People v. Perkins

Opinion

NOTICE 2026 IL App (5th) 230251-U NOTICE Decision filed 07/14/26. The This order was filed under text of this decision may be NOS. 5-23-0251, 5-23-0252 cons. Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Montgomery County. ) v. ) Nos. 14-CF-110, 14-CF-122 ) LLOYD RAY PERKINS, ) Honorable ) James L. Roberts, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CLARKE * delivered the judgment of the court. Justices Boie and Sholar concurred in the judgment.

ORDER

¶1 Held: Where (1) the evidence at trial was sufficient to support defendant’s conviction; (2) the defendant failed to preserve evidentiary objections at trial, and failed to prove plain error; (3) the trial court did not abuse its discretion when it allowed statements of a co-conspirator into evidence; (4) defendant stipulated to certain evidentiary admissions; (5) the court did not abuse its discretion when it allowed the impeachment by prior inconsistent statement of a witness during redirect examination; and (6) defendant’s Krankel counsel on remand was not ineffective, we affirm the judgment of the circuit court.

¶2 Defendant Lloyd Ray Perkins was charged with armed robbery, unlawful use of a weapon

by a felon, and aggravated discharge of a firearm in Montgomery County circuit court case No.

2014-CF-110. Defendant was also charged with obstruction of justice in Montgomery County

*Justice Moore was originally assigned to the panel before his retirement. Justice Clarke was substituted on the panel and has listened to oral arguments and read the briefs. 1 circuit court case No. 2014-CF-122. Defendant was convicted in the obstruction case on April 8,

2015, and filed his notice of appeal in the Illinois Appellate Court, Fifth District, case No. 5-15-

0393 on September 3, 2015. Defendant was convicted in his other case of armed robbery and

unlawful use of a weapon by a felon on March 17, 2016, and he filed his notice of appeal in Illinois

Appellate Court, Fifth District, case No. 5-16-0182 on April 27, 2016.

¶3 On November 26, 2018, this court entered judgments in both cases, remanding the

obstruction of justice case for Krankel proceedings, and the armed robbery case for reconsideration

of the trial court’s denial of trial counsel’s motion to withdraw, based on the court’s findings in

the Krankel proceedings. On March 23, 2023, the trial court entered an order regarding the matters

on appellate remand, denying the defendant his requested relief in both cases.

¶4 On April 13, 2023, defendant filed his notice of appeal for the orders entered on remand in

both cases, and on April 24, 2023, defendant filed amended notices of appeal. The appeal from the

armed robbery case was assigned as Illinois Appellate Court, Fifth District, case No. 5-23-0251.

The appeal from the obstruction of justice case was assigned as Illinois Appellate Court, Fifth

District, case No. 5-23-0252. On March 21, 2024, the defendant filed a motion to consolidate both

appeals into one case. The motion to consolidate was granted by this court on March 25, 2024, and

both cases were consolidated into Illinois Appellate Court, Fifth District, case No. 5-23-0251.

¶5 I. BACKGROUND

¶6 We begin by noting that due to the length of the record in this case, we are limiting our

recitation of facts in the background section to those relevant to a general understanding of the

disposition of this appeal. Additional specific facts will be presented in the analysis of each claim

as necessary.

2 ¶7 On July 14, 2014, the defendant, Lloyd Ray Perkins, was charged, by information, with

three counts of armed robbery and one count of unlawful use of a weapon by a felon in

Montgomery County circuit court case 2014-CF-110. 720 ILCS 5/18-2(a)(2), 24-1.1(a) (West

2012). On August 6, 2014, the charges by information in this case were superseded by grand jury

indictments, which added a count of aggravated discharge of a firearm in addition to the previously

pending four counts. Id. § 24-1.2(a)(2).

¶8 Also, on August 6, 2014, the defendant was charged, by indictment, with the offense of

obstructing justice in a separate Montgomery County circuit court case, 2014-CF-122. See id. § 31-

4(a)(1). The indictment alleged that the defendant, “with the intent to obstruct his prosecution,

knowingly concealed physical evidence, in that [he] requested that Meghan Finley find and destroy

a shotgun that was ultimately placed into a pond by Finley” at an address in Montgomery County.

Additionally, on January 14, 2015, a second count of obstructing justice was charged, by

information, against the defendant in the obstructing case. The information was similar to the

previous indictment on the same charge, although the information alleged in detail that on the date

in question, the defendant “with the intent to obstruct the prosecution of [the defendant] for the

offense of Armed Robbery, knowingly concealed physical evidence, in that [the defendant]

directed Meghan Finley to the location of a shotgun that she then placed into a pond located at” an

address in Montgomery County. The State also requested that the previous indictment for

obstructing justice be dismissed.

¶9 On April 7, 2015, the obstructing justice case proceeded to a jury trial. Following

preliminary discussions among the parties and the court, a jury was selected and sworn in, and

opening statements were held. Thereafter, the State began its case by calling Captain Craig Foster,

who testified that he had served as the jail administrator for the past nine years. He testified as to

3 how the jail’s inmate phone system was set up, with each of the 11 “dayrooms” having its own

phone for inmate use via a phone account. He testified that each dayroom is located in front of a

set of cells and serves as the common area for inmates during the day. Additionally, he testified

that inmates are unable to move from one dayroom to another dayroom. Captain Foster also

testified that each inmate has an account set up with the phone system, including a PIN number

and security code. He further testified that all calls are recorded. Captain Foster explained that, to

place an outgoing call, all that is needed is the PIN and security code. When an inmate places a

call, it begins with a prerecorded message featuring the inmate stating their name. Captain Foster

additionally testified that only one cell was located on North Day 4, and that the inmate assigned

to that cell on July 24, 2014, was the defendant. Captain Foster further testified that he reviewed

the log of calls out of North Day 4 on July 24, 2014, and four calls were retrieved from the system.

He testified that the recordings of the calls were placed onto a disk, and that disk was the same one

entered into evidence as People’s Exhibit 1. He further testified that the phone calls were placed

under another inmate’s phone account, but that he recognized the voices on the phone call as those

of the defendant and Finley. Captain Foster was then cross-examined by defense counsel as to the

recording system and his ability to recognize the voices he heard in the phone call. Following

additional testimony on redirect, the four recordings from Exhibit 1 were played for the jury.

¶ 10 The State next called Finley to testify. Outside the presence of the jury, the court questioned

Finley about her willingness to testify, and Finley indicated she would be an unwilling witness.

The court then warned Finley that, because she had already pled guilty to obstructing justice in her

case, she could not refuse to testify under the fifth amendment, as the State had agreed that she

would not be subject to any additional penalties in regard to charges of obstructing justice related

to her actions in this case. She was also warned that refusing to testify could result in her being

4 found in contempt of court and jailed until she provided her testimony. The jury was then brought

back into the courtroom, and Finley was sworn in. The State then began to examine Finley;

however, after answering some introductory questions, Finley refused to testify any further. The

jury was then excused from the courtroom, and the court questioned Finley as to whether she

would provide further testimony. She indicated she would not, and the court found her in contempt

and informed her that she may purge her contempt by providing her testimony. The jury was then

brought back into the courtroom and excused for the day. After the jury left the courtroom, the

court was informed that Finley had changed her mind and would agree to testify. After some

discussion on how to proceed, the court decided to retrieve the jury, and the case proceeded with

Finley’s testimony that day.

¶ 11 During her continued direct testimony, Finley testified that she did not remember how she

found the shotgun. She testified that she and the defendant had never discussed a gun, though she

did admit that they had called each other while he was in custody. She also testified that she and

the defendant were in a relationship at the time of the jail call, and that she was not in a relationship

with Cochran (the inmate whose account was used to place the outgoing calls in North Day 4 on

July 24, 2014). She further testified that no one directed her to dispose of the shotgun, but instead,

since she thought it might “have something to do with a criminal case involving a few people” that

she knew, including the defendant, and she decided she “wanted it gone.” Additionally, she

testified that she was with George Pollard when he threw the shotgun in the pond for her, and that

she wanted him to throw it in the pond to get rid of it. Finley also testified that the shotgun that

had been marked as People’s Exhibit 4 was the same size as the shotgun she and Pollard had

attempted to dispose of in the pond, but stated that all guns looked the same to her. Finally, she

testified that she still cared for the defendant and did not wish to testify.

5 ¶ 12 On cross-examination, Finley testified that she had suffered a head injury in 2011 that

affected her memory and that she had also been addicted to drugs and pills prior to her arrest,

which affected her ability to remember things. Finley further testified that when she gave a

statement to police at the time she was arrested on July 29, 2014, she had just received morphine

and “taken 10 to 12 Vicodin.” She also testified as to her other criminal convictions and stated that

the State was threatening additional criminal charges if she refused to testify. Finally, Finley

testified that Pollard had previously dealt and done drugs with her, and that she believed he was a

liar.

¶ 13 On redirect examination, Finley testified that she did not consider Pollard to be a friend

even though they had used drugs together. The State then attempted to impeach Finley by

examining her regarding the content of the July 29, 2014, statement she gave to police after she

was arrested, during which she allegedly told police that the defendant had directed her to where

the gun was located. Defense counsel objected on the grounds that the statement’s content was

outside the scope of direct. The court then heard arguments on the objection outside the presence

of the jury, after which the court ruled that the defendant had opened the door on cross-

examination. The State then withdrew the earlier question and attempted to rephrase it. Over the

defendant’s continuing objection, Finley admitted she may have told the police how she found the

shotgun, but stated she did not remember what she told them. Following redirect testimony, the

court adjourned the trial for the day.

¶ 14 The jury trial resumed the following day, April 8, 2015. Outside the presence of the jury,

the State asked the court to consider its motion in limine regarding the introduction of co-

conspirator hearsay related to Finley’s statements to Pollard about the defendant’s instructions for

the shotgun. Arguments on the matter were heard by the court, and the court concluded that, subject

6 to Deputy Sanford’s testimony and the State connecting the dots on its proffer, the court would

permit the hearsay statements subject to a continuing objection. The jury was then brought in and

seated.

