NOTICE 2024 IL App (4th) 210198-UB FILED This Order was filed under NO. 4-21-0198 April 25, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4 th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County ANTHONY POWELL, ) No. 20CF221 Defendant-Appellant. ) ) Honorable ) Nancy S. Fahey, ) Derek J. Girton, ) Judges Presiding.
JUSTICE DOHERTY delivered the judgment of the court. Justices Harris and Steigmann concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not err in denying defendant’s Batson challenge, (2) the improper arguments by the prosecution during closing argument did not amount to reversible error, and (3) the failure to request a certain jury instruction did not result in the ineffective assistance of counsel.
¶2 Defendant Anthony Powell appeals his conviction for the offense of possession of
a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2020)). Among the issues initially raised in this
direct appeal is the denial of defendant’s Batson challenge (see Batson v. Kentucky, 476 U.S. 79
(1986)), the State’s alleged misrepresentations of the strength of forensic evidence during closing
argument, and the effectiveness of trial counsel.
¶3 Following our initial review of defendant’s claims, we found that the trial court had
failed to conduct an appropriate Batson inquiry and remanded for the court to conduct a new
Batson hearing. People v. Powell, 2022 IL App (4th) 210198-U, ¶¶ 22-23. On remand, the trial court conducted a new Batson inquiry and ultimately denied defendant’s claim. Having retained
jurisdiction, we now review the denial of defendant’s Batson challenge and the other claims
presented. For the reasons that follow, we affirm.
¶4 I. BACKGROUND
¶5 In March 2020, the State charged defendant with two counts of possession of a
weapon by a felon (counts I and II) (720 ILCS 5/24-1.1(a) (West 2020)), one count of aggravated
unlawful use of a weapon (count III) (id. § 24-1.6(a)(1), (a)(3)(A)), and one count of resisting a
peace officer (count IV) (id. § 31-1(a)). The charges alleged generally that defendant, a felon,
possessed a loaded handgun and ran from the police, refusing to comply with commands to stop.
Count I additionally alleged that defendant was on parole at the time of the offense.
¶6 A. Voir Dire
¶7 During questioning of prospective jurors, the trial court asked if any of the venire
members possessed a valid reason they could not serve on the jury for a trial expected to last a day
and a half. Prospective juror Stingley responded, stating, “I am a nurse in the middle of a pandemic.
We had 20 positive [COVID-19] cases, we have seven employees [that] tested positive that are
out, so they are really short staffed at my facility.” The court asked Stingley what facility she
worked at and what shift she worked but then moved on.
¶8 The State then questioned Stingley, and the following colloquy ensued:
“MR. PAWL [(ASSISTANT STATE’S ATTORNEY)]: Nurse
Stingley, I take it—you raised your hand right away. Your shift right now,
would you be on shift right now?
PROSPECTIVE JUROR STINGLEY: Yeah.
MR. PAWL: Is it causing you some concern?
-2- PROSPECTIVE JUROR STINGLEY: Not a big concern, but I just
know that, like, I’m needed. It’s like—like I said, it’s a pandemic and staff
is low, but—
MR. PAWL: That’s what we want to get at. If something is in the
back of your mind because I think if you were not here or if you got excused
you would go—you would be going—
PROSPECTIVE JUROR STINGLEY: I would go right back to
work.
MR. PAWL: Is that something that might be in your mind as you
are going forward, knowing you would have to be here today and
tomorrow?
PROSPECTIVE JUROR STINGLEY: I mean like, no, it wouldn’t
play, like, a role. I would be able to focus and concentrate if I wasn’t
dismissed.
***
MR. PAWL: But in your mind are you needed?
PROSPECTIVE JUROR STINGLEY: I feel like, yeah, I’m needed.
Yeah.”
¶9 Another panel of prospective jurors was brought in. In response to a question from
the trial court, prospective juror Groves stated he had a drug conviction from a federal case that
resulted in a sentence of 60 months in federal prison. The State asked Groves whether he harbored
any ill will or ill feelings towards prosecutors as a result of his criminal history. Groves responded,
“No.”
-3- ¶ 10 Jury selection progressed, with the State asking the court to remove Stingley for
cause. The court denied this request, noting Stingley stated she could perform her duty as a juror.
