People v. Montgomery

2020 IL App (2d) 170459-U

• Court: Appellate Court of Illinois
• Decided: March 11, 2020
• Docket: 2-17-0459
• Status: Unpublished

Opinion

2020 IL App (2d) 170459-U No. 2-17-0459 Order filed March 11, 2020

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

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-1679 ) DEVONNE MONTGOMERY, ) Honorable ) John A. Barsanti, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court. Justices McLaren and Hutchinson concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed the conviction of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2014)) where (1) there was no ineffective assistance of counsel for failing to file a motion to suppress, (2) expert testimony was properly admitted, (3) there was sufficient evidence to prove defendant’s guilt beyond a reasonable doubt, and (4) the court did not err in giving a supplemental instruction.

¶2 Defendant, Devonne Montgomery, appeals his conviction following a jury trial in April

2017 of one count of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2014)).

We affirm. 2020 IL App (2d) 170459-U

¶3 I. BACKGROUND

¶4 Paul Becknell testified at the trial that on October 18, 2015, at approximately 1:50 a.m., he

and Koby Dauel were patrolling the parking lots at the Buena Vista Apartment complex in Elgin.

Becknell was employed as a tow truck driver for Judicial Recovery Systems, which had a contract

to “relocate” unauthorized vehicles from Buena Vista’s property, and Dauel was working as his

assistant.

¶5 Becknell identified an older model Lincoln without a resident sticker or visitor pass that

was parked on the property. He backed his tow truck up to the rear of the Lincoln, and extended

his “boom” under the car to ready it for towing. Becknell testified that all of the lights of the tow

truck were turned on at this time, which included the flashing red and yellow lights, headlights,

taillights, and spotlights that pointed to the rear of the tow truck from the top of the cab. Becknell

then used the boom to lift the rear end of the Lincoln off the ground, and began to slowly drive the

tow truck forward. Just then a man knocked on the driver’s side window. Becknell described him

as a tall, thin, black male with dreadlocks. Becknell testified that he had seen this man standing

on a second-floor balcony of an adjacent building while he secured the Lincoln. Becknell came to

a stop and rolled down his window. The man claimed that the Lincoln was his car. Becknell

testified that the conversation with the man remained calm and non-confrontational. Becknell

exited the tow truck, explaining to the man that without a visitor pass, he was risking having his

car towed. Becknell lowered the Lincoln back to the ground, intending to release the car to the

man with dreadlocks.

¶6 After Becknell unhooked the Lincoln, a “short, petite, black” female approached their

position. Becknell testified that the female came from around the corner of the same building

where he had observed the man with dreadlocks standing on a balcony. Becknell testified that the

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man with dreadlocks walked toward the female, who was then standing near the front end of the

Lincoln. Seconds after the female appeared, a second black male came running from around the

corner of the same building from which the female had appeared. Becknell described this second

black male as shorter and stockier than the man with dreadlocks. He testified that the second male

was in his early 20s, had short hair, and was wearing a black t-shirt. Becknell also testified that

he was “pretty sure” that the second man was wearing jeans. Becknell said that the man was upset

and yelling, and that he positioned himself on the passenger side of the tow truck between the two

vehicles, directly opposite Becknell’s position on the driver’s side of the tow truck. Becknell

testified that he told the man “to mind his own business” and that he had already resolved the

situation with the car’s owner.

¶7 The second man continued to yell and curse at Becknell. Still standing in the same position

between the tow truck and the Lincoln on the passenger side of the tow truck, the second man

reached into his waistband and pulled out a black handgun. The man fired the gun, hitting Becknell

in the left clavicle. Uncertain at this point whether he had been shot, Becknell ran toward the

driver’s door of the tow truck, struggling to get inside as he had lost control of his left arm. He

heard a second gunshot immediately behind his head as he attempted to climb into the truck; he

likewise was unsure whether the second shot had hit him. Becknell testified that he “jumped in

and started to drive away.” In the confusion of the moment, he believed that he inadvertently

turned the truck lights off. He turned the light switch, “like you would get in a vehicle and turn

the lights on,” except that Becknell’s action instead turned the truck’s lights off. A Buena Vista

security officer testified that he saw the tow truck “racing out of the area with no lights on,” with

sparks flying because the boom was dragging behind on the ground. Becknell said that he drove

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a short distance before pulling over because he was “having a hard time” and could feel “liquid

going into my lung.” He moved into the passenger seat and Dauel drove them to the hospital.

¶8 During the State’s direct examination, Becknell made an in-court identification of

defendant as the person who shot him.

¶9 Dauel testified that he was at the Buena Vista Apartments with Becknell during the early

morning hours of October 18, 2015. The two of them were looking for unauthorized cars on the

property when Becknell spotted an older model Lincoln with no parking pass. Dauel testified that

he was in the passenger seat of the tow truck when Becknell hooked up the Lincoln to the tow

truck. Dauel stated that all of the vehicle lights were turned on at this time and remained on until

after Becknell had been shot, including the flashing red and yellow lights, headlights, taillights,

and spotlights that pointed to the rear of the tow truck from the top of the cab. Dauel additionally

testified that the apartment complex “has streetlights all over it,” and that the lights from the tow

truck combined with the streetlights illuminated the entire area from the tow truck to the nearby

buildings. Once Becknell had raised the Lincoln off the ground and began to drive away, Dauel

saw a thin black man in his early 20s with shoulder-length dreadlocks knock on the driver’s side

window. The man said that it was his car. Dauel said that Becknell then exited the cab of the tow

truck and lowered the Lincoln to the ground. Dauel described the interaction between Becknell

and the man with dreadlocks as a “calm, normal conversation.” Dauel continued to observe

Becknell and the man through the rear window of the tow truck, but he could no longer make out

their words once Becknell was outside the vehicle. Dauel testified that he saw two people approach

from behind the tow truck from the rear of the adjacent apartment building. The first was a short

black female in her early 20s, who handed keys to the man with dreadlocks. The second person

was a black male with short hair who was shorter in height than the man with dreadlocks. Dauel

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testified that the second man positioned himself between the Lincoln and the tow truck on the

passenger side of the tow truck, directly opposite of Becknell, who was also between the two

vehicles, but on the driver side of the tow truck. Though Dauel could not hear the actual words

being used, he described the tone of the second man’s voice as confrontational, loud, and angry.

Dauel testified that he had an unobstructed and illuminated view of the second man. Dauel said

that he saw the second man raise a black semiautomatic pistol and shoot Becknell. Dauel testified

that Becknell then quickly attempted to get back inside the tow truck, but that he was having

difficulty climbing inside. As Dauel reached over to help Becknell into the tow truck, he saw the

shooter run up on the driver’s side of the tow truck, raise the gun, and shoot again. Dauel ducked

as he continued to help Becknell. Becknell made it into the tow truck, and they sped away with

the boom still dragging behind on the ground. Dauel testified that Becknell drove 500 yards and

then came to a stop. The two men switched positions and Dauel drove them to the hospital.

¶ 10 Dauel called 9-1-1 in route to Saint Joseph Hospital in Elgin. The 9-1-1 recording was

played for the jury. Dauel was initially frantic and his words were unintelligible, but he soon

calmed down and his speech became clear. Dauel told the 9-1-1 dispatcher that he and Becknell

were tow truck drivers for Judicial Recovery and that Becknell had been shot twice, once in the

arm and once in an unknown location. Dauel said that the shooting occurred at the Buena Vista

Apartments and described the shooter as a black man, about 5’6” to 5’8”, wearing a black

sweatshirt. The 9-1-1 operator asked if the shooter was heavyset or thin build, and Dauel answered

that he had a thin build.

¶ 11 During his trial testimony, Dauel made an in-court identification of defendant as the man

who shot Becknell.

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¶ 12 Becknell and Dauel were met at the hospital by Officer Brad Duffy of the Elgin Police

Department. Becknell told Duffy the precise location where the shooting took place and described

the shooter as a black male, approximately six feet tall, 180 pounds, wearing a black shirt and

possibly blue jeans. Duffy transmitted this information to officers already on the scene at the

Buena Vista Apartments.

¶ 13 Dauel spoke to Officer Kevin Snow of the Elgin Police Department at the hospital. Dauel

told Snow that the shooter was a black male in his twenties, 5’6” to 5’7” who weighed about 150

pounds. Dauel indicated that he could identify the shooter if he saw him again.

¶ 14 Snow then drove Dauel back to the Buena Vista Apartments. After they arrived at the

apartments, Dauel pointed to the location of the shooting. The Lincoln was no longer there. Dauel

told Snow that he had observed people on a second-floor balcony as he and Becknell were pulling

the Lincoln out of its parking spot. The balcony was in the same building where the young woman

and the shooter came out from behind when they approached the tow truck. Snow relayed this

information regarding the shooter’s description and potential location to other officers on the

scene, who determined which apartment was connected to the second-floor balcony. A few

minutes later, Officer Richard Free observed a black male, whom Free said matched the description

of the shooter transmitted by Snow, and a female companion, Jasmine June, attempt to enter the

apartment that connected to the second-floor balcony. Free and another officer approached the

couple and advised them that there was a situation outside the building and that they needed to ID

everybody. After determining their names, Free set up a “show-up” identification with Snow,

where Dauel would view these subjects and relate whether they were the ones involved in the

shooting. Free walked defendant to a grassy area outside the building about 45 feet from Snow’s

squad car.

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¶ 15 After Free arrived with defendant at the grassy area, Snow illuminated defendant with his

squad car’s spotlight. Snow told Dauel that officers had located a subject that may or may not

have been involved. Dauel studied the subject for “a minute or two” and Snow testified that he

said: “Yeah, that’s the subject that shot [Becknell].” Snow paused for a moment and then asked

Dauel if he was 100% certain that this was the same man. Snow testified that Dauel answered: “I

remember the black shirt that the shooter was wearing. Yeah, that’s the subject that shot

[Becknell].” Snow relayed the positive identification to Free, and defendant was handcuffed and

placed in custody.

¶ 16 June was then brought out and illuminated with the spotlight. Dauel told Snow that she

was not the same female he had seen earlier with defendant and the man with dreadlocks. June

was released.

¶ 17 Officer Paul Dublinski testified that he transported defendant from the Buena Vista

Apartments to the police station. Once at the police station, Dublinski placed defendant into a

specific holding cell that was not equipped with running water or toilets, which is meant to help

preserve any evidence that might be on the arrestee’s person. Dublinski said that he had defendant

disrobe and place his clothing on the floor of the holding cell. Dublinski then collected defendant’s

shoes, pants, shirt, and belt, and placed them in a bag before giving them to Officer James Bailey.

¶ 18 Bailey testified that he is a supervisor for the Evidence Response Team, which is a group

of evidence technicians that respond to crime scenes to collect and preserve evidence. Bailey

responded to the reported shooting on October 18, 2015. He and his colleagues located two spent

9mm shell casings near the scene of the shooting.

¶ 19 After leaving the crime scene, Bailey returned to the police station, where he used a gunshot

residue kit to collect potential gunshot residue from defendant’s hands. Bailey testified that he

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had specific and extensive training in the collection of gunshot residue evidence. Bailey also

received the bag from Dublinski that contained the clothing collected from defendant. Bailey

testified that, because of the risk of cross-contamination, it was improper for Dublinski to allow

the clothing to make contact with the floor of the holding cell and to place all of the clothing in a

single bag. Bailey said that other arrestees who had similar gunshot residue tests were held in the

same area in the past, which created a risk of contamination. However, Bailey also testified that

no weapons are permitted in that holding area and that a janitorial staff cleans the cells. Using

procedures consistent with his training and experience, Bailey removed each item of clothing from

the bag Dublinski had given him and placed each item in its own evidence bag, which were then

sent to the Illinois State Police for testing.

¶ 20 Later that morning, Bailey returned to the crime scene. He and his colleagues located a

9mm Beretta handgun in a grassy area inside a tree line at the Buena Vista Apartments.

¶ 21 Ellen Chapman, a forensic scientist with the Illinois State Police, testified that she

examined the clothing and the gunshot residue kit collected from defendant. Chapman was

questioned about her qualifications. She testified that she had a bachelor of science in chemistry,

master’s classes in forensic science, vocational training, nearly 30 years of experience as a forensic

scientist, and that she had testified more than one hundred times as an expert witness in the areas

of the analysis and identification of primer gunshot residue. Without objection, the court found

her to be an expert. Chapman testified generally to her methods and procedures, and specifically

how she tested each item that related to this case. She also testified to a variety of controls used

to ensure that the electron scanning microscope that is used to scan materials for gunshot residue

was in proper working order. Chapman explained the science of how gunshot residue is created

and collected, and testified that a positive test for gunshot residue indicates that the surface of the

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tested object “either contacted gunshot residue-related items or was in the environment of a

discharged firearm.” Her testing of defendant’s blue jeans revealed three particles of gunshot

residue and “additional consistent gunshot residue particles.” Chapman further testified that she

found one gunshot residue particle on the sample from defendant’s right hand, and one gunshot

residue particle on the lower front portion of defendant’s t-shirt. One particle, however, is below

the Illinois State Police threshold to make a positive conclusion for gunshot residue.

¶ 22 Christina Davison testified as an expert in the area of firearms and firearms identification.

She testified that she worked for the Illinois State Police at the crime laboratory in Rockford. She

testified that she examined the shell casings collected at the scene and determined to a reasonable

degree of scientific certainty that they were fired from the same gun that was recovered in the tree

line at the Buena Vista Apartments on the morning of the shooting. Davison also compared the

bullet fragment removed from Becknell’s shoulder to a bullet test-fired from the gun recovered at

the scene, and she determined to a reasonable degree of scientific certainty that the bullet fragment

was fired from that gun.

¶ 23 During closing argument, defendant emphasized that Becknell was alert when he viewed

the photo array in the hospital, and that he was unable to identify defendant at that time. Defendant

additionally noted that Becknell told a detective that it was “real dark” that night and that he could

not get a good look at the shooter’s face. Defendant argued that Becknell’s in-court identification

was premised on a newspaper article that Becknell admitted to seeing. As to Dauel, defendant

argued that he was the “star witness.” According to defendant, Dauel was unable to identify any

of the details of defendant’s shirt even though he based his show-up identification on the shirt.

Defendant highlighted several inconsistencies in Dauel’s description of defendant to police,

including the shirt and defendant’s build.

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¶ 24 After nearly eight hours of deliberations, the court convened the parties. The court noted

that it had not received any communications from the jury indicating that it was deadlocked, but

that the court thought eight hours was a significant amount of time to deliberate on this case, given

the number of witnesses and the complexity of the evidence. The court made it clear that it thought

that there might be some difficulty in the jury reaching a verdict. The court informed the parties

that it was going to call the jury in and ask the foreperson if he or she believed that the jury could

reach a verdict. The court added: “Whatever their answer is, I’m going to read them 26.07 of the

Illinois Pattern Jury Instructions. [the Prim instruction]” Neither the State nor defendant objected

to this planned procedure.

¶ 25 The court called the jury into the courtroom. After the jury foreperson indicated that she

believed they could reach a verdict, the court read the jury the supplemental instruction, which is

recounted in full in the analysis section of this disposition. The jury resumed its deliberations.

Less than one hour later, it returned a verdict of guilty on the one count in the indictment.

Defendant timely appealed.

¶ 26 II. ANALYSIS

¶ 27 Defendant argues: (1) ineffective assistance of trial counsel for failing to file a motion to

suppress the identifications of defendant by Becknell and Dauel, (2) error for admitting expert

testimony regarding gunshot residue, where there was evidence of potential contamination (3) that

there was insufficient evidence to prove him guilty beyond a reasonable doubt, and (4) that giving

the court’s sua sponte Prim instruction was plain error, where there was no indication that the jury

had reached an impasse. The State responds that (1) there was no ineffective assistance, because

a motion to suppress would not have been successful, (2) the gunshot residue testimony was

properly admitted and the jury was left to determine its weight, (3) the identifications and forensic

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evidence were sufficient to prove defendant’s guilt, and (4) there was no error, and thus, no plain

error in giving the jury the Prim instruction.

¶ 28 A. Ineffective Assistance of Counsel Claim

¶ 29 Defendant argues that the police did not follow statutory guidelines for the “show-up

procedure” used with Dauel and that Becknell was only able to identify defendant after seeing his

picture in a newspaper. Thus, he claims that those identifications were improperly suggestive.

Defendant then asserts that the in-court identifications by Becknell and Dauel were tainted by the

previous improperly suggestive identifications. Defendant thus maintains that his trial attorney

should have filed a motion to suppress all of the identifications. The State counters that the trial

attorney’s decision to impeach the identifications through cross-examination did not fall below an

objective standard of reasonableness. Moreover, a motion to suppress was not likely to succeed,

and thus, defendant cannot demonstrate prejudice. Accordingly, even if counsel’s representation

fell below an objective level of reasonableness, defendant’s ineffective assistance claim still fails.

¶ 30 The sixth amendment of the United States Constitution guarantees all criminal defendants

the right to be assisted by an attorney. Strickland v. Washington, 466 U.S. 668, 685 (1984). The

proper standard for competence of attorney performance is that of reasonably effective assistance.

Strickland, 466 U.S. at 687.

¶ 31 A defendant’s claim of ineffective assistance of counsel has two components: (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) the defendant was

prejudiced to the extent that there is a reasonable probability that the outcome at trial would be

different but for the defective representation. Strickland, 466 U.S. at 687-94. A defendant must

demonstrate both components to prevail on a claim of ineffective assistance of counsel. Strickland,

466 U.S. at 687. Thus, we may dispose of an ineffective-assistance claim on the ground that the

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defendant suffered no prejudice without addressing whether counsel’s performance was

objectively unreasonable. People v. Holmes, 141 Ill. 2d 204, 233-34 (1990). In determining

whether counsel’s assistance was ineffective, we employ a bifurcated standard of review, deferring

to the trial court’s findings of fact unless they are against the manifest weight of the evidence, and

considering de novo the ultimate legal issue of ineffective assistance. People v. Cunningham, 2012

IL App (3d) 100013, ¶ 31. Because the facts surrounding defendant’s claim on this issue are

undisputed, our review is de novo.

¶ 32 In order to establish prejudice for failing to file a motion to suppress, a defendant must

show that there is a reasonable probability that (1) the motion would have been granted had it been

filed, and (2) the outcome at trial would have been different had the evidence been suppressed.

People v. Bew, 228 Ill. 2d 122, 128-29 (2008).

¶ 33 To demonstrate the likely success of a motion to suppress a pretrial identification, the

defendant has the burden of showing that the identification procedure was impermissibly

suggestive. People v. Brooks, 187 Ill. 2d 91, 126 (1999). If the defendant satisfies this initial

burden, the State may overcome this showing with clear and convincing evidence that the witness

identified the defendant based upon his or her independent recollection of the incident. Brooks,

187 Ill. 2d at 126. We consider the following factors when determining whether a witness has an

independent basis for an identification: (1) the opportunity to view the defendant at the time of the

crime, (2) the witness’ degree of attention, (3) the accuracy of any prior descriptions by the

witness, (4) the level of certainty demonstrated by the witness at the alleged suggestive

confrontation, and (5) the length of time between the offense and the alleged suggestive

confrontation. Brooks, 187 Ill. 2d at 129-30.

¶ 34 1. Dauel Show-Up and In-Court Identifications

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¶ 35 Defendant argues that the police used a show-up procedure that was inherently suggestive

that prompted Dauel to misidentify defendant as the shooter. Defendant further implies, without

explicitly stating so, that the improper show-up procedure tainted Dauel’s in-court identification

of defendant. He argues that both the show-up and in-court identifications should have been

suppressed, and that his trial attorney was ineffective for failing to file a motion to suppress the

identifications.

¶ 36 The contested show-up identification occurred approximately 37 minutes after the shooting

at the same location where Dauel first observed the shooter. Dauel sat in the back of a police squad

car, while defendant stood approximately 45 feet away, illuminated by the squad car’s spotlight.

Dauel studied defendant for a period of time before declaring that he was the shooter. Dauel

responded in the affirmative when the officer asked him if he was 100% certain that this was the

shooter.

¶ 37 Defendant argues generally that show-up identifications, where a single subject is

presented to a witness, are dangerously and grossly suggestive. Defendant cites several cases that

use language expressing a negative view of show-up identifications, but he does not explain why

this show-up was improper or impermissibly suggestive. He notes that police must not use show-

up procedures unless there are compelling reasons not to use a more reliable form of lineup (People

v. Lee, 44 Ill. 2d 161, 169 (1969)), though he offers no alternative form of identification procedure

that the police should have used under these particular circumstances. Defendant argues only that

there were inconsistencies surrounding Dauel’s identification, such as him telling the 9-1-1

dispatcher that the shooter was wearing a black sweatshirt when defendant was actually wearing a

black t-shirt. Any such inconsistencies are irrelevant to the question of whether the show-up

procedure itself was impermissibly suggestive. Without explaining why these particular facts

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demonstrate impermissible suggestiveness, defendant is essentially arguing that show-up

procedures are per se impermissibly suggestive. If true, this would satisfy defendant’s burden of

demonstrating that his motion to suppress was likely to succeed. He additionally asserts that it is

“undeniable that the outcome of the trial would have been different” without the identifications.

Thus, he concludes that he has satisfied his initial burden to demonstrate that the unfiled motion

had a likelihood of success and that it would have affected the outcome of his trial. Therefore,

argues defendant, it is now the State’s burden to show by clear and convincing evidence that the

identifications were made based on Dauel’s independent recollections.

¶ 38 Defendant’s argument is without merit. While it is true that show-up procedures are often

looked upon with disfavor, they have long been upheld as proper under justifiable circumstances.

See, e.g., Stovall v. Denno, 388 U.S. 293, 302 (1967) (viewing was imperative where it was

uncertain that the wounded victim would survive) (abrogated in part on different grounds); People

v. Speck, 41 Ill. 2d 177, 193 (1969) (nothing fundamentally unfair where the witness had an

opportunity to observe the killer for several hours) (vacated in part on sentencing grounds only);

People v. Robinson, 42 Ill. 2d 371, 375-76 (1969) (no improper pretrial identification where the

person who was identified was known to the witness prior to the crime).

¶ 39 In particular, prompt show-ups near the scene of the crime have been held to be acceptable

police procedure designed to aid the police in determining whether to end the search or to continue

while in fresh pursuit of a suspect. See, e.g., People v. McKinley, 69 Ill. 2d 145, 152 (1977) (show-

up constitutional when it took place within 30 minutes of the offense and within four blocks of its

location); People v. Libbert, 89 Ill. 2d 171, 188-89 (1982) (identification properly admitted where

no more than 55 minutes elapsed between the robbery and the show-up and it was at a location

only two to three miles from the robbery); People v. Hicks, 134 Ill. App. 3d 1031, 1036 (1985)

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(“[T]he Supreme Court has consistently upheld prompt identification of a suspect by a witness or

victim near the scene of the crime where they foster the desirable objectives of a fresh, accurate,

identification, which may lead to the immediate release of an innocent suspect and at the same

time enable the police to resume the search for the fleeing offender while the trail is still fresh.”);

People v. Rodriguez, 387 Ill. App. 3d 812, 830 (2008) (show-ups may be justified when there is a

need to determine “(1) whether a suspect is innocent and should be released immediately; and

(2) whether the police should continue searching for a fleeing culprit while the trail is still fresh.”).

¶ 40 In this case, the show-up took place at the same location and less than an hour after the

shooting. The police encountered defendant attempting to enter the same apartment where

Becknell had seen the man with dreadlocks on the balcony, and he fit the then-available general

description of the shooter. The police clearly had an immediate need to determine whether

defendant was the shooter or whether they should continue the search. As noted, defendant does

not attempt to explain why this particular show-up was impermissible, nor does he argue that any

other form of identification procedure should have been used under these circumstances.

Defendant has failed to demonstrate that the show-up procedure was impermissibly suggestive,

and thus, has not met his burden to show that a motion to suppress had a reasonable likelihood of

success. Because defendant has not demonstrated that the show-up identification was

impermissibly suggestive, it follows that the show-up identification could not have given rise to a

substantial likelihood of irreparable misidentification in the subsequent in-court identification.

Accordingly, defense counsel was not ineffective for failing to file a motion to suppress Dauel’s

show-up or in-court identifications.

¶ 41 2. Becknell Identifications

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¶ 42 Defendant argues that Becknell’s in-court identification was tainted and unreliable, and

that defense counsel was ineffective for failing to file a motion to suppress the in-court

identification. Defendant reasons that if Becknell could not identify him in the photo lineup that

took place in the immediate hours following the shooting, then it is unreasonable to think that he

could positively identify defendant in court a year and a half later. According to defendant,

Becknell’s basis for identifying him in court was a newspaper photograph that Becknell saw in the

days following the shooting. Defendant argues that Becknell’s in-court identification of defendant

was merely a “regurgitation of a newspaper article, not any sort of independent recollection of the

offender.”

¶ 43 As noted above, in order to show prejudice under the second prong of Strickland for

ineffective assistance of counsel for failing to file a motion to suppress, defendant must

demonstrate that the motion had a reasonable likelihood of success and that there was a reasonable

likelihood that the suppression would have changed the outcome of the trial. Bew, 228 Ill. 2d at

128-29 (2008). To show a reasonable likelihood of success, defendant must demonstrate that

Becknell’s viewing of the newspaper photo was orchestrated by law enforcement and that it was

so impermissibly suggestive that it created a substantial risk of irreparable misidentification. See

United States v. Zeiler, 470 F.2d 717, 720 (3d Cir. 1972) (when there is no evidence that law

enforcement officials encouraged or assisted in impermissive identification procedures, such as a

newspaper photograph labeling the defendant as a suspect, the proper means of testing a witness’

testimony is through cross-examination, and subsequent identifications can be weighed in light of

the witness’ statements as to his or her reactions to the media coverage); O’Connell v. State, 742

N.E.2d 943, 948 (Ind. 2001) (“A witness’ viewing of a suspect’s photograph through the media

does not ordinarily constitute an impermissibly suggestive identification procedure because it is

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not engineered by prosecution or law enforcement agencies.”); People v. Follins, 196 Ill. App. 3d

680, 687-88 (1990) (in-court identification will be suppressed where an out-of-court identification

was so unnecessarily suggestive that it gave rise to a substantial likelihood of irreparable

misidentification). Thus, the question presented is whether Becknell’s in-court identification of

defendant was based on an out-of-court photographic identification that was orchestrated by law

enforcement or the prosecutor, and that it was so impermissibly suggestive as to create a substantial

risk of irreparable misidentification.

¶ 44 We begin with defendant’s assertion that Becknell failed to identify him in the photo lineup

in the hours following the shooting. The police showed Becknell a photo lineup at the hospital

during the afternoon on the day of the shooting. Detective Andrew Houghton showed Becknell

an array of six photographs of potential suspects, one of whom was defendant. Becknell did not

positively identify any of the persons in the photographs, though he made a statement that it was

possible that it may have been either of two persons depicted in the array (defendant was not one

of those persons). Becknell testified that when he viewed the photo array, he was still in pain from

his fresh gunshot wound, and that he was currently being administered Dilaudid, OxyContin, and

Percocet to control his pain. Becknell described his mental condition at the time as: “Everything

was kind of blurry, and just out of it [sic].” Defendant addresses Becknell’s “blurry” state of mind

by paraphrasing Houghton’s testimony, arguing that the detective “had no concerns that Becknell

was impaired at the time of the lineup or that Becknell otherwise misunderstood what was

occurring.” Houghton did testify that he thought Becknell appeared to understand him, but he also

testified that he did not know if Becknell was under the influence of any medications, and he made

no inquiries along those lines. Under these circumstances, with a gunshot victim in the hospital

only a short time after a shooting, with the bullet still lodged in his shoulder, and where the victim

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testified that everything was kind of blurry while he was under the influence of three separate

opioids to manage his pain, we cannot say as a matter of law that Becknell’s failure to identify

defendant at that moment invalidated his subsequent in-court identification.

¶ 45 The next part of defendant’s argument asserts that Becknell only identified defendant based

upon a photograph in a newspaper article. Defendant makes no assertion that law enforcement or

the prosecutor orchestrated the newspaper viewing, but he still insists that the viewing is the only

basis for Becknell’s in-court identification. Defendant asserts that the article “presumably”

identified him as the shooter, though the article is not in evidence and there is nothing in the record

to support that presumption. During cross-examination by defendant’s attorney, Becknell was

asked about a conversation he had with the prosecutor about a week before the trial began:

“Q. Okay. And you had a conversation with him about your ability to identify the

person who had shot you, right?

A. Yes.

Q. And your response to him asking you about your ability to identify the person

that shot you was that you saw [defendant’s] picture in a newspaper article?

Q. Isn’t that right?

Q. So is your identification based on your viewing of that photograph in the

newspaper article that day, or is it based on your ability to identify him today from

memory?

A. No, I identified him that day when I saw him in the paper.”

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¶ 46 Defendant’s interpretation of Becknell’s answers in this colloquy is that Becknell admitted

that he was only able to recognize defendant based on his viewing of the newspaper article. An

alternative reasonable interpretation of Becknell’s answers is that he was conveying that he

recognized defendant in the newspaper because he already knew what the shooter looked like, not

that the newspaper informed him of what the shooter looked like.

¶ 47 The record indicates that Becknell had a sufficient opportunity to observe the shooter

during the encounter that ended with Becknell being shot. The shooter ran onto the scene cursing

and yelling at Becknell, which caused Becknell to focus his attention on the shooter. The two men

exchanged words while separated only by the width of a car, with lighting from the tow truck and

streetlights illuminating the area. Becknell’s description of his assailant less than 20 minutes after

the shooting—a black male with short hair, approximately six feet tall, 180 pounds, and wearing

a black t-shirt and possibly blue jeans—was sufficient to enable officers to identify defendant as

the possible shooter. Defendant argues that Becknell told Detective Murphy that it was hard to

see the shooter’s face because it was dark. Becknell testified that he could not remember his exact

words in his statement to Murphy, but that it was not so dark that he could not see the shooter’s

face. Defendant also argues that Becknell did not describe any of the red lettering on the black t-

shirt worn by defendant, suggesting that he did not get a good look at it. Any discrepancies or

omissions of detail by Becknell, however, would not destroy the validity of his identification, but

would go instead to the weight of his testimony, which was for the jury to evaluate. People v.

Bibbs, 101 Ill. App. 3d 892, 897 (1981) (“[I]t is clear that discrepancies or omissions of detail by

an identifying witness do not destroy the validity of the identification but go instead to the weight

of the testimony and are to be evaluated by the trier of fact.”).

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¶ 48 Considering that Becknell had ample opportunity to observe his shooter and was able to

describe him in sufficient detail minutes after the shooting, and further considering that defendant

does not allege that law enforcement or the prosecutor played any part in Becknell’s viewing of

the newspaper, defendant has not demonstrated that the viewing of the newspaper photograph was

so impermissibly suggestive that it created a substantial risk of irreparable misidentification.

Follins, 196 Ill. App. 3d at 687-88. Thus, defendant has not shown prejudice for ineffective

assistance of counsel under the second prong of Strickland because he has not demonstrated that a

motion to suppress would have had a reasonable likelihood of success (Bew, 228 Ill. 2d at 128-29

(2008)).

¶ 49 Accordingly, defense counsel was not ineffective for failing to file a motion to suppress

Becknell’s in-court identification of defendant. As discussed above, counsel likewise was not

ineffective for failing to file a motion to suppress Dauel’s show-up and in-court identifications.

¶ 50 B. Expert Testimony

¶ 51 Defendant argues that the trial court erred by allowing Chapman to testify to her analyses

of the primer gunshot residue. According to defendant, Chapman’s testimony was unreliable

because the State did not establish a proper foundation for the gunshot residue evidence, given that

the chain of custody for the evidence was broken. Defendant’s contention is that the police used

improper handling procedures to collect his clothing, creating a risk of cross-contamination, which

severed the first link in the chain of custody for the gunshot residue evidence. Defendant further

argues that Chapman’s testimony had “no actual probative value” and should have been excluded

on relevancy grounds where she “had no way of knowing whether the particles were from

contamination or from actual exposure to gunfire.”

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¶ 52 Defendant argues that the entirety of Chapman’s testimony should have been excluded, but

his foundational argument on the gunshot residue testimony is necessarily limited to the blue jeans

that defendant was wearing. Chapman testified as to her analyses and findings on five separate

items: (1) the gunshot residue kit, which contained the samples taken from defendant’s hands,

(2) defendant’s shoes, (3) defendant’s belt, (4) defendant’s t-shirt, and (5) defendant’s blue jeans.

Defendant objected at trial only to the admission of the blue jeans, explicitly stating that he had no

objection to the admission of any of the other items. Accordingly, defendant forfeited any

argument he may have had on appeal regarding the foundation of Chapman’s testimony as it

related to those items. People v. Hudson, 228 Ill. 2d 181, 190 (2008) (“The failure to object to

allegedly improper evidence when it is introduced at trial results in forfeiture of the issue for

purposes of appeal.”).

¶ 53 The State responds that a foundation was laid for the blue jeans, arguing that the blue jeans,

not the gunshot residue, was the evidence requiring a foundation. The State argues that any issue

of potential contamination went to the weight of the evidence, not its admissibility, and that the

weight was for the jury to decide. The State does not address defendant’s relevancy argument.

¶ 54 Expert testimony is admissible if the proffered witness is qualified as an expert, a

foundation is laid as to the bases for the expert’s opinions, and the testimony would assist the trier

of fact in understanding the evidence. People v. Simmons, 2016 IL App (1st) 131300, ¶ 115; Soto

v. Gaytan, 313 Ill. App. 3d 137, 146 (2000); Illinois Rule of Evidence 702 (eff. Jan. 1, 2011). A

witness may be qualified as an expert when he or she has specialized knowledge, skill, experience,

training, or education. Simmons, 2016 IL App (1st) 131300, ¶ 115. The proponent of the

testimony must lay an adequate foundation for the testimony by showing that the facts or data

relied upon by the expert are of a type reasonably relied on by experts in that particular field.

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Simmons, 2016 IL App (1st) 131300, ¶ 115. Once a proper foundation has been laid to establish

the admissibility of an expert’s testimony, it is the function of the jury to determine the weight to

be assigned to such testimony. Simmons, 2016 IL App (1st) 131300, ¶ 115. We review a

foundational challenge to the admission of expert testimony for an abuse of discretion, which will

only be found “where the trial court’s ruling is so arbitrary or fanciful that no reasonable person

would take the view adopted by the trial court.” (Internal quotations marks omitted.) Simmons,

2016 IL App (1st) 131300, ¶ 114.

¶ 55 Defendant argues that we should review his foundational objection to the admission of

expert testimony under a de novo standard of review, citing People v. Safford, 392 Ill. App. 3d

212, 221 (2009), which held that the determination of foundational requirements for expert

testimony is a question of law that is reviewed de novo. We note that Safford was decided in the

First District of the Appellate Court, and that a different division of the First District declined to

follow Safford. Simmons, 2016 IL App (1st) 131300, ¶¶ 108-14 (“[W]e respectfully disagree with

Safford, as well as the body of appellate case law that has developed under Safford, on the question

of the appropriate standard of review of the sufficiency of the foundation for an expert’s opinion.”).

The Simmons court acknowledged that our supreme court has only ever applied an abuse-of-

discretion standard to questions regarding the sufficiency of the foundation for an expert’s

testimony, and notably, continued to apply that same standard of review in the wake of Safford.

See, e.g., People v. Williams, 238 Ill. 2d 125, 136 (2010) (“We apply the abuse of discretion

standard to the defendant’s foundational challenge to the trial court’s admission of Lambatos’

expert testimony.”). Thus, we follow our supreme court and review defendant’s foundational

challenge to the admission of expert testimony for an abuse of discretion. Simmons, 2016 IL App

(1st) 131300, ¶ 114.

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¶ 56 1. Foundation for Expert’s Testimony

¶ 57 After defendant’s arrest, he was ordered to disrobe in a holding cell and to put his clothing

on the floor. Dublinski picked up defendant’s shirt, blue jeans, belt, and shoes off of the floor and

placed them in a single evidence bag. Bailey testified that the clothes should have been placed in

separate evidence bags and should not have been placed on the floor. Upon receiving the evidence

bag from Dublinski, Bailey took the items out of the bag in a sterile environment and placed them

into individual bags, which were then sent to the Illinois State Police for testing.

¶ 58 Defendant argues that the first link in the chain of custody was severed when Dublinski

allowed the clothing to be put on the floor, reasoning that gunshot residue is microscopic and

cannot be seen by the human eye, and therefore, requires a proper chain of custody to demonstrate

foundation. People v. Winters, 97 Ill. App. 3d 288, 289-90 (1981) (chain of custody required when

offered evidence is not readily identifiable or is susceptible to alteration). Defendant concludes

that it was the State’s burden to “remove the probability of exchange, contamination, or tampering”

with regard to the gunshot residue evidence, citing People v. Terry, 211 Ill. App. 3d 968, 973

(1991). According to defendant, the State failed to do so and there is a real probability of

contamination.

¶ 59 Defendant erroneously identifies the gunshot residue found on the jeans as the evidence

for which the State must lay a foundation. Citing Winters, he compares gunshot residue to a vial

of blood. The Winters court determined that a vial of blood was inadmissible when it was not

sealed by the physician who purportedly collected it from the decedent, and an analyst at the crime

laboratory testified that it arrived in an unsealed condition. Winters, 97 Ill. App 3d at 295-96.

Winters is distinguishable from this case. The vial of blood collected in Winters was collected and

stored independent of any other evidence. Here, the police collected defendant’s blue jeans as

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potential evidence, and later discovered gunshot residue on those blue jeans. The record shows

that the State laid a proper foundation for the blue jeans, and defendant does not argue to the

contrary. Instead, defendant attempts to reframe what the evidence was, stating that it was the

gunshot residue, not the blue jeans. Defendant cites no relevant authority for this position.

Defendant further argues that this “situation is akin to emptying a bag of narcotics onto the floor

of the police station, sweeping the floor, and then testing the accumulated debris for the presence

of a controlled substance.” Defendant’s unpersuasive argument misses the mark.

¶ 60 The parties cite no Illinois cases with similar facts and issues, and our research has

uncovered no such cases. United States v. Lee, 502 F.3d 691 (7th Cir. 2007), however, is

instructive on this matter. We take note that the Illinois Rules of Evidence largely mirror the

Federal Rules of Evidence regarding the foundation that must be laid for expert witness testimony

(compare Ill. R. Evid. 703, 705 (eff. Jan. 1, 2011) with Fed. R. Evid. 703, 705). Simmons, 2016

IL App (1st) 131300, ¶ 129 n.2. Accordingly, we find an interpretation of the federal rules

persuasive, even if it is not binding.

¶ 61 The defendant in Lee was arrested by the Rockford Police Department and was found guilty

by a federal jury in Rockford of being a felon in possession of a firearm. Lee, 502 F.3d at 695.

The government presented evidence of gunshot residue on the cuff of the defendant’s jacket that

he was wearing at the time of his arrest. Lee, 502 F.3d at 695. On appeal, the defendant argued

that the testimony of the government’s gunshot residue expert was unreliable because the

government failed to prevent potential contamination of the jacket by maintaining a proper chain

of custody. Lee, 502 F.3d at 697.

¶ 62 Following the defendant’s arrest, his jacket, along with all of his other personal belongings,

were placed in a cloth property bag at the Winnebago County Jail. The property bags were reused

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from one inmate to the next without being sterilized or laundered between each use. Lee, 502 F.3d

at 697. The defendant’s jacket was later removed from the property bag and placed in a sealed

evidence bag and transferred to the Illinois State Police to be tested for gunshot residue. Lee, 502

F.3d at 697. The defendant objected to the jacket’s admission at trial, arguing that it was

potentially contaminated when placed in the unlaundered property bag and commingled with his

other belongings. Lee, 502 F.3d at 697. The Lee court held that the defendant’s arguments

regarding chain of custody and potential contamination went to the weight of the evidence, not its

admissibility. Lee, 502 F.3d at 698. Further, the Lee court noted that the defendant’s lawyer was

permitted to cross-examine the expert regarding potential contamination resulting from the

collection procedures, and to argue those points to the jury. Lee, 502 F.3d at 698.

¶ 63 Here, following defendant’s arrest, his clothes were first placed on the floor of the holding

cell where other inmates who were also tested for gunshot residue had been kept in the past. Each

item of clothing was then placed into a single evidence bag before eventually being separated into

individual evidence bags and sent to the Illinois State Police for testing. Like in Lee, defendant

objected at trial to the admissibility of the evidence on which the gunshot residue was discovered,

challenging the chain-of-custody and emphasizing the potential contamination. Also like in Lee,

defense counsel in this case was permitted to cross-examine Chapman and the police officers on

the collection procedures as well as the potential for cross-contamination, and to use that

information in his closing argument. The potential contamination went to the weight of

Chapman’s testimony, not its admissibility, and the weight was a matter properly left to the jury.

Thus, the trial court did not abuse its discretion by finding that there was sufficient foundation as

to Chapman’s findings and opinions, and allowing her to testify on that basis.

¶ 64 2. Relevance of Expert’s Testimony

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¶ 65 We turn now to defendant’s relevancy argument regarding Chapman’s testimony. Without

explicitly stating as much, defendant is essentially arguing that Chapman’s testimony should have

been excluded because its prejudicial effect outweighed its probative value. See People v. King,

2020 IL 123926, ¶ 35 (“In addressing the admission of expert testimony, the trial court should

balance the probative value of the evidence against its prejudicial effect ***.”). Defendant

contends that Chapman’s findings had little or no probative value because she only testified that

the blue jeans contacted a gunshot-residue-related item or were in the environment of a discharged

firearm, and that she “had no way of knowing whether the particles were from contamination or

from actual exposure to gunfire.” Defendant then argues that, despite the low probative value of

Chapman’s testimony, it was nevertheless prejudicial because it allowed the State to argue that the

gunshot residue may have been deposited on him in the process of firing a gun. As noted above,

we will not overturn the trial court’s decision to admit evidence absent an abuse of discretion.

King, 2020 IL 123926, ¶ 35.

¶ 66 Chapman testified as to her methods, findings, and conclusions regarding five separate

items that she tested, including the blue jeans. She testified to her conclusion that, to a reasonable

degree of scientific certainty, the blue jeans “contacted a gunshot residue item or [were] in the

environment of a discharged firearm.” These conclusions are entirely consistent with well-

established conclusions regarding positive tests for gunshot residue. See People v. Meyers, 2018

IL App (1st) 140891, ¶ 15 (three potential conclusions of a positive test for gunshot residue are

that the person (1) discharged a firearm, (2) contacted an item that had gunshot residue on it, or

(3) was in the environment of a discharged firearm); People v. Rodriguez, 2012 IL App (1st)

072758-B, ¶ 20 (positive test showed that defendant (1) came into contact with a recently fired

weapon, or (2) was standing within three feet of a weapon when it was fired); People v. Gonzalez,

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388 Ill. App. 3d 566, 572 (2008) (positive test for gunshot residue indicated that the subject may

have (1) discharged a firearm, (2) contacted a gunshot residue particle, or (3) received the particles

from an environmental source); People v. Raines, 354 Ill. App. 3d 209, 214-15 (2004) (presence

of gunshot residue particles indicated that the defendant (1) discharged a firearm, (2) came in

contact with a gunshot-residue-related item, or (3) was in the vicinity of a discharged firearm).

¶ 67 Defendant has cited no authority whatsoever indicating that a gunshot residue expert must

be able to testify as to whether the gunshot residue particles came from contamination or from

actual exposure to gunfire. Our research indicates that gunshot residue experts generally do not

testify with certainty as to how the gunshot residue particles came to be on the tested evidence.

Instead, the experts testify as to the existence of the residue and the potential sources, which

generally are that the subject (1) discharged a firearm, (2) contacted an item that had gunshot

residue particles on it, or (3) was in the vicinity of a discharged firearm. The State introduced the

gunshot residue testimony to corroborate the identifications of defendant by Becknell and Dauel.

In that regard, Chapman’s testimony was clearly probative and did not unfairly prejudice

defendant. See United States v. Stafford, 721 F.3d 380, 395 (2013) (gunshot residue testimony

was probative and not unfairly prejudicial when it was used to corroborate an eyewitness’ account).

Any potential contamination of the evidence went to the weight of Chapman’s testimony, not its

admissibility. See Lee, 502 F.3d at 698.

¶ 68 Therefore, the trial court did not abuse its discretion by admitting the expert’s testimony.

The State established a proper foundation the testimony, and the evidence was not more prejudicial

than probative.

¶ 69 C. Sufficiency of the Evidence

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¶ 70 Defendant maintains that Becknell’s and Dauel’s identifications were “faulty” and that the

police mishandled his blue jeans containing the gunshot residue. He thus concludes that the

evidence was not sufficient to prove him guilty beyond a reasonable doubt. The State responds

that the evidence was sufficient to convict defendant of aggravated battery with a firearm where

he was positively identified as the shooter by two eyewitnesses and physical evidence suggested

that he may have fired a gun.

¶ 71 When a defendant challenges the sufficiency of the evidence presented against him, a

reviewing court must determine whether, after viewing the evidence in the light most favorable to

the State, any rational trier of fact could have found that the essential elements of the crime were

proven beyond a reasonable doubt. People v. Harris, 2018 IL 121932, ¶ 26. It is for the trier of

fact to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from

the facts. Harris, 2018 IL 121932, ¶ 26. It is not the function of the reviewing court to retry the

defendant, and it must draw all reasonable inferences in favor of the State. Harris, 2018 IL

121932, ¶ 26. A conviction will not be reversed on appeal unless the evidence is so improbable

or unsatisfactory that reasonable doubt as to defendant’s guilt remains. Harris, 2018 IL 121932,

¶ 26.

¶ 72 In this case, there was ample evidence establishing that defendant was the person who shot

Becknell in the early morning hours of October 18, 2015. Police first encountered defendant when

he was attempting to enter an apartment connected to the shooting. The bullet removed from

Becknell was matched to the gun found near the scene of the crime on the same day as the shooting.

Dauel identified defendant as the shooter at a properly conducted show-up procedure only minutes

after the shooting. Becknell and Dauel both made positive in-court identifications of defendant as

the shooter. The evidence indicated that both Becknell and Dauel had unobstructed and reasonably

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well-lit views of the shooter. The shooter was screaming and cursing at Becknell from only a few

feet away, which caused both men to focus their attention on the shooter. Becknell and Dauel gave

descriptions of the shooter to the 9-1-1 dispatcher and police in the immediate aftermath of the

shooting; while there were minor inconsistencies with their descriptions, they were sufficiently

consistent to identify defendant.

¶ 73 In addition to the in-court identifications, Chapman’s testimony regarding gunshot residue

particles on defendant’s blue jeans permitted a reasonable inference that defendant may have fired

a gun. Moreover, Chapman testified that she found one gunshot residue particle on defendant’s

right hand and one gunshot residue particle on his t-shirt. The Illinois State Police policy did not

permit Chapman to make a positive identification as to the presence of gunshot residue on

defendant’s hand or shirt based upon one gunshot residue particle, but the jury nonetheless heard

about these findings. This properly admitted gunshot residue testimony corroborated the

identifications of defendant as the shooter.

¶ 74 Defendant mainly repeats the arguments he made in challenging the validity of the

identifications and the gunshot residue testimony. He argues, contrary to the evidence, that neither

Becknell nor Dauel “had much of an opportunity to view the suspect.” Defendant contends that

Becknell’s focus was on lowering the Lincoln from the tow truck while the shooter was present,

even though Becknell testified that he had already lowered and unhooked the Lincoln before the

shooter arrived. Defendant argues that there was no “natural lighting,” apparently insinuating that

vehicle lights and streetlamps are unreliable sources of lighting. Defendant additionally argues

that the presence of gunshot residue particles on his jeans was “almost meaningless,” given that

the expert could not explain how the particles got on the jeans. He also argues that the presence

of another person’s fingerprints on the gun’s magazine, that the Lincoln was driven away

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“presumably by either the shooter or the female,” and that another compatible magazine was found

in a different apartment all “suggest that someone other than [defendant] committed the offense.”

Defendant argues that it would be illogical for him to remain in the area if he were the shooter,

and thus, neither evidence nor logic support his conviction.

¶ 75 In contending that the identifications, gunshot residue evidence, and other ancillary

evidence were all weighed incorrectly, defendant essentially asks us to retry his case on appeal,

which is not the function of this court. Harris, 2018 IL 121932, ¶ 26. Here, a rational trier of fact

could have reasonably concluded from the evidence that defendant fired the bullet that struck

Becknell in his left clavicle. Consequently, the evidence is sufficient to prove defendant guilty

beyond a reasonable doubt of aggravated battery with a firearm.

¶ 76 D. Prim Instruction

¶ 77 Defendant argues that the trial court abused its discretion by sua sponte giving the jury a

supplemental instruction originally taken from People v. Prim, 53 Ill. 2d 62, 75-76 (1972), when

there was no indication that the jury could not reach a verdict. Defendant concedes that he failed

to preserve this issue by objecting to the instruction at trial or in a posttrial motion, but asserts that

we should overlook the forfeiture and review the issue under the plain-error doctrine.

¶ 78 The plain-error doctrine bypasses the ordinary forfeiture principles by allowing a reviewing

court to consider an unpreserved error when (1) “the evidence is close, regardless of the

seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.”

People v. Herron, 215 Ill. 2d 167, 186-87 (2005). The first step in any plain-error analysis is to

determine whether error occurred, because absent reversible error, there can be no plain error.

People v. McDonald, 2016 IL 118882, ¶ 48.

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¶ 79 The incident that defendant argues is error began when the trial court convened all parties

while the jury was still deliberating. The court noted that it was just before 8 p.m., and that the

jury had been deliberating for more than eight hours. The court further noted that this trial had 20

witnesses, that some of their testimony came in through stipulation, and that a significant portion

of the evidence was “not really contested.” The court expressed that it thought eight hours was a

significant time to deliberate in this case, even though there had been no indication from the jury

that they were deadlocked. The court then cited People v. Preston, 76 Ill. 2d 274, 284 (1979),

where our supreme court held that, when deciding whether to give a supplemental instruction, a

trial court need not wait until it receives direct notice from the jury that it is deadlocked: “[I]t is

sufficient if the court can perceive that the jury is having difficulty in reaching a verdict.”

¶ 80 The court then made the following statement:

“As indicated, I think this is a significant time to deliberate. I’m not finding

anything at this point. I’m just making a clear record that I do perceive that there might be

some difficulty in reaching a verdict. And again, as I indicated, I have not heard that they

are deadlocked.

What I intend to do is this: I’m going to call the jury in. I’m going to ask them if

they believe they can reach a verdict. The case law is pretty clear on this. You can’t ask a

numerical division, you can’t ask which side it favors, you can’t ask any of that. I would

just ask that simple question, whether they can reach a verdict.

Whatever their answer is, I’m going to read them 26.07 of the Illinois Pattern Jury

Instructions. I’ll read that into the record now.

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‘The verdict must represent the considered judgment of each juror. In order to

return a verdict, it is necessary that each juror agree thereto. Your verdict must be

unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view

to reaching an agreement, if you can do so without violence to individual judgment. Each

of you must decide the case for yourself, but do so only after an impartial consideration of

the evidence with your fellow jurors. In the course of your deliberations, do not hesitate

to reexamine your own views and change your opinion if convinced it is erroneous. But

do not surrender your honest conviction as to the weight or effect of evidence solely

because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

You are not partisans. You are judges—judges of the facts. Your sole interest is

to ascertain the truth from the evidence in the case.’

***

So I’m going to read them that instruction, then I’m going to instruct them to

continue to deliberate and send them back to the jury deliberation room.

I’m going to give them an hour. We’ll see what happens after an hour. That would

take us to 9:00. That’s over nine hours of deliberation.

The Supreme Court Rule 436 allows the Court to send the jury home and bring

them back in the morning. I haven’t decided about that yet. Obviously, the options are if

at 9:00 they haven’t reached a verdict, I could hang them, hang the jury and declare a

mistrial, or I could break the jury and send them home and bring them back in the morning.

I could do either one of those.

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But what I would like to do now is I’m going to start with the State. If you want to

make a record of anything, State, state what you think would be the way that you think we

should do this or object to the way I am doing it, however you want, I’ll let you make a

record, whatever you want.

[Assistant State’s Attorney]: Judge, we have no position.

The Court: Counsel?

[Defense attorney]: No position.” (Emphasis and internal quotation marks added.)

¶ 81 The court brought the jury into the courtroom and asked the foreperson whether she

believed that the jury could reach a verdict, to which the foreperson replied: “Yes.” The court then

read Illinois Pattern Jury Instructions, Criminal, No. 26.07 (approved July 18, 2014) (hereinafter

IPI Criminal No. 26.07) (quoted above) to the jury, after which it sent the jury back to continue

deliberating. The jury returned some time before 9 p.m. with a guilty verdict on the single count

in the indictment.

¶ 82 Defendant argues that the trial court abused its discretion, and thereby committed reversible

error, by sua sponte giving the jury this “premature and coercive” Prim instruction, which “likely

hastened a verdict” when there was no indication that the jury could not reach a verdict. Defendant

further argues that we should review this alleged error under both prongs of the plain-error doctrine

because this case was closely balanced and the error was serious. The State responds that the Prim

instruction was not given in error, so there can be no plain error.

¶ 83 As discussed above, the first step in any plain-error analysis is to determine whether error

occurred. Defendant’s entire argument for error is contained in a single paragraph where he cites

People v. Jackson, 26 Ill. App. 3d 618 (1975), to support his contentions the Prim instruction was

premature, coercive, and likely hastened the verdict. In Jackson, the jury was brought into court

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after ten hours of deliberation and the court asked the foreman if he thought the jury might be able

to arrive at a verdict, to which he responded: “Yes, sir, I do.” Jackson, 26 Ill. App. 3d at 630.

Over the defendant’s objection, the court then gave a supplemental instruction similar to an

instruction given in Prim, but not the same language later codified in IPI Criminal No. 26.07 that

was given in the present case. The Jackson court’s instruction read in part:

“It is your duty to decide the case if you can conscientiously do so. If you should

fail to agree on a verdict the case must be retried and a future jury must be selected in the

same manner and from the same source as you have been chosen. And there is no reason

to believe that the case would ever be submitted to twelve men and women more competent

to decide. Nor can the case be tried any better or more exhaustively than it has been here

or that more clear evidence could be produced on behalf of either side.” Jackson, 26 Ill.

App. 3d at 630.

¶ 84 The appellate court in Jackson noted that this language was similar to that found in Prim,

and held that the instruction was premature under the circumstances where the jury had given no

indication that it was deadlocked. Jackson, 26 Ill. App. 3d at 630-31. On its face, Jackson might

appear to support defendant’s argument, but the language of the instruction given in Jackson is

materially different than the language quoted verbatim by the trial court here from IPI Criminal

No. 26.07. Our supreme court ordered all trial courts in Illinois to use the language from Prim that

was ultimately codified in IPI Criminal No. 26.07, commenting that it was attempting to provide

guidance to juries while avoiding the coercive dangers inherent in supplemental instructions.

Prim, 53 Ill. 2d at 74-77. While it is true that the language used by the trial court in Jackson was

borrowed directly from Prim (Prim, 53 Ill. 2d at 72), it is also true that our supreme court was

critical of that particular part of the trial court’s instruction in Prim:

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“[W]e believe that all of the instruction following the words ‘It is your duty to decide the

case if you can conscientiously do so,’ is not helpful to a jury reaching a verdict. In fact,

telling a jury that if they fail to agree on a verdict the case must be retried is not correct.”

Prim, 53 Ill. 2d at 76-77.

Because the trial court in Jackson gave a materially different supplemental instruction that had

been specifically criticized by our supreme court, we find Jackson to be distinguishable from the

present case.

¶ 85 Jackson is not only distinguishable, but it is also inapposite. Four years after the appellate

court decision in Jackson held that a supplemental instruction given before any indication of a

deadlocked jury was inappropriate, our supreme court rejected a similar argument after a trial court

delivered a similar supplemental instruction in Preston. After 6 ½ hours of deliberation, with no

indication of a deadlocked jury, the trial court informed counsel that it intended to give the jury a

supplemental instruction. Preston, 76 Ill. 2d at 278. After the foreman told the court that he could

not say at the moment whether the jury could reach a verdict, and over defendant’s objection, the

trial court delivered the supplemental instruction and sent the jury back to continue deliberating.

Preston, 76 Ill. 2d at 279. Our supreme court considered the propriety of that supplemental

instruction:

“The defendant contends first that delivery of the instruction was premature since

the jury was not known to be deadlocked. We reject that contention. In determining how

long a jury should be permitted to deliberate before a mistrial is declared and the jury is

discharged, no fixed time can be prescribed, and great latitude must be accorded to the trial

court in the exercise of its informed discretion. [Citations.] For similar reasons it is

primarily the function of the trial court to determine, on the basis of such factors as the

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length of time already spent in deliberation and the complexity of the issues before the jury,

when the giving of a supplemental instruction becomes appropriate.” (Emphasis added.)

Preston, 76 Ill. 2d at 283-84.

Our supreme court went on to reason that trial courts are not required to wait for a statement from

the jury that it could not reach a verdict; it is enough if the trial court “can perceive that the jury is

having difficulty in reaching a verdict.” Preston, 76 Ill. 2d at 284. Here, the trial court

unequivocally stated on the record that it had considered the amount of time spent in deliberation

as well as the quantity and complexity of the evidence, adding: “I’m just making a clear record

that I do perceive that there might be some difficulty in reaching a verdict.”

¶ 86 Following Preston, our supreme court has reiterated that trial courts have wide discretion

in determining if and when to give a supplemental instruction. See People v. Cowan, 105 Ill. 2d

324, 328 (1985) (“The time when a supplemental instruction should be given is for the court to

decide.”); People v. Chapman, 194 Ill. 2d 186, 222 (2000) (“It is up to the trial court’s discretion

whether to give such an instruction and, if so, when to give the instruction.”); People v. Roberts,

214 Ill. 2d 106, 121 (2005) (“Matters relating to jury selection and management are generally

within the discretion of the trial court) (citing Chapman, 194 Ill. 2d at 222); People v. Kimble,

2019 IL 122830, ¶ 46 (it is within the trial court’s discretion to determine if a supplemental

instruction should be given because it is in the best position to decide whether such an instruction

would be helpful or coercive). Defendant asserts that the supplemental instruction was premature

because the jury was not deadlocked. He offers nothing beyond conclusory statements, however,

that would explain why the trial court’s decision to give this instruction was an abuse of discretion,

particularly in light of this robust body of case law that confers such broad discretion on the trial

court, whether or not a jury is deadlocked. Consequently, defendant has failed to demonstrate

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error, and we will not overlook the principles of forfeiture by invoking the plain-error exception.

People v. Wade, 131 Ill. 2d 370, 376 (“Before invoking the plain-error exception, it is appropriate

to determine whether error occurred at all.”).

¶ 87 III. CONCLUSION

¶ 88 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 89 Affirmed.

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