People v. Mohammad

2020 IL App (1st) 162635-U

• Court: Appellate Court of Illinois
• Decided: December 30, 2020
• Docket: 1-16-2635
• Status: Unpublished

Opinion

2020 IL App (1st) 162635-U

THIRD DIVISION December 30, 2020

No. 1-16-2635

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 8678 ) MANSOUR MOHAMMAD, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Howse and Justice Ellis concurred in the judgment.

ORDER

¶1 Held: (1) The trial court did not abuse its discretion in denying defendant’s request for a non-IPI jury instruction on eyewitness identification; (2) the trial court did not abuse its discretion in denying defendant’s motion for a new trial where no violation of a motion in limine occurred; (3) the trial court did not err in allowing the State to present testimony of a witness’s consistent identification of defendant at the scene; (4) the prosecutor’s comment in rebuttal argument was proper; and (5) the use of defendant’s mug shots for identification evidence was not error.

¶2 Following a jury trial, defendant Mansour Mohammad was convicted of first degree

murder, attempted first degree murder, and aggravated discharge of a firearm. On appeal,

defendant argues: (1) the trial court abused its discretion by denying defendant’s request to issue No. 1-16-2635

an enhanced jury instruction regarding eyewitness testimony rather than Illinois Pattern Jury

Instruction (IPI) 3.15 (Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000)

(hereinafter IPI Criminal 4th)); (2) he was denied a fair trial when the trial court failed to enforce

its ruling on a motion in limine; (3) he was denied a fair trial when the State was permitted to

present repetitive identification testimony; (4) the State’s rebuttal argument improperly

characterized defendant as a criminal; and (5) the use of defendant’s mug shot erroneously

implied other crimes evidence.

¶3 Defendant was charged by indictment with multiple counts of first degree murder,

attempted first degree murder, aggravated battery with a firearm, and aggravated discharge of a

firearm stemming from the July 10, 2008 shooting of Robert White, Bobby Peak, and Louis

Williams which resulted in White’s death and Peak’s paralysis and partial blindness. Upon his

convictions, the trial court subsequently sentenced defendant to the mandatory minimum of 80

years in prison. The following evidence was presented at defendant’s July 2016 jury trial.

¶4 Bobby Peak testified that at the time of the trial he was 33 years old and was attending

Chicago State University. He admitted that he had previously been convicted of unlawful use of

a weapon and robbery. Peak also had a pending armed violence charge and in exchange for his

testimony at defendant’s trial, the State would dismiss the firearm-related charges from the

armed violence and Peak would plead guilty to possession of a controlled substance and receive

two years of probation.

¶5 In July 2008, Peak lived in South Holland, Illinois with his father. He previously lived

near West 102nd Street and South Wood Street in Chicago and attended schools in the Beverly

neighborhood. Robert White was a “very close childhood friend.” Peak attended Morgan Park

High School with White, Louis Williams, and defendant. Peak had known defendant since 1997

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and they were friends. Peak identified in court during his testimony. Peak had been to

defendant’s house, located at 9622 South Charles Street, and described it as “the only blue house

on the block.” Peak knew defendant’s family members, including defendant’s younger brother

Ishmael. Peak “fell out of contact” with defendant after high school, but never had an altercation

with him.

¶6 In March 2008, Peak encountered defendant and two men, Ramon West and Corey

Lardy, at a liquor store in the Beverly neighborhood. Peak had also attended high school with

West and knew Lardy through West and defendant. Several years earlier, Peak had a falling out

with Lardy. Peak started to approach defendant’s vehicle, but before Peak could speak to the

men, Lardy attempted to punch Peak and a fight ensued. No one else joined the fight between

Peak and Lardy. During the fight, Peak stepped off a curb and broke his ankle.

¶7 Later, on July 5, 2008, Peak was in the Beverly neighborhood when he ran into defendant

with three other men. Peak did not know the other men. Peak wanted to ask defendant about his

fight with Lardy from March. Before Peak could approach the men, defendant told the men with

him to back up on the porch and to “go get that thang, I’m not finna play with this n****.” Peak

then left and did not engage with defendant. Peak testified he was frequently in the Beverly

neighborhood because he grew up there and had relatives and friends in that neighborhood,

including White.

¶8 At approximately 10 p.m. on July 10, 2008, Peak was driving a rented Nissan Sentra with

White. They picked up Williams. White was in the front passenger seat while Williams was in

the back seat. Peak described it as a warm summer night with a “slight drizzle” later on. He

admitted they had marijuana in the car. The men drove around the neighborhood before taking

White home and were driving on South Charles Street when Peak saw defendant alone on the left

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side of the block. Peak stated that he recognized defendant because he had known defendant

since they were teenagers. The lighting was fair and he had no trouble with visibility.

¶9 When Peak saw defendant, he backed his car up and started a conversation. He asked

defendant, “What’s up?” White also asked defendant, “What’s up?” Peak denied anyone in the

car had a firearm that night. Defendant said, “Nothing. What’s up.” Peak then asked defendant

“what’s up with that p**** a** s***.” The prosecutor asked Peak what he meant by that

statement. Peak responded that he was referring to the incident from July 5 when defendant told

the “guys he was with to go get this gun or go get that thang.” Defense counsel then objected,

which the trial court overruled. Peak stated that defendant answered him, saying “I ain’t on

p**** s***.” According to Peak, defendant then “opened fire.”

¶ 10 Peak estimated he was 10 to 15 feet from defendant when defendant began to fire a gun.

Peak felt a gunshot strike his right eye. He “slumped over a little bit” and defendant fired another

gunshot, which struck Peak in his left shoulder and “clavicle.” During the shooting, White was

trying to move the gear shift and told Peak to drive, but after he was shot, Peak was

“immobilized” and “couldn’t move anything.” When defendant fired the gun again, both White

and Williams exited the car and tried to run. Peak heard more gunshots. Peak did not see anyone

else in the area.

¶ 11 Peak remained in the car until the police arrived. While he waited, he threw the bag of

marijuana out of the car window. When the police arrived, Peak named defendant as the shooter

and directed them to defendant’s mother’s house on the block. Peak was taken to Christ Hospital

and remained hospitalized for “a little over three months.” While in the hospital, defendant spoke

with police detectives and identified defendant in a photograph as the shooter. Peak’s father

signed the photograph on Peak’s behalf because he was unable to sign. As a result of his

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injuries from the shooting, Peak lost vision in his right eye and was paralyzed from the chest

down.

¶ 12 On cross-examination, Peak denied knowing that White possessed marijuana and several

hundred dollars in cash that night. He denied being in the neighborhood to sell marijuana.

Defense counsel asked Peak, “who said something about some p**** a*** s***,” and Peak

answered that he did because he felt defendant “was a coward to immediately try to tell whoever

he was with to go get some gun when it’s – That was a cowardly move.” Counsel further asked if

defendant “was intimating that he was going to go get a gun?” Peak responded in the affirmative.