The State made clear that the reason it attempted to remove Stingley for cause was not based on
the voir dire questioning; rather, it believed “her services would be better off, especially right now,
at the hospital than here.” The State then exercised peremptory strikes on prospective jurors
Griggs, Grider, Stingley, and Groves. Following the State’s strike of Groves, defense counsel
asked, “[I]s there a reason that we’re losing all the African-American members in this panel?”
referring to Stingley and Groves. The court replied that the record was clear as to the State’s
reasoning for excusing Stingley “because of her occupation as a nurse and the COVID ***
pandemic and the concern she raised about that. I don’t know, are you raising a Batson?” Defense
counsel answered in the affirmative, adding that being employed as a nurse was an insufficient
basis for being excused. The following exchange then took place:
“MR. PAWL: Judge, if he is accusing the People of—he has to
establish before we collapse into any kind of hearing some type of
systematic pattern and the burden is on him.
THE COURT: Right.
THE COURT: What’s the systematic pattern, Mr. Parker?
MR. PARKER [(DEFENSE COUNSEL)]: Well other than the ones
that were stricken for cause, and I understand why they were stricken for
cause, that leaves two, both stricken. And, you know, systematic, listen, you
know, there is only two, Judge, and one of them—I don’t know why we
would strike the nurse. Because she has an obligation, because she works in
-4- a hospital? And then Mr. Groves. They are the only two that were left. ***
but here we are, we are going through another panel because the only two
African-Americans left when I have an African-American client, they are
both stricken.”
¶ 11 The State responded that its first two peremptory challenges were on two white
individuals. With respect to Stingley, the State commented that it was unsure of her race, asserting,
“In fact, as I sit here, I didn’t know if she was maybe of Indian descent, quite frankly.” In sum, the
State argued that defense counsel failed to establish a systemic pattern of discrimination.
¶ 12 The trial court found that defense counsel failed to establish a “pattern of systematic
removal of black people from the jury.” Regarding Stingley, the court found that the State had
established a race-neutral reason for excusing her, given the unique circumstances of being a nurse
in the middle of a pandemic. The court found that counsel failed to establish “any pattern”
regarding Groves.
¶ 13 B. Jury Trial
¶ 14 In November 2020, the trial court conducted a jury trial, at which the State
proceeded only on count I. The parties stipulated that defendant was (1) a felon and (2) on parole
at the time of his arrest. The following evidence was presented.
¶ 15 1. The State’s Evidence
¶ 16 On March 28, 2020, shortly after midnight, Officers Ryan Birge and Jacob Troglia
of the Danville Police Department were on a routine patrol in a marked squad car in the Fair Oaks
public housing complex in Danville, Illinois, when they observed a man in a red hooded sweatshirt
and black pants walking toward an apartment door and away from a car that was stopped in the
middle of the roadway. The car was running with its headlights on. Birge and Troglia were 50 to
-5- 60 feet away when they first saw the man. The area was dark, but the man was illuminated by a
streetlight. When the man saw the police officers, he immediately started jerking a door handle,
trying to get into an apartment.
¶ 17 The officers drove their car to within 15 feet of the man, and Birge asked him
through the car’s open window, “Hey, man, do you live here?” The man, who at that moment was
knocking on an apartment door, looked back in the direction of the officers. On cross-examination,
Birge acknowledged that his asking whether the man lived at the apartment did not appear in his
police report. According to Birge, before he could finish the question, the man ran, so Birge got
out of the car and ran after him. Troglia also got out and chased the man on a different path and
noticed that he had a “dark colored object in his right hand.” Birge estimated that “30 seconds
maybe” passed between the time the officers first saw the man until he was pursued.
¶ 18 During the chase, Birge saw the man “pull out a handgun” and continue to run with
it in his right hand. Seeing this, Birge unholstered his firearm and slowed his pursuit. As Birge
rounded a corner, he saw the man glance back at him and then “just kind of throw the gun straight
up in the air.” The gun hit the ground with “a loud crack.” Because people were in the area, instead
of continuing his pursuit of the man, Birge stopped to secure the weapon. He found the gun lying
in some wet grass but noted the gun was still dry. At some point during the chase, the man had
removed the red sweatshirt, which was later recovered by the officers. The chase lasted
approximately one minute.
