v. Martinez, 371 Ill. App. 3d 363, 380 (2007) (photographs are admissible if

identified by a witness who has personal knowledge of the subject matter and testifies that the

photograph is a fair and accurate representation of the subject matter at the relevant time).

¶ 45 We turn to consider defendant’s argument that the trial court’s failure to exclude the

evidence was an abuse of discretion. “[A] trial court may exercise its discretion to exclude

evidence, even when it is relevant[,] if its prejudicial effect substantially outweighs its probative

value.” (Internal quotation marks omitted.) People v. Wilcox, 407 Ill. App. 3d 151, 169 (2010);

Ill. R. Evid. 403 (eff. Jan. 1, 2011). Here, the probative value of the evidence in demonstrating

the direction of the bullet that Officer Iza saw defendant discharge from his gun substantially

outweighed any danger of unfair prejudice. Accordingly, defendant’s argument fails.

¶ 46 Lastly, we note that Officer Iza had a basis for testifying that the bullet hole in the garage

was consistent with the trajectory of the bullet discharged from defendant’s gun and that the

bullet hole was created by a gun but he lacked the personal knowledge necessary to testify that

the bullet hole was created by the bullet discharged from defendant’s gun. Martinez, 371 Ill.

App. 3d at 380 (testimony must be based upon personal knowledge). However, the jury was free

to accept or reject Officer Iza’s testimony as credible or incredible given his testimony on cross-

examination that he “had no way of knowing” whether the hole was created by the bullet

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discharged from defendant’s gun. People v. Simpson, 2015 IL App (1st) 130303, ¶ 44 (credibility

of witnesses is within the province of the trier of fact). The jury was further informed of Officer

Iza’s lack of knowledge when technician Huels admitted that he did not access the garage or

recover the bullet.

¶ 47 Further, any error in the trial court’s allowing Officer Iza to testify that the bullet hole

was created by the bullet fired from defendant’s gun was harmless in light of the other testimony

of Officer Iza and Officer Debose that the jury found to be credible. There is no reasonable

probability that the jury would have acquitted defendant if the testimony of Officer Iza as to how

the bullet hole came to be had not been admitted into evidence and not presented to the jury.

People v. Stull, 2014 IL App (4th) 120704, ¶ 104 (evidentiary error is harmless where there is no

reasonable probability that the jury would have acquitted defendant absent the error).

¶ 48 Defendant argues that the trial court violated his constitutional right to cross-examine

Officer Debose when it sustained the State’s objection to his question of whether the surveillance

video depicted defendant running with his hands near his waistband. U.S. Const., amend. VI; Ill.

Const. 1970, art. I, § 8.

¶ 49 On direct examination, Officer Debose testified that defendant was running with his arms

at his waistband “like he had something there.” He also discussed the events that unfolded on the

surveillance video, from his perspective, as it was played for the jury. On cross-examination,

defendant asked Officer Debose if the video showed defendant running with his hands near his

waistband. The State objected, and the trial court sustained the objection because the video

“speaks for itself.” Defendant challenges this ruling.

¶ 50 A criminal defendant’s constitutional right to confrontation includes the right to cross-

examine. People v. Blue, 205 Ill. 2d 1, 12 (2001) (citing Douglas v. Alabama, 380 U.S. 415, 418

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(1965)). “ ‘The confrontation clause guarantees the opportunity for effective cross-examination,

not cross-examination that is effective in whatever way, and whatever extent, the defense [may]

wish.’ ” (Emphasis in original.) People v. Jones, 156 Ill 2d 225, 243-44 (1993) (quoting

Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). A trial court is afforded broad discretion to limit

the scope of cross-examination, and its restriction of cross-examination will not be reversed

absent an abuse of that discretion. People v. Palmer, 2017 IL App (1st) 151253, ¶ 25.