¶ 15 The State then called its next witness, Pollard, who testified that in July of 2014, he resided

in a mobile home in Litchfield that sat on the same property as Finley’s mobile home, and that the

property both homes sat on was nicknamed “the chicken ranch.” Pollard further testified that

Finley told him she wanted to get rid of some stuff and asked if he had a sack. He testified that he

gave her a clear drawstring sack, the type used by hospitals for personal items, and that she placed

a sawed-off shotgun and some shoes into it. Pollard also testified that Finley asked him where she

could get rid of the items, so he told her that she could put them in the pond on the back of the

property. Pollard then testified that Finley requested that he help her dispose of the items in the

pond, because she did not think she could throw the items very far. He testified that he then helped

her by throwing the items into the pond while she accompanied him. He testified that while they

were disposing of the items, he asked her how she found the gun, and over a defense objection, he

testified that she said that the defendant had directed her to the shotgun and asked her to get rid of

it. Additionally, Pollard testified that over the next few days after disposing of the shotgun he was

interviewed by the police, including by Deputy Sanford. He testified that he was present when the

police then came to the property with a dive team and recovered the gun and shoes that he and

Finley had thrown in the pond. Pollard also testified that he recognized the gun from an armed

robbery that had occurred a couple of weeks earlier, which he witnessed from around 75 feet away.

¶ 16 On cross-examination, Pollard testified that he did not remember the exact date the robbery

occurred, only that it was a Saturday evening. He testified that he was inside for part of the robbery

but could see it through the side windows of his mobile home as the front windows were boarded

7 up, and that he was also outside for part of it. Pollard additionally testified that the individual who

had the shotgun during the armed robbery was not the defendant, but was another man named

Buffington. Defense counsel then questioned Pollard as to his testimony that the breach-loading

shotgun recovered from the pond was the same one used in the armed robbery. Counsel brought

to Pollard’s attention prior statements that the shotgun used in the armed robbery was a pump-

style shotgun, as opposed to breach-loading. Pollard testified that he was not familiar with guns

and so did not know one type of gun from another. He also testified that he did not know that

Buffington owned a pump shotgun that was recovered by the police at Buffington’s house, but he

acknowledged that he thought Buffington took the shotgun with him after the armed robbery.

Pollard also testified on cross-examination that he had not been charged in connection with his

role in the disposal of the shotgun, and that he had a pending drug charge for selling Vicodin that

had been reduced from a Class 2 felony to a Class 4 felony “before any of this happened”. He also

testified that he had initially lied to the police about having an alibi for the armed robbery, claiming

that he was somewhere other than his mobile home at the chicken ranch when it happened, and

acknowledged that he was not charged with obstruction of justice for lying to a police officer as a

result of doing so. Finally, he testified that he no longer dealt drugs in response to a question about

a text he had received.

¶ 17 On redirect examination, Pollard testified that he had received an offer of first offender

probation in May of 2014 but that he had not taken the offer yet because he had not heard from his

attorney. He also testified that he did not know when he informed the officers he had lied about

his alibi, but agreed it was shortly after he made the statement to police.

¶ 18 Following Pollard’s testimony, the court took a short recess, then resumed with the State

calling Chief Deputy Bruce Sanford to testify. Deputy Sanford testified that he had reviewed the

8 four previously admitted jail calls on April 25, 2014, and that, based on previous conversations

with the defendant, he recognized the voice on the call to be the defendant’s. He also testified that

the first time he heard the female voice on the phone calls, he was unsure who it was, but that

based on subsequent conversations with the individual, he now recognizes it as belonging to

Finley. Deputy Sanford further testified that the following day, April 26, 2014, he interviewed

Pollard at Pollard’s residence about any involvement he may have had in hiding evidence. Deputy

Sanford testified that the next day he asked Pollard to come to the station for a full interview

regarding the hiding or destruction of evidence, and that following the interview, a search warrant

for “the chicken ranch” property was obtained. Deputy Sanford also testified that he was present

when the search warrant was executed, along with other officers, members of the Litchfield Fire

Department Dive Team, Pollard, and Finley. Deputy Sanford further testified that the divers

recovered both the shotgun and the shoes that were thrown in the lake, but the condition of the

items had changed from when they were recovered because they had been dried out. Deputy

Sanford testified that they were transported wet to the crime lab to maintain the conditions they

were recovered in, but that he recognized the items presented to the jury to be the same items that

were recovered. Additionally, Deputy Sanford testified that the shotgun recovered matched the

description of a shotgun used in an armed robbery, described as a breach-style type sawed-off

shotgun, over a defense objection. Finally, Deputy Sanford testified that several shotgun shells

matching the recovered shotgun’s gauge were found at the chicken ranch property.

¶ 19 On cross-examination, Deputy Sanford testified that there were no serial numbers on the

firearm that could confirm it was the same gun. Deputy Sanford explained no tests for fingerprints

or gunshot residue were conducted on the shotgun as the crime lab had stated it could not be done;

moreover, he was unsure if the shotgun shells recovered from the property were ever tested for

9 fingerprints. Additionally, Deputy Sanford testified that he was aware that Buffington was the

party believed to have had the shotgun during the armed robbery, and that no witness to the armed

robbery said that the defendant had a shotgun. Deputy Sanford testified that he was unaware that

at least one witness described the shotgun as a pump-style shotgun, but he was aware that a pump-

style shotgun was recovered from Buffington’s house after the armed robbery. Deputy Sanford

further admitted that people sometimes sound different over the phone than in person, that he was

not trained in voice recognition, and that he had initially relied on Captain Foster’s recognition of

Finley’s voice since he did not recognize it when he first heard it. Deputy Sanford also admitted

that he had only spoken to the defendant a half-dozen times before he heard the jail phone call and

recognized his voice.

¶ 20 On redirect examination, Deputy Sanford testified that he had heard the allegation that it

was a pump shotgun used in the armed robbery for the first time shortly before the trial from

defense counsel. Deputy Sanford also testified that, while he did not recognize Finley’s voice when

he first heard it, he has since had conversations with Finley and now recognizes her voice to be

the same one from the recordings. On recross, Deputy Sanford stated that he was not familiar with

another witness statement from the armed robbery that the shotgun used was a double-barreled

shotgun.

¶ 21 Following Deputy Sanford’s testimony, the State next called Deputy Sheriff Rick Furlong

to testify. The State opened with some preliminary questions, then inquired about the condition of

the defendant’s residence when the deputy arrived at the home on July 13, 2014. Defense counsel

objected, and, in a sidebar outside the presence of the jury, indicated that he believed the State was

improperly attempting to enter other crimes or bad acts into evidence. The State argued that it was

proper to admit the evidence for the purpose of establishing the identity of the parties in the

10 recorded jail phone calls because of the reference to an item “burning” in in the calls, and both the

defendant and Finley would know about the house fire. The defense then suggested a stipulation

that the defendant and Finley were present at the house when the deputy arrived, but did not agree

to include language that the house was on fire.

¶ 22 The court, prior to making a ruling on the introduction of the evidence, indicated that it

believed the fact that Deputy Furlong arrived to serve a warrant would be unduly prejudicial to the

defendant. However, the court also indicated that it was inclined to allow the fact that the house

was on fire when the deputy arrived into evidence. Following the court’s remarks as to how it

would likely rule on the issue, the State proposed adding language to the stipulation proposed by

defendant to include that the house was on fire, to which the defendant agreed. Following the

stipulation, Deputy Furlong was permitted to step down.

¶ 23 The State then rested, and the defendant made a motion for a directed verdict of acquittal.

The court delayed its ruling for the sake of witness convenience and allowed the defendant to call

his two witnesses. The first was Officer James Wolf, of the Illinois State Police, who testified that

during his investigation of the armed robbery, he had interviewed Pollard, and that Pollard had

said “yes” when asked if the shotgun was a pump action. Officer Wolf also testified that Pollard

said he did not have expert knowledge of weapons but that he did identify the shotgun as sawed

off.

¶ 24 Following Officer Wolf’s testimony, the defendant called Rhonda Keech, who was a

private investigator hired by defense counsel. Keech testified that she interviewed Pollard, who

told her that the shotgun used in the armed robbery was “a sawed-off single barrel shotgun” and

that Pollard had indicated it was a pump action.

11 ¶ 25 The defense then rested its case, and outside the presence of the jury, the court went through

the exhibits and reviewed which ones were or were not admitted. Next, the court denied the

defendant’s motion for a directed verdict, finding that the State had proved a prima facie case of

obstruction of justice. The court then went through jury instructions with the parties, as well as

what evidence would or would not be sent back with the jury. At the conclusion of those

discussions, the jury was brought back in, and the remaining stipulation as to the armed robbery

charge was read to the jury. The parties then presented their closing arguments to the jury, and the

jury instructions were given by the court. The case was then sent to the jury for deliberations. After

deliberation, the jury returned a verdict of guilty on the charge of obstructing justice, and the court

set the case for a sentencing hearing.

¶ 26 On April 15, 2015, defense counsel filed a motion to withdraw from the armed robbery

case that had not yet gone to trial. Defense counsel did not move to withdraw from the obstructing

case that had already gone to trial and was set for sentencing. On April 21, 2015, the defendant

filed a pro se motion for a new trial in the obstructing case. On April 24, 2015, the court held a

hearing on the motion to withdraw. During the hearing, defense counsel explained that, as a solo

practitioner with other commitments, he did not believe he had sufficient time to properly prepare

for the upcoming armed robbery trial, but he was prepared to continue representing the defendant

in the obstructing justice case. The State objected to defense counsel’s motion to withdraw on the

grounds that appointing new defense counsel for the armed robbery case and giving that attorney

adequate time to come up to speed on the case would cause a long delay that would prejudice the

State. The court agreed with the State and denied the motion to withdraw but did grant defense

counsel additional time to prepare in light of the reason for the motion to withdraw. The court also

12 declined to rule on the pro se motion for a new trial in the obstructing case, informing defense

counsel he would need to review and amend the motion as necessary.

¶ 27 On May 19, 2015, a sentencing hearing was held in the obstructing case. At the hearing,

the defense counsel was granted an extension of time to file an amended motion for a new trial

due to a delay in obtaining trial transcripts. The court then conducted the sentencing hearing, at

the conclusion of which, the court sentenced the defendant to six years in the Illinois Department

of Corrections, followed by a period of one-year mandatory supervised release. The court then

admonished the defendant as to his appeal rights.