¶ 19 During the pursuit, Troglia reported the chase with his radio, stating, “Red
sweatshirt, black pants, about six foot tall.” Within a few minutes, Troglia caught up with Birge,
who told him that the suspect had thrown the gun that was on the ground next to him. Troglia then
circled back to the squad car while Birge stayed with the gun until it could be photographed and
-6- placed in an evidence bag. The gun was admitted as evidence at trial. When Troglia returned to
the vehicle, he contacted dispatch “to log the license plate so that they have a record of what vehicle
was involved.” Dispatch alerted him that the vehicle was registered to defendant and confirmed
that defendant’s license was suspended. Defendant’s vehicle was later towed and impounded.
¶ 20 Although Birge and Troglia did not apprehend the man after the chase, Birge
testified that he recognized the man based on prior encounters but could not remember his name.
Birge had arrested defendant in October 2019, when he was wearing what Birge believed to be the
same red sweatshirt that was subsequently collected from the scene of the incident at issue. Troglia
testified that he recognized the man as defendant even though the hood on the hooded sweatshirt
was up, because when “he turned around and looked at us and you could see his face under the
streetlight.” Troglia was familiar with defendant from encounters in the months preceding the
incident at issue and knew that he had a suspended driver’s license.
¶ 21 When Birge returned to his squad car, Troglia told him that he ran a check of the
license plates and determined that defendant was the registered owner of the car. Surveillance
video obtained from the Danville Housing Authority showed that after the officers’ pursuit of the
suspect, but before they returned to the car, an unidentified individual got inside defendant’s
vehicle, exited, and then walked away toward one of the apartments.
¶ 22 On March 30, 2020, defendant visited the police station to obtain his car from the
impound lot, at which point he was arrested by Troglia. Defendant told Troglia that he did not
know who was using his car when it was towed. When Troglia asked defendant about the red
sweatshirt he always wore, defendant said he never owned one.
¶ 23 Svetlana Gershburg, a forensic scientist employed by the Illinois State Police
Forensic Crime Laboratory, performed deoxyribonucleic acid (DNA) analysis of samples from the
-7- sweatshirt and gun and compared them to defendant’s known DNA profile. On the sample from
the gun, Gershberg identified three separate DNA profiles. She was able to identify one of those
three as a “major DNA profile” from which defendant could not be excluded as a contributor. The
prosecutor asked Gershburg whether she conducted a statistical analysis, and Gershburg answered,
“the major profile *** can be seen independently in other people, with one in every five people.”
¶ 24 On the sweatshirt, Gershburg identified a major male DNA profile from which
defendant could not be excluded by a statistical probability of 1 in 45 quadrillion.
¶ 25 Brian Long, a forensic scientist specializing in latent print analysis, examined the
gun and found no fingerprints suitable for comparison.
¶ 26 2. Defendant’s Testimony
¶ 27 Defendant testified that he had loaned his car to his friend Anthony Brown on the
night of the offense. Brown lived at an apartment in the Fair Oaks housing complex. Defendant
had lent his car to Brown on five or six prior occasions. On the evening of March 27, 2020,
defendant drove to Brown’s apartment, picked up Brown and Brown’s cousin, and the three drove
to Alexis King’s house. That evening, Brown wore a “[b]lack T-shirt and some dark pants,” and
defendant wore “a red T-shirt, blue jean pants, and some red and black [shoes].” When defendant
arrived at King’s, he “went in and dozed off,” waking up the following morning. During that time,
defendant opined that Brown and his cousin took defendant’s vehicle. When defendant woke up,
he thought that he had left his phone in his car the night before. He contacted Brown to retrieve it
and, at that time, he learned that his car had been towed.
¶ 28 That afternoon, defendant called the police station to see if he could pick up his car,
but he was not able to do so because the officers said he would have to speak to them in person.
On March 30, 2020, defendant, who was wearing a black shirt and black pants, went to the police
-8- station to pick up his car and was arrested by Troglia. Defendant denied that he told Troglia he
was unaware of who had his car. Defendant also denied telling Troglia he did not own a red
sweatshirt.
¶ 29 At trial, defendant testified that he was about the same physical size as Brown and
the two shared clothes “frequently.” Unlike defendant, who had tattoos on his arms, face, and neck,
Brown did not have tattoos in those locations. Defendant owned a few red sweatshirts and black
T-shirts, and he frequently kept clothing in his car.