¶ 51 Defendant concedes that he failed to raise his argument in a posttrial motion. However,

he seeks review under the constitutional-issue exception, which allows a reviewing court to

consider a constitutional issue that was (1) properly raised in the trial court and (2) may be later

raised in a postconviction petition. See People v. Cregan, 2014 IL 113600, ¶ 16. The State

accepts defendant’s concession and contends, separately, that we are unable to review his

argument because he failed to make an offer of proof in the trial court. People v. Way, 2017 IL

120023, ¶ 33 (an offer of proof enables a reviewing court to determine whether a trial court’s

exclusion of evidence was improper). Defendant counters, arguing that he was not required to

make an offer of proof (People v. Lynch, 104 Ill. 2d 194, 202 (1984) (formal offer of proof not

necessary if question shows the purpose and materiality of the evidence, is in a proper form, and

clearly admits of a favorable answer)), but argues, in the alternative, that he can establish plain

error and requests that we review his arguments under that doctrine.

¶ 52 Defendant’s argument does not fall under the constitutional-issue exception because he

did not properly raise a constitutional issue in the trial court. People v. Brown, 2017 IL App (1st)

142877, ¶ 51. In fact, he failed to provide any reason why the trial court should have allowed

him to question Officer Debose as to what the video depicted. People v. Burnett, 2015 IL App

(1st) 133610, ¶ 79. Accordingly, defendant’s argument is forfeited.

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¶ 53 As a separate matter, defendant’s failure to make an offer of proof in the trial court has

precluded our review of his argument. People v. Baldwin, 2014 IL App (1st) 121725, ¶ 53 (the

purpose of an offer of proof is to disclose to the trial court and opposing counsel the nature of the

offered evidence and to enable a reviewing court to determine whether exclusion of the evidence

was proper). The question directed to Officer Debose did not clearly admit a favorable answer

because the video is unclear. We decline to venture a guess as to how Officer Debose would

have answered defendant’s question and, thus, cannot determine whether trial court’s decision to

exclude the testimony was proper.

¶ 54 But even if defendant had made an offer of proof in the trial court, he would not succeed

on plain error review. Under the closely balanced prong of plain error review, the defendant must

show prejudicial error. People v. Lewis, 2015 IL App (1st) 130171, ¶ 31. The defendant bears the

burden of persuasion with respect to prejudice. Id. Defendant’s theory of the case was not that he

never possessed a gun, or that the gun recovered at the scene was not his own, but, rather, that

there was reasonable doubt he fired his gun at the officers. At oral argument, defendant even

conceded that there was no question he had a gun. Defendant, therefore, suffered no prejudice as

a result of the jury not having heard Officer Debose allegedly contradict himself about the

location of defendant’s hands before defendant ran into the vacant lot, pulled his gun, and fired

it at the officers. Accordingly, even if defendant’s argument was reviewable, it would fail plain

error review.

¶ 55 Finally, defendant argues that the prosecutor’s closing arguments deprived him of a fair

trial and focuses on the following comments: (1) the gunshot residue kit administered to

defendant indicated that he was left-handed, (2) the presence of two unique gunshot particles on

defendant’s left hand were consistent with having fired a gun from his left hand, and (3) Officer

17 No. 1-14-0891

Iza and Officer Debose were brave.

¶ 56 The parties agree that defendant properly preserved the prosecutor’s first comment for

review by objecting in the trial court and raising the argument in his posttrial motion. People v.

Willis, 409 Ill. App. 3d 804, 812 (2011) (preservation of error requires defendant to object at trial

and raise error in a written posttrial motion). However, the State argues, and defendant openly

admits, that he forfeited his challenges to the remaining comments made by the prosecutor by

failing to object to them at trial. Id. Defendant therefore seeks plain error review. People v.

Herron, 215 Ill. 2d 167, 178 (2005) (the plain error doctrine allows a reviewing court to reach a

forfeited error affecting substantial rights).

¶ 57 We review the prosecutor’s first comment de novo and the remaining comments under

the plain error doctrine. Wheeler, 226 Ill. 2d at 121 (whether statements made by a prosecutor at

closing argument warrant a new trial is a legal issue this court reviews de novo); People v.

Belknap, 2014 IL 117094, ¶ 48 (forfeited errors are reviewable under the plain error doctrine).

¶ 58 A prosecutor is given great latitude in making closing arguments and may comment on

the evidence and all reasonable inferences stemming from the evidence. People v. Smith, 195 Ill.