¶ 28 On July 1, 2015, defense counsel filed his amended motion for a new trial, which was heard

by the court on August 6, 2015. The motion for a new trial was ultimately denied in its entirety by

the court. On September 3, 2015, a notice of appeal was filed with the trial court in the obstruction

case in Illinois Appellate Court, Fifth District, case No. 5-15-0393.

¶ 29 On March 14, 2016, the jury trial on the armed robbery case began. Following a four-day

jury trial, the defendant was found guilty of armed robbery and unlawful possession of a weapon

by a felon. He was found not guilty on the count of aggravated discharge of a firearm. On April

15, 2016, the defendant filed a motion for a new trial. On April 27, 2016, a sentencing hearing was

held, at which the court also heard the defendant’s pending motion for a new trial. The court denied

the motion for a new trial and sentenced the defendant to a total of 45 years to be served

consecutive to the obstruction case. The defendant was then admonished of his appeal rights in the

armed robbery case. On April 27, 2016, notice of appeal was filed in the Illinois Appellate Court,

Fifth District, in case No. 5-16-0182.

¶ 30 On November 26, 2018, this court entered orders remanding both cases to the trial court.

See People v. Perkins, 2018 IL App (5th) 150393-U; People v. Perkins, 2018 IL App (5th) 160182-

13 U. In the appeal on the obstruction case, we remanded to allow the trial court to conduct a Krankel

inquiry into whether defense counsel provided ineffective assistance. In the appeal on the armed

robbery case, we remanded for the limited purpose of allowing the trial court to reconsider its

denial of defense counsel’s motion to withdraw should it be necessary following its Krankel

inquiry in the obstruction case.

¶ 31 On March 11, 2019, the trial court appointed William Hoffeditz to serve as appointed

counsel and handle the remanded matters, including the Krankel inquiry. Following several

continuances, on January 14, 2021, the trial court held a hearing on the defendant’s claim of

ineffective assistance of counsel. The hearing began with a discussion of what was to happen, with

the court explaining that it had skipped the initial inquiry and appointed Krankel counsel, and that

the court’s plan was to hold one hearing where the court would hear the ineffective assistance

arguments in the obstructing justice case, then, in light of those arguments, reconsider its motion

denying trial counsel leave to withdraw in the armed robbery case.

¶ 32 Krankel counsel began its case by calling the defendant’s trial counsel to testify as to his

representation of the defendant. The examination began with the defendant waiving attorney-client

privilege with regard to issues before the court. After doing so, the defendant’s trial counsel

testified that he had been a solo practitioner and had petitioned the court to allow his withdraw

from the armed robbery case because of other obligations. He further testified that he had never

felt unable to give the obstruction case his full attention. Trial counsel also testified that the

defendant chose not to testify after consulting him and that it was the defendant’s decision. Next,

trial counsel testified that in regard to the armed robbery case, the defendant had not informed him

of the specifics of the defendant’s proposed Walmart alibi (that he interacted with store employees

because a self-checkout machine was broken, such that someone may remember him). Instead,

14 trial counsel testified that the defendant had only informed him that he had been at Walmart, and

that Walmart had told him that surveillance footage from that date was unavailable when it was

requested. Additionally, trial counsel testified that, even though he had requested to withdraw from

the armed robbery case, once he was ordered to remain on the case, he was able to adequately

concentrate on the defendant’s defense. Finally, trial counsel testified that he reviewed the

evidence in the case with the defendant, including the phone calls, and that the defendant did not

request to review any other evidence.

¶ 33 Following trial counsel’s testimony, Krankel counsel called the defendant to testify. The

defendant testified that he had wanted to testify at both trials but was prevented from doing so by

his trial counsel. He further testified that he had requested to hear the phone calls, but that they

were never played for him. Finally, he testified that he provided specifics about the broken self-

checkout machine to trial counsel but was unsure that trial counsel ever did anything with that

information.

¶ 34 On March 23, 2023, the trial court entered an order regarding the matters on appellate

remand. In that order, the trial court found trial counsel’s testimony credible and subsequently

found that the defendant’s trial counsel had provided effective assistance in regard to the

obstruction of justice case. Additionally, the trial court found that, in light of its finding that trial

counsel had provided effective assistance in the obstruction case, it had not erred in denying trial

counsel’s motion to withdraw in the armed robbery case.

¶ 35 On April 13, 2023, the defendant filed his notice of appeal in both cases with the trial court.

On April 24, 2023, the defendant filed amended notices of appeal. The appeal from the armed

robbery case was assigned as Illinois Appellate Court, Fifth District, case No. 5-23-0251. The

appeal from the obstruction of justice case was assigned as Illinois Appellate Court, Fifth District,

15 case No. 5-23-0252. On March 21, 2024, the defendant filed a motion to consolidate both appeals

into one case. The motion to consolidate was granted by this court on March 25, 2024, and both

appeals were consolidated into Illinois Appellate Court, Fifth District, case No. 5-23-0251.

¶ 36 II. ANALYSIS

¶ 37 On appeal, the defendant’s first claim of error is that the State failed to present sufficient

evidence to prove him guilty beyond a reasonable doubt. The defendant’s second claim of error is

that the trial court erred in permitting the jury to hear Deputy Sanford’s “unnamed witness” hearsay

statements, as the course of investigation hearsay exception was not applicable to them. The

defendant’s third claim of error is that the trial court erred when it permitted Pollard to testify as

to Finley’s statements to him, as the statements of a co-conspirator hearsay exception would not

apply to them. The defendant’s fourth argument on appeal is that the trial court erred when it

permitted the State to introduce evidence that the defendant’s house was on fire when Deputy

Furlong arrived because it was unfairly prejudicial and should have been excluded as other crimes

or bad acts evidence. The defendant’s fifth argument on appeal is that the trial court erred in

permitting the State to impeach Finley with a prior inconsistent statement. The defendant’s sixth

and final argument on appeal is that his Krankel counsel provided ineffective assistance on remand

by failing to properly investigate his claims of ineffective assistance of trial counsel and by failing

to submit affidavits in support of those claims. We will address each of these arguments in turn.

¶ 38 A. Sufficiency of Evidence to Prove Obstruction of Justice

¶ 39 On appeal, the defendant first argues that the State failed to prove him guilty beyond a

reasonable doubt of obstruction of justice. To sustain a conviction for the offense of obstruction

of justice, the State needed to prove that (1) the defendant, or one for whose conduct he is legally

responsible, knowingly concealed physical evidence and (2) the defendant, or one for whose

16 conduct he is legally responsible, did so with intent to obstruct the prosecution of the defendant.

720 ILCS 5/31-4(a)(1) (West 2012).

¶ 40 When a defendant makes a claim that there was insufficient evidence to sustain his

conviction, this court reviews the evidence presented at trial in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found beyond a reasonable

doubt the essential elements of the crime or crimes of which the defendant was convicted. People

v. Saxon, 374 Ill. App. 3d 409, 416 (2007). We will not reverse a criminal conviction unless the

evidence presented at trial is so improbable or unsatisfactory as to justify a reasonable doubt as to

the guilt of the defendant. Id. We allow all reasonable inferences from the record in favor of the

prosecution, whether the evidence in the case is direct or circumstantial. Id. Circumstantial

evidence alone, if it satisfactorily proves the elements of the offense beyond a reasonable doubt,

will sustain a criminal conviction. People v. Jackson, 2020 IL 124112, ¶ 64.

¶ 41 There is no requirement that this court disregard inferences that flow from the evidence, or

that this court search out all possible explanations consistent with innocence and raise them to a

level of reasonable doubt. Saxon, 374 Ill. App. 3d at 416-17. We do not retry the defendant, instead

leaving it to the trier of fact to judge the credibility of witnesses, resolve conflicts in the evidence,

and draw reasonable inferences based upon all of the evidence properly before the trier of fact. Id.

at 416.

¶ 42 In this case, the defendant asserts that the State failed to present sufficient evidence to show

that the shotgun recovered from the pond was the same shotgun used in the armed robbery for

three main reasons. First, the defendant argues that Pollard, the State’s witness to both crimes, was

unreliable as a witness, and that he repeatedly identified the shotgun used in the robbery as a pump-

style shotgun, while the shotgun recovered from the pond was a breach-style shotgun. Second, the

17 defendant argues that Buffington, the person alleged to have had a shotgun during the armed

robbery, had a pump-style shotgun matching Pollard’s initial description at his residence, casting

doubt that the shotgun the State says he intended to hide was the shotgun from the armed robbery.

Finally, the defendant argues that the State could have better proven its case by introducing

additional evidence, such as other witness testimony or forensic evidence, but chose not to do so.

¶ 43 In response, the State argues that a mere conflict in trial testimony is not sufficient to

establish a reasonable doubt as to the defendant’s innocence, as a single witness’s testimony is

sufficient to convict a defendant, even if contradictory testimony is given or the defendant asserts

the witness is not credible. The State therefore argues that the evidence that was presented at trial,

including Pollard’s testimony and the evidence about the phone call directing Finley to the

shotgun, was sufficient to find that the defendant was guilty of obstruction of justice beyond a

reasonable doubt for his role in disposing of the shotgun in the pond.

¶ 44 In reply, the defendant maintains that the State failed to prove him guilty beyond a

reasonable doubt and reiterates that the evidence was insufficient. He further reiterates that the

State’s case rests almost entirely on Pollard’s testimony, whose credibility the defendant argues is

suspect due to his prior statements regarding the type of shotgun changing. The defendant further

contends that the State’s assertion that the jail phone call audio links the defendant to the disposal

of the shotgun fails to prove that the shotgun was “material evidence” in the robbery prosecution.

The defendant further emphasizes that there was no evidence at trial that linked the shotgun to the

armed robbery, and therefore, it was not obstructing justice to get rid of it.

¶ 45 Viewing the evidence in the light most favorable to the State, we conclude the evidence

was sufficient for a rational jury to find the defendant guilty beyond a reasonable doubt. First, there

was evidence linking the shotgun that was recovered from the chicken ranch pond to the armed

18 robbery. Testimony from Finley established that her motivation for disposing of the items was her

belief that “it might have something to do with a criminal case involving a few people that I know.”