Williams visited Peak in the hospital, but was not sure when that was.

¶ 13 Louis Williams testified that on July 10, 2008, he was with Peak and White in a car

driven by Peak. Williams was in the backseat and White was in the front passenger seat. He had

attended Morgan Park High School with both Peak and White. Williams also knew defendant

from high school. He identified defendant in court. At around 10 p.m. that night, the men were

driving south on Charles Street when he noticed defendant exit from a house. When Williams

noticed defendant, he mentioned that to Peak and White. As they approached defendant, Peak

stopped the car and started to talk to defendant.

¶ 14 Peak asked defendant “why did he run yesterday on some p**** s***,” and defendant

said, “he wasn’t on no p**** s***.” Williams then saw defendant fire a gun at them. He

observed the gun in defendant’s right hand. He estimated that the car was within 10 feet of

defendant when the shooting began. Williams saw that Peak was shot in his face first, but then

was shot again by defendant. He told Peak “let’s go” while White was trying to move the gear

shift. Williams then tapped White on the shoulder and both men opened the door and ran

westbound to a driveway. Williams did not see anyone else on the street. White was to his left

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when Williams heard another shot. He heard White react to being shot, and then saw White fall

to the ground.

¶ 15 Williams continued to run up a driveway and climbed a fence. He was running toward a

fire station located at West 95th Street and South Charles Street. As he was running, Williams

saw a squad car and he flagged it down. He told the officers in the car that his friend had just

been shot and gave them the address. The officers then drove toward that location. Williams was

standing there when other officers in an unmarked police car stopped. He told them of the

shooting and the officers put him in the back of the car before driving to the location of the

shooting.

¶ 16 Williams then went to the Area 2 police station and spoke with police. During that

interview, Williams did not identify defendant as the shooter because he did not “want to be

involved with the police and the case.” Williams admitted that he was testifying pursuant to a

subpoena. Initially he did not appear for this case and a contempt of court order was issued

against him. Williams did not come to court because he did not want to be involved.

¶ 17 A few days after the shooting, Williams spoke with White’s family about the shooting

and he told them defendant was the shooter. He told them because they were family friends.

Williams later went to the police station a second time and spoke with the detectives. He

identified defendant as the shooter because he “felt it was time to do the right thing.” Williams

identified defendant in a photograph at the police station. He stated on cross-examination that he

identified defendant in a photo array. Williams testified that he had also identified defendant in a

high school yearbook to Peak’s father, who brought the yearbook to the police station. In July

2008, Williams had known defendant for about nine years and he did not have any trouble with

him. He considered defendant to be an acquaintance. He admitted that he had a prior conviction

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for possession of a controlled substance. Williams testified that he did not have a gun that night

and no one in the car fired a weapon.

¶ 18 Officer Scott Leck testified that in July 2008 he was a Chicago police officer. At

approximately 10 p.m. on July 10, 2008, he received a call of a person shot near 9605 South

Charles Street. He proceeded to that location with his partner and observed a male “laying in the

driveway of the residence” and who appeared to be deceased. He also observed a small silver car

in front of the residence with another male inside the vehicle who was bleeding “profusely.”

Officer Leck asked the shooting victim who shot him and the man said, “Mohammad.” The

officer asked if the name was a first or last name and the man said, “Mansour.” The victim told

the officers that the man who shot him lived in the blue house on the street. The officer later

learned the man in the car was named Bobby Peak.

¶ 19 Officer Heather Scherr, a Chicago police officer, testified that on July 10, 2008, she was

on duty with her partner, Officer Raymond Wilke. They responded to a radio dispatch of shots

fired at 9605 South Charles Street and were the first responders to the scene. She observed a

small vehicle, a Nissan Sentra, with a person inside at the scene. The man in the car was hurt, but

still able to speak. The officers called for an ambulance. Officer Scherr observed that the man

had been shot and “there was a lot of blood and he was in critical condition.” She learned that the

man’s name was Bobby Peak. Peak told the officers that he had been shot by Mansour

Mohammad. When she asked where the perpetrator was, Peak told them that the man “ran to the

white and blue house down the street.” The officers then went to the house. Officer Scherr went

to the backyard to make sure no one ran through the house. She did not observe anyone in the

yard. She estimated that she was in the backyard for 5 to 10 minutes. She did not enter the house.

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¶ 20 Officer Raymond Wilke testified consistently with Officer Scherr’s testimony. At the

scene of the shooting, Wilke observed a silver vehicle near 9605 South Charles Street with the

driver in the car and he had been shot. He later learned the driver was Peak. Peak provided

defendant’s name to the officers and indicated defendant lived in a blue and white house on the

same block. The officers proceeded to the house. Officer Wilke, accompanied by another police

officer, knocked on the front door of the house and defendant’s mother Rhonda Anderson

answered the door. She gave the officers consent to search the house for defendant, but the

officers did not locate him inside. Officer Wilke estimated that he was in the house for around

five minutes. He did not recall looking for defendant’s younger brother Ishmael.

¶ 21 Officer Jill Kolssak, a forensic investigator with the Chicago police department, was

called to the scene with her partner at 9605 South Charles Street at approximately 11:40 p.m. on

July 10, 2008. She walked through the scene, placed markers and then processed the car and the

driveway nearby as well as a second driveway across the street. She also recorded a crime scene

video. Officer Kolssak recovered four fired bullets and two fired bullet fragments from inside the

Nissan Sentra at the scene. She did not recover any firearm evidence outside the vehicle. She

observed a lot of broken glass from the car windows and a Gatorade bottle under the car. She

also swabbed blood from one of the driveways and also recovered a bag of suspected cannabis

nearby. No firearms were recovered at the scene.

¶ 22 Mary Wong, a forensic scientist with the Illinois State Police, testified as an expert in

gunshot residue (GSR) analysis. She received a t-shirt worn by White at the time of the shooting

and found GSR on the top front exterior half of the shirt as well as the bottom back exterior half.

These results led her to conclude that the shirt was in the vicinity of a discharged firearm. Wong

testified that the results from the top of the shirt were consistent with White having been a

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passenger in a small car in which multiple gunshots had been fired. She also testified that the

GSR on the back of White’s shirt was consistent with White being shot in the back. She was

unable to render an opinion regarding whether White discharged a firearm because she did not

have any samples taken from White’s hands. Wong did not receive any samples from Williams’s

hands.

¶ 23 Aimee Stevens, a forensic scientist with the Illinois State Police, testified as an expert in

firearms identification. She was assigned to analyze the recovered firearms evidence from the

scene. She received four fired bullets and two fired bullet jacket fragments. Stevens found that

all six bullets and fragments were .38 caliber. She concluded that three bullets were fired from

one firearm, the other three were fired from a second firearm.