¶ 30 C. Closing Arguments
¶ 31 1. The State’s Closing Argument
¶ 32 During closing arguments, the State argued, among other things, that the DNA
evidence and the police officers’ testimony proved beyond a reasonable doubt that defendant was
the man with the gun in March 2020. Throughout its argument, the State made several statements
regarding the strength of the DNA evidence found on the gun. The State began its argument by
stating, “[In March 2020,] an individual driving his [(defendant’s)] car, wearing his red sweatshirt,
ran from two Danville police officers carrying a gun which had his DNA, the defendant’s[,] on it.”
The State also argued that the police officers “submitted [the gun] to the lab to be tested, they took
swabs from the defendant and confirmed that his DNA was on the gun.”
¶ 33 2. Defendant’s Closing Argument
¶ 34 Defendant argued that the police officers’ testimony was not credible because it
was inconsistent with the police report, video, and dispatch audio. He further argued that the
suspect with the gun could have been Brown. Regarding the DNA evidence on the gun, defendant
stated the following:
“There’s three different people’s DNA on [the gun]. Again, his is the only DNA
-9- they ran. He cannot be excluded as one of the three. But it transfers, it can transfer
from—from sweatshirt to gun no matter who is wearing that sweatshirt, and it’s 1
in 5 people’s DNA, okay? This DNA is so general, 1 in 5 men’s DNA, that’s 20
percent. There’s 15 men in this courtroom right now. Three of us, it could be ours,
it could be—they’re included. The state’s attorney. Three of you are included. Me,
I’m included. It could be me. That’s how common that DNA was.”
¶ 35 3. The State’s Rebuttal
¶ 36 During rebuttal, the State described the DNA evidence multiple times as strongly
corroborating the police officers’ testimonies. Regarding the DNA on the gun, the State argued as
follows:
“Two police officers identified this defendant, the forensic scientist identified this
defendant through the DNA on his sweatshirt and the DNA that he left on that gun.
Then the defense did talk about this—did talk about the DNA. You heard
the numbers. It’s the defendant’s on the sweatshirt because he was wearing it. ***
We submitted the defendant’s [DNA] because—and it corroborated everything we
already knew, that it was the defendant who ran from the police.
Now, the 1 in 5 that he talks about, he goes, well, there is 15 males here,
that means one of us—there is only one person in this courtroom that was out at
Fair Oaks that night with that gun and it’s him, the defendant, and that’s what the
science establishes and corroborates the two officers.
So again, it comes down to this, folks. This case is simple. Two police
- 10 - officers, forensic science, establish without any doubt that this defendant is the one
who ran from the police and tossed that gun.”
¶ 37 D. Jury Verdict and Initial Review of Appeal
¶ 38 Following deliberations, the jury found defendant guilty of unlawful possession of
a firearm by a felon on parole. The trial court later sentenced defendant to 10 years in prison, and
defendant appealed. Upon our initial review of defendant’s arguments on appeal, we determined
that the trial court improperly collapsed the three-step Batson inquiry and remanded for an
appropriate Batson hearing. Powell, 2022 IL App (4th) 210198-U, ¶ 23. This court withheld the
disposition of defendant’s other arguments on appeal and conditionally retained jurisdiction.
¶ 39 E. Remand for New Batson Hearing
¶ 40 On June 28, 2023, a new Batson hearing was held, with Judge Derek Girton
presiding following the retirement of Judge Nancy Fahey. Defense counsel argued that after
considering the nonexhaustive list of factors to be considered at the first stage of a Batson hearing,
there was sufficient evidence to infer that discrimination based on race formed the basis for striking
both Groves and Stingley. The trial court agreed and found sufficient evidence to infer that
discrimination based on race formed the basis of the prosecutor’s strikes of the prospective jurors,
shifting the burden to the State to provide a neutral or nondiscriminatory explanation for the
removal of the prospective jurors.
¶ 41 The State directed the trial court’s attention to the prior proceedings, explaining
Stingley was removed because she was employed as a nurse during the COVID-19 pandemic and
“that her time would be better spent at the hospitals as opposed to here on a jury.” Race was not a
factor, and the prosecutor exercising the peremptory strike “could not make an independent
recollection of what skin color she was.” As to prospective juror Groves, the State argued he was
- 11 - a convicted felon that served time in federal prison. In sum, there was no pattern of discriminatory
strikes and each prospective juror that was stricken was removed for a nondiscriminatory reason.