Testimony from Pollard established that the shotgun recovered by the dive team was the same

shotgun (or an identical one to the one) that he and Finley had thrown into the lake weeks earlier.

Additionally, Pollard testified that the shotgun was the same shotgun (or an identical one to the

one) that he had seen during the armed robbery.

¶ 46 The defendant argues that Pollard was unreliable as his statements in the case wavered

between whether the shotgun was a breach-action shotgun or a pump-action shotgun, and that he

had an interest in testifying the way he did due to his own pending criminal cases. We note,

however, that Pollard also testified he was unfamiliar with firearms and never wavered in his

description of the shotgun as “sawed off.” Here, it is clear from the record that the jury had

sufficient information to find that the shotgun recovered from the pond could be evidence in the

armed robbery case.

¶ 47 Second, the evidence further showed that the defendant was a part of the effort to hide the

shotgun from law enforcement. Pollard testified at trial that Finley’s stated reason for seeking to

dispose of the shotgun was that she was informed as to its location by the defendant, and he had

instructed her to dispose of it over the phone. Finley, meanwhile, testified that she found the

shotgun on her own and denied anyone directing her to dispose of it.

¶ 48 The State also introduced evidence of recorded jail phone calls made in the dayroom where

the defendant was located, and on a phone to which no other inmate had access. The State

introduced evidence that even though the account the calls were made from belonged to another

inmate, the voices on the phone call and the contents of the call are enough to establish that the

parties to the phone call were the defendant and Finley. Further, the contents of the calls appeared

19 to direct Finley to locate and dispose of something. While the defendant contends that “something”

is unknown, we find it is the providence of the jury to determine if the “unknown something” was

the shotgun from the armed robbery.

¶ 49 While the defendant does point to conflicting evidence in parts of the State’s case against

him, the jury was entitled to resolve credibility issues in the State’s favor, as the weight to be given

to a witness’s testimony, the credibility of that witness, the resolution of inconsistencies and

conflicts in the evidence, and reasonable inferences to be drawn from the testimony are the

responsibility of the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). Additionally,

where evidence is merely conflicting, a court of review will not substitute its judgment for that of

a jury. People v. Akis, 63 Ill. 2d 296, 298-99 (1976).

¶ 50 Although Pollard had potential motives to testify favorably for the State, and his statements

regarding the type of shotgun changed over time, the jurors were aware of those factors and were

entitled to credit his testimony if they so chose. Additionally, the jury was not required to accept

as true, as it apparently did not, the defendant’s assertion that the shotgun used in the armed

robbery was the shotgun recovered from Buffington’s house. Further, the jury was entitled to

determine who the parties were to the phone call, and what the “something” was that was requested

to be disposed of. Finally, we again note it is not the role of a reviewing court to substitute its

judgment for that of the jury on issues of witness credibility.

¶ 51 Taken together, the circumstantial, physical, and testimonial evidence established that the

defendant knowingly obstructed the investigation into the armed robbery by facilitating the

disposal of the shotgun that was found in the lake. Accordingly, the evidence was sufficient to

support the convictions, and no basis exists to disturb the jury’s verdict.

20 ¶ 52 B. Admissibility of Deputy Sanford’s “Unnamed Witness” Testimony

¶ 53 The defendant’s second argument on appeal is that Deputy Sanford’s testimony about an

unnamed witness’s statement was inadmissible and that its admission violated his constitutional

confrontation clause rights. The defendant breaks this argument into three parts.

¶ 54 1. Admissibility of Deputy Sanford’s Testimony

¶ 55 First, the defendant argues that Sanford’s testimony about an unidentified witness’s

statement was inadmissible hearsay. Specifically, the defendant argues that the “course of

investigation” exception to the hearsay rule did not apply to the following line of questioning:

“Q. Exhibit 4 was recovered from the pond, is that correct, the gun? A. The gun was recovered from the pond, yes. Q. What, if any, significance was that weapon with regards to any of your investigation? A. The sawed-off shotgun was described to— MR. GLENN [(DEFENSE COUNSEL)]: I’m going to object to any hearsay. MR. MATOUSH [(ASSISTANT STATE’S ATTORNEY)]: It’s not being offered for the truth of the matter. It’s the course of the investigation. It’s actions. THE COURT: I’m going to permit it. The indication is, and I agree, that it’s not going towards the truth of the matter asserted therein, but it’s only for in furtherance of why the deputy did what he did next. So I’ll permit it for that purpose. If the answer exceeds that, then I’ll reconsider. You may answer. A. The sawed-off shotgun was described to law enforcement as having been used in an armed robbery. Q. And was—and what was the description of that sawed-off shotgun, if you know? A. One description given to law enforcement was a breech style—a breech style type sawed-off shotgun. Q. And what does that mean? A. If I may hold up my hands. Breech meaning when it opens, it opens in the middle. It bends down like this. MR. GLENN: I’m going to renew my objection. I think we’re getting into hearsay now.”

¶ 56 The defendant contends that the questioning about the significance of the recovered

shotgun does not relate to any investigative course of conduct, because the State did not ask about

any steps Deputy Sanford took after locating the shotgun, and Deputy Sanford had already

21 described the investigation up to that point. Instead, the defendant argues that the testimony was

used to bolster Pollard’s impeached testimony.

¶ 57 The State responds, arguing first that the defendant failed to properly object to the

testimony timely, and therefore, the issue is forfeited. Second, the State argues that if the issue is

not forfeited, the testimony fits within the course of investigation hearsay exception to the rule

because it shows the conclusion of the investigation and explains the chain of evidence issues.

Finally, the State argues that if the course of investigation exception did not apply, it was harmless

error admitting the testimony, which the defendant argues is proof that it was not necessary to

admit the course of investigation testimony because the jury already understood what was going

on, and therefore the statements were improper bolstering.

¶ 58 We begin our analysis by noting that we review a trial court’s evidentiary rulings under the

highly deferential abuse of discretion standard. People v. Caraga, 2018 IL App (1st) 170123, ¶ 36.

In order to preserve an issue for appeal, a party must make both an objection at trial and maintain

that objection in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). An

objection to evidence is untimely if not asserted as soon as its ground becomes apparent. People

v. Kinnerson, 2020 IL App (4th) 170650, ¶ 52. However, where the ground for an objection does

not appear until after the admission of the evidence, the opponent of the evidence should make a

motion to strike. Id.

¶ 59 In the case before us, the defendant objected on the grounds that the question called for

hearsay when the State asked Deputy Sanford, “What, if any, significance was that weapon with

regards to any of your investigation?” In response to the objection, the State argued the testimony

was needed for course of investigation purposes, and the trial court agreed, overruling the objection

on those grounds, noting that the question itself was proper and that the objection may be revisited

22 after the question is answered if it falls outside the scope of the exception. If defendant’s counsel

believed that Deputy Sanford’s answer to the State’s question did not fall within the course of

investigation hearsay exception, the defendant’s counsel was required to object and make a motion

to strike the testimony in order to preserve the issue. Here, the defendant’s counsel did not. In

addition, the defendant did not object to the State’s next question, “And was—and what was the

description of that sawed-off shotgun, if you know?” and also did not make a motion to strike

Deputy Sanford’s answer to that question.

¶ 60 In the petition for rehearing, the defendant argues that the motion in limine preserved the

defendant’s claim of error even if the contemporaneous objections at trial did not. In so doing,

defendant points us to People v. Denson, where the Illinois Supreme Court stated that “in criminal

cases, this court has held consistently that a defendant preserves an issue for review by (1) raising

it in either a motion in limine or a contemporaneous trial objection, and (2) including it in the

posttrial motion”. People v. Denson, 2014 IL 116231, ¶ 11. In Denson, the State had filed a six-

page motion in limine “to admit certain statements” in its case against the defendant. The

defendant, in response to the State’s motion, had filed a five-page written objection as to why the

statements were inadmissible. Id. ¶ 11. In rejecting the Illinois Appellate Court’s finding that the

error was unpreserved, the Illinois Supreme Court stated that what mattered was whether the trial

court, “by contemporaneous trial objection or in limine litigation,” was “given a full and fair

opportunity to consider and rule upon the issue.”

¶ 61 Here, the defendant had filed a motion in limine requesting the exclusion of “any hearsay

statements” from the case, which was essentially requesting the application of the Illinois Rules of

Evidence regarding hearsay to the case. As noted in Denson, the key to preservation of the issue

is the full and fair opportunity for the trial court to rule on the issue. Id. ¶ 11. Where the motion in

23 limine argues specific issues, the trial court has had the opportunity to rule on those specific issues,

however, where the motion in limine largely argues for the blanket application of the rules of

evidence to the whole case, the same cannot be said. Therefore, we find that the motion in limine

has not preserved the defendant’s claim of error here.

¶ 62 But even assuming the defendant preserved the error at trial through either a

contemporaneous objection or the motion in limine, the defendant must still present the

complained of error in his posttrial motion to preserve it on appeal. Id. ¶ 11. In so doing, they must

allege with specificity the claim of error or the claim will be forfeited. See People v. Petrusel, 238

Ill. App. 3d 683, 690 (1992) (a “[d]efendant’s general assertions in his post-trial motion do not

preserve the issue for review”); People v. Walensky, 286 Ill. App. 3d 82, 96 (1996) (Without more

specificity, this posttrial allegation is too general to have alerted the circuit court to any proposed

error in its ruling regarding an evidentiary hearing, and therefore, this issue is waived); People v.

Sargent, 184 Ill. App. 3d 1016, 1022 (1989) (the grounds that “defendant was denied a fair trial”

and “defendant was denied due process” were too general in and of themselves to have alerted the

trial court to the alleged error, and they stood in sharp contrast to the particularized nature of

defendant’s other grounds set forth in the motion); People v. Smalley, 10 Ill. App. 3d 416, 426-27

(1973) (Defendant’s general contention, in a motion for new trial, that the court erred in giving

and refusing instructions was not sufficient to inform court of its error in not giving defendant’s

proffered instructions on defense of property; defendant should have specifically informed trial

court of its mistake which kept instructions from being given.)

¶ 63 In this case, the defendant filed an amended motion for new trial on July 1, 2015, and he

argued the motion on August 6, 2015. In his motion, the defendant did not specifically mention

the hearsay testimony provided by Officer Sanford, though he does specifically mention other

24 hearsay statements. Instead, defendant appears to, again, as with his motion in limine, rely on a

catchall or blanket paragraph in his motion, which alleges that the court permitted “the prosecutor

to ask numerous questions which elicited hearsay responses” for the preservation of this specific

claim. Additionally, in the hearing on the motion, defendant’s attorney again only mentioned with

specificity other hearsay statements, and then he again made a general argument that the court had

allowed certain questions that had elicited hearsay responses over the defense’s objections but did

not direct the court to reconsider its ruling on Officer Sanford’s testimony specifically. As the case

law makes clear, general catchall provisions do not preserve the issue because the point is to allow

the trial court to correct mistakes prior to appellate review of the issue.

¶ 64 Thus, even if the claim of error was preserved by defendant through either a motion in

limine or contemporaneous objection, it was not preserved in the defendant’s motion for new trial

because he failed to mention this error with specificity such that the trial court could reasonably

identify and correct the error. Accordingly, we find the defendant’s argument to be forfeited on

appeal.

¶ 65 2. Confrontation Clause Claim

¶ 66 Second, the defendant argues that Deputy Sanford’s testimony about an unidentified

witness’s statement violated his confrontation clause rights. Specifically, the defendant argues that

the conclusory nature of the hearsay statement, the omission of a limiting instruction by the court,

and the lack of an opportunity to confront the party who made the statement mean that the

testimony violated his confrontation clause right to confront his accusers.

¶ 67 In response, the State argues that the defendant’s confrontation clause argument is being

raised for the first time on appeal, and that therefore the argument is forfeited, as the only

objections raised in regard to the admissibility of testimony in the trial court were hearsay

25 objections. In his reply brief, the defendant counters arguing that his confrontation clause argument

was preserved under the hearsay objections made before, during, and after the trial.

¶ 68 In evaluating the defendant’s claim, we note that we previously found that the defendant

failed to preserve the hearsay issues at trial and that they were therefore forfeited. Thus, even

assuming, arguendo, that the defendant was correct in arguing that a proper hearsay objection

would preserve an unraised confrontation clause claim, it would not be applicable here, where

there was not a preserved claim of error on hearsay grounds. Therefore, we find the defendant’s

confrontation clause claim is forfeited on appeal alongside his hearsay claims. See People v.

Eastling, 386 Ill. App. 3d 884, 887-88 (2008) (a defendant waived confrontation clause challenge

by failing to object at trial or sufficiently raise the issue in his posttrial motion).

¶ 69 3. Plain Error

¶ 70 Third, the defendant initially argues in his brief that the State cannot show that the error

was harmless, however, we note that the Illinois Supreme Court has stated that in cases where the

claim of error was not preserved, plain-error analysis applies, and so we do not address defendant’s

harmless error claims. People v. Hartfield, 2022 IL 126729, ¶ 42.

¶ 71 In his reply brief, the defendant makes a plain-error argument for the first time, the entirety

of which is as follows:

“[I]f this Court finds [the defendant] somehow forfeited the entirety of the claim, review under the closely balanced prong of plain error is appropriate. See, e.g., People v. Williams, 193 Ill. 2d 306, 347-48 (2000) (because the State may forfeit forfeiture, defendant may raise plain error in reply). The Illinois Supreme Court traditionally identifies two instances when it is appropriate to excuse a defendant’s forfeiture of an error: (1) when “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) when “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. Sebby, 2017 IL 119445, ¶ 48.

26 In [the defendant’s] case, review under the first prong of plain error is appropriate because the evidence during his trial was at a minimum closely balanced. More fully explained in Issue I as to the lack of sufficient evidence to convict [the defendant], the State’s evidence against [the defendant,] that the breech-style shotgun disposed of in the pond was intended to obstruct the authorities’ investigation of him for an armed robbery that involved a pump-action shotgun. As the Illinois Supreme Court has stated, “The issue before us, however, does not involve the sufficiency of close evidence but rather the closeness of sufficient evidence.” Sebby, 2017 IL 119445, ¶ 60. If the evidence was insufficient as [the defendant] argues supra, then of course the evidence was at a minimum closely balanced warranting a new trial due to the trial court’s error in allowing the hearsay statements of a non-testifying witness to be introduced into evidence on the key issue during [the defendant’s] obstruction trial. Thus, whether via the harmless error or plain error doctrines, reversible error occurred.”

¶ 72 Ordinarily any argument not raised in an opening brief is not properly preserved and may

not be raised in a reply brief, however, Illinois courts have permitted claims of plain error to be

argued for the first time in reply briefs. See People v. Williams, 193 Ill. 2d 306, 348-349 (2000).

At oral argument, defendant’s claim of plain error was not addressed by either party or the court.

In his petition for rehearing, the defendant now claims for the first time that the State has forfeited

the issue of plain error. However, where the record is such that the reviewing court can decide the

issues without the assistance of the other party, and without becoming an advocate for either party,

the court should decide the appeal on the merits. See People v. Cosby, 231 Ill. 2d 262, 285 (2008),

First Capitol Mortgage Corp. v. Talandis Const. Corp., 63 Ill. 2d 128 (1976).

¶ 73 As seen above, in making his plain error argument, defendant directs this court’s attention

to People v. Sebby, which held that:

“[t]o preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion. [Citation.] Failure to do either results in forfeiture. There is, however, a well-established exception to that principle. Illinois Supreme Court Rule 615(a) provides that insubstantial errors “shall be disregarded” but that substantial or what have become known as plain errors “may be noticed although they were not brought to the attention of the trial court.” [Citation.] As the language of the rule indicates, a reviewing court may exercise discretion and excuse a defendant’s procedural default. [Citation.] We have traditionally identified two instances when it is appropriate to do so: (1) when “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

27 defendant, regardless of the seriousness of the error,” or (2) when “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.” [Citation.] We recently reaffirmed this view of the plain error doctrine. [Citation.] The initial analytical step under either prong of the plain error doctrine is determining whether there was a clear or obvious error at trial. [Citation.] ***. The next step under the plain error doctrine depends upon the defendant’s argument. Where the defendant claims second-prong plain error, a reviewing court must decide whether the defendant has shown that the error was so serious it affected the fairness of the trial and challenged the integrity of the judicial process. [Citations.] If the defendant carries that burden, “[p]rejudice *** is presumed because of the importance of the right involved.” [Citation.] Where the defendant claims first-prong plain error, a reviewing court must decide whether the defendant has shown that the evidence was so closely balanced the error alone severely threatened to tip the scales of justice. [Citation.] If the defendant carries that burden, prejudice is not presumed; rather, “[t]he error is actually prejudicial.” [Citation.] (“defendant must meet his burden to show that the error was prejudicial—in other words, he must show that the quantum of evidence presented by the State against the defendant rendered the evidence ‘closely balanced’ ”). *** In determining whether the evidence adduced at trial was close, a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case. [Citations.] That standard seems quite simple, but the opposite is true. A reviewing court’s inquiry involves an assessment of the evidence on the elements of the charged offense or offenses, along with any evidence regarding the witnesses’ credibility.” *** The defendant argues that the evidence was closely balanced because both parties presented plausible versions of events. The State responds that it presented ample, persuasive evidence of the defendant’s guilt. The issue before us, however, does not involve the sufficiency of close evidence but rather the closeness of sufficient evidence. [Citation.] (“Whether the evidence is closely balanced is, of course, a separate question from whether the evidence is sufficient to sustain a conviction on review against a reasonable doubt challenge.”). *** The State is correct in its contention that a defendant must show prejudice to obtain relief under the first prong of the plain error doctrine. As our cases clearly indicate, though, prejudice rests not upon the seriousness of the error but upon the closeness of the evidence. What makes an error prejudicial is the fact that it occurred in a close case where its impact on the result was potentially dispositive. [Citation.] (defining “prejudicial error” as error that alone severely threatened to tip the scale of justice against the defendant because the evidence was so closely balanced); accord [Citation.] (stating that a defendant must show prejudice in that the evidence was so closely balanced that the verdict may have resulted from the error and not the trial evidence [Citation]. There lies the core of our first-prong plain error jurisprudence, which has remained unchanged since Herron. [People v. Herron, 215 Ill.2d 167 (2005)].” Sebby, 2017 IL 119445, ¶¶ 48-51, 53, 60, 68.

28 ¶ 74 In reaching its conclusion that the case must be remanded, the court in Sebby found that

the defendant’s version of events was no less credible than the State’s version of events, and that

neither version was supported by corroborating evidence, and therefore the court found the

evidence to be closely balanced. Sebby, 2017 IL 119445, ¶¶ 61-63. (See also, People v. Doll, 2026

IL App (1st) 240825-U. 1 (“[In Sebby,] [t]he court noted that the case turned on how the finder of

fact resolved a “contest of credibility” and found that both versions of events were credible.”) In

finding that plain error did not apply in the case before it, the court in Doll noted that “[e]vidence

is not closely balanced merely because it turns on conflicting witness testimony.” Doll, 2026 IL

App (1st) 240825-U, ¶ 31.

¶ 75 Here, in evaluating defendant’s claim, we note that the defendant chose not to raise his

plain-error argument until the reply brief, and chose not to argue his plain-error claim at oral

arguments, and he now claims in his petition for rehearing that the State has forfeited any objection

to his plain-error argument.

¶ 76 However, wholly independent from the State’s position on defendant’s plain-error

argument is this court’s responsibility to determine if the evidence in this case was closely

balanced. Because we can evaluate whether the evidence was closely balanced without the

assistance of the State, and without becoming an advocate for either party, we will decide this

claim on the merits.

¶ 77 Therefore, in evaluating defendant’s claim of plain error in the case before us, we have

considered all of the arguments as framed by the defendant on appeal, including his sufficiency

1 This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). 29 argument, and we have considered the evidence as presented at trial. In so doing, we find that the

defendant has failed to meet his burden to prove that the evidence was closely balanced.

¶ 78 While Pollard’s testimony was inconsistent as to whether the shotgun was a pump-action

or breach-style shotgun, his testimony was consistent that he did not know guns, that the shotgun

used was a sawed-off type shotgun, and that the shotgun recovered from the pond was the same

one used in the armed robbery. Additionally, unlike in Sebby, in the present case there was

evidence corroborating the State’s version of events but not defendant’s, such as Finley’s

testimony that she thought the shotgun might “have something do with a criminal case involving

a few people” that she knew, and the recorded jail phone calls establishing defendant’s

involvement. Accordingly, we do not find plain error, as we find that the evidence was not closely

balanced.

¶ 79 C. Admissibility of Finley’s Statements to Pollard

¶ 80 The defendant’s third claim of error on appeal is that Finley’s statements to Pollard were

not made in furtherance of the conspiracy and therefore were not admissible. Specifically, the

defendant contends that the court’s allowance of the following testimony was in error:

“Q. [MR. MATOUSH] Now, during this discussion and these actions, did you inquire as to where the gun was found? A. No, sir. Or maybe yes, I did, and she said that— MR. GLENN: I’m going to object. A. —there was a bunch of trees up the road. THE COURT: Wait. Wait. Sir, let me hear the objection, and then we’ll see … MR. GLENN: I’m going to object to this hearsay, and I’d like to show a continuing objection to that kind of hearsay by somebody that’s not here. THE COURT: Okay. The Court will note the objection, and the Court is going to overrule the objection, and I will show a continuing objection by Mr. Glenn of any further hearsay testimony of the witness. Q. (By Mr. Matoush) Again, if you could finish your answer, sir. A. I forgot what the question was. Q. Okay. Did Ms. Finley indicate where she had found the gun? A. Yeah. She said it was in some trees up by the main road up front there.

30 Q. Okay. And when you say up front there, what property would that have been on? A. It would have been the Dudley property. Q. Did she show you where it was at? A. No, sir. Q. Did she indicate how she found it? MR. GLENN: I’m going to object again. THE COURT: Show the same objection, same ruling of the Court. Q. (By Mr. Matoush) So that means you can answer that. A. Okay. She told me that Mr. Perkins had told her where the gun was and to get rid of it.”

¶ 81 The defendant contends that Finley’s statements to Pollard, as described above, were

merely statements of past facts and did nothing to further Pollard’s participation in the conspiracy,

as there was no testimony indicating that Pollard requested or needed those details before

participating in the conspiracy. The State argues that the statements were made in furtherance of

the conspiracy because they facilitated the destruction of evidence from the original crime. In

addition, the State argues that, even if the statements were improperly admitted, their admission

was harmless beyond a reasonable doubt given the amount of other evidence presented at trial.

¶ 82 We begin our analysis by noting that under the Illinois Rules of Evidence, an out-of-court

statement by a co-conspirator of a party during the course and in furtherance of the conspiracy is

not hearsay. Ill. R. Evid. 801(d)(2)(E) (eff. Oct. 15, 2015). Further, we review a trial court’s

evidentiary rulings under the highly deferential abuse of discretion standard. Caraga, 2018 IL App

(1st) 170123, ¶ 36. Therefore, we will not reverse a ruling on the admissibility of evidence unless

the trial court’s decision is arbitrary, fanciful, or unreasonable, such that no reasonable person

would agree with it. Id.

¶ 83 Here, one could reasonably conclude that the timeframe the question was referring to was

when Finley was recruiting Pollard to assist her in disposing of the evidence in the pond or was

otherwise made before the evidence was disposed of. As such, it would not be an abuse of

31 discretion for the court to find that the statement was made in furtherance of the conspiracy in that

the statements were made to recruit Pollard, or ensure his continued help, in disposing of the gun.

Therefore, we find that the trial court did not abuse its discretion in admitting the testimony.

¶ 84 D. Admissibility of the Burning Residence

¶ 85 The defendant’s fourth argument on appeal is that the trial court erred when it allowed the

jury to hear evidence that the defendant’s residence was on fire when Deputy Furlong arrived.

Specifically, the defendant contends that even though the court barred testimony that Deputy

Furlong was there to serve a warrant, the introduction of the house-on-fire evidence had scant

probative value while being highly prejudicial, and it should have been excluded as other crimes

or bad acts evidence.

¶ 86 The State argues that the testimony that the defendant’s residence was burning was not

other crimes or bad acts evidence because there is no evidence in the record that the burning

residence was the result of a crime or bad acts. In the alternative, the State argues that it would be

admissible to show the identities of the people on a phone recording as they reference something

having been burned in the call. Finally, the State argues that the invited error doctrine, which says

that a party cannot complain of error if he previously consented to the conduct now complained

of, means that since the evidence was introduced via stipulation (agreement), the defendant cannot

now complain of the consented to course of conduct. In reply, the defendant argues the invited

error doctrine does not apply to a defendant following an evidentiary objection being overruled,

and that even if the defendant’s residence being on fire was not a crime, it still created an inference

of wrongdoing and so should be excluded.

¶ 87 As preliminary matters, first, it is not clear to this court that the evidence complained of

meets the definition of acts proscribed under the Illinois Rules of Evidence as bad acts or other

32 crimes. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). Defendant does not show that the fire was a result

of any bad acts or other crimes but does argue that one could infer based on the timing of the fire

that it was the result of wrong doing. Second, it is not clear to this court from the record on appeal

that the trial court issued a ruling on defendant’s objection, as it appears that the parties reached a

stipulation before the court could issue a final ruling. Thus, for the purpose of evaluating

defendant’s claim on the merits, we will assume arguendo that the evidence that the house was on

fire was bad acts or other crimes evidence and we will also assume that the trial court overruled

the defendant’s objection.

¶ 88 We begin our analysis by noting that we review a trial courts evidentiary rulings under an

abuse of discretion standard. People v. Crump, 319 Ill. App. 3d 538, 541 (2001). Evidence of prior

wrongful acts is not admissible to show a propensity to commit crimes, but it is admissible for any

other reason if relevant to establish material matters. People v. Blaney, 324 Ill. App. 3d 221, 224

(2001). Evidence is considered relevant if it has any tendency to make the existence of any fact

that is of consequence to the determination of an action more or less probable than it would be

without the evidence. Id. When other crimes evidence is offered, the trial court must weigh the

relevance of such evidence to establish the purpose for which it is offered against the prejudicial

effect the introduction of that evidence may have upon the defendant. Id. The decision of the trial

court regarding the admissibility of other crimes evidence will not be disturbed on review, absent

a clear showing of abuse of discretion. Id.

¶ 89 Here, the State’s proposed purpose in seeking the admission of the testimony, to show that

the defendant and Finley were the parties to the jail call due to their reference to things “burning”

or being “burnt up”, is a permissible non-propensity purpose. Additionally, the record clearly

shows that the court, while it was evaluating the evidence in preparation of a ruling, weighed the

33 relevance of the evidence to the prejudicial effect its admission would have. In the record, the court

indicated it was inclined to agree with the State that the fact the defendant and Finley were both

present when the house was burning down was relevant to show they were parties to a later

recorded phone call due to the contents of that recorded call. Additionally, the court also indicated

that it was inclined to agree with the defendant that the evidence that the officer, who saw them at

the burning house and was now testifying, had arrived at the house to serve a warrant would be

unduly prejudicial. We cannot say that this analysis by the trial court is incorrect. Thus, if the trial

court had ruled the same as the stipulation entered into by the parties, the trial court’s order would

not have constituted an abuse of discretion.

¶ 90 Finally, even if the evidence that the State wished to admit was other crimes or bad acts

evidence, and it would be an abuse of discretion for the trial court to allow the admission of said

evidence, we note that the rule of invited error or acquiescence would apply as a procedural default

sometimes described as estoppel to defendant’s claim of error. In re Detention of Swope, 213 Ill.

2d 210, 217 (2004). Simply stated, a party cannot complain of error which that party induced the

court to make or to which that party consented. Id. The rationale behind this well-established rule

is that it would be manifestly unfair to allow a party a second trial upon the basis of error which

that party injected into the proceedings. Id.

¶ 91 The defendant claims that this doctrine does not apply here, because, as the Illinois

Supreme Court stated in People v. Williams, “[t]he rule that a party cannot object on appeal to

evidence which was introduced by that party does not apply where a motion to exclude the

evidence was presented and denied.” People v. Williams, 161 Ill. 2d 1, 34 (1994). “[I]t is not

inconsistent for a defendant to request the exclusion of evidence and, subsequent to the court’s

denial of that request, to disclose the evidence himself in the hope of lessening its impact upon the

34 jury.” Id. In arguing that the doctrine does not apply, the defendant directs our attention to People

v. Collins, 2020 IL App (1st) 181746, where the court held that after the defendant’s counsel never

acquiesced to the admission of the evidence after its objections before, during, and after trial were

overruled, it was not invited error for the attorney to have introduced part of the evidence it was

seeking to exclude.

¶ 92 Turning to the case before us, we find that the doctrine of invited error would apply. Unlike

in Collins, where the defendant objected to the introduction of evidence but was ultimately

overruled by the court prior to introducing the evidence itself, here it is clear from the record that

the defendant did not maintain his objection. Instead, prior to the court ruling on the question of

admissibility, the defendant, through his counsel, proposed entering into a stipulation with the

State for the introduction of the evidence that defendant and Finley were present when the officer

arrived. After the court appeared willing to overrule the objection, but before the court actually

issued a ruling granting or denying the objection, the State proposed modifying the language in

the stipulation the defendant proposed to reflect that the house was on fire, to which the defendant

agreed. Thus, the defendant, by abandoning his original objection when he agreed to the

stipulation, without the trial court having ever formally ruled on the objection, cannot now

complain of error.

¶ 93 E. Admissibility of Finley’s Prior Inconsistent Statement

¶ 94 The defendant’s fifth argument on appeal is that the trial court erred when it allowed the

State, on redirect examination, to question Finley about a prior inconsistent statement she had

made. Specifically, the defendant contends that the trial court erred when it allowed the State, on

redirect examination, to impeach Finley using the substance of a statement that was not admitted

during either direct examination or cross-examination. Additionally, the defendant contends that

35 the State’s question violated the trial court’s motion in limine requiring a sidebar prior to such

questions. The defendant further contends that, although the State withdrew the question involving

the exact details of the conversation, the prejudice of the statement was already suffered and made

worse by the State’s continued questioning of the prior statement.

¶ 95 In response, the State argues that the impeachment of Finley by introducing her prior

inconsistent statement was proper, and if it was not, it was harmless error. Specifically, the State

contends that the defendant opened the door to Finley’s law enforcement interview on cross-

examination by eliciting testimony related to her drug use at the time of the interview, as the

purpose of the redirect is to address matters raised on cross. The State further contends that the

scope of the redirect was within the trial court’s discretion.

¶ 96 In reply, the defendant argues that the State failed to prove the testimony was properly

admitted and consequently that the State forfeited the harmless-error argument by failing to argue

it. Specifically, the defendant contends that prior to impeaching its own witness with a prior

inconsistent statement, the State’s case had to be affirmatively damaged by Finley’s testimony,

which the defendant contends it was not. Additionally, the defendant contends that the State could

not inquire into the contents of the conversation between Finley and law enforcement, only as to

whether or when it occurred, as the defendant only opened the door as to those questions on cross-

examination. The defendant further contends that the State’s method of impeaching with an

inconsistent statement was improper because the State did not first confront Finley with the

inconsistency outside the view of the jury. Finally, the defendant contends that the State has

forfeited any claim of harmless error by failing to argue or support such a claim in its brief.

¶ 97 This claim of error arises from the following exchange during the State’s redirect

examination of Finley:

36 “Q. [MR. MATOUSH] You were questioned in cross examination about this interview. Was that an interview with Sergeant Chris Robinson of the Litchfield Police Department? A. Yes. Q. And during that interview, you recalled specifics about that interview, correct?

*** A. Yeah. Q. Okay. Isn’t it fair to say that you also told Robinson that Lloyd Perkins called you and told you where the gun was? MR. GLENN: Your Honor, I think this is improper cross. I’d like to approach the bench or have a sidebar. THE COURT: Okay. (A sidebar is held outside the presence of the jury, during which the State agrees to restate the question.) THE COURT: The question is withdrawn. The State is going to rephrase.

*** Q. Do you recall, did you indicate to the police how you found the gun? MR. GLENN: I’m going to object. I think this is getting into the statement that was not gotten into on my— THE COURT: Well, he’s not asked—he’s not asked what the statement is. He’s just asking her whether she gave the statement, at least at this point. So I’ll show the objection is overruled. A. Possibly, yes. Q. (By Matoush) And what—what did you tell them? MR. GLENN: I’m going to object. Now we’re getting into the statement itself, which is something I did not get into was that prior statement, the substance of it. I did not bring that up in my cross. THE COURT: So his objection is it’s beyond the scope. MR. MATOUSH: But he brought up the interview in his cross. THE COURT: I’m going to permit it and show the defendant asked questions specifically with regard to the police interview, brought the interview to the attention of the Court, and has then opened the door with regard to the questions to be asked.

*** THE COURT: Go ahead. MR. GLENN: I’d like to show a continuing objection then. THE COURT: The record will reflect a continuing objection with regard to questions the State is going to ask with regard to Ms. Finley’s recollection of this interview. Q. (By Mr. Matoush) What did you tell the police? A. I don’t remember. Q. You can’t remember those details? A. I’m not sure.”

37 ¶ 98 Whether a prior statement is inconsistent under section 115-10.1 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2012)) and, therefore, admissible as

substantive evidence, falls within the sound discretion of the trial court, and the decision will be

reversed on appeal only if it constitutes an abuse of discretion. People v. Harvey, 366 Ill. App. 3d

910, 922 (2006). An abuse of discretion occurs when the trial court’s ruling is arbitrary, fanciful,

or unreasonable, or when no reasonable person would take the same view. People v. Illgen, 145

Ill. 2d 353, 364 (1991).

¶ 99 Generally, hearsay refers to “an out of court statement *** offered to establish the truth of

the matter asserted.” (Internal quotation marks omitted.) People v. Gonzalez, 379 Ill. App. 3d 941,

954 (2008). As an exception, the prior inconsistent statements of a testifying witness may be

admitted to impeach the witness’s credibility. People v. McCarter, 385 Ill. App. 3d 919, 932

(2008). Additionally, section 115-10.1 of the Code provides that a prior inconsistent statement

may be offered not just for purposes of impeachment, but as substantive evidence, if:

“(a) the statement is inconsistent with his testimony at the hearing or trial, and

(b) the witness is subject to cross-examination concerning the statement, and

(c) the statement—

(1) was made under oath at a trial, hearing, or other proceeding, or

(2) narrates, describes, or explains an event or condition of which the

witness had personal knowledge, and

(A) the statement is proved to have been written or signed by the

witness, or

(B) the witness acknowledged under oath the making of the

statement either in his testimony at the hearing or trial in which the

38 admission into evidence of the prior statement is being sought, or at a trial

hearing, or other proceeding, or

(C) the statement is proved to have been accurately recorded by a

tape recorder, videotape recording, or any other similar electronic means of

sound recording.” 725 ILCS 5/115-10.1 (West 2012).

¶ 100 When a prior inconsistent statement meets the basic requirements of reliability under

section 115-10.1 of the Code, either party in a criminal case may introduce the prior inconsistent

statement as substantive evidence. See People v. Santiago, 409 Ill. App. 3d 927, 932-33 (2011).

Section 115-10.1 seeks to advance the legislature’s goal of “prevent[ing] a ‘turncoat witness’ from

merely denying an earlier statement when that statement was made under circumstances indicating

it was likely to be true.” People v. Thomas, 354 Ill. App. 3d 868, 882 (2004).

¶ 101 Here, we note that the statement does not meet the criteria for admission as substantive

evidence, because Finley did not, at any point in the record, acknowledge under oath to making

the statement as required in subsection (B). 725 ILCS 5/115-10.1(c)(2)(B) (West 2012).

Additionally, the prior inconsistent statement does not meet the requirements of having been made

in writing or in a document signed by Finley under subsection (A), nor was it recorded under

subsection (C). Id. § 115-10.1(c)(2)(A), (B).

¶ 102 However, even if a prior inconsistent statement is not admissible as substantive evidence,

it may still be admissible for purposes of impeachment. Id. § 115-10.1 (nothing in this section shall

render a prior inconsistent statement inadmissible for purposes of impeachment because such

statement was not recorded or otherwise fails to meet the criteria set forth herein). When a prior

inconsistent statement is not admissible as substantive evidence, and the statement is incriminating

to the defendant, that statement can only be used for impeachment when the testimony of that

39 witness does “affirmative damage” to the State’s case. People v. Cruz, 162 Ill. 2d 314, 361-62

(1994) (citing People v. Bradford, 106 Ill. 2d 492, 500 (1985)).

¶ 103 Illinois courts have held that to do affirmative damage, the statement must do “more than

merely disappoint the State by failing to incriminate defendant.” People v. Wilson, 2012 IL App

(1st) 101038, ¶ 44. Instead, “the testimony must give ‘positive aid’ to the defendant’s case.” Id.

One way that the inconsistent testimony could give positive aid to the defendant’s case is “by being

inconsistent with the defendant’s guilt under the State’s theory of the case.” McCarter, 385 Ill.

App. 3d at 933. “It is only when the witness’ testimony is more damaging than his [or her] complete

failure to testify would have been that impeachment is useful.” People v. Sims, 285 Ill. App. 3d

598, 610 (1996) (citing People v. Weaver, 92 Ill. 2d 545, 563-64 (1982)). A witness’s professed

“lack of memory” standing alone does not affirmatively damage the State’s case for the purpose

of impeaching its own witness. People v. Brothers, 2015 IL App (4th) 130644, ¶ 73.

¶ 104 Thus, in order for the testimony to be admissible in the present case, on direct examination,

Finley’s testimony had to affirmatively damage the State’s case. During direct examination, when

Finley was first questioned about how she found the shotgun, she testified that she did not

remember. Standing alone, that testimony would not have been enough to subject Finley to

impeachment by the introduction of a prior inconsistent statement. However, later in her direct

testimony, she testified that no one had requested that she dispose of the shotgun, and she further

testified that she never had a conversation with the defendant concerning a gun.

¶ 105 In order to prove the defendant participated in the obstruction of the armed robbery

investigation, the State had to prove that he had directed the disposal of the shotgun. Finley’s

testimony at trial, that no one asked her to dispose of the shotgun and that she never discussed a

gun with the defendant, if taken as true by the jury, would disprove the State’s case, thus,

40 affirmatively damaging it. On redirect examination, the prior statement the State attempted to

introduce was Finley’s admission that she had discussed the shotgun with the defendant, which is

testimony that is contradictory to the damaging testimony at trial. Therefore, we find that the State

could, regardless of whether the statement was substantively admissible, introduce prior

inconsistent statements for the purpose of impeaching Finley’s testimony at trial relating to her

denial that she discussed the shotgun with the defendant.

¶ 106 The defendant’s next contention is that the prior inconsistent testimony introduced at trial

fell outside the scope of cross-examination, and thus, even if it qualified as proper impeachment,

it was still beyond the permissible scope of cross-examination, and therefore inadmissible on

redirect examination. In support of his contention, the defendant directs this court to People v.

Garner, 91 Ill. App. 2d 7 (1968).

¶ 107 In Garner, the State called a witness, and at the conclusion of cross-examination of that

witness, the defense asked, “ ‘Now before testifying today, have you talked to anybody about this

case?’ ” Id. at 13. The witness responded, “ ‘Naturally, it’s something you talk about.’ ” Id.

Following the witness’s answer, the court then questioned the witness regarding the details of those

conversations, including who they were with, when they were had, and what was said. Id. at 13,

14. On appeal, the Second District found that the circuit court “abused its discretion in

interrogating the witness relative to the substance of her conversation with [the witnesses],” but

held that the error was harmless even though it exceeded the scope of the preceding cross-

examination. Id. at 16.

¶ 108 However, we note that, as the State points out, in People v. Johnson, 2018 IL App (5th)

150274, ¶ 65, we held that the latitude allowed during cross-examination and redirect is a matter

within the discretion of the trial court, and we will not reverse that decision unless there was a

41 clear abuse of discretion resulting in manifest prejudice to the defendant. Further, we note that the

Illinois Supreme Court, in City of Springfield v. Dalby, 139 Ill. 34, 38 (1891), has gone so far as

to state:

“While, ordinarily, the re-examination of a witness by the counsel producing him should

be confined to matters called out on cross-examination, it is clearly within the discretion

of the court to permit questions to be put to him touching new matters, and the exercise of

such discretion will not ordinarily be reviewed on appeal.”

Accord People v. Rojas, 359 Ill. App. 3d 392, 404 (2005) (citing Dalby).

¶ 109 Here, on cross-examination, the defendant introduced testimony that at the time Finley was

arrested on July 29, 2014, she gave a statement to police. She further testified that at the time she

made the statement, she had taken drugs. Defense counsel did not cross-examine Finley as to the

contents of any of her statements. On redirect, the State inquired into the contents of Finley’s

statement to police for the purpose of introducing her prior inconsistent statements as impeachment

to her earlier testimony. We find that the trial court did not abuse its discretion in determining that

this line of questioning was permissible, as it had discretion over the scope of the redirect and to

permit questioning beyond the scope of cross-examination. Under an abuse of discretion standard,

this court will not substitute its judgment for that of the trial court. John Crane Inc. v. Admiral

Insurance Co., 391 Ill. App. 3d 693, 700 (2009).

¶ 110 Finally, the defendant argues that the State used an improper procedure to impeach Finley.

Specifically, the defendant contends that the State was required by People v. Brothers, 2015 IL

App (4th) 130644, to first confront Finley with the inconsistent statement outside the presence of

the jury in case she denied making the statement. Id. ¶¶ 72-74. We note, however, that this

procedure was not required by the court, but was instead given as best practice. Id. ¶ 74.

42 Additionally, the concerns this procedure is meant to address relate to prejudice if the inconsistent

statement is denied on the stand, which is not relevant where the inconsistent statement is used for

impeachment purposes rather than substantive ones. Therefore, we find there were no procedural

errors in the admission of the impeachment testimony.

¶ 111 F. Defendant’s Claim of Ineffective Assistance of Krankel Counsel

¶ 112 The defendant’s sixth and final argument on appeal is that the defendant’s appointed

Krankel counsel on remand provided ineffective assistance by failing to support the defendant’s

claims that his trial counsel provided ineffective assistance with evidence. Specifically, the

defendant contends that on previous remand, Krankel counsel provided deficient representation

because he failed to develop or present supporting evidence for two of the defendant’s claims of

error related to his trial counsel. First, the defendant contends that Krankel counsel failed to further

investigate and secure statements or witnesses related to the defendant’s Walmart alibi in the armed

robbery case. Second, the defendant contends that Krankel counsel failed to further investigate and

secure “the jail records” that the defendant claims would show trial counsel failed to review the

recorded jail calls with him prior to trial in the obstruction case. Finally, the defendant argues that

if counsel was deficient for failing to investigate the defendant’s claims, the record is insufficient

to make a determination as to the prejudice prong of Strickland v. Washington, 466 U.S. 668

(1984), as there was no record for us to rule on, and therefore we must remand the case upon a

showing of deficiency.

¶ 113 In response, the State argues that both trial counsel and Krankel counsel provided effective

assistance, and therefore the defendant cannot prevail. Specifically, the State contends that Krankel

counsel was not required to submit affidavits or records to support his arguments related to trial

counsel’s ineffectiveness because this is not a Post-Conviction Hearing Act case where such is

43 required by statute. Additionally, the State contends that trial counsel was not ineffective because

he testified that the defendant failed to inform him of the full details of the Walmart alibi, and even

if he had, it would not have been a defense in the obstruction case before the court. Further, the

State contends that the jail records that the defendant argues Krankel counsel should have obtained

would only show that trial counsel visited the defendant, as trial counsel claimed he did, and would

not have been helpful to the court. The State also contends that the defendant’s decision not to

testify was his own and comported with the defendant’s strategy at trial of disputing that he was a

party to the phone call by not allowing the jury to hear his voice.

¶ 114 In his reply brief, the defendant contends that the postconviction requirement that evidence

be attached to the petition to support the defendant’s claims should be applied to this case.

Additionally, the defendant contends that the Walmart alibi is relevant, as the court conducted

Krankel inquiries on both issues on remand. If he had an alibi for the armed robbery, then he would

not have needed to obstruct the investigation into it. Further, the defendant contends that the jail

records would have shown whether defense counsel brought a copy of the jail phone calls at issue

in the case. Finally, the defendant argues that the State concedes that further evidentiary hearings

are required to determine if Krankel counsel provided effective assistance by failing to argue that

it is not required.

¶ 115 As it has developed, a Krankel inquiry proceeds in two stages. In the first stage, the trial

court examines the factual bases of the defendant’s pro se claims of ineffective assistance of trial

counsel. People v. Downs, 2017 IL App (2d) 121156-C, ¶ 43 (citing People v. Moore, 207 Ill. 2d

68, 77-78 (2003)). If, in this preliminary inquiry, the trial court determines that the claims lack

merit or pertain only to matters of trial strategy, then it need not appoint new counsel and may

deny the defendant’s pro se motion. Id. If, however, the claims show possible neglect on trial

44 counsel’s part, the trial court will appoint new counsel. Id. Following the appointment of new

counsel (i.e., Krankel counsel), the matter proceeds to the second stage of the Krankel inquiry. Id.

The second stage consists of an adversarial and evidentiary hearing on the defendant’s claims,

during which the defendant is represented by Krankel counsel. Id.

¶ 116 Krankel counsel’s performance must meet the standard set forth in Strickland, which is the

same standard that trial counsel must meet. Downs, 2017 IL App (2d) 121156-C. Under Strickland,

to demonstrate ineffective assistance of counsel, a defendant must show that (1) the attorney’s

performance fell below an objective standard of reasonableness and (2) the attorney’s deficient

performance prejudiced the defendant in that, absent counsel’s deficient performance, there is a

reasonable probability that the result of the proceeding would have been different. Jackson, 2020

IL 124112, ¶ 90 (citing Strickland, 466 U.S. at 687). Because the defendant must satisfy both

prongs of this test, the failure to establish either is fatal to the claim. Id.

¶ 117 Here, the defendant contends that Krankel counsel was ineffective for failing to investigate

and submit evidentiary affidavits proving the defendant’s two claims of error related to his trial

counsel. Turning first to the question of whether Krankel counsel failed to investigate, the

defendant points to the fact that his Krankel counsel failed to file any affidavits or records to

support the defendant’s claims of error as proof that Krankel counsel failed to investigate his

claims.

¶ 118 Therefore, we begin our analysis by evaluating the defendant’s claim that Krankel counsel

should have been required to submit affidavits to support the defendant’s claims of error. In support

of his contention, the defendant does not cite to any case that states that the submission of affidavits

is a requirement for Krankel counsel on a direct appeal. Instead, the defendant appears to create

this requirement by attaching the Post-Conviction Hearing Act requirement that all claims under

45 the act be supported by attached affidavits, records, and other evidence (725 ILCS 5/122-2 (West

2024)) to all claims of ineffective assistance of counsel, whether or not they are brought under the

act. The defendant does so under a theory that, because postconviction counsel is only required to

provide a reasonable level of assistance (People v. Suarez, 224 Ill. 2d 37 (2007)), but direct appeal

Krankel counsel is required to provide effective assistance of counsel, direct appeal Krankel

counsel must also submit affidavits and evidence since he is required to provide a higher level of

assistance.

¶ 119 While it is an interesting argument, we find no support for it in the case law or statutory

law, and we decline to extend a statutory requirement under the Post-Conviction Hearing Act to

all direct appeal claims of ineffective assistance of counsel. Accordingly, we find that Krankel

counsel was not ineffective for failing to provide affidavits or jail logs at the hearing as the

defendant contends, as we find that the failure to present these items does not per se indicate that

Krankel counsel failed to investigate the defendant’s claims. Because the defendant predicated his

argument that Krankel counsel failed to investigate his claims on a lack of filing affidavits, we find

that the defendant has not met his burden to show that Krankel counsel fell below the objective

standard of reasonableness by failing to investigate.

¶ 120 However, even setting aside the fact that the defendant does not appear to argue it, his

Krankel counsel’s actions at the hearing suggest that Krankel counsel investigated the defendant’s

claims. Krankel counsel presented evidence related to the defendant’s claims in the form of

testimony at the hearing. During the hearing, Krankel counsel examined the defendant’s trial

counsel as to why the defendant did not testify at trial, with trial counsel explaining that the

decision not to testify was the defendant’s decision. Additionally, the defendant’s Krankel counsel

questioned the defendant’s trial counsel as to the defendant’s Walmart alibi, with trial counsel

46 denying that the defendant had informed him of the specifics of the broken self-checkout. Krankel

counsel further examined trial counsel as to the recordings of the jail phone calls, with trial counsel

stating that he had reviewed the discovery with the defendant. Looking at the evidence in the

record, we find sufficient evidence that the defendant’s Krankel counsel investigated the

defendant’s claims and presented evidence as to them during the hearing. Therefore, we do not

find that Krankel counsel was ineffective.

¶ 121 III. CONCLUSION

¶ 122 We find (1) that the evidence at trial was sufficient to support the defendant’s conviction;

(2) that the defendant failed to preserve evidentiary objections related to Deputy Sanford’s

testimony at trial, and failed to prove plain error regarding its admission; (3) that the trial court

properly allowed Finley’s statements to Pollard into evidence as statements of a co-conspirator;

(4) that the defendant agreed to the admission of the burning residence by stipulation and cannot

now claim error; (5) that the trial court properly permitted the impeachment of Finley by prior

inconsistent statement during redirect examination; and (6) that the defendant’s Krankel counsel

on remand was not ineffective for failing to submit affidavits during the Krankel hearing, and that

he adequately investigated the defendant’s claims. Accordingly, we affirm the judgment of the

circuit court.

¶ 123 Affirmed.