¶ 24 Dr. Minae Zakariya, an assistant medical examiner for Cook County, testified that he was

assigned to review the original pathologist’s report from White’s autopsy because that

pathologist was no longer with the medical examiner’s office. White was shot in the left side of

his back and the bullet traveled up through his lungs and heart, exiting through his chest. The

cause of death was a gunshot wound to his back and the manner of death was homicide.

¶ 25 Detective Michelle Moore-Grose, a homicide detective with the Chicago police

department, was assigned to the shooting on the 9600 block of South Charles Street. When she

and her partner arrived at the scene, Park and White had already been taken to the hospital. The

detective learned that Peak had named the individual who shot him as Mansour Mohammad and

he lived on the block in a blue house. She went to the house, knocked on the door, and spoke to

defendant’s mother.

¶ 26 Later, Detective Moore-Grose spoke to Williams, who had returned to the shooting

location and he identified himself as being the third individual in the car. Williams did not tell

9 No. 1-16-2635

the detective that he knew who the shooter was. The detective and her partner then went to Christ

Hospital, where the victims had been taken. On the way to the hospital, the detectives learned

that White had died from his injuries. They were unable to speak with Peak at the hospital

because he was in surgery. She called White’s father and asked to speak with him.

¶ 27 On July 17, 2008, Williams along with the fathers of Peak and White came to Area 2 to

speak with Detective Moore-Grose and her partner. Williams told the detectives that he had not

been “100 percent truthful” when he spoke with them on the night of the shooting and he knew

the identity of the shooter. Williams told her that the shooter was named Mansour Mohammad

and he knew the name because they had attended high school together. The men had brought a

high school yearbook with them and Williams identified defendant in the yearbook. The

detective then showed Williams a more recent photograph to “make sure that it was the same

individual that he saw shooting that day.” Williams identified defendant in the newer

photograph. She did not show Williams a photo array because Williams had a photograph of

defendant at that time and stated he knew defendant from high school.

¶ 28 On July 19, 2008, Detective Moore-Grose and her partner went to speak with Peak at the

hospital. Peak’s father was present. Peak was unable to speak, but was able to understand

questions and could respond by nodding and shaking his head. She brought a photograph of the

individual Peak had stated was the shooter and wanted to see if he could positively identify him.

She showed him the photograph of defendant and Peak nodded yes to indicate that defendant

was the shooter. Peak’s father signed the photograph on his son’s behalf. The detectives

continued to look for defendant.

¶ 29 In October 2008, the detective visited Peak at his girlfriend’s home to conduct a more

thorough interview and obtain a handwritten statement in the presence of an assistant State’s

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Attorney (ASA). Following that interview, the police obtained an arrest warrant for defendant.

She later learned defendant was in Indiana and was extradited to Illinois in April 2009.

¶ 30 On cross-examination, Detective Moore-Grose stated that bags of suspected cannabis and

$197 in cash were found on White. She admitted that no GSR testing was conducted on the

hands of Williams, Peak, or White. She also testified that no photo arrays were conducted with

Williams and Peak. She stated that defendant’s photograph was used to confirm that the person

Peak named as the shooter was the individual the police had identified. Peak’s statement

recounted that he saw the shooter pull out one gun. Detective Moore-Grose testified that she had

no reason to order GSR testing of Williams, Peak, and White.

¶ 31 The State then rested its case. Defendant moved for a directed verdict, which the trial

court denied.

¶ 32 Naimah Mohammad, defendant’s older sister, testified that in July 2008, she lived at

9622 South Charles Street. On July 10, 2008, she was home with her younger sister and mother.

Her younger brother Ishmael also lived at that address, but defendant did not live there.

Defendant lived in Indiana. At about 10 p.m. that night, Mohammad was doing dishes in the

kitchen and her mother and sister were upstairs. She then heard what she “perceived to be

gunshots or fireworks.” She told her sister to stay away from the windows and then continued

washing dishes. A short time later, she saw flashing lights from an ambulance.

¶ 33 Mohammad and her sister then went outside and walked down to the sidewalk. She could

see a “commotion” on the block. A police officer approached her and asked if she lived at 9622.

After she confirmed that she did, he asked who else lived at that address and she told him her

mother, her sister, and her younger brother. The officer then asked what her younger brother’s

name was and she told him Ishmael. When she told the officer that Ishmael was at work, the

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officer asked her to call Ishmael. She made the call, but it went to voicemail. She was then

informed that there was a shooting and the police were looking for Ishmael. Mohammad said the

police started “pouring in” her house and her mother allowed them to search it.

¶ 34 Mohammad admitted that defendant was younger than she was, but he was older than

Ishmael. She knew White from grammar school, but she did not know Peak or Williams. White

was “an associate” of defendant. She knew the police were looking for defendant after Ishmael

spoke to them. Mohammad saw defendant a week before the shooting when he came to visit

their mother. She did not know what defendant did when he was not in her presence and did not

know if he came to Chicago at other times.

¶ 35 Dr. Geoffrey Loftus testified as an expert in eyewitness identification. He explained, “I

view my primary role as an expert in these kinds of cases not to pass judgment on the perception

or memory of any given witness, I believe that to be the jury’s job.” Rather, he tries to provide

the trier of fact with “scientific information that might be relevant to their task of deciding who is

right and who is wrong.”

¶ 36 Dr. Loftus said that there are “two routes by which information in the original event

makes its way into memory.” The first route is conscious perception, where one forms “a

conscious experience of what is happening,” and based on that experience, one can transfer some

information from the event into the memory. Pre-event information sometimes could influence

one’s beliefs or expectations about what happens in an event one is experiencing. The second

thing that affects memory is post-event information, which is “any information that a witness has

access to that is somehow relevant to the event, after the event itself is over.” “[T]he bottom line

result is that witnesses can and do wind up with memories that are very strong, very detailed,

12 No. 1-16-2635

very real seeming, memories that are expressed with a great deal of confidence but memories

that are unbeknownst to a witness, false in potentially important ways.”

¶ 37 Dr. Loftus stated that pre-event information could have influenced the driver, Peak, in

that he was on the lookout for an individual and when someone showed up and began shooting,

the “pre-event information in the form of the witness’ expectations about who he is likely to see

in this dark night could influence his perceptions of who he does see on that night.” He also

discussed how darkness can affect one’s memory and how streetlights are not designed to fully

illuminate a street which impacts a person’s ability to “do anything that requires perceiving fine

detail such as perceiving a person’s appearance.” Similarly, he noted that rain can impact the

ability to see.

¶ 38 According to Dr. Loftus, the presence of a weapon on the scene would focus a person’s

attention to the weapon more than a benign object. He stated experiments have shown that when

a weapon is present, people pay more attention to the weapon and less attention to the

appearance of the person holding the weapon. Additionally, he opined that “recognizing

somebody, a person you know as a person you know is faster and more efficient than making up

a memory representation from scratch of a stranger, but both of these processes are subject to

errors ***.”