¶ 42 Defense counsel argued in rebuttal that the State’s race-neutral reasons for
removing prospective jurors Stingley and Groves was pretextual. Counsel contended Stingley’s
employment was not a “legitimate reason” under Batson and faulted the State for trying “to elicit
hesitation multiple times with repeated questions” that encouraged Stingley to suggest that her
employment would leave her unable to focus if selected to serve on the jury. Counsel also
introduced into evidence a black and white picture of Stingley in her nursing uniform, arguing the
photograph depicted “an African American woman.”
¶ 43 As to the ultimate question of whether the State engaged in impermissible
intentional discrimination in striking prospective jurors Groves and Stingley, the trial court found
there were race-neutral reasons proffered by the State that were not merely pretextual. The court
reasoned that as to Groves,
“it is certainly not unusual in my experience for the State to use a [peremptory]
challenge on an individual white or black who had been convicted of a felony for
which they have done either [Department of Corrections] time or Federal prison
time. In fact, that is a pretty common practice by a prosecutor.” *** That is a
race[-]neutral explanation and one that is not at all unusual ***.”
And regarding Stingley,
“at the time of this trial in November of 2020, we were about six or seven months
into this pandemic, it was still relatively new but it was certainly at this point in this
County raging. I think—it amazes me, at least for myself, how easily you can forget
something like that, how serious it—something like that was at that moment and
- 12 - two or three years later you don’t remember it as being what it was at that time. We
literally shut down jury trials in this courthouse for a long period of time.
[Defendant’s jury trial] must have been one of the last ones that was done before
because of COVID we just shut it down completely. It was a scary time for people
wanting to know how we deal with this. Ms. Stingley worked in a nursing home
with the most vulnerable of populations. She reported that there was an outbreak
within the institution where she worked, a lot of cases among the patients, I think
she said there were 20 or something, she stated a number, and that she knew of at
least 7 individuals that worked there that were out with COVID, and so that there
was an employment shortage. Clearly from the questioning from the beginning this
was something that concerned Mr. Pawl that she was really needed somewhere else.
He asked based on that she be removed for cause. I’m not second guessing Judge
Fahey on her decision on that, but, again, we’re looking at the intentions of the
prosecutor in his removal of Ms. Stingley. It I think is clear to me that throughout
his questioning of her and the voir dire process he was concerned that she really
needed to be at work and not here. That was where she could better serve our
community.”
Defendant’s Batson challenge was denied.
¶ 44 Following the denial of defendant’s Batson challenge, the parties have filed
supplemental briefing arguing the propriety of the trial court’s ultimate decision following the
Batson hearing. We now proceed to address those arguments, along with the others pending on
appeal.
¶ 45 II. ANALYSIS
- 13 - ¶ 46 Defendant argues that (1) the trial court erred in finding there were race-neutral
reasons proffered by the State that were not merely pretextual, (2) defendant was deprived of his
right to a fair trial when the State misrepresented the strength of DNA evidence during its closing
argument and rebuttal, and (3) defendant’s trial counsel rendered ineffective assistance by failing
to object to the State’s improper statements during closing and rebuttal arguments and tender
certain jury instructions to the court.
¶ 47 A. Batson Challenge
¶ 48 The United States Supreme Court in Batson found that it was a violation of the
fourteenth amendment’s equal protection clause (U.S. Const., amend. XIV, § 1) to exercise
peremptory challenges based on the race of a prospective juror. Batson, 476 U.S. at 89. The Court
crafted a three-step process for evaluating whether the use of a peremptory challenge resulted in
removal of venirepersons on the basis of race. People v. Davis, 231 Ill. 2d 349, 360 (2008).
¶ 49 In the first step, the moving party opposing the peremptory strike must present
sufficient evidence to permit the trial court to infer that discrimination based on race formed the
basis for striking the prospective juror. People v. Allen, 401 Ill. App. 3d 840, 847-48 (2010). The
court must determine whether the moving party has established a prima facie case of racial
discrimination by considering the totality of the facts and circumstances surrounding the use of the
peremptory strike. People v. Shaw, 2014 IL App (4th) 121157, ¶ 18.