2d 179, 200 (2000). Closing arguments must be viewed in their entirety, and the allegedly

erroneous argument must be viewed contextually. People v. Blue, 189 Ill. 2d 99, 128 (2000). A

prosecutor’s comments in closing argument will result in reversible error only when they

engender substantial prejudice against a defendant to the extent that it is impossible to determine

whether the jury’s verdict was caused by the comments or the evidence. People v. Caffey, 205 Ill.

2d 52, 131 (2001).

¶ 59 Defendant first challenges the prosecutor’s comment made during the following

exchange:

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“MS. MULAY [(ASSISTANT STATE’S ATTORNEY)]: “Do you want

to know another piece of circumstantial evidence? They tell you he shot with his

left hand, the officer did. He shot with his left hand. And that gunshot residue kit,

there is a question there of [defendant]. What hand are you? The answer. In that

gunshot residue test his left hand”

MR. KOSTOUROS [(DEFENSE ATTORNEY)]: Objection your Honor,

there is no evidence of this.

THE COURT: I agree, objection sustained.

MR. KOSTOUROS: I ask that be stricken your Honor.

THE COURT: Objection sustained. The jurors will disregard the

comments. Sustained.”

¶ 60 The State concedes that there was “no testimony that defendant admitted to Officer

Elizabeth Dawson (the evidence technician who administered the gunshot residue test to

defendant) that [defendant] was left-handed.” Given the State’s concession, the parties direct

their arguments to whether the trial court’s decision to instruct the jury to disregard the

prosecutor’s comment cured the error. Unsurprisingly, the State argues that trial court cured the

error, while defendant argues that the error was of such magnitude that it could not have been

cured by an instruction to disregard the comment.

¶ 61 But the parties’ arguments, and the State’s concession, highlight their failure to recognize

an important point: the gunshot residue test kit was in evidence when the prosecutor made her

comment. The State and defendant stipulated, in writing, to the admission of the gunshot residue

19 No. 1-14-0891

test kit into evidence: “People’s Exhibit No. 5.” The parties’ stipulation included the following

statement: “Prior to administering the test, Officer Dawson asked [defendant] certain background

and biographical information that she recorded on the test packet.”

¶ 62 Whether the gunshot residue test kit contained the question of defendant’s handedness

and his answer that he was left-handed is unknown because defendant did not include “People’s

Exhibit No. 5” in the record. People v. Carter, 2015 IL 117709, ¶ 19 (defendant has the burden

to present a sufficiently complete record to support claim of error). Without the information

contained in “People’s Exhibit No. 5,” we are unable to determine whether the prosecutor

properly or improperly commented on the evidence. Accordingly, there is no basis for holding in

defendant’s favor, and his argument must fail.

¶ 63 Defendant argues that the prosecutor materially misstated, or overstated, the scientific

evidence presented by analyst Berk in her closing argument. The State, counters arguing that the

prosecutor’s comments were based upon the evidence and reasonable inferences drawn from the

evidence. Under plain error review, we are first required to determine whether any error

occurred. People v. Lewis, 234 Ill. 2d 32, 43 (2009).

¶ 64 We initially note that, as part of his argument, defendant references Federal Bureau of

Investigation studies that are absent from the record. People v. Morgan, 2015 IL App (1st)

131938, ¶ 97 (purpose of appellate review is to evaluate the record presented in the trial court,

and review must be confined to what appears in the record). Moreover, defendant did not present

or make an argument based on these studies to the jury. People v. Bowens, 407 Ill. App. 3d 1094,

1110 (2011) (to preserve a claim for review, a defendant must both object at trial and include the

alleged error in a written posttrial motion). Defendant’s argument is forfeited.

¶ 65 Defendant challenges the prosecutor’s reference to the “presence of residue on both

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hands” and her comment that the “unique particles on the left hand” were “corroborative” of

Officer Iza’s and Officer Debose’s testimony. We find that the prosecutor’s reference and

comment were reasonable inferences drawn from the evidence. People v. Austin, 2017 IL App

(1st) 142737, ¶ 54 (prosecutor may comment on reasonable inferences that the evidence yields).

Analyst Berk testified that the positive presence of gunshot residue allowed him to conclude that

defendant’s right hand may have been in the environment of a firearm that was discharged.

Officer Debose testified that he saw defendant’s right hand covering his left wrist after he heard

defendant discharged his firearm, not to mention that analyst Berk testified that the paper bags

placed on the defendant’s hands after the shooting could “take the residue away” and that “if you

put your hands in your pockets, if you wash your hands, if you simply come into contact with

different surfaces you’ll lose the residue to those surfaces.” In light of this testimony, the

prosecutor’s comments were not improper.

¶ 66 Next, defendant challenges the prosecutor’s comment that the presence of two unique

gunshot residue particles on defendant’s left hand was “hardly a negative.” We find no

impropriety here. The comment was a reasonable inference from the evidence that was made

immediately after the prosecutor’s restatement of the results of analyst Berk’s analysis as he

presented it to the jury. People v. Temple, 2014 IL App (1st) 111653, ¶ 81 (comment was not

improper where prosecutor stated evidence exactly as it was presented to the jury and drew a

reasonable inference from the evidence). Similarly not improper was the prosecutor’s comment

that she believed that the results of analyst Berk’s analysis were “consistent” with defendant

having discharged a firearm. The prosecutor restated the evidence as it was presented to the jury

before drawing this conclusion. Id.

¶ 67 The prosecutor’s comment, that the presence of two unique gunshot residue particles on

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defendant’s left hand was “certainly[,] I submit to you[,] consistent with having fired a gun from

his left hand,” was not improper. It is clear from the record that analyst Berk drew no

conclusions from the presence of two unique gunshot residue particles on defendant’s left hand

and was careful in confining his testimony to his positive finding: “All I can say is the right hand

testified positive and that indicates to me the 3 possibilities of why it’s positive.” However, when

analyst Berk explained to the jury what is required to find a positive presence of gunshot residue,

generally, he made the following statements:

“MR. BERK [(TRACE EVIDENCE ANALYST)]: In order for me to find

positive presence [sic] of gunshot residue, I need to find 3 of those unique

particles. I also expect to find consistent particles and when in fact I do find at

least those two unique particles I’m able to say that we have a positive test result

and that indicates to me the individual typically has either discharged a firearm,

has contacted an item that had primer gunshot residue on it or his hands were in

the environment of a discharged firearm.” (Emphasis added.)

¶ 68 In light of this testimony, the prosecutor’s comment was not an improper overstatement

or misstatement of the evidence. See People v. Crawford, 2013 IL App (1st) 100310, ¶ 144

(restatement of what expert witness stated not improper comment). Having found no error, our

analysis under the plain error doctrine stops, and defendant’s argument fails. People v. Calhoun,

404 Ill. App. 3d 362, 382 (2010) (where there is no error, there can be no plain error).

¶ 69 Finally, defendant argues that the prosecutor’s comment that Officer Iza and Officer

Debose were “brave” served to inflame the passion of the jury and improperly bolstered their

credibility. As defendant admits, he did not preserve this argument for review. We therefore

review his argument for plain error and first determine whether an error occurred. Lewis, 234 Ill.

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2d at 43.

¶ 70 We find no error in the prosecutor’s statement to the jury that the officers were brave.

First, defendant’s argument that the prosecutor vouched for the officers’ credibility has no basis.

Defendant cites People v. Williams, 2015 IL App (1st) 122745, in support of his argument, but in

Williams, the prosecutor sent the message to the jury that “the State’s Attorney would not put an

untruthful witness on the stand.” Id. ¶ 17. A prosecutor’s comment that a police officer is brave

sends no such message to the jury.

¶ 71 This is not the first time a prosecutor has characterized police officers or their actions as

brave. See People v. Walker, 259 Ill. App. 3d 98, 105 (1993) (finding no error where prosecutor

commented during closing argument that “ ‘we look at police officers as being big and strong

and brave and somehow magical’ ” and “ ‘[w]e learn from our families to trust them and respect

them’ ”). The prosecutor’s comment was not improper. Having found no error, defendant’s

argument fails. Calhoun, 404 Ill. App. 3d at 382.

¶ 72 CONCLUSION

¶ 73 Accordingly, we affirm.

¶ 74 Affirmed.