¶ 39 At the time of the shooting, there were several factors that were “detrimental in terms of a

witness being able to accurately determine, perceive and memorize what was going on.” He

testified that it was likely that the driver “wouldn’t have gotten a very good view of what the

shooter looked like. Nevertheless, believing that he knows who the shooter is, he’s able to use

his knowledge of what the shooter looks like as post-event information.” He further opined, “it

was more likely a memory that he constructed after the fact based on post-event information

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corresponding to his knowledge of what the person he believed the shooter looked like.” When

asked by defense counsel if knowing someone from high school or where he lived would factor

into the memory and identification, Dr. Loftus testified that it would.

¶ 40 Regarding Williams, the back seat passenger, Dr. Loftus opined that since he was

provided with the yearbook photograph, this post-event information could have been used to

“reconstruct his likely, pretty hazy, incomplete memory of the actual shooter that he formed at

the time of the shooting and unconsciously replace it with a stronger memory of the suspect who

had been identified” based either on Williams viewing a picture or his prior knowledge of what

that individual looked like.

¶ 41 On cross-examination, the prosecutor asked Dr. Loftus about the brief conversation that

took place between those in the car and defendant prior to the shooting. Dr. Loftus testified, “at

this point Mr. Williams believes that it was the defendant, Mr. Mohammad, who had been the

shooter.” Dr. Loftus acknowledged that Peak observed defendant on the street before the

shooting and had a conversation before a weapon was visible. He admitted that “if it unfolded

that way, then the weapon wouldn’t attract attention until the time that it appeared.” When asked

if Peak providing the officers where defendant lived showed confidence in his identification, Dr.

Loftus responded, “So what that shows is that he believes that the shooter was Mansour

Mohammad and he knows Mansour Mohammad well enough to know where he lives.” He also

agreed that it was “a possibility” that Williams did not want to tell police who the shooter was

because he did not want to be involved.

¶ 42 In the State’s rebuttal, Detective Moore-Grose testified that when she went to 9622 South

Charles Street, she did not encounter Naimah Mohammad. She only spoke with Rhonda

Anderson and did not see two young women in the house. She was not looking for Ishmael

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Mohammad and did not know who he was, but was looking for defendant. Detective Moore-

Grose had not heard the name Ishmael Mohammad prior to trial. The State then rested in

rebuttal.

¶ 43 During the jury instruction conference, the trial court denied defendant’s request to give

an enhanced instruction regarding eyewitness testimony, but the court did agree to defendant’s

request to strike one of the factors from IPI 3.15 on that topic. Following deliberations, the jury

found defendant guilty of the first degree murder of White by the personal discharge of a

firearm, the attempted first degree murder of Peak by the personal discharge of a firearm, and the

aggravated discharge of a firearm in the direction of Williams.

¶ 44 Defendant filed a pro se motion for a new trial alleging ineffective assistance of counsel.

Counsel also filed a motion for a new trial. The court considered and denied both motions for a

new trial. At the subsequent sentencing hearing, the court sentenced defendant to the minimum

for each count: 20 years plus the 25-year firearm enhancement for first degree murder; 6 years

plus the 25-year firearm enhancement for attempted murder; and four years for aggravated

discharge of a firearm. The sentences were required to be served consecutively for an aggregate

term of 80 years.

¶ 45 This appeal followed.

¶ 46 Defendant first argues that the trial court abused its discretion by rejecting his proposed

enhanced non-IPI jury instruction regarding eyewitness testimony. Specifically, defendant

contends that the factors listed in IPI 3.15 are “based on an incorrect assessment of the jury’s

innate ability to evaluate eyewitness testimony.” According to defendant, the jury instruction

adopted in New Jersey is more scientifically accurate and the court abused its discretion in

denying his request for that instruction. The State maintains that IPI 3.15 “accurately instructed

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the jury on the weighing of eyewitness identifications” and the trial court properly gave this

instruction.

¶ 47 “The purpose of jury instructions is to provide the jury with the correct legal principles

applicable to the evidence, so that the jury may reach a correct conclusion according to the law

and the evidence.” People v. Bannister, 232 Ill. 2d 52, 81 (2008). “Jury instructions should not

be misleading or confusing. Their correctness depends not on whether defense counsel can

imagine a problematic meaning, but whether ordinary persons acting as jurors would fail to

understand them.” Id. “If IPI instructions contain an applicable instruction on a subject about

which the trial court determines the jury should be instructed, the trial court must use that

instruction, unless the court determines that the instruction does not accurately state the law.” Id.

(citing Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013)). “[W]here a pattern instruction does not accurately

state the law, Rule 451(a) authorizes the trial court to modify it.” Id. “A non-IPI instruction

should be used only if the IPIs for criminal cases do not contain an accurate instruction and if the

tendered non-IPI instruction is accurate, simple, brief, impartial, and free from argument.”

People v. Ortiz, 2017 IL App (1st) 142559, ¶ 50 (citing People v. Pollock, 202 Ill. 2d 189, 211

(2002)).

¶ 48 “A reviewing court will reverse a circuit court’s determination about what jury

instructions to give only if the trial court abused its discretion.” People v. Polk, 407 Ill. App. 3d

80, 107 (2010). “When deciding whether a circuit court abused its discretion, a reviewing court

will examine the jury instructions in their entirety to determine whether they fairly, fully and

comprehensively informed the jury of the relevant law.” Id. “An abuse of discretion occurs only

where the circuit court's ruling is ‘ “arbitrary, fanciful, or unreasonable, or where no reasonable

person could take the view adopted by the trial court.” ’ ” Id. at 107-08 (quoting People v.

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Rodriguez, 387 Ill. App. 3d 812, 821 (2008), quoting People v. Purcell, 364 Ill. App. 3d 283, 293

(2006)).

¶ 49 IPI 3.15 states:

“When you weigh the identification testimony of a witness, you should

consider all the facts and circumstances in evidence, including, but not limited to,

the following:

[1] The opportunity the witness had to view the offender at the time of the

offense.

[2] The witness’s degree of attention at the time of the offense.

[3] The witness’s earlier description of the offender.

[4] The level of certainty shown by the witness when confronting the

defendant.

[5] The length of time between the offense and the identification

confrontation.” IPI Criminal 4th No. 3.15.

The factors set forth in IPI 3.15 are taken from the United States Supreme Court’s decision in

Neil v. Biggers, 409 U.S. 188 (1972). The Illinois Supreme Court has “held that the five factors

listed in the instruction are an accurate statement of the law ‘for assessing the reliability of

identification testimony.’ ” Polk, 407 Ill. App. 3d at 109 (quoting People v. Piatkowski, 225 Ill.

2d 551, 567 (2007)).

¶ 50 During the jury instruction conference, defendant submitted a six-page non-IPI

instruction used in New Jersey to instruct the jury on eyewitness identification. See Model Jury

Charges (Criminal), “Identification: In-Court And Out-Of-Court Identifications” (rev. July 19,

2012). Defense counsel argued that IPI 3.15 “incorrectly states factors to consider” and that

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“scientific research and study and publications” were counter to that with regard to memory and

perception. However, the proposed non-IPI instruction offered by counsel was not “simple” or

“brief,” as required by Illinois courts. See Ortiz, 2017 IL App (1st) 142559, ¶ 50.

¶ 51 For example, the proposed non-IPI instruction included the following paragraph:

“Human memory is not foolproof. Research has revealed that human memory is

not like a video recording that a witness need only replay to remember what

happened. Memory is far more complex. The process of remembering consists of

three stages: acquisition -- the perception of the original event; retention -- the

period of time that passes between the event and the eventual recollection of a

piece of information; and retrieval -- the stage during which a person recalls

stored information. At each of these stages, memory can be affected by a variety

of factors.” Id.

¶ 52 This proposed instruction also directed the jury to consider “the witness’s opportunity to

view and degree of attention,” and in reaching that assessment to further consider stress,

duration, weapon focus, distance, lighting, and disguises or changed appearance. Other factors to

be considered are a prior description of perpetrator and a witness’s confidence and accuracy. Id.

¶ 53 In response to the defense’s request for this instruction, the State argued that IPI 3.15

“adequately” addressed the issue and that the “proposed jury instruction [was] trying to bolster

the expert who testified.” In its ruling, the trial court observed that the way the proposed

instruction was crafted indicated “a judicial seal of approval” of the statements made by Dr.

Loftus. The court further found:

“It’s the law that Dr. Loftus can testify and discuss those issues in an

effort for the jury to gauge the efficacy of the identification, those factors are not

18 No. 1-16-2635

the law. It may well be that the jury would not believe Dr. Loftus, it may well be

that they will. But for the Court to state that these factors ought to be considered

by them would be the equivalent of me putting my stamp of approval on that

particular witness’ testimony and that I am not going to do.”

¶ 54 However, the court did grant defendant’s request to modify IPI 3.15 and so the fourth

Biggers factor regarding the certainty of the identification was omitted over the State’s objection.

Nevertheless, defendant asserts that IPI 3.15 “did not adequately cover the factors associated

with eyewitness identifications.”

¶ 55 Defendant relies on People v. Lerma, 2016 IL 118496, for support. In that case, the

supreme court recognized that scientific research concerning the reliability of eyewitness

identifications is “well settled, well supported, and in appropriate cases a perfectly proper subject

for expert testimony.” In Lerma, the defendant filed a pretrial motion in limine to allow Dr.

Loftus, the same expert who testified for the defense in the instant case, to testify as an expert on

the topic of memory and eyewitness identification. Id. ¶ 8. The defendant’s motion stated the

expert would identify and explain “several ‘common misperceptions’ that exist concerning the

accuracy and reliability of eyewitness identifications.” Id. The expert’s testimony would include

“the following scientifically documented findings, all of which are beyond the common

knowledge of the average layperson: that the witness’s level of confidence does not necessarily

correlate to the accuracy of the identification; that numerous factors can undermine the accuracy

of an eyewitness’s identification, including the stress of the event itself, the presence of a

weapon, the passage of time, the ‘forgetting curve,’ the wearing of partial disguises such as

hoods, exposure to postevent information, nighttime viewing, and suggestive police

identification procedures; that eyewitnesses tend to overestimate time frames; and that cross-

19 No. 1-16-2635

racial identifications tend to be less reliable than same-race identifications.” Id. The trial court

denied the defendant’s motion. Id. ¶ 10. The supreme court found the case before it was “the type

of case for which expert eyewitness testimony is both relevant and appropriate” because the

State’s case rested “100% on the reliability of its eyewitness identifications” and “several of the

factors [the expert] identified as potentially contributing to the unreliability of eyewitness

testimony *** are either present or possibly present in this case.” Id. ¶ 26. The Lerma court held

the trial court abused its discretion because it denied the defendant’s request “to present relevant

and probative testimony from a qualified expert that speaks directly to the State’s only evidence

against him, and [did] so for reasons that are both expressly contradicted by the expert’s report

and inconsistent with the actual facts of the case.” Id. ¶ 32.

¶ 56 Defendant argues that the science of eyewitness identification that the supreme court

acknowledged in Lerma supports his position that IPI 3.15 is outdated. However, the supreme

court in Lerma did not address IPI 3.15, and the court’s decision was limited to the issue of

allowing expert testimony. Here, the trial court properly followed Lerma and allowed Dr. Loftus

to present expert testimony on the issue of eyewitness identification.

¶ 57 To support his argument for this “enhanced” instruction, defendant also relies extensively

on out-of-state authority, namely State v. Henderson, 27 A.3d 872 (N.J. 2011) and

Commonwealth v. Gomes, 22 N.E.3d 897 (Mass. 2015), neither of which are binding on this

court. People v. Sullivan, 366 Ill. App. 3d 770, 781 (2006).

¶ 58 In Henderson, the New Jersey Supreme Court reviewed of a court-appointed special

master’s recommendations about the factors that many experts believe impact a witness’s ability

to identify the perpetrator of a crime. Based on these recommendations, the court delineated a list

of factors that trial courts may consider when assessing suggestiveness and reliability.

20 No. 1-16-2635

Henderson, 27 A.3d at 920-21. The issue before the Henderson court concerned the reliability of

an eyewitness identification obtained during a police photo array. Id. at 880-82. The court

conducted an extensive review of scientific research, including a consideration of how memory

works. Id. at 892-914. Ultimately, the court ordered a revision of the jury instruction on

eyewitness identification. Id. at 925-26. The jury instruction on eyewitness identification was

revised in 2012. See Model Jury Charges (Criminal), “Identification: In-Court And Out-Of-Court

Identifications” (rev. July 19, 2012).

¶ 59 Similar to defendant’s claim here, in Gomes, the defendant in that case alleged the trial

court had erred by giving the model jury instruction rather than the defendant’s requested

instruction on eyewitness identification. The Massachusetts Supreme Judicial Court found no

error in the trial court’s decision and affirmed the defendant’s convictions. Gomes, 22 N.E.3d at

899-900. However, the Gomes court took the “opportunity to revisit [its own] jurisprudence

regarding eyewitness identification jury instructions in general.” Id. at 905. After reviewing a

report compiled by “the Supreme Judicial Court Study Group on Eyewitness Evidence” it

previously had convened to explore the issue, the court in Gomes proposed “a new provisional

jury instruction” incorporating five “generally accepted principles” about eyewitness

identification it found to have been established through scientific research.

¶ 60 While we have reviewed these out-of-state decisions, courts in Illinois have not departed

from the Biggers factors as set forth in IPI 3.15. As previously cited, the Illinois Supreme Court

in Piatkowski affirmed the use of the Biggers factors to evaluate eyewitness testimony. See

Piatkowski, 225 Ill. 2d at 567. Further, our appellate courts continue to consistently apply the

Biggers test for eyewitness identification. See, e.g., People v. Thompson, 2020 IL App (1st)

21 No. 1-16-2635

171265, ¶ 42; People v. Luellen, 2019 IL App (1st) 172019, ¶ 59; People v. Blankenship, 2019

IL App (1st) 171494, ¶ 27.

¶ 61 Moreover, unlike the supreme courts in New Jersey and Massachusetts, our supreme

court in Lerma did not take the opportunity to address whether the IPI instruction remained an

accurate statement of the law in Illinois, nor did it order a study into the continued use of this

instruction. Lerma was decided subsequent to both Henderson and Gomes. Further, while

defendant suggests that the Lerma court “looked to” Henderson in its decision, the only citation

to Henderson was in the statement of facts where the defendant had cited the case in a pretrial

motion. Lerma, 2016 IL 118496, ¶ 12.

¶ 62 Therefore, while the landscape of the law on the reliability of eyewitness identifications

evolves, the Biggers test remains the law in Illinois, and as such, the trial court was required to

instruct the jury with IPI 3.15. See Ill. S. Ct. R. 451(a). Accordingly, we find no abuse of

discretion in the trial court’s decision to deny defendant’s request for the non-IPI instruction.

¶ 63 Next, defendant contends that the trial court erred by failing to enforce its ruling on a

motion in limine regarding speculation that defendant referred to a gun during a prior interaction

with Peak and, therefore, abused its discretion in denying defendant’s motion for a new trial. The

State maintains that the trial court did not abuse its discretion.

¶ 64 “A motion in limine permits a party to obtain a pretrial order excluding inadmissible

evidence and protecting the moving party from the prejudicial impact of any mention of the

evidence in front of the jury.” People v. Gliniewicz, 2018 IL App (2d) 170490, ¶ 32. A trial

court’s ruling on a motion in limine “is always subject to reconsideration during trial.” People v.

Drum, 321 Ill. App. 3d 1005, 1008 (2001).

22 No. 1-16-2635

¶ 65 Prior to trial, defendant filed a motion in limine asking to bar evidence of the encounter

between Peak and defendant on July 5, 2008, five days before the shooting. The State asked to

allow Peak to testify about his interaction with defendant and that defendant told another person

to “go get that thang.” The State agreed that it would not ask Peak what he thought defendant

meant by that statement. The trial court allowed the testimony based on the State’s representation

that it would not elicit testimony that Peak believed defendant was referring to a gun.

¶ 66 At trial, Peak testified that when he saw defendant on July 10, 2008, he asked defendant

“what’s up with that p**** a** s***?” The prosecutor asked Peak, “What did you mean by

that?” Peak responded, “The incident from the night before when he telling his --- whatever guys

he was with to go get his gun or go get that thang.” Defense counsel objected, which the trial

court overruled.

¶ 67 Later during cross-examination, defense counsel also asked Peak about that remark, and

Peak stated that he was “[f]eeling that [defendant] was a coward to immediately try to tell

whoever he was with to get some gun ***.” Counsel later asked whether defendant was

“intimating that he was going to get a gun?” Peak responded in the affirmative.

¶ 68 In his posttrial motion, defendant argued he was denied a fair trial based on Peak’s

testimony which was introduced in violation of the ruling on the motion in limine. After hearing

arguments, the trial court denied defendant’s motion and specifically addressed this claim.

“But whether it was through direct or cross, it was of no moment to me

because I don’t believe that it was done by the State with intention or in

purposeful dereliction of the Court’s ruling. I don’t even believe that it was

negligently done because I think Peak just kind of blurted it out. And, frankly, the

statement, Go get that thing, is difficult of any other interpretation in the context

23 No. 1-16-2635

of the evidence presented, so that I don’t believe it was prejudicial in any event

and led to an unfair result on trial, particularly in light of the compelling

identification testimony presented by Peak and Williams, which was made by

Peak at that particular time when he was in the agony of a paralyzing gunshot, and

made by Williams under circumstances that easily credited the jury’s

determination that he and Peak were telling the truth.”

¶ 69 After reviewing the trial transcripts, we find no abuse of discretion by the trial court. The

State did not violate the court’s ruling on the motion in limine. Peak’s testimony about the July 5

confrontation was properly admitted to show the background that led to the shooting and why

Peak asked defendant about that encounter. The motion in limine only excluded Peak’s

interpretation that defendant’s statement to “go get that thang,” was referring to a gun. The State

did not ask a question to elicit testimony in violation of the order. Rather, the State asked Peak

what he meant when he said, “what’s up with that p**** a** s***?” The prosecutor was not

asking about the July 5 encounter, but was asking about Peak’s statement moments before

defendant produced a firearm and began to fire on July 10th. We agree with the trial court’s

assessment that Peak “blurted out” that he believed defendant was referring to a gun. Defense

counsel objected to that testimony, but the court overruled the objection. Sometime after this

objection, during his own cross-examination, defense counsel asked Peak several questions about

Peak’s reference to a gun. Under the invited error doctrine, a party cannot complain of an error

on appeal that he either brought about, participated in, or to which he acquiesced. People v.

Jaimes, 2019 IL App (1st) 142736, ¶ 39 (citing People v. Hughes, 2015 IL 117242, ¶ 33).

Additionally, the State did not use this testimony at any other time during the trial. Since the

State did not elicit testimony in violation of the motion in limine, defense counsel used it

24 No. 1-16-2635

extensively in his own cross, and the State did not emphasize this utterance again, the trial court

did not abuse its discretion in denying defendant’s motion for a new trial on this basis.

¶ 70 Defendant next argues that he was denied a fair trial because the State was allowed to

present overly repetitive testimony about Peak’s identification of defendant immediately

following the shooting. The State responds that it properly introduced Peak’s identification

through multiple witnesses because identification was defendant’s primary defense at trial.

¶ 71 Peak testified that defendant was the shooter and identified him in court at trial. Then,

multiple responding officers testified that Peak identified defendant by name and described his

mother’s house on the block. Officers Scherr and Wilke were partners and both testified about

Peak’s identification. Then Officer Leck testified that he asked Peak who shot him and Peak

provided defendant’s name. Detective Moore-Grose did not speak with Peak at the scene, but

testified that she learned from an officer that Peak had identified defendant as the shooter and

based on that information, she searched for defendant at his mother’s house.

¶ 72 “Generally, a witness’s prior consistent statements are inadmissible to corroborate the

trial testimony of that witness because they serve to unfairly enhance the witness’s credibility.”

People v. Temple, 2014 IL App (1st) 111653, ¶ 34. “However, this rule does not apply to

statements of identification.” Id. “The admission of evidence is within the sound discretion of a

trial court, and a reviewing court will not reverse the trial court absent a showing of an abuse of

that discretion.” People v. Becker, 239 Ill. 2d 215, 234 (2010).

¶ 73 Here, defendant asserts that the testimony regarding Peak’s identification was cumulative

and its prejudicial effect outweighed its substantive value. However, as the State points out,

defendant contested Peak’s identification of defendant at trial, and therefore, Peak’s immediate

and consistent identification was relevant to corroborate the identification. The defense

25 No. 1-16-2635

repeatedly challenged and attempted to cast doubt on Peak’s identification through Dr. Loftus’s

testimony as well as defendant’s sister who testified that the police initially asked about

defendant’s brother Ishmael as a suspect. Since identification was contested at trial, the trial

court acted within its discretion to allow the testimony of the police officers regarding Peak’s

identification of defendant at the scene of the shooting. Accordingly, defendant’s claim fails.

¶ 74 Next, defendant contends that the prosecutor’s statement during rebuttal closing

argument deprived him of a fair trial. Specifically, defendant asserts that the prosecutor

improperly argued that defendant was a “criminal” and suggested the fact that defendant was on

trial was proof of guilt and shifted the burden of proof. The State maintains that the single

comment was proper and in response to defense counsel’s argument.

¶ 75 Generally, a prosecutor is given wide latitude in closing arguments, although his or her

comments must be based on the facts in evidence or upon reasonable inferences drawn

therefrom. People v. Page, 156 Ill. 2d 258, 276 (1993). “During closing argument, the prosecutor

may properly comment on the evidence presented or reasonable inferences drawn from that

evidence, respond to comments made by defense counsel which clearly invite response, and

comment on the credibility of witnesses.” People v. McGee, 2015 IL App (1st) 130367, ¶ 56.

Moreover, “closing arguments must be viewed in their entirety, and the challenged remarks must

be viewed in context.” People v. Wheeler, 226 Ill. 2d 92, 122 (2007). “Statements will not be

held improper if they were provoked or invited by the defense counsel’s argument.” People v.

Glasper, 234 Ill. 2d 173, 204 (2009).

¶ 76 “In reviewing comments made at closing arguments, this court asks whether or not the

comments engender substantial prejudice against a defendant such that it is impossible to say

whether or not a verdict of guilt resulted from them.” Wheeler, 226 Ill. 2d at 123. “Prosecutorial

26 No. 1-16-2635

misconduct warrants reversal only if it ‘caused substantial prejudice to the defendant, taking into

account the content and context of the comment, its relationship to the evidence, and its effect on

the defendant’s right to a fair and impartial trial.’ ” People v. Love, 377 Ill. App. 3d 306, 313

(2007) (quoting People v. Johnson, 208 Ill. 2d 53, 115 (2004)). “If the jury could have reached a

contrary verdict had the improper remarks not been made, or the reviewing court cannot say that

the prosecutor’s improper remarks did not contribute to the defendant’s conviction, a new trial

should be granted.” Wheeler, 226 Ill. 2d at 123. “The trial court may cure errors by giving the

jury proper instructions on the law to be applied; informing the jury that arguments are not

themselves evidence and must be disregarded if not supported by the evidence at trial; or

sustaining the defendant’s objections and instructing the jury to disregard the inappropriate

remark.” Simms, 192 Ill. 2d at 396-97.

¶ 77 During closing arguments, defense counsel argued repeatedly that Peak and Williams

were convicted felons and unworthy of belief. Counsel began with, “What they are really asking

you to do is take the word of two convicted felons, Peak and Williams, and to resolve all doubts

in their favor.” Counsel then argued,

“And it’s only fairness to say that we don’t resolve the doubts [in] favor of

the criminals. We don’t resolve the doubts in favor of a Bobby Peak or a Louis

Williams because that’s just common sense, that’s everyday common sense. We

don’t hire felons in our places of employment, we do background checks to make

sure that they don’t come and try to work around money and cash registers. We

certainly don’t hire them to watch our children because they are not reliable, they

are not trustworthy and that’s who these people are.

*** And the State would like you to resolve the doubt in the two felons

27 No. 1-16-2635

who had a rented car, perhaps they wanted to go on a block, create some trouble

and not be recognized, no ID and two cell phones. What’s that about”

¶ 78 Counsel later continued,

“Perhaps there was a gun firing in that car that Louis Williams fired past

Bobby Peak at that shooter that they don’t want to talk about. Perhaps that

explains Louis Williams not wanting to talk to police that night, not wanting to

give a name, not wanting to go to a police station, not wanting to be questioned

closely about what they have [been] doing out there. Perhaps that explains his

willingness once he’s talked to Bobby Peak at the hospital and finds out oh, no,

the police are just treating us like victims, it’s safe to talk, we should give them a

name, let’s give them Mansour, we’ll give them Mansour. Perhaps that explains

what’s going on.

And if you have a doubt about that, if that’s a possibility, if that’s the

motive of that man, the criminal that they brought before you as their witness, if

that’s a motivating factor for him, if that’s a possibility, that’s a reasonable

doubt.”

¶ 79 In rebuttal, the prosecutor responded to this argument.

“Counsel says don’t resolve those issues on behalf of Bobby Peak and

Louis Williams because they are criminals. This guy is the criminal. He is on trial.

Bobby Peak is not on trial. Louis Williams is not on trial. What she’s suggesting

is that if anybody has a felony conviction, have a good day, shoot them all you

want.”

Defense counsel objected on the basis that this comment misstated the argument, but the trial

28 No. 1-16-2635

court overruled the objection.

¶ 80 The State contends that this objection was not contemporaneous to the complained-of

comment, i.e., “This guy is the criminal. He is on trial,” but instead was in response to the

subsequent comment. Defendant also failed to specifically challenge this comment in his

posttrial motion. Defendant’s posttrial motion offered only a general challenge to the State’s

closing arguments, “The Assistant State’s Attorney made prejudicial inflammatory and

erroneous statements in closing argument designed to arouse the prejudices and passions of the

jury, thereby prejudicing the defendant’s right to fair trial,” and later, specifically contended,

“The Court permitted improper rebuttal argument which mischaracterized the defense position

as, If anybody has a felony conviction, have a good day, shoot them all you want.” Even if we

presume counsel’s objection at trial was in reference to the now complained-of comment,

defendant did not specifically challenge this comment in his posttrial motion. To preserve an

issue for review, defendant must object both at trial and in a written posttrial motion. People v.

Enoch, 122 Ill. 2d 176, 186 (1988). Failure to do so operates as a forfeiture as to that issue on

appeal. People v. Ward, 154 Ill. 2d 272, 293 (1992). Nevertheless, defendant asks this court to

review this claim for plain error if we find that he did not preserve the issue on appeal.

¶ 81 Supreme Court Rule 615(a) states that “[a]ny error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the trial court.” Ill. S. Ct.

R. 615(a) (eff. Jan. 1, 1967). The plain error rule “allows a reviewing court to consider

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

balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is

29 No. 1-16-2635

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

(citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). However, the plain error rule “is not ‘a

general saving clause preserving for review all errors affecting substantial rights whether or not

they have been brought to the attention of the trial court.’ ” Herron, 215 Ill. 2d at 177 (quoting

People v. Precup, 73 Ill. 2d 7, 16 (1978)). Rather, the supreme court has held that the plain error

rule is a narrow and limited exception to the general rules of forfeiture. Id.

¶ 82 Defendant carries the burden of persuasion under both prongs of the plain error rule.

People v. Lewis, 234 Ill. 2d 32, 43 (2009). Defendant asserts that this alleged error in the rebuttal

argument would qualify as a plain error under both prongs. However, “[t]he initial analytical step

under either prong of the plain error doctrine is determining whether there was a clear or obvious

error at trial.” People v. Sebby, 2017 IL 119445, ¶ 49.

¶ 83 When the complained-of comment is viewed in context, we find the comment was a

proper response to defense counsel’s repeated arguments that Peak and Williams were

untrustworthy because they had prior felony convictions as well as the specific reference to

Williams as a “criminal.” The prosecutor’s comment, “This guy is the criminal. He is on trial.

Bobby Peak is not on trial. Louis Williams is not on trial,” was not an attempt to shift the burden

of proof. Rather, the comment was intended to remind the jury that Peak and Williams were

victims and defendant was the perpetrator charged with the offenses. There was no suggestion

that defendant had prior criminal convictions in this statement. We find no error in the comment

which was a proper response to defense counsel’s closing argument.

¶ 84 Defendant next contends the State was allowed to improperly introduce evidence of other

crimes through the use of mug shot photos. Specifically, defendant contends that both Peak and

30 No. 1-16-2635

Williams identified defendant in photographs provided by police that were easily identifiable as

mug shots. However, defendant concedes that he forfeited this issue by failing to object at trial or

raise it in a posttrial motion. He asks this court to review this claim under the plain error

doctrine.

¶ 85 As stated above, the plain error rule “allows a reviewing court to consider unpreserved

error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the

error alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it

affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,

regardless of the closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565 (citing Herron, 215

Ill. 2d at 186-87). Defendant asserts that this alleged error would qualify under either prong.

However, again, under either prong of the plain error doctrine, we begin by determining whether

there was an error. Sebby, 2017 IL 119445, ¶ 49.

¶ 86 At trial, both Peak and Williams identified defendant in photographs provided by the

police. These witnesses identified defendant in different photographs. According to defendant,

“although the photos were not clearly labeled as mug shots, the style and composition of the

photos did not allow for any other interpretation.”

¶ 87 Other crimes evidence “is generally not admissible to show a defendant’s guilt because

the jury may convict the defendant only because it feels he is a bad person deserving of

punishment.” People v. Meeks, 382 Ill. App. 3d 81, 88-89 (2008). “Evidence of other crimes in

which a defendant may have participated is not admissible to show the defendant’s propensity to

commit crime. Such evidence, however, is admissible if relevant for any other purpose such

as modus operandi, proof of motive, intent, identification, or absence of mistake.” People v.

31 No. 1-16-2635

Coleman, 158 Ill. 2d 319, 333 (1994).

¶ 88 The supreme court explained in People v. Arman, 131 Ill. 2d 115, 123 (1989), that

testimony relating to the use of mug shots in an investigation may be introduced to show how a

defendant was initially linked to the commission of an offense when identification is a material

issue at trial. “A police photograph is admissible to show the reasonableness of a witness’

identification that the offender and the person depicted are the same.” People v. Sims, 285 Ill.

App. 3d 598, 607 (1996). “While mug shot evidence should not be admitted if it tends to inform

a jury of a defendant’s commission of other, unrelated criminal acts, the erroneous admission at

trial of mug shot evidence suggesting the defendant’s involvement in unrelated offenses does not

automatically warrant reversal.” People v. Rodriguez, 312 Ill. App. 3d 920, 929 (2000).

¶ 89 We find defendant’s reliance on Arman to support his claim that the mug shots

constituted inadmissible other crimes evidence to be misplaced. In Arman, a police detective

testified that a photograph came from the Chicago police department’s identification files. While

the court found this testimony was evidence of other crimes and should not have been admitted,

the Arman court concluded that any error was not prejudicial where the trial court sustained an

objection and instructed the jury to disregard the detective’s statement. Id. at 123-24.

¶ 90 In contrast, defendant does not argue that a trial witness testified that the photographs

were mug shots or were retrieved from a police database. No such testimony was presented.

Detective Moore-Grose offered no testimony indicating where she obtained the photographs, nor

did she suggest defendant had a prior arrest record. Further, there was no testimony to suggest

that defendant had a prior arrest record.

¶ 91 Rather, defendant is asserting that the mere use of a mug shot is prejudicial other crimes

evidence. Illinois Supreme Court Rule 341(h)(7) requires an appellant to include in its brief an

32 No. 1-16-2635

“[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with

citation of the authorities and the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. May

25, 2018). It is well-settled that a contention that is supported by some argument but does not

cite any authority does not satisfy the requirements of Rule 341(h)(7), and bare contentions that

fail to cite any authority do not merit consideration on appeal. Wasleff v. Dever, 194 Ill. App. 3d

147, 155-56 (1990). Arguments unsupported by citation to relevant legal authority are considered

as forfeited on appeal. Id. Defendant has failed to cite any relevant authority to support his

argument that the use of mug shot for identification purposes without any testimony regarding

the source of the photo is inadmissible other crimes evidence.

¶ 92 Since the mug shots were admitted at trial as evidence of identification, we find no error.

As discussed throughout this decision, the identification of the shooter was a significant issue at

trial. The trial testimony established that both Peak and Williams identified defendant in separate

police provided photographs. No improper testimony was elicited relating to where the police

obtained the photographs or defendant’s prior arrest record. Because no error occurred, there was

no plain error. See People v. Johnson, 218 Ill. 2d 125, 139 (2005) (“Clearly, there can be no

plain error if there is no error”).

¶ 93 Finally, defendant argues that the cumulative effect of his alleged errors deprived him of

a fair trial. However, since we have found no errors occurred at the trial, there can be no

cumulative error. See People v. Caffey, 205 Ill. 2d 52, 118 (2001) (where no error occurred at all,

or any error that may have occurred did not rise to the level of plain error, the defendant was not

entitled to a new trial on the basis of cumulative error).

¶ 94 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

33 No. 1-16-2635

¶ 95 Affirmed.