¶ 50 If the moving party is able to carry the burden in the first step, in the second step,
the nonmoving party must provide “a nondiscriminatory, ‘neutral’ explanation related to the
particular case to be tried,” which can then be rebutted as pretextual. People v. Rivera, 221 Ill. 2d
481, 500 (2006), as modified upon denial of reh’g (June 29, 2006).
¶ 51 Finally, the trial court must determine whether the defendant has shown intentional
- 14 - discrimination based on the evidence presented. Davis, 231 Ill. 2d. at 363. If the trial court rules
on the ultimate issue of intentional discrimination after the nonmoving party explains the basis for
the peremptory challenge in the second step, a court’s failure to determine whether a prima facie
case has been established in the first step is rendered moot. See People v. Kitchen, 159 Ill. 2d 1,
18 (1994); People v. Gonzalez, 2019 IL App (1st) 152760, ¶ 67; People v. Payne, 2015 IL App
(2d) 120856, ¶ 47. The burden of persuasion remains with the moving party throughout the process
to show the nonmoving party’s racial motivation in exercising the strike. Davis, 231 Ill. 2d. at 363.
¶ 52 Before evaluating the trial court’s ultimate finding, we must address two issues
raised by the parties. First, the trial court’s ultimate ruling on a Batson challenge is generally
entitled to deference on appeal and will not be reversed unless it is clearly erroneous. Id. at 364.
However, defendant argues that, in this case, review of the issue should be de novo because the
presiding judge and prosecutor on remand were not involved in the original voir dire proceedings,
citing Holder v. Welborn, 60 F.3d 383, 388 (7th Cir. 1995). The State agrees with defendant that
de novo review of this issue is appropriate given the circumstances. Here, the explanation for the
use of the peremptory challenge and the ruling of the court on remand did not significantly deviate
from the those in the original Batson hearing. Following our review of the issue, we find that the
outcome of defendant’s challenge would be the same regardless of the standard of review
employed.
¶ 53 Second, the State points out that defendant at certain points in his supplemental
brief relies on evidence that was not presented to the court below. As a result, any consideration
of this evidence is improper, and this court should disregard it. Specifically, the State points to the
discussion of the difference between licensed practical nurses and registered nurses, as well as the
general duties of a hospital sterile processing department. We agree with the State that
- 15 - consideration of this evidence is improper where it was not made a part of the record below; we
will therefore not consider it. See People v. Brown, 249 Ill. App. 3d 986, 994 (1993) (noting a
reviewing court will not consider matters outside the record); accord People v. Carey, 386 Ill. App.
3d 254, 270 (2008).
¶ 54 Turning to the merits, defendant’s Batson argument turns on whether the reason
given by the State for excusing Stingley was pretextual and whether the trial court erred in
determining that the reason was race neutral. We are unable to conclude that the court erred in its
ultimate conclusion.
¶ 55 At the beginning of voir dire, Stingley voluntarily informed the trial court that, due
to her employment as a nurse in a nursing home experiencing an outbreak during the COVID-19
pandemic and a shortage of staff at that facility, she had a valid reason not to serve on the jury.
During the original proceedings, it was determined that, when the State attempted to remove
Stingley for cause, it was due to the belief that her services would be better utilized at her
understaffed facility amidst the pandemic. When denying the Batson challenge prior to remand,
the trial court found that the State had established a race-neutral reason for excusing Stingley given
her role as a nurse during the pandemic.
¶ 56 On remand, the explanation of the State and reasoning of the trial court largely
remained unchanged. The court placed the prosecutor’s use of the peremptory challenge in its
historical context, opining on the novelty of the pandemic at the time, how it was “raging” in the
community, and how the contagion resulted in the cessation of jury trials and closure of the county
courthouse. Further commenting on the situation, the court stated, “It was a scary time for people
wanting to know how we deal with this.” Placing the removal of Stingley in context, the court
found that she worked with “the most vulnerable of populations” at a facility dealing with an
- 16 - outbreak of COVID-19 and a staffing shortage. The court ultimately found it was clear that
throughout the prosecutor’s questioning of Stingley, “he was concerned that she really needed to
be at work and not here. That was where she could better serve our community.”
¶ 57 Defendant argues that “it is essential to remember the underlying circumstances
presented by this case,” stating that the only two black jurors were removed by peremptory
challenges. Although the parties argue over whether Stingley was readily identifiable as black, we
find that even assuming that fact, the trial court found Groves was removed for a “pretty common”
race-neutral explanation where he had been convicted of a felony and served his sentence in federal
prison, and Stingley was employed as a nurse during the pandemic. However, while focusing on
certain circumstances, defendant attempts to minimize the impact of the pandemic and Stingley’s
employment as a nurse. Despite this, we agree with the trial court that the pandemic taking place
at the time of voir dire is a circumstance that deserves proper consideration given its enormous
impact on individuals and the court system.
¶ 58 Defendant also argues that the prosecution failed to question a similarly situated
white prospective juror that worked as a sterile processing technician at a hospital. However, aside
from working in the field of healthcare, the other juror was not similarly situated and did not
express that she worked at an understaffed facility, caring for one of the most vulnerable portions
of the population to the disease, nor that the hospital was experiencing an outbreak of COVID-19.
These two jurors were not similarly situated.
¶ 59 Moreover, defendant argues there was no trial-related justification for Stingley’s
removal from the venire and points to questioning during voir dire as evidence of discriminatory
intent. These arguments ignore the fact that Stingley is the one that voluntarily claimed she had a
valid reason not to be seated on the venire. In support of this argument, defendant cites Flowers v.
- 17 - Mississippi, 588 U.S. ___, 139 S. Ct. 2228 (2019), Jackson v. Stroud, 539 S.W.3d 502 (Tex. Ct.
App. 2017), and Snyder v. Louisiana, 552 U.S. 472, 482 (2008). A review of these cases shows
that they are distinguishable from the present case.
¶ 60 Flowers described its facts as “highly unusual” and “likely one of a kind” where
the defendant stood trial six times, resulting in just as many reversals of his conviction, and the
Court in finding discriminatory intent relied on statistical evidence showing a historical pattern of
excluding jurors based on race where the prosecution used peremptory strikes to remove 41 of the
42 prospective black jurors in the defendant’s trials. Flowers, 588 U.S. at ___, 139 S. Ct. at 2241,
2251. In light of the totality of the facts and circumstances, the Court determined that the trial court
erred in concluding that the use of a peremptory strike to remove a prospective black juror was not
substantially motivated by discriminatory intent. Id. at ___, 139 S. Ct. at 2246. This case is unlike
Flowers.
¶ 61 In Jackson, a black prospective juror was removed by a peremptory strike in a
medical malpractice case, and when a Batson claim was made, counsel exercising the peremptory
removal only asserted that the prospective juror was removed because she was a “certified nursing
assistant.” Jackson, 539 S.W.3d at 509. On review, the court found that reason was pretextual,
explaining that counsel failed to further investigate his concerns during voir dire and a comparative
juror analysis revealed that similarly situated nonblack panelists were not stricken or even
questioned. Id. at 511. Here, the prosecutor engaged in further questioning during voir dire and
the prosecution did not engage in disparate treatment of similarly situated prospective jurors.
¶ 62 In Snyder, the Supreme Court held that the trial court erred by overruling the
defendant’s Batson challenge to the removal of a black prospective juror. Snyder, 552 U.S. at 477-
78. The prosecutor explained the peremptory strike was based on the prospective juror’s demeanor
- 18 - and that he was a student teacher, resulting in a fear that the prospective juror “might, to go home
quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase.” Id. at 478.
The Court found this reasoning “highly speculative,” “implausible,” and further undermined by
the acceptance of white jurors with “conflicting obligations that appear to have been at least as
serious” Id. at 483. Unlike Snyder, the prosecutor’s reasoning in this case was neither highly
speculative nor implausible, and no other jurors with similar conflicting obligations were seated
on the jury.
¶ 63 Accordingly, based on the totality of the facts and circumstances, we find that the
trial court did not err in denying defendant’s Batson challenge to the peremptory strike of the
prospective juror.
¶ 64 B. Closing Argument
¶ 65 Next, we address defendant’s argument that he was deprived of his right to a fair
trial when the State misrepresented the strength of the DNA evidence during its closing argument
and rebuttal. Initially, defendant concedes that he forfeited this issue by failing to raise it at trial
but contends that we can review his claim pursuant to familiar exceptions to forfeiture: plain error
and ineffective assistance of counsel. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (finding
that to preserve an issue for review, a party must raise the issue at trial and in a written posttrial
motion).