People v. Pelko
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Opinion
2022 IL App (1st) 192520-U No. 1-19-2520 Second Division March 1, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 18 CR 238101 v. ) ) MICHAEL PELKO, ) Honorable ) Thomas J. Byrne Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment. ORDER
¶1 Held: The evidence presented at trial was sufficient to prove defendant guilty beyond a reasonable doubt of first degree murder. The trial court did not err in allowing certain testimony from the State’s expert witness or in refusing to give defendant’s proffered alibi instruction to the jury.
¶2 Following a jury trial, defendant-appellant Michael Pelko was found guilty of first degree
murder and was sentenced to a total of 55 years’ imprisonment, which included a mandatory 25-
year sentencing enhancement for the use of a firearm. Defendant now appeals from that judgment, No. 1-19-2520
arguing that (1) the evidence was insufficient to find him guilty beyond a reasonable doubt of
committing first degree murder; (2) the trial court committed plain error in allowing the State to
elicit testimony from Dr. Michael Eckhardt due to the State’s late disclosure of expert materials;
and (3) the trial court abused its discretion in refusing to tender defendant’s proffered nonpattern
alibi jury instruction. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 A. Trial Evidence
¶5 Defendant was charged with first degree murder in the shooting of Izat Morrar, who was
found dead in an alley near 5319 South Calumet Avenue on July 20, 2017. The case proceeded to
a jury trial on August 19, 2019. The evidence included extensive testimony from numerous
witnesses and exhibits. We recount the evidence presented at trial only to the extent necessary to
resolve the issues on appeal.
¶6 1. State’s Evidence
¶7 a. Crime Scene Investigation
¶8 Chicago police detective Roger Murphy testified that on July 20, 2017, he was assigned to
investigate Morrar’s death pursuant to a 911 call placed at approximately 3:50 p.m. At the scene,
Detective Murphy observed Morrar face down on the ground with two gunshot wounds to his head.
Morrar did not have any property on his body other than a pair of headphones.
¶9 Detective Murphy later searched Morrar’s office, which revealed a cell phone, laptop
computer, a small notebook that appeared to be a ledger, and a shoebox containing $27,800 in
cash. Detective Murphy also interviewed several of Morrar’s family members, which led him to
believe that Morrar may have had contact with defendant prior to his death. Morrar’s cell phone
records showed that the last phone call was with a phone number associated with defendant.
-2- No. 1-19-2520
¶ 10 On July 23, 2017, Detective Murphy interviewed defendant at the police station. Defendant
stated that he had known Morrar for several years and that the two were “best friends.” Defendant
worked at the Chicago Board of Trade and Morrar worked at a nearby building. The last time
defendant saw Morrar was around 2 p.m. on July 20, 2017, when they smoked a cigarette together
near their workplaces. After that, defendant went to the parking garage to retrieve his Hyundai
Santa Fe and drove to his house in Willow Springs, Illinois. Defendant told Detective Murphy that
he did not know who could have murdered Morrar but that Morrar was a drug user, met women
online, and used to sell drugs. Defendant admitted that he used to sell marijuana for Morrar.
¶ 11 b. Search of Defendant’s House and Vehicle
¶ 12 After viewing the surveillance footage from the area around the crime scene (discussed in
greater detail below), Detective Murphy obtained search warrants for defendant’s vehicle, house,
and cell phone.
¶ 13 The warrant for defendant’s home was executed on July 27, 2017. The police recovered a
total of 18 firearms from defendant’s home, 10 of which were sent for testing. The police also
recovered 425 grams of marijuana, which was found in the ceiling of the laundry room.
¶ 14 Chicago police officer Brian Smith, a forensic investigator, testified that he inspected
defendant’s Santa Fe pursuant to a search warrant. He observed red stains, suspected to be blood,
on the headliner, the storage area, the roof light, the front passenger seat, and the front passenger
door. After removing a leather seat cover from the front passenger seat, Officer Smith also
observed more red stains on the seat cushion and seat back. These areas of the vehicle were
removed for forensic testing. Photos of the interior of the vehicle were submitted to the jury.
¶ 15 The vehicle was also processed for fingerprints, which yielded suitable prints: (1) on the
interior of the rear passenger door window; (2) on the exterior of the vehicle near the rear passenger
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door; (3) on the exterior of the front passenger door handle; and (4) on the exterior of the front
driver door underneath the handle. Officer Smith could not determine how long the fingerprints
on the vehicle had been there. On cross-examination, Officer Smith confirmed that there were
items, papers, and cigarette butts on the floor of the passenger side of the vehicle on the day it was
inspected.
¶ 16 Lisa Fallara, a forensic scientist with the Illinois State Police Crime Lab, received the front
passenger seat upper foam cushion taken from defendant’s vehicle and determined through DNA
analysis that the cushion was stained with blood that matched Morrar’s blood card. Fallara did not
receive any DNA swabs. She did receive the front passenger seat lower foam cushion, but it was
not tested.
¶ 17 Emily Kuppinger, an Illinois State Police fingerprint analyst conducted a comparison and
analysis for four latent prints lifted from the Santa Fe and from a fingerprint card for defendant.
She found two of the prints to be suitable for comparison to the card. One was from the exterior
of the front passenger door, which she determined was consistent with defendant’s fingerprint. On
cross-examination, she testified that she did not know when the fingerprints were placed on the
surface of the vehicle.
¶ 18 c. Evidence of the Victim
¶ 19 Melanie Cruz, Morrar’s girlfriend, testified that, she called Morrar at 1:40 p.m. and 1:45
p.m. on the day of the murder and that both calls went directly to voicemail. At 2:01 p.m., Cruz
checked Morrar’s location, as they shared their locations via their phones, and it showed that his
location was unavailable. She did not see or hear from Morrar for the rest of that day. She contacted
Morrar’s brother, Ismial, who lived in California, and he flew to Chicago. On July 22, 2017,
Morrar’s body was identified.
-4- No. 1-19-2520
¶ 20 Dr. Eckhardt, an assistant Cook County Medical Examiner, testified that he examined
Morrar’s body on July 21, 2017. Dr. Eckhardt opined that Morrar’s death was a homicide caused
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2022 IL App (1st) 192520-U No. 1-19-2520 Second Division March 1, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 18 CR 238101 v. ) ) MICHAEL PELKO, ) Honorable ) Thomas J. Byrne Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment. ORDER
¶1 Held: The evidence presented at trial was sufficient to prove defendant guilty beyond a reasonable doubt of first degree murder. The trial court did not err in allowing certain testimony from the State’s expert witness or in refusing to give defendant’s proffered alibi instruction to the jury.
¶2 Following a jury trial, defendant-appellant Michael Pelko was found guilty of first degree
murder and was sentenced to a total of 55 years’ imprisonment, which included a mandatory 25-
year sentencing enhancement for the use of a firearm. Defendant now appeals from that judgment, No. 1-19-2520
arguing that (1) the evidence was insufficient to find him guilty beyond a reasonable doubt of
committing first degree murder; (2) the trial court committed plain error in allowing the State to
elicit testimony from Dr. Michael Eckhardt due to the State’s late disclosure of expert materials;
and (3) the trial court abused its discretion in refusing to tender defendant’s proffered nonpattern
alibi jury instruction. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 A. Trial Evidence
¶5 Defendant was charged with first degree murder in the shooting of Izat Morrar, who was
found dead in an alley near 5319 South Calumet Avenue on July 20, 2017. The case proceeded to
a jury trial on August 19, 2019. The evidence included extensive testimony from numerous
witnesses and exhibits. We recount the evidence presented at trial only to the extent necessary to
resolve the issues on appeal.
¶6 1. State’s Evidence
¶7 a. Crime Scene Investigation
¶8 Chicago police detective Roger Murphy testified that on July 20, 2017, he was assigned to
investigate Morrar’s death pursuant to a 911 call placed at approximately 3:50 p.m. At the scene,
Detective Murphy observed Morrar face down on the ground with two gunshot wounds to his head.
Morrar did not have any property on his body other than a pair of headphones.
¶9 Detective Murphy later searched Morrar’s office, which revealed a cell phone, laptop
computer, a small notebook that appeared to be a ledger, and a shoebox containing $27,800 in
cash. Detective Murphy also interviewed several of Morrar’s family members, which led him to
believe that Morrar may have had contact with defendant prior to his death. Morrar’s cell phone
records showed that the last phone call was with a phone number associated with defendant.
-2- No. 1-19-2520
¶ 10 On July 23, 2017, Detective Murphy interviewed defendant at the police station. Defendant
stated that he had known Morrar for several years and that the two were “best friends.” Defendant
worked at the Chicago Board of Trade and Morrar worked at a nearby building. The last time
defendant saw Morrar was around 2 p.m. on July 20, 2017, when they smoked a cigarette together
near their workplaces. After that, defendant went to the parking garage to retrieve his Hyundai
Santa Fe and drove to his house in Willow Springs, Illinois. Defendant told Detective Murphy that
he did not know who could have murdered Morrar but that Morrar was a drug user, met women
online, and used to sell drugs. Defendant admitted that he used to sell marijuana for Morrar.
¶ 11 b. Search of Defendant’s House and Vehicle
¶ 12 After viewing the surveillance footage from the area around the crime scene (discussed in
greater detail below), Detective Murphy obtained search warrants for defendant’s vehicle, house,
and cell phone.
¶ 13 The warrant for defendant’s home was executed on July 27, 2017. The police recovered a
total of 18 firearms from defendant’s home, 10 of which were sent for testing. The police also
recovered 425 grams of marijuana, which was found in the ceiling of the laundry room.
¶ 14 Chicago police officer Brian Smith, a forensic investigator, testified that he inspected
defendant’s Santa Fe pursuant to a search warrant. He observed red stains, suspected to be blood,
on the headliner, the storage area, the roof light, the front passenger seat, and the front passenger
door. After removing a leather seat cover from the front passenger seat, Officer Smith also
observed more red stains on the seat cushion and seat back. These areas of the vehicle were
removed for forensic testing. Photos of the interior of the vehicle were submitted to the jury.
¶ 15 The vehicle was also processed for fingerprints, which yielded suitable prints: (1) on the
interior of the rear passenger door window; (2) on the exterior of the vehicle near the rear passenger
-3- No. 1-19-2520
door; (3) on the exterior of the front passenger door handle; and (4) on the exterior of the front
driver door underneath the handle. Officer Smith could not determine how long the fingerprints
on the vehicle had been there. On cross-examination, Officer Smith confirmed that there were
items, papers, and cigarette butts on the floor of the passenger side of the vehicle on the day it was
inspected.
¶ 16 Lisa Fallara, a forensic scientist with the Illinois State Police Crime Lab, received the front
passenger seat upper foam cushion taken from defendant’s vehicle and determined through DNA
analysis that the cushion was stained with blood that matched Morrar’s blood card. Fallara did not
receive any DNA swabs. She did receive the front passenger seat lower foam cushion, but it was
not tested.
¶ 17 Emily Kuppinger, an Illinois State Police fingerprint analyst conducted a comparison and
analysis for four latent prints lifted from the Santa Fe and from a fingerprint card for defendant.
She found two of the prints to be suitable for comparison to the card. One was from the exterior
of the front passenger door, which she determined was consistent with defendant’s fingerprint. On
cross-examination, she testified that she did not know when the fingerprints were placed on the
surface of the vehicle.
¶ 18 c. Evidence of the Victim
¶ 19 Melanie Cruz, Morrar’s girlfriend, testified that, she called Morrar at 1:40 p.m. and 1:45
p.m. on the day of the murder and that both calls went directly to voicemail. At 2:01 p.m., Cruz
checked Morrar’s location, as they shared their locations via their phones, and it showed that his
location was unavailable. She did not see or hear from Morrar for the rest of that day. She contacted
Morrar’s brother, Ismial, who lived in California, and he flew to Chicago. On July 22, 2017,
Morrar’s body was identified.
-4- No. 1-19-2520
¶ 20 Dr. Eckhardt, an assistant Cook County Medical Examiner, testified that he examined
Morrar’s body on July 21, 2017. Dr. Eckhardt opined that Morrar’s death was a homicide caused
by multiple gunshot wounds to the head. Morrar had two gunshot wounds to the head, and a metal
projectile was removed from each wound. One of the wounds showed muzzle imprints from the
gun used to fire the bullet. The toxicology report showed no drugs in Morrar’s system.
¶ 21 Dr. Eckhardt also observed the presence of lividity, which is the post-mortem pooling of
blood that occurs when a body is against a surface and the blood pools with gravity towards the
surface that it is against. He further testified that this fixed lividity occurs between one to two hours
after death, meaning it will not shift after that point. The State sought to admit photographs of
Morrar’s torso and back, showing fixed lividity, and his wrinkled bloody shirt, as well as
photographs of defendant’s car seat and asked whether Dr. Eckhardt could form opinions based
on his review of those photographs. Dr. Eckhardt responded: “Based on the patterning of what I
see here, yes.”
¶ 22 At that time, the defense objected, and a sidebar was called. Outside the presence of the
jury, defense counsel objected to Dr. Eckhardt providing an opinion that the pattern of lividity on
Morrar’s body matched the pattern of the passenger seat cushion because he was not qualified to
offer such an opinion and because that opinion had not been disclosed previously in Dr. Eckhardt’s
report. The trial court allowed defense counsel to interview Dr. Eckhardt. After doing so, defense
counsel reiterated that the objection was only to testimony “regarding anything from the seat
compared to the blood stain on the shirt” such as that the “dotting patterning on the blood stain on
the back of the shirt *** appears to be consistent with the pattern that is on the seat that [the doctor]
looked at.” The trial court agreed that such testimony would be outside of the doctor’s expertise.
Regarding the body’s fixed lividity being consistent with sitting upright in a seat, the trial court
-5- No. 1-19-2520
ruled that the doctor could testify to anything relevant to the body’s lividity, if it was consistent
with being in that seat and bleeding after being shot. The State agreed that it would not question
the doctor on the patterning of the seat.
¶ 23 Once testimony resumed, Dr. Eckhardt opined that the lividity, on Morrar’s body indicated
that he was either laying on his back or against some surface. He confirmed that the lividity
observed on the victim was consistent with being in a seated position with his back against a
surface.
¶ 24 d. Surveillance Evidence
¶ 25 The State also introduced surveillance footage of the day of the murder collected from
Edmond Burke Elementary School, Chicago Police Department pod cameras, a parking garage,
and a Chicago Transit Authority bus. 1
¶ 26 The parking garage footage shows that at approximately 1:30 p.m., defendant enters his
Santa Fe and leaves the parking garage. Defendant is wearing a baseball hat, blue jeans, and a
white T-shirt beneath a button-down collared shirt.
¶ 27 The footage from the exterior of the Chicago Board of Trade building shows Morrar
standing outside wearing a white, collared shirt with short sleeves at 1:35 p.m. When defendant’s
Santa Fe pulls up, Morrar places a backpack into the backseat of defendant’s Santa Fe and enters
the front passenger seat.
¶ 28 Camera footage from the bus shows defendant’s Santa Fe on Martin Luther King Drive at
3:46 p.m. From this footage, the police were able to identify the license plate, which matched
defendant’s Santa Fe. Similarly, surveillance footage from the pod camera shows the Santa Fe
1 The introduction of each of these videos was stipulated to by the parties.
-6- No. 1-19-2520
turning onto Calumet Avenue at 3:47 p.m. In the video, the driver is wearing a white t-shirt. The
footage from the elementary school shows the Santa Fe stopping in the alley between 51st Street
and Calumet, where Morrar’s body was found. Though the camera is some distance away, it is
clear that a person in a white shirt exited the driver’s side and walked over to the front passenger’s
door. Soon after, the driver gets back into the driver’s seat and the Santa Fe exits the alley.
¶ 29 f. Firearms Evidence
¶ 30 Joan Bunte testified that she was employed with Bunte Auction Services, which is an
auction house that sells a variety of items. Her records showed that defendant purchased four
firearms in April 2008: a .22-caliber revolver, a .32-caliber handgun, and two .22-caliber rifles.
Detective Murphy received this same documentation and confirmed that three of the four guns
purchased then were found in the house. The one that was not located was the .22-caliber revolver.
¶ 31 Cari Nudera testified that she was employed by the Illinois State Police as a forensic
scientist, and she was qualified as an expert in firearms identification. She determined that one of
the bullet fragments recovered from Morrar’s body, were .22-caliber bullets but she could not
determine if they were fired from the same firearm. Nudera also received four firearms for testing,
some of which were semi-automatic and some revolvers. She determined that none of those
firearms could have fired the .22-caliber bullet and bullet fragment. She later received six
additional firearms, five of which were .22-caliber rifles. She was able to exclude four out of the
five rifles. The remaining one was a Ruger .22-caliber rifle, which she determined was
inconclusive as to whether it fired the .22-caliber bullet and bullet fragment. She also determined
that the shotgun was not capable of firing those bullets. On cross-examination, she confirmed that
.22-caliber bullets could be fired from either a handgun or a rifle.
¶ 32 g. Cell Phone Evidence
-7- No. 1-19-2520
¶ 33 The parties stipulated to the introduction of the Sprint cellular phone records for Morrar,
defendant, defendant’s wife, Shawna Pelko (Shawna), and defendant’s son, Michael Pelko, Jr.
(Michael Jr.).
¶ 34 Subsequently, the State called Fabiola Mejia, who previously worked at the Chicago
Regional Computer Forensics Laboratory, which conducts digital examinations for state, local,
and federal law enforcement agencies. Based on a series of searches of defendant’s cell phone, she
created an extraction report concerning the phone calls made from July 20 to July 28, 2017, and
an extraction report concerning the text messages contained on the phone from July 19 to July 21,
2017.
¶ 35 The call log report showed that there were five phone calls between defendant and Morrar
between 12:09 p.m. and 1:35 p.m. on the day of the murder. At 2:17 p.m., an outgoing call to
Shawna Pelko was made lasting 3 minutes and 21 seconds. Five incoming calls came from Michael
Jr.’s phone between 2:46 and 3:13 p.m. Four of those five calls were denoted as missed calls. Mejia
testified that the call log report cannot distinguish between connected calls that involve
conversation and those that merely connect to voicemail to leave a message. At 3:48 p.m., an
incoming call from Christian Faber occurred lasting 34 seconds. This was followed by an outgoing
call to Faber at 4:53 p.m. lasting 57 seconds. Finally, at 5:22 p.m., there is another outgoing call
to Shawna lasting 58 seconds.
¶ 36 The text message report showed the following relevant text messages on defendant’s
phone. At 12:46 p.m., defendant sent a text message to Morrar stating, “I will probably split like
1:30 to beat traffic.” The next outgoing text message was sent at 6:52 p.m. At 3:36 p.m., defendant
received a text message from Shawna, which stated “Call BOA at 800-692-1564 about the Bank
of America CC and tell them you authorized me to talk to them about the account, please.” Shawna
-8- No. 1-19-2520
sent another text message to defendant at 6:51 p.m., which stated “Where are you? I wanted to get
a card.” Defendant responded to that text message at 6:52 p.m., stating “Five minutes.” Later that
evening, defendant sent two text messages to Morrar, one at 8:07 p.m. and one at 8:16 p.m. The
first stated, “You underground. Your bro just called me.” The second stated, “Dude call your bro.”
¶ 37 In reviewing another report, Mejia testified that there were no outgoing calls, text
messages, or e-mails sent from defendant’s phone from 2:30 p.m. to 4:50 p.m. on the day of the
murder. Mejia further testified that defendant and Morrar frequently communicated with each
other via text message.
¶ 38 A report was also generated extracting all text messages between defendant and Morrar,
beginning with June 22, 2017. The text conversation from June 22, 2017, reads, in pertinent part:
“Morrar: You about ready
Morrar: I’m outside as we text hbu [how about you]?
Morrar: Dude why aren’t you answering your phone
Morrar: Call me
Defendant: I’m driving
Morrar: Yo
Morrar: Wya [where you at]?
Morrar: Call when you get to your garage…I’m nearby
Morrar: Ok, done waiting
Defendant: I need to watch my tone? I’m racing around with your problem, half of it is not
mine. What’s the watch your tone? I had a heart rithmia [sic] last night went to doc this
AM. See you outside at 4. You can tell me all about my tone.
-9- No. 1-19-2520
Morrar: You probably shouldn’t be partying like you do. Yeah we’ll talk tone when I see
you. Look forward to it. If you blow me off today, consider yourself officially
Morrar: fallen from grace in my book. I mean that.
Defendant: Again, I have called and chased you all over this town. I do have my own shit.
Fall from Grace? My man! How many times have I asked. Yo stop at my place? Meet me
Now? Not on my terms. Only yours. And now it’s tone and grace.”
The conversation continues in this manner with Morrar waiting for defendant to finish up work.
They continue arguing about defendant failing to meet up with Morrar and making Morrar wait
for him. A similar conversation occurs the following day, while they are both at their respective
offices and Morrar is trying to schedule a meeting time with defendant before he leaves downtown
Chicago. At some point, defendant messages Morrar that he is at McDonald’s and Morrar responds
that he will be waiting at the parking garage. After more than an hour, Morrar messages defendant:
“You are a real piece of work man…I was standing there by the garage for over an hour. *** This
changes our relationship[.]” Defendant responds an hour later: “Now I see your texts. Should fear
for my and my family’s safety I reckon that means I should put the appropriate safety measures in
place? How quick the tied [sic] turns man[.]” Morrar responds: “Please *** Enough with the
bullshit cryptic texts[.]” Between June 28th and July 20th, Morrar and defendant continued to
converse over text messages about meeting up and work but the text messages no longer seemed
contentious.
¶ 39 On July 20, 2017, defendant messaged Morrar at 9:26 a.m. to meet up for a smoke break.
Later, defendant messaged Morrar to ask about a conversation Morrar had with a business
associate. At 12:46 p.m., defendant messaged Morrar stating: “I’ll prob split like 130 to beat
traffic.”
- 10 - No. 1-19-2520
¶ 40 Defendant’s next text message to Morrar was at 12:48 p.m. on July 21, 2017, which reads:
“Lookin to split 1->130 range, smoke break?” He then sent Morrar three more messages around 8
p.m. that evening, which state: “Hey”, “You underground? Your bro just called me. U need to call
him or text.”, and “Dude! Call your bro[.]”
¶ 41 Mejia testified that she also used a forensic tool called Final Mobile, which allowed her to
look into the applications (“apps”) installed on defendant’s phone. Mejia testified that on July 1,
2017, defendant downloaded an app called Tablet Remote, which allows the user to remote into
another tablet or phone via Bluetooth. On July 2, 2017, an app called TeamViewer was
downloaded to defendant’s phone. TeamViewer is another app that allows you to access another
device remotely via the Internet as long as the other device also has the TeamViewer app
downloaded. Essentially, the difference between the two apps is that Tablet Remote requires a
Bluetooth connection whereas TeamViewer can be used over the Internet. Also downloaded to
defendant’s phone on July 1, 2017, was an app called Google Wi-Fi, which allows you to set the
Google Wi-Fi settings in your household.
¶ 42 On cross-examination, defense counsel questioned Mejia about whether these apps that
were recently downloaded had been used. She stated that the Final Mobile report recorded
application usage as part of the extraction process and she did not recall any application usage for
Tablet Remote, TeamViewer, or Google Wi-Fi. She testified that the tool used for extraction does
not show what was done in the apps, only whether they were used. She agreed that Bluetooth
devices 45 minutes’ drive away from each other would not be able to connect. She confirmed that
the Google Wi-Fi app does not “bring Wi-Fi to wherever you are[,]” it just controls the Wi-Fi
somewhere else. She admitted that she did not know how the TeamViewer app worked. She
testified that, as far as what the extraction tool could tell, none of the three apps were used during
- 11 - No. 1-19-2520
the time period of 9 a.m. and 6 p.m. on July 20, 2017. The report showed that during the time
period of 2:30 p.m. to 4:00 p.m., about 30 apps were accessed, including WhatsApp conversations.
She confirmed that there could have been more apps accessed during that time period that the tool
she was using was not able to see.
¶ 43 Defense counsel further inquired into the call log and how the tool determined whether a
call was missed, answered, or sent to voicemail. Mejia responded that she did not know “how the
tool interprets whether or not [an incoming call is] going to voicemail.” She further stated that she
does not know how the tool was designed “to determine whether or not if it goes to voicemail
versus when it’s missed.” In regard to the five second incoming phone call from Michael Jr., she
stated that the call “could have gone through” or “could have went to voicemail.” She confirmed
that the 3:48 p.m. call from Faber was an incoming call, was not marked as missed on the report,
and was 34 seconds long.
¶ 44 On redirect examination, Mejia testified that some apps may have background activity,
meaning that the app is constantly refreshing or updating, such as the weather app. This does not
mean manual interaction with the phone by the user. She further confirmed that many new apps
are released almost daily. She confirmed that the forensic tools she has at her disposal have
limitations and may not be a complete reproduction of everything that was in fact used by the
phone during a time period.
¶ 45 On recross-examination, she testified that although her tool did not show any app usage for
TeamViewer, she could not say whether it was because her tool did not recognize that app or
because the app was not used.
¶ 46 FBI Special Agent Joseph Raschke testified as an expert in historical cell site analysis,
which involves analyzing cellular data from the telephone company regarding phone calls. He
- 12 - No. 1-19-2520
testified that he completed an analysis for this homicide investigation. Specifically, he analyzed
the historical cell site records for the phones belonging to defendant, Shawna, and Michael Jr.
¶ 47 He testified that an incoming phone call on Morrar’s phone at 1:35 p.m. on July 20, 2017,
utilized a cell tower near the Financial District in downtown Chicago. He further testified that the
cell phone records for Morrar’s phone indicated several incoming calls that were not able to
connect to the phone, which indicates that the phone is off, the battery died, or the phone is
otherwise not connected to the network.
¶ 48 In analyzing Michael Jr.’s cell phone data, Raschke found that 14 calls were made between
12:30 p.m. and 5:51 p.m. while in the general vicinity of the family’s Willow Springs home, though
he could not say that the calls were made at a specific address. Five of those phone calls were
outgoing to defendant’s phone between 2:46 p.m. and 3:13 p.m. Raschke testified that three out of
the five calls went directly to defendant’s voicemail. On cross-examination, he stated that there
was no indication that the other two calls went to voicemail but that they did not connect to the
phone.
¶ 49 For Shawna’s cell phone, he found that 13 phone calls between 12:34 p.m. and 5:51 p.m.
utilized the same tower near the Willow Springs home. Between 5:51 p.m. and 6:37 p.m., the cell
phone activity was consistent with traveling from the Willow Springs area to an area near
Westmont, in the vicinity of the restaurant where Michael Jr.’s little league team was having a
pizza party.
¶ 50 Finally, in looking at defendant’s cell phone activity, he testified that calls made from
defendant’s phone between 12:09 p.m. and 1:35 p.m. occurred in the vicinity of the Financial
District of downtown Chicago. A call is then made at 2:01 p.m. utilizing a cell phone tower off of
Interstate 55, which is consistent with the cell phone moving southwest in the direction of Willow
- 13 - No. 1-19-2520
Springs. Another phone call occurs at 2:17 p.m. further southwest along Interstate 55. At 2:46
p.m., a call occurs utilizing the same tower as Shawna and Michael’s phones in the vicinity of the
Willow Springs home. A 3:48 p.m. incoming phone call with a duration of 34 seconds was also
consistent with the phone being in the vicinity of the Willow Springs home. Raschke testified that
as to that phone call he could not say definitively whether the 34 seconds is talk time or that a
conversation took place. He further testified on cross-examination that the 34 seconds is the “call
setup time that’s going on behind the scene[s] within the network and the ring time[.]” An outgoing
call at 4:53 p.m. with a duration of 57 seconds was also consistent with defendant’s phone being
in the vicinity of the Willow Springs home. Next, there was an outgoing call to Shawna’s phone
at 5:22 p.m. with a duration of 59 seconds. The activity from both phones indicated that they were
in the vicinity of Willow Springs when that call was made. This was followed by an incoming call
from Shawna to defendant’s phone at 6:37 p.m. The activity from Shawna’s phone indicated that
the call was made from the vicinity of the pizza restaurant, whereas defendant’s phone activity
indicated that the call was made from the vicinity of Willow Springs. There was no duration listed
for that phone call. One minute later there was an outgoing call from defendant’s phone to
Shawna’s with the same locations as the previous phone call. Raschke testified that the earliest
time that defendant’s phone activity shows being in the vicinity of the pizza restaurant is 7:13 p.m.
Raschke further testified that there was no outgoing activity from defendant’s phone between 2:30
p.m. and 4:50 p.m.; there was routing of incoming calls to the voicemail system but no indication
of the phone “actually being picked up and dialed.”
¶ 51 On cross-examination, Raschke confirmed that, even if two phones are utilizing the same
cell phone tower, that does not mean that those two individuals are next to each other. Rather, they
could be a few houses away or on different parts of the same property.
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¶ 52 h. Additional Testimony (State’s Witnesses)
¶ 53 James Stachowiak testified that he was the baseball coach for defendant’s son, Michael
Pelko, Jr., during the summer of 2017. He stated that there was a pizza party for the team on the
night of July 20, 2017, which was scheduled to begin at 6 p.m. at Papa Passero’s on 63rd Street
and Cass Avenue in Westmont, Illinois. He testified that Michael Jr., Shawna, and defendant
arrived a little after 6 p.m. He did not see in what vehicle they arrived. There were around 40
people at the party. Around 7 p.m., defendant informed Stachowiak that they were leaving as he
had to be at work early the next morning. The family left around 7:10 or 7:15 p.m. Stachowiak
stated that the party would usually last about two or two and a half hours and the awards ceremony
was to start at 7:30 p.m.
¶ 54 Sergeant Jack DeDore testified that when working on this homicide investigation, he was
assigned to measure the time it took to drive from the alley where Morrar’s body was found to
defendant’s home in Willow Springs. He conducted the trip two separate times, both on Thursdays,
but with slightly different routes. The first trip took 63 minutes and the second trip took 75 minutes.
On Thursday, July 19, 2018, he left defendant’s home at 2:45 p.m. and arrived where Morrar’s
body was recovered at 3:29 p.m. He confirmed that it would be impossible to be at crime scene at
3:46 p.m. and be back in Willow Springs at 3:48 p.m.
¶ 55 4. Defense Witnesses
¶ 56 At the close of the State’s case-in-chief, defendant moved for a judgment of acquittal. The
court denied the motion, and the defense presented its evidence as follows.
¶ 57 a. Defendant’s Testimony
¶ 58 Defendant testified that he began working as a broker/trader for TJM Institutional Services
in 2013. His office was located at the Chicago Board of Trade. Faber began working for him in
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2015. In 2017, the family had four chickens in their chicken coop at their Willow Springs home
and defendant took care of them. Typically, defendant would leave for work at 6 a.m. and return
home between 2:30 and 4:30 p.m. He parked his Santa Fe in a parking garage on Financial and
Congress, where he would leave his keys with the attendant.
¶ 59 Defendant testified that he had known Morrar since they were children. Morrar’s office
was about a five minute walk from the Chicago Board of Trade. Defendant would smoke a
cigarette with Morrar almost every day. In 2017, he also saw Morrar on the weekends occasionally,
and they would text regularly throughout the work week.
¶ 60 In 2017, defendant had about 15 guns, which he had acquired over a long period of time.
In particular, he stated that he had a fascination with .22 caliber rifles. He testified that he bought
four guns at an auction in 2008 on an “as is” basis and that two of the guns, a .22-caliber handgun
and a shotgun, did not work. He sold the shotgun to a dealer for parts and traded the handgun for
a rifle.
¶ 61 He testified that he bought marijuana from Morrar, who received it from his brother, Ismial,
in California. He would buy a pound of marijuana from Morrar once per year. He also sold some
of his marijuana to neighbors, friends, and co-workers. Defendant explained that he received a
pound of marijuana from Morrar in late 2016, but only paid Morrar for half of it because he only
wanted half a pound and Morrar would only sell in pounds. He and Morrar had conversations about
the money he owed Morrar, and in 2017, defendant arranged to give half of the marijuana back to
Morrar. However, Morrar refused to take it back, and they were not able to arrange a meeting.
¶ 62 Defendant testified as to the following sequence of events on July 20, 2017. He drove his
Santa Fe to work and arrived there around 6:30 a.m. At 9:26 a.m., he texted Morrar stating that he
was having a smoke, and Morrar responded that he was coming. They met at LaSalle Street and
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Van Buren Street and smoked a cigarette together. Later, he texted Morrar asking if he had talked
to Jim, an individual that he was trying to introduce to Morrar for work-related purposes. Morrar
responded, “Nice guy.” At some point, defendant had a conversation with Morrar about Morrar
borrowing defendant’s car. Defendant was not aware of why Morrar did not have his own car that
day.
¶ 63 Defendant then texted Morrar that he was leaving work around 1:30 p.m. to beat traffic.
He picked up his car from the parking garage and picked up Morrar, who was carrying a backpack
containing marijuana. They then drove to pick up Morrar’s friend, Eric McDaniel, from Wells
Street and Adams Street. Both defendant and Morrar knew McDaniel from their childhood, though
Morrar knew him better. McDaniel was wearing dark shorts and a white, collared polo shirt.
Defendant drove to his house in Willow Springs, arriving around 2:30 p.m. Morrar moved into the
driver’s seat and McDaniel moved into the front passenger seat. Defendant believed that they were
driving to sell the marijuana to Richard Nagle, McDaniel’s uncle.
¶ 64 At home, defendant put feed in the bird feeder and tended to the chickens, which took about
an hour. His phone rang several times while he was out in the backyard but he did not answer
every call. He informed his son on one of the phone calls that if he needed him, to come to the
backyard. During this time, he also received a phone call from Faber at 3:48 p.m. He spoke with
Faber about an order they were working on and he told Faber to cancel the order when the market
closed at 4 p.m. He then went to sit on the front porch for about half an hour. He also bought some
lemonade from his son. At 4:48 p.m., he spoke with Faber on the phone again about the same order
and instructed Faber to have the order ready in case the client requested it while defendant was at
the pizza party.
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¶ 65 The family left in Shawna’s Acura MDX to go to the pizza party around 5:30 p.m. and
arrived at the restaurant around 6 p.m. However, defendant left at some point to go get his tablet
in case the client reached out because he could not conduct the trade on his phone. He returned to
the restaurant around 6:30 p.m. They stayed another 40 minutes and left before the awards
ceremony because he received an order request from a client. Defendant’s Santa Fe was in the
driveway when he returned home and the keys were on the dashboard.
¶ 66 The next morning, he went to work as usual. Defendant testified that when he drove to
work on July 21, 2017, his car was dirty and disheveled but he did not see any blood or any signs
of a struggle. He sent multiple text messages to Morrar that day, but Morrar never responded.
Ismial called defendant on July 21 and asked when he had last seen Morrar. Defendant informed
Ismial that he had seen him at 4 p.m. and Morrar “was about to go do a drug deal.” Defendant
continued attempting to contact Morrar via text messages and phone calls but received no response.
On July 22, 2017, about 10:30 p.m., Ismial called defendant and informed him that Morrar had
been murdered. Ismial did not give him any details. Defendant was shocked and he called Faber
to vent.
¶ 67 Defendant then testified as to the apps on his cell phone and for what purpose they were
accessed. First, defendant used the WhatsApp messaging app to communicate with international
clients almost every day. Second, he used the Tablet Remote app to access media in his house, in
particular to stream media from the computer to the televisions. Third, he addressed the
TeamViewer app, which he used to control the computers in his house remotely. He testified that
he never used the app to access one cell phone from another cell phone and he was not sure if the
app had that capability. He testified that both apps used Bluetooth and the apps would not work if
they were more than a block away from the devices. As to Google Wi-Fi, defendant testified that
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it was a Wi-Fi system set up in his home and he used the app to control his children’s access to the
internet. Finally, he testified that he had the ability to trade through his phone on the Bloomberg
app, which required a fingerprint and a password for access.
¶ 68 Defendant was then shown a picture of himself in his car leaving the parking garage on
July 20 and another picture of his car later that afternoon. He stated that the driver in the latter
picture was not him but was McDaniel. He testified that he was “a little bit afraid” of McDaniel
and described him as a “loose cannon.” On July 22, 2017, Nagle, sent text messages to defendant
regarding violence and defendant blocked Nagle’s phone number. Soon after Morrar’s death,
defendant installed a security system at the home with multiple cameras. Also, defendant’s mental
state began to decline and he lost a lot of weight. He was abusing Vicodin and Xanax and his
family staged an intervention for him, resulting in him starting an outpatient rehabilitation
program.
¶ 69 In regard to defendant’s conversation with Detective Murphy on July 26, 2017, defendant
admitted that he did not tell Detective Murphy the truth about his whereabouts on July 20 because
he was afraid of McDaniel and Nagle.
¶ 70 On cross-examination, defendant testified that he was not concerned with his friend using
his car for a drug deal. Defendant was not informed of how long they would need his car and he
did not ask. Defendant testified that he did tell Shawna that Morrar had borrowed his car and that
Michael Jr. and his friend saw Morrar when he was dropped off at his house. When Ismial called
him the next day, he did not inform him that Morrar had borrowed his car or that Morrar had left
his home with McDaniel on the previous day. Defendant stated that he did not want to be involved
with the drug deals. When confronted with the fact that defendant did not tell Detective Murphy
about McDaniel, he responded that he “hoped that they would figure out who [McDaniel] was and
- 19 - No. 1-19-2520
who he was with that day.” He also did not inform the police about Nagle. The second time he was
brought to the police station, he was under arrest and he continued to lie to the police. He admitted
that on July 27, 2017, when he was again interviewed by Detective Murphy, he maintained that
Morrar did not get into his car that day. Even after Detective Murphy informed defendant that they
had defendant’s car on video, he continued to claim that his car had been in his driveway all
afternoon and he did not tell Detective Murphy that anyone had borrowed his car.
¶ 71 After defendant was arrested on January 16, 2018, he spoke with the detectives again and
continued to assert that his car was in his driveway the entire afternoon, despite the detectives
showing him the evidence against him. On March 21, 2018, defendant spoke with his wife on a
recorded phone call, which was played for the jury. In the recording, he continued to assert to his
wife that no one had used his car. On March 23, 2018, he spoke to his wife again on a recorded
call. In the call, defendant tells his wife that he and Morrar had switched cars. When questioned,
defendant testified that in that recorded call, he was referring to a different day, not July 20, 2017.
He also confirmed that on the March 23 recorded call with his wife, he informed her that he left
the pizza party early to get his car because Morrar and McDaniel had dropped off his car and left
in McDaniel’s brother’s car.
¶ 72 He also testified that the reason he no longer was afraid of McDaniel was because his wife
and children had moved into a new residence following his divorce. Finally, he initially denied
owing Morrar any money for the marijuana he received from him but later stated, “When I bought
the last amount of marijuana from him, I had paid him half of what I had bought.” He then admitted
that he owed Morrar $1,100 for the other half of the marijuana, and Morrar had been trying to
collect the money owed to him.
¶ 73 b. Joseph Sierra
- 20 - No. 1-19-2520
¶ 74 Joseph Sierra testified that he is a custodian of records for T-Mobile. Sierra reviewed the
tip sheet for the call detail record for defendant’s phone. Based on the record, he testified that on
July 20, 2017, at 3:48 p.m., defendant’s phone received an incoming phone call that was connected
for 34 seconds. He further testified that the call did not go to voicemail and that “[s]ince it was an
incoming call and it does have a duration, it would be considered a connected call.” He also
testified that earlier on July 20, 2017, at 2:48 p.m., defendant’s phone received an incoming call
that was connected for five seconds and that call did not go to voicemail either.
¶ 75 c. Christian Faber
¶ 76 Faber testified that, in 2017, he worked for defendant. He testified that the trading market
was open 23 hours a day, except on weekends, and they would always be ready to take orders from
clients even if they were not physically on the trading floor. At the brokerage, they would
communicate with their international clients via the Bloomberg terminal, which had a chat system.
The Bloomberg terminal was accessible via defendant’s computer or phone. Faber would access
the Bloomberg terminal whenever defendant was not in the office. If defendant was not at work,
Faber would communicate with defendant via phone call or text message. Faber testified that he
was familiar with defendant’s family and they both had sons close in age to one another. Faber
had been to defendant’s home on a few occasions. He testified that he was also familiar with
Morrar, who he had met a few times. During the summer of 2017, Faber and defendant would both
typically arrive at work around 6:30 a.m., defendant would leave around 2 p.m., and Faber would
stay until 4 p.m.
¶ 77 Regarding July 20, 2017, Faber testified that he recalled defendant leaving work before 2
p.m. and he recalled calling defendant at 3:48 p.m. but he did not recall if they spoke at that time.
He recalled speaking with defendant sometime later between the hours of 4 and 6 p.m. He stated
- 21 - No. 1-19-2520
that the conversation was regarding a particular order from a client. On July 22, 2017, he testified
that he spoke with defendant on the phone and defendant informed him that Morrar had been
murdered. Faber stated that defendant seemed sad and distraught but he did not recall defendant
saying anything else regarding the murder.
¶ 78 On cross-examination, the State presented a printout, which Faber identified as being sent
by defendant in the Bloomberg chat on July 20, 2017, at 1:10 p.m. The message read:
“I am going to switch out with Christian for the balance of the day. I have a baseball
celebration party to attend this evening (Michael Junior’s team won world series in his little
league). I will also have my front end with me for the duration. Please tap if need support.
Until then, thank you.”
Faber testified that that was a message that would be sent out to all of their clients so they would
know defendant and Faber’s whereabouts. A second message from defendant sent a minute later
read: “And here is Christian with the weather.”
¶ 79 Faber testified that he was at work the following day, July 21, 2017. He stated that he could
not remember whether defendant was at work that day. He confirmed that when he spoke to
Detective Murphy on August 10, 2017, he stated that defendant had not come to work on July 21.
Additionally, he confirmed that before the grand jury on February 6, 2018, he testified that
defendant did not come to work on July 21. He also stated that he could not remember whether he
had told Detective Murphy that defendant had informed him on July 22, 2017, that Morrar had
been shot twice in the head. Also, when confronted with his grand jury testimony, wherein he
stated that “[defendant] told me he was shot” and “I think he told me he was shot twice in the
head,” Faber stated that he could not remember if that is what he said before the grand jury. Faber
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further confirmed that he had a close working relationship with defendant and he would help him
if he could.
¶ 80 Faber testified that he had read newspaper articles regarding Morrar’s murder a few days
after July 20, 2017, and he stated the article stated that Morrar had been shot twice in the head. He
also confirmed that he received a text message from defendant on July 22, 2017, prior to the phone
call which stated “I’m all messed up. [Morrar] is dead.”
¶ 81 d. Shawna Pelko
¶ 82 Shawna testified that she lived in the Willow Springs home with her husband and children
in the summer of 2017. Sometime after Morrar’s death, she filed for divorce from defendant. She
described the Willow Springs home as a sprawling ranch on about an acre of land, there was a
chicken coop on their property, and defendant tended to the chickens. She testified that during this
time period, they were having marital issues and defendant was abusing Vicodin. She testified that
she was familiar with Morrar but she did not know him well.
¶ 83 Turning to July 20, 2017, Shawna testified that on that day she was at home with the
children and she was not working at that time. Michael Jr. had a friend over and the boys were
selling lemonade in front of the house. She stated that defendant went to work that day at his usual
time of 6 a.m. and returned home around 4 p.m. She observed him walking around in the backyard
talking on the phone. She stated that she did not remember him going to the lemonade stand. At
some point, the family took Shawna’s car, an Acura MDX, to the pizza restaurant. She believed
that they stayed at the party for about an hour. She stated that when they arrived home, defendant
began working on his trading platform because he had received a call from a client during the pizza
party. She testified that defendant went to work the next day, July 21, 2017. She later found out
about Morrar’s death but did not recall when or how she found out. After Morrar’s death, she
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stated that defendant became depressed, lost weight, and his prescription drug use increased. At
some point, the family tried to have an intervention with defendant. Also after Morrar’s death, a
security system was installed in the home with multiple security cameras.
¶ 84 On cross-examination, Shawna stated that she was not exactly sure what time defendant
arrived home on July 20, 2017, but that it was sometime in the afternoon around 4 p.m. She stated
that she suspected that defendant was selling marijuana but did not know for sure. When they left
for the party, she did not notice any cars missing. Regarding the pizza party, she testified that
defendant left the party for some time and she did not know where he was but he said that he went
to get his tablet because a client wanted to place an order. When asked about defendant going to
work on July 21, 2017, she stated that he either told her he was going to work or she assumed that
is where he was going but that he left at the usual time he left for work.
¶ 85 e. Michael Pelko, Jr.
¶ 86 Michael Jr. testified that he had a cell phone and sometimes he would call his father even
though they were both at home. On July 20, 2017, he had a lemonade stand at the front of the
house with a friend. He recalled seeing his father that day and his father gave him $20 and took a
cup of lemonade. On cross-examination, he stated that he did not remember what time he saw his
father that day, what time they went to the pizza party, or what time they got home. He also did
not recall his father leaving the pizza party.
¶ 87 5. Rebuttal
¶ 88 Martin Walsh, a licensed private investigator, testified that the defense hired him to
investigate McDaniel and Nagle, as well as McDaniel’s brother, Jason McDaniel. He conducted
background checks, investigated their social media profiles, and learned their home addresses. He
only made contact with Jason when he knocked on his door and asked Jason if his brother was
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living there with him, which he was not. He did not make contact with McDaniel but he did conduct
surveillance of him for five or six days. He merely confirmed that an “Eric McDaniel” existed.
¶ 89 Detective Murphy was recalled on rebuttal. He confirmed that at no time during any of his
interviews with defendant on July 23, 2017, July 26, 2017, and January 16, 2018, did defendant
state that Morrar had borrowed his car or mention McDaniel’s name.
¶ 90 Ismial was also called as a rebuttal witness. Before Ismial left California for Chicago, he
called several people, including defendant, to try to find his brother. Over the phone, defendant
informed Ismial that he had last seen his brother when they took a smoke break around 2 p.m. on
July 20, 2017. Defendant did not tell Ismial that he had picked up Morrar or that Morrar had
borrowed his car. Ismial further testified that he was not aware that his brother was going to
conduct a drug deal that afternoon and denied sending his brother marijuana. When Ismial called
defendant to inform him that Morrar had died, he did not tell defendant that Morrar had been shot
twice in the head. Ismial identified three pictures of McDaniel. On cross-examination, Ismial
identified an article related to his brother’s death. He noted that the article came out on the Monday
following his brother’s death, which would have been July 23, 2017, and accurately stated that his
brother had been shot twice in the head.
¶ 91 B. Jury Instructions
¶ 92 A jury instruction conference took place at the close of evidence. The defense proffered an
instruction regarding alibi, which was not an Illinois Pattern Instruction (IPI). The instruction
stated:
“The defendant has introduced evidence that at the time of the charged offenses he
was not present at the place where the offenses are alleged to have been committed.
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Evidence that a defendant was not present at the scene of the charged offense is commonly
known as the evidence of alibi.
Even though the defendant has introduced the evidence, the defendant has no
obligation to prove that his alibi is true. The burden of proving beyond a reasonable doubt
that the charged offenses were committed and that the defendant committed them remains
on the State.”
The defense asserted that the non-pattern instruction was supported by caselaw, including People
v. Jackson, 3 Ill. App. 3d 303 (1971). The State objected to the instruction.
¶ 93 The court rejected the instruction. In its ruling, the court stated that the contents of the
proposed instruction were not accurate and there was no reason to explain what the type of
evidence heard was called.
¶ 94 C. Jury Verdict
¶ 95 On August 23, 2019, the jury found defendant guilty of first degree murder and additionally
found that defendant used a firearm in committing the offense. On September 17, 2019, defendant
filed a motion for acquittal notwithstanding the verdict. The court denied the motion on September
23, 2019.
¶ 96 D. Posttrial Proceedings
¶ 97 Defendant’s sentencing hearing took place on November 1, 2019. The trial court sentenced
him to 30 years’ imprisonment for first degree murder and an additional 25 years pursuant to the
mandatory firearm enhancement, for a total of 55 years’ imprisonment. On the same day, defendant
moved the court to reconsider his sentence, which the court denied.
¶ 98 Also on the same day, defendant timely filed this appeal.
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¶ 99 II. ANALYSIS
¶ 100 On appeal, defendant argues that (1) the evidence was insufficient to prove him guilty of
first degree murder beyond a reasonable doubt; (2) the trial court erred in allowing the State to
elicit testimony from Dr. Eckhardt, which was based on expert opinions that had not been disclosed
prior to trial in violation of Illinois Supreme Court Rule 412; and (3) the trial court abused its
discretion and committed structural error when it refused to include defendant’s tendered
nonpattern alibi jury instruction.
¶ 101 A. Sufficiency of the Evidence
¶ 102 When a defendant challenges his conviction, contending that the evidence was not
sufficient to prove him guilty, a reviewing court (1) considers all of the evidence in the light most
favorable to the State and (2) determines whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. People v. Swenson, 2020 IL 124688, ¶
35. This standard means that this court “must allow all reasonable inferences from the record in
favor of the prosecution[,]” but we “may not allow unreasonable inferences.” People v.
Cunningham, 212 Ill. 2d 274, 280 (2004). Because it is the jury’s responsibility to weigh, resolve
conflicts in, and draw reasonable inferences from the evidence, we may not retry the defendant or
substitute our judgment for that of the jury regarding witness credibility or the weight of the
evidence. People v. Jackson, 2020 IL 124112, ¶ 64. We will not reverse a conviction unless the
State’s evidence is “so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt
as to defendant’s guilt.” People v. Newton, 2018 IL 122958, ¶ 24.
¶ 103 The “reasonable doubt” standard applies regardless of whether the evidence is direct or
circumstantial (People v. Jackson, 232 Ill. 2d 246, 280 (2009)), and a criminal conviction may be
based solely on circumstantial evidence (People v. Patterson, 217 Ill. 2d 407, 435 (2005)). “The
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trier of fact need not, however, be satisfied beyond a reasonable doubt as to each link in the chain
of circumstances. It is sufficient if all of the evidence taken together satisfies the trier of fact
beyond a reasonable doubt of the defendant’s guilt.” People v. Hall, 194 Ill. 2d 305, 330 (2000).
¶ 104 To sustain a conviction for first degree murder as charged in this case, the State was
required to prove beyond a reasonable doubt that defendant, in performing the acts which caused
death, intended to kill or do great bodily harm to a person, or knew that such acts will cause such
death or great bodily harm. 720 ILCS 5/9-1(a)(1) (West 2018). Additionally, because the State
sought the 25-year statutory firearm enhancement, it also had to prove beyond a reasonable doubt
that during the commission of the murder, defendant personally discharged a firearm that
proximately caused the death of the victim. 730 ILCS 5/5-8-1(a)(1) (West 2018).
¶ 105 Defendant’s main argument on appeal is that the cell phone evidence objectively confirms
his alibi defense, and thus, it was impossible for a rational factfinder to conclude beyond a
reasonable doubt that he committed the murder. Additionally, defendant argues that the State’s
case was not just wholly circumstantial but was also based on conjecture and speculation. In
support, he points out several alleged weaknesses in the State’s evidence. In response, the State
contends that the evidence against defendant, albeit circumstantial, was overwhelming and recites
a litany of evidence that points to defendant as Morrar’s killer. The State also contends that
defendant’s alleged alibi was not corroborated as none of the evidence provided by defendant’s
witnesses, other than defendant himself, proved that defendant could not have committed the
murder.
¶ 106 Based on our examination of the evidence in light of the principles set forth above, we
conclude that a rational trier of fact could have found defendant guilty beyond a reasonable doubt.
Video surveillance showed that defendant was Morrar’s last known contact as the cameras showed
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that defendant left the parking garage in his Santa Fe and picked up Morrar nearby. Defendant’s
cell phone activity indicated that his phone was travelling on Interstate 55 between 2:00 and 2:46
p.m. towards his Willow Springs home. Video surveillance then showed the Santa Fe in the alley
of 5319 Calumet; an individual in a white shirt opened the front passenger door at 3:48 p.m. and
drove away moments later. The evidence showed that Morrar was found deceased in an alley near
5319 Calumet with two gunshot wounds to the head on July 20, 2017, around 3:50 p.m. The
medical examiner testified that Morrar’s fixed lividity, which becomes set one to two hours after
death, was consistent with sitting upright with his back against a surface. The bullet and bullet
fragments recovered from Morrar’s body were confirmed to be .22 caliber. An investigation of
defendant’s Santa Fe revealed multiple blood stains in the passenger seat, which were attributed
to Morrar. Defendant’s fingerprint was found on the exterior of the front passenger door of the
Santa Fe. A search of defendant’s home revealed that he had a large collection of firearms,
including several .22-caliber firearms, such as a .22-caliber rifle which was not conclusively ruled
out as having fired the bullet. Defendant had also purchased a .22-caliber revolver in 2008, which
was not found in the home and which defendant claimed he traded away. A forensic investigation
of his cell phone - data - -showed no outgoing activity between 2:46 p.m. and 4:50 p.m.
¶ 107 The evidence revealed multiple instances where defendant lied about his last contact with
Morrar. Defendant lied to the police multiple times, he lied to his wife, and he lied to Morrar’s
brother. It is well-established that false exculpatory statements are probative evidence of
consciousness of guilt. People v. Beaman, 229 Ill. 2d 56, 81 (2008); People v. Milka, 211 Ill. 2d
150, 181 (2004); see also People v. McCullough, 2015 IL App (2d) 121364, ¶ 94 (“Attempts to
deflect the investigation prove consciousness of guilt”). There was also impeachment evidence
presented that showed that Faber previously stated that defendant told him in a phone conversation
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on July 22, 2017, that Morrar was shot twice in the head, even though that detail was not public
knowledge and Ismial testified that he did not give defendant that information. Additionally, there
is a recorded phone call from defendant to Shawna from March 21, 2018, during which defendant
still had not informed his wife that Morrar and McDaniel had borrowed his car. Then, on another
recorded call on March 23, 2018, defendant told his wife that he and Morrar switched cars,
although defendant claimed at trial that he was referencing a different day in that phone call. On
that call, he also told his wife that he left the pizza party in order to switch cars, as McDaniel and
Morrar had dropped off his car and left in McDaniel’s brother’s car, although at trial defendant
testified that he left the party to retrieve his tablet.
¶ 108 The evidence presented also suggested a motive for defendant murdering Morrar. In late
June 2017, defendant and Morrar had argued and there was testimony that defendant owed Morrar
$1,100 for marijuana he had purchased from Morrar. There were text messages between the two
suggesting that they were not on good terms and that Morrar was trying to collect on defendant’s
debt to him. At the height of these texts, Morrar stated that he was concerned about defendant’s
“tone” and that their relationship had changed. Defendant responded by questioning whether he
should be worried about his family’s safety and that he would be putting appropriate “safety
measures in place.” Defendant testified that Morrar’s backpack contained marijuana and during
the search of defendant’s home, a large amount of marijuana was found in the ceiling of
defendant’s home.
¶ 109 The State’s theory based on this evidence was that: defendant owed Morrar money for the
marijuana he purchased from him; on July 20, 2017, defendant picked up Morrar in his Santa Fe,
shot Morrar, drove to his Willow Springs home with Morrar’s body still in the passenger seat,
dropped off his cell phone at his home, drove to the alley, dumped Morrar’s body, and returned to
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Willow Springs; he then went with his family to a pizza party for his son’s little league team; and
he left the restaurant and went home briefly to clean his car before returning to the party. As
recounted above, the evidence presented at trial supports this timeline. We conclude that, in
viewing the evidence in the light most favorable to the State, there is sufficient evidence to support
this theory, which is based on reasonable inferences flowing from the circumstantial evidence, and
for a rational factfinder to find defendant guilty beyond a reasonable doubt. See People v.
Cunningham, 212 Ill. 2d 274, 280 (2004) (stating that reviewing courts must allow all reasonable
inferences in favor of the State).
¶ 110 Moreover, it is clear from the verdict that the jury found that defendant’s version of the
day’s events lacked credibility. In defendant’s version, defendant picked up Morrar and then
McDaniel; they drove together to defendant’s Willow Springs home; Morrar and McDaniel drove
away to conduct a drug deal with Nagle; while home, defendant spoke to Faber on the phone for
34 seconds; his car was returned to Willow Springs while he was at the pizza party; he saw no
blood stains or signs of struggle in his car; and he lied to the police about the events of that day
repeatedly because he was afraid of McDaniel and Nagle. Although defendant challenges several
pieces of evidence and their import, or lack thereof, it is only necessary that the jury find that the
evidence, circumstantial or direct, as a whole, reflected guilt beyond a reasonable doubt. The jury
is not required to disregard inferences which flow normally from the evidence and to raise any
hypothesis of innocence put forward by the defendant to the level of reasonable doubt. Hall, 194
Ill. 2d at 332. Here, the jury clearly did not find defendant’s narrative to be credible in light of the
State’s evidence. See People v. Evans, 209 Ill. 2d 194, 212 (2004) (factfinder is not obliged to
accept any proffered explanation compatible with the defendant’s innocence). We cannot say that
it would be irrational to find that defendant lacked credibility where he lied not only to the police
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repeatedly but also to his wife as to what occurred on July 20, 2017. Moreover, defendant’s
arguments regarding the alleged weaknesses of the State’s evidence, which we discuss briefly
below, were presented to the jury, and yet, the jury returned with a guilty verdict. It is not within
the province of this court to second-guess jury determinations. See People v. Gray, 2017 IL
120958, ¶ 35; People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009).
¶ 111 Nevertheless, we will address defendant’s various arguments on appeal. First, however, we
must dispel any notion that People v. Holsapple, 30 Ill. App. 3d 976 (1977), which forms the basis
of defendant’s sufficiency of the evidence arguments, may be relied upon to support reversal.
Defendant cites to Holsapple as an example of a murder conviction that was vacated because it
rested on insufficient circumstantial evidence. He further asserts that, like in Holsapple, the
evidence in his case was circumstantial and the State failed to negate his alibi with anything but
speculation and conjecture.
¶ 112 In Holsapple, the defendant was convicted of first degree murder, largely based on the
victim informing a neighbor that the defendant was arguing with her and would not leave her home
two days before her body was found in her home. 30 Ill. App. 3d at 977-79. On appeal, the
reviewing court noted that the evidence in the case was “wholly circumstantial” and that the
circumstantial evidence could have permitted the jury to find the defendant guilty of murder “were
it not for other factors which we must take into consideration.” Id. at 977, 989. The court stated
that the evidence did not adequately exclude the possibility that someone other than the defendant
killed the victim. Id. at 990-91. Therefore, the reviewing court concluded that “it cannot be said
that the facts proved were inconsistent with any reasonable hypothesis of innocence” and reversed
the finding of guilt. Id. at 992.
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¶ 113 The court in Holsapple applied the reasonable-hypothesis-of-innocence standard of review,
stating that “[i]n order to sustain the conviction, the evidence must exclude any reasonable
hypothesis of innocence.” 30 Ill. App. 3d at 990. This requirement was expressly rejected by our
supreme court in People v. Pintos, 133 Ill. 2d 286, 291 (1989). In Pintos, the supreme court noted
that the reasonable hypothesis of innocence standard was often used in cases that were based on
circumstantial evidence but went on to hold that “the reasonably hypothesis of innocence standard
of review is no longer viable in Illinois.” Id. at 291 (citing People v. Eyler, 133 Ill. 2d 173 (1989),
and People v. Linscott, 114 Ill. 2d 340 (1986)). Instead, in all criminal cases, regardless of whether
the evidence is direct or circumstantial, the court held that the reasonable doubt test should be
applied in reviewing the sufficiency of the evidence. Id. To the extent that Holsapple advocates
the “reasonable hypothesis of innocence standard,” it has been implicitly overruled by our supreme
court in Pintos.
¶ 114 We return to defendant’s remaining arguments on appeal. Defendant contends that (1) it is
undisputed that he could not have committed the murder because he answered a phone call at his
home in Willow Springs at the time that his car was in the alley (the Faber phone call); (2) there
was no evidence that he used an app to remotely answer his cell phone; (3) the State failed to
produce any evidence of defendant owning or possessing a .22-caliber semi-automatic handgun,
which was used in the murder; and (4) there was no evidence that defendant was the “individual
in the white-collared shirt” exiting the Santa Fe in the alley at 3:46 p.m.
¶ 115 We first address the relevance and effect of the Faber phone call. This is the crux of
defendant’s argument on appeal. He claims that “objective facts established at trial make it
implausible for any rational jury to find [him] guilty beyond a reasonable doubt.” The objective
facts to which defendant alludes are his cell phone data. Specifically, he claims that the phone call
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from Faber, which connected to defendant’s cell phone near his Willow Spring home at 3:48 p.m.
objectively contradicts the State’s assertion that defendant left Morrar’s body in the alley at 3:46
p.m. Essentially, he asserts that this phone call corroborates his alibi defense.
¶ 116 “The weight to be given alibi evidence is a question of credibility for the trier of fact
[citation], and there is no obligation on the trier of fact to accept alibi testimony over positive
identification of an accused [citations].” People v. Slim, 127 Ill. 2d 302, 315 (1989). Although it
is undeniable that defendant could not have been at 5319 Calumet at 3:46 p.m. and at his home in
Willow Springs at 3:48 p.m. to receive that phone call, the evidence presented regarding the phone
call was at best inconclusive as to whether this call was an actual conversation between Faber and
defendant or simply Faber leaving a voicemail. The forensic cell phone extraction and the T-
Mobile records showed that it was an incoming phone call which connected to defendant’s phone
and lasted 34 seconds. Although Sierra, the T-Mobile custodian, testified that it was a connected
call that did not go to voicemail, Mejia testified that she was not aware of how the forensic tool
determined whether a call went to voicemail or included talk time or if the tool could even
differentiate between the two. Raschke confirmed that that call utilized cell phone towers near
defendant’s Willow Springs home, which is consistent with the phone being at or near the home
at the time of the 3:48 p.m. phone call. He could not say definitively whether the 34 seconds was
talk time or that a conversation took place. He further testified on cross-examination that the 34
seconds was the “call setup time that’s going on behind the scene[s] within the network and the
ring time[.]” We would also note that, during the testimony of both Raschke and Mejia, there was
some uncertainty as to why phone calls that were sent to voicemail would not show up in the report
as missed phone calls. As such, there was simply no consensus as to whether the call included a
conversation or if it went to voicemail. It was only apparent that the call was incoming, connected
- 34 - No. 1-19-2520
to defendant’s phone, and lasted 34 seconds. Moreover, Faber’s testimony did not resolve this
ambiguity as he did not recall whether he actually spoke to defendant at that time, only that he
remembered calling him regarding a client.
¶ 117 Additionally, there was evidence that defendant used apps to access his devices remotely.
For instance, Mejia testified that defendant’s phone had TeamViewer installed, which had the
ability to remote access other devices and was downloaded to defendant’s phone at the beginning
of July 2017. TeamViewer, according to Mejia, could be used to access the phone remotely via
the Internet. Defendant testified to the contrary—that TeamViewer could only be used through
Bluetooth. According to the cell phone extraction, neither of these apps were accessed between 2
and 4 p.m. on July 20, 2017, but Mejia testified that the forensic tool utilized did not recognize
every app and needed regular updates for new apps. This conflict in testimony was within the
purview of the jury to resolve. See People v. Jackson, 2020 IL 124112, ¶ 64.
¶ 118 In his reply brief, defendant takes particular issue with Mejia’s expert witness testimony,
arguing that the flaws in her testimony made it impossible for any trier of fact to accept any part
of the testimony presented. He contends that her testimony regarding the remote access apps and
their usage on his phone was based on speculation and she did not actually know the functions of
these apps nor how the forensic tools worked. However, the jury is free to accept the opinion of
one expert witness over another or accept part and reject part of each expert’s testimony. People
v. Tuduj, 2014 IL App (1st) 092536, ¶ 77. Moreover, as we have previously stated, it is the jury’s
role to weigh the testimony and determine the credibility of the witnesses and we will not
circumvent the jury’s role. Additionally, the points defendant has raised here on appeal were raised
at trial through his counsel’s cross-examination of Mejia. See In re Detention of Erbe, 344 Ill. App.
3d 350, 372 (2003) (noting that cross-examination and rebuttal witnesses offered the respondent
- 35 - No. 1-19-2520
the opportunity to challenge the State’s experts’ opinions in the proper forum, which is during trial
in front of the jury). In point of fact, Mejia admitted during her testimony that she was unaware of
how specific aspects of her forensic tools worked and she was not overly familiar with the remote
access apps. The jury was then free to come to its own conclusions regarding the weight of her
testimony.
¶ 119 Finally, defendant contends that the testimony of Faber, Shawna, and Michael Jr.
corroborated his alibi defense. We note that when a defendant presents an alibi defense, the jury is
“not obligated to find the testimony of alibi witnesses to be more credible than the testimony of
the State’s witnesses, especially where the alibi witnesses are related to the accused and possess
an obvious bias.” People v. Corral, 2019 IL App (1st) 171501, ¶ 90. Furthermore, there was no
testimony, other than from defendant, to establish that defendant was at home at that time of
Faber’s call. As noted, Faber could not recall whether defendant actually answered the 3:48 p.m.
phone call. Additionally, neither Shawna nor Michael Jr. recalled what time defendant came home
that afternoon.
¶ 120 For these reasons, we cannot say that it is an objective fact based on the evidence that
defendant spoke to Faber on the phone at 3:48 p.m. while at his home. Thus, it was not irrational
for the jury to disregard defendant’s alleged alibi defense. See Siguenza-Brito, 235 Ill. 2d at 229
(jury is not required to accept any possible explanation compatible with the defendant’s innocence
and raise it to the status of reasonable doubt).
¶ 121 Defendant also points out weaknesses in multiple pieces of the State’s evidence, which he
claims demonstrate reasonable doubt as to his guilt, particularly regarding the firearms evidence
and the surveillance video from the alley. Essentially, defendant asks us to substitute our judgment
for that of the jury and resolve conflicts in the evidence in his favor, which we cannot do. Corral,
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2019 IL App (1st) 171501, ¶ 91; People v. Tenner, 205 Ill. 2d 411, 428 (2002). It is not the function
of this court to retry the defendant (Siguenza-Brito, 235 Ill. 2d at 228), and as we have stated,
defendant presented his evidence and made arguments to the jury regarding the weaknesses in the
State’s case, and yet, the jury found defendant guilty of murder. Nonetheless, we briefly address
these two arguments, which we ultimately find to be without merit.
¶ 122 Defendant challenges the firearms evidence or lack thereof, where no murder weapon
matching the bullets recovered from the victim’s body was located or traced to him. “Proof of the
connection between the gun and the defendant and the crime may be circumstantial.” People v.
Araujo, 261 Ill. App. 3d 393, 395 (1994). It is clear from the testimony that defendant had a large
collection of firearms, including several .22-caliber rifles that were not excluded from being the
murder weapon. Moreover, at one point defendant did, in fact, own a .22-caliber revolver, which
he claims he traded to a man named Don Schenkel. Simply because the murder weapon was not
found or directly linked to defendant does not negate a finding of guilt. See People v. Hoffstetter,
203 Ill. App. 3d 755, 773 (1990) (circumstantial evidence permitted showing that the victims were
killed by .22-caliber gunshots and the defendant had access to a firearm that could have fired those
shots around the time of the murders).
¶ 123 Further, defendant claims that the State’s firearms expert testified that it was a .22-caliber
semi-automatic handgun that killed Morrar, and defendant never, at any point, owned .22-caliber
semi-automatic handgun, only .22-caliber rifles and a revolver. In fact, as the State points out,
Nudera testified that the bullets could have been fired from either a .22-caliber handgun or a .22
caliber rifle. She further testified that she could not conclusively determine whether the bullets
could have been fired from the submitted .22-caliber rifle. Thus, defendant’s argument on this
point is without merit.
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¶ 124 Defendant further claims that the record is devoid of any evidence identifying defendant
as the individual in the white collared shirt exiting the Santa Fe at 5319 Calumet at approximately
3:46 p.m. Presumably, that person is the individual who left Morrar’s body in the alley. However,
a review of the record belies defendant’s statement that the individual exiting the Santa Fe was
wearing a white collared shirt. Detective Murphy testified that the individual exiting the Santa Fe
was wearing a white shirt, but that it was not definitively clear whether the shirt had a collar. From
our review of the evidence, we agree that it is unclear from the video whether the shirt had a collar.
Moreover, there is testimony in the record that defendant was wearing a white shirt underneath his
button-down collared shirt. It would not be implausible for a rational factfinder to find that
defendant was the individual exiting his Santa Fe at 3:46 p.m.
¶ 125 As a final note, we reject defendant’s reliance on People v. Sanchez, 2018 IL App (1st)
143899. In Sanchez, we reversed the defendant’s murder conviction after finding his incriminating
statement, the State’s primary evidence, to be involuntary. Id. ¶ 73. Defendant cites portions of
Sanchez noting that “[n]o physical evidence connected [the defendant] to the crime[,]” the weapon
and casings were never found, and no witness saw the defendant with a gun. However, the case
before us bears little resemblance to Sanchez. Although it is true that much of the State’s case in
Sanchez was based on circumstantial evidence, the court did not reverse the conviction solely on
that basis. Rather, the court was particularly concerned with the improperly admitted confession.
Thus, Sanchez is clearly distinguishable where in this case the jury did not rely on any improperly
admitted evidence, and certainly nothing comparable to the weight of a confession.
¶ 126 Accordingly, considering the record in the light most favorable to the State, we conclude
that the evidence is not so unreasonable, improbable, or unsatisfactory as to justify a reasonable
doubt as to defendant’s guilt in the murder of Morrar.
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¶ 127 B. Expert Disclosure Violation
¶ 128 Defendant next claims that the trial court committed plain error in allowing Dr. Eckhardt
to testify to opinions that had not previously been disclosed to the defense in violation of Illinois
Supreme Court Rule 412 (eff. Mar. 1, 2001). Specifically, he challenges Dr. Eckhardt’s opinion
that “that the patterning on Morrar’s bloodied t-shirt matched the conclusion that Morrar was
sitting upright in [defendant’s] front passenger seat.” He further claims that he was “severely
prejudiced” by this testimony as it was not disclosed prior to the start of trial and the testimony
placed Morrar’s body in defendant’s vehicle. However, later on in his argument, defendant also
takes issue with Dr. Eckhardt’s testimony following the sidebar that the fixed lividity of Morrar’s
body was consistent with sitting upright in a vehicle. He claims that he was also prejudiced by this
testimony as it was not disclosed. Essentially, defendant challenges the whole of Dr. Eckhardt’s
testimony regarding anything consistent with Morrar being in defendant’s vehicle.
¶ 129 Defendant concedes that this error was forfeited because he did not properly preserve it.
Although he did object to Dr. Eckhardt’s testimony regarding his opinions on the patterning of the
passenger seat matching Morrar’s bloodied T-shirt during the trial, he did not include the error in
his posttrial motion. See People v. Harvey, 222 Ill. 2d 368, 385 (2004) (an issue is preserved where
the party objects at trial and raises the issue in a posttrial motion). As such, defendant requests that
this court review the error for plain error and argues that both prongs of the plain error doctrine
apply.
¶ 130 In response, the State contends that defendant did not merely forfeit the error but he waived
it and thus, the plain error doctrine does not apply. In the alternative, the State contends that the
trial court did not commit plain error in allowing Dr. Eckhardt’s line of testimony on this issue.
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¶ 131 Rule 615(a), from which the plain error doctrine is derived, provides that “[p]lain 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). Under the plain error doctrine, it is well
established that “a reviewing court may consider an unpreserved error if (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.” People v. Birge, 2021 IL 125644, ¶ 24 (citing Piatowski, 225 Ill. 2d 551, 564-65 (2007).
“Under either prong, the defendant bears the burden of persuasion.” Id. However, the first step in
any plain error analysis is to determine if an error actually occurred. Id. at 565.
¶ 132 Rule 412 requires that the State, when requested by the defense, disclose certain material
and information to a criminal defendant, including, in relevant part, “any reports or statements of
experts, made in connection with the particular case, including the results of physical or mental
examinations and of scientific tests, experiments, or comparisons, and a statement of qualifications
of the expert[.]” Ill. S. Ct. R. 412 (eff. Mar. 1, 2001).
¶ 133 The purpose of this rule, like all discovery rules, is to protect the defendant from unfairness,
surprise, or inadequate preparation and to afford the defendant the opportunity to investigate the
circumstances from which the evidence arose. People v. Leon, 306 Ill. App. 3d 707, 712-13 (1999).
Compliance with Rule 412 is mandatory and violations are not to be easily excused. Id. at 713.
¶ 134 Here, the State showed Dr. Eckhardt photos of Morrar’s body in his wrinkled shirt and
defendant’s passenger seat and questioned him on his opinion based on those photos. Defense
counsel objected to Dr. Eckhardt providing an opinion on the pattern of lividity on the victim’s
- 40 - No. 1-19-2520
body matching the passenger seat because he was not qualified to offer such an opinion and
because that opinion had not been disclosed previously in Dr. Eckhardt’s report. After interviewing
Dr. Eckhardt during the sidebar, defense counsel reiterated that its objection was only to testimony
“regarding anything from the seat compared to the blood stain on the shirt.” After some discussion,
the trial court agreed that such testimony would be outside of the doctor’s expertise. The trial court
ruled that the doctor could testify to anything relevant to the seat and the body’s lividity if it was
consistent with being in that seat and bleeding after being shot but not to anything involving the
seat pattern. Defense counsel again stated: “The separate issue of lividity as long as it doesn’t relate
to the seat that’s fine.” The State agreed that it would not question the doctor on the patterning of
the seat compared to the victim’s shirt. Defendant did not object during any of Dr. Eckhardt’s
testimony regarding Morrar’s lividity following the sidebar.
¶ 135 As to what was disclosed prior to trial, the record reveals that Dr. Eckhardt provided a
Report of Postmortem Examination. As relevant here, it stated, “Fixed, purple lividity is distributed
on the posterior surfaces of the body, except in areas exposed to pressure.”
¶ 136 As stated previously, in order for the plain error doctrine to be triggered, there must first
be an error. Our courts have defined two situations where the plain error doctrine will not be
triggered. These situations are akin to one another but are described in slightly different terms.
First, we have the situation where waiver is differentiated from forfeiture. Second, the courts have
delineated the situation of invited error. We address the former first.
¶ 137 “Rule 615(a) is concerned with [forfeitures] that result from failing to bring an error to the
trial court’s attention.” People v. Townsell, 209 Ill. 2d 543, 547 (2004). The United States Supreme
Court, in addressing the plain error doctrine under federal law, stated: “Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or
- 41 - No. 1-19-2520
abandonment of a known right.’ ” United States v. Olano, 507 U.S. 725, 733 (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)); see also People v. Hughes, 2015 IL 117242, ¶ 37 (similarly
distinguishing waiver from forfeiture). The Court continued: “Mere forfeiture, as opposed to
waiver does not extinguish an ‘error’ ” under the plain error doctrine. Id. Similarly, Illinois courts
have held that “[w]hereas waiver precludes review, forfeiture permits review under the plain-error
doctrine.” People v. Tapia, 2014 IL App (2d) 111314, ¶ 46; see also People v. Stewart, 2018 IL
App (3d) 160205, ¶ 20; People v. Williams, 2015 IL App (2d) 130585, ¶ 6.
¶ 138 The rule of invited error, however, is a procedural default similar to estoppel. In re
Detention of Swope, 213 Ill. 2d 210, 217 (2004). Essentially, “a party cannot complain of error
which the party induced the court to make or to which that party consented.” Id.; see also People
v. Carter, 208 Ill. 2d 309, 319 (2003). Stated another way, “when a defendant procures, invites, or
acquiesces in the admission of evidence, even though the evidence is improper, [he] cannot contest
the admission on appeal.” People v. Bush, 214 Ill. 2d 318, 332 (2005); see also People v. Schmitt,
131 Ill. 2d 128, 137 (1989) (“[W]here *** a party acquiesces in proceeding in a given manner, he
is not in a position to claim that he was prejudiced thereby.”). Further, “[a]ctive participation in
the direction of proceedings *** goes beyond mere waiver.” People v. Villareal, 198 Ill. 2d 209,
227 (2001).
¶ 139 Both of these situations are applicable to the case before us. Here, defense counsel initialed
objected to Dr. Eckhardt’s testimony. Defense counsel then interviewed Dr. Eckhardt regarding
his opinions outside the presence of the jury. Defense counsel then clarified its objections to the
testimony and the court issued a ruling disallowing testimony regarding the matching of the seat
to Morrar’s bloodied shirt. Additionally, defense counsel stated that as long as Dr. Eckhardt did
not testify regarding the seat matching the shirt, that would be fine. Because defense counsel
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objected and subsequently acquiesced to the court’s ruling regarding the extent of Dr. Eckhardt’s
testimony, we must find that this error was affirmatively waived or invited, rather than forfeited.
For this reason, we decline to review the alleged error under the plain error doctrine.
¶ 140 C. Jury Instructions
¶ 141 Lastly, defendant argues that the court should have given the jury defendant’s proffered
instruction on alibi evidence. He asserts that the court abused its discretion and committed
structural error by not so instructing the jury. As such, he requests that his conviction be reversed
and remanded for a new trial. In response, the State contends that the jury was properly instructed
and an alibi instruction is not recommended.
¶ 142 “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). “The decision whether to give a
nonpattern instruction rests within the sound discretion of the trial court.” Id. Whether the court’s
decision was an abuse of discretion will depend upon whether the tendered instruction is an
“accurate, simple, brief, impartial, and nonargumentative statement of the law.” People v. Pollock,
202 Ill. 2d 189, 210 (2002). “Refusal to give a non-IPI instruction does not constitute an abuse of
discretion however, if there is an applicable IPI instruction and/or the essence of the refused
instruction is covered by other given instructions.” People v. Nutall, 312 Ill. App. 3d 620, 634
(2000). We review the jury instructions tendered as a whole to determine whether they fully and
fairly cover the law. Id. at 633.
¶ 143 Defendant’s tendered instruction stated as follows:
“The defendant has introduced evidence that at the time of the charged offenses he
was not present at the place where the offenses are alleged to have been committed.
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Evidence that a defendant was not present at the scene of the charged offense is commonly
Even though the defendant has introduced the evidence, the defendant has no
obligation to prove that his alibi is true. The burden of proving beyond a reasonable doubt
that the charged offenses were committed and that the defendant committed them remains
¶ 144 In rejecting the instruction, the trial court stated there is no reason to inform the jury of the
definition of alibi evidence and that the jury was properly instructed as to the law. In particular,
the jury had been instructed as to the presumption of innocence and the burden of proof.
¶ 145 We agree with the trial court. The jury had already received the necessary instructions
regarding the burden of proof and the presumption of innocence. As such, defendant’s tendered
instruction would have been largely superfluous. Moreover, the committee note to Illinois Pattern
Jury Instructions, Criminal 24-25.05 (Oct. 29, 2021), recommends that no instruction on alibi be
given to the jury based on the stated policy of the committee that instructions should avoid
commenting on particular types of evidence. See People v. Poe, 48 Ill. 2d 506 (1971) (relying on
the committee notes, the court held that the trial court did not err in refusing to instruct the jury on
alibi evidence).
¶ 146 Finally, we briefly address defendant’s argument that caselaw requires that if there is even
slight evidence supporting a defendant’s theory of the case, a corresponding instruction on the
defendant’s theory must be given. People v. Hari, 218 Ill. 2d 275, 296 (2006). He further cites to
People v. Martin, 62 Ill. App. 2d 203, 212 (1965), for the proposition that, in particular, “if there
is any evidence tending to prove an alibi, the trial court should give a proper instruction on that
issue.”
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¶ 147 We point out that Martin, an appellate court decision, was issued prior to our supreme
court’s decision in Poe, which, as noted, specifically relied on the committee notes in finding that
there is no error in failing to give an alibi instruction. See also People v. Brandon, 197 Ill. App. 3d
866, 883-84 (1990) (following Poe and the committee notes in finding that the trial court did not
err in refusing to give an alibi instruction); People v. Daniels, 272 Ill. App. 3d 325, 347 (1994)
(same). Obviously, Poe is controlling. Accordingly, the trial court’s refusal to give the tendered
jury instruction on alibi was not error (People v. Rivera, 72 Ill. App. 3d 1027, 1041 (1979)), and
we find no abuse of discretion in the court’s refusal (People v. Simms, 192 Ill. 2d 348, 412 (2000)).
¶ 148 III. CONCLUSION
¶ 149 For the reasons stated, we affirm the judgment of the circuit court.
¶ 150 Affirmed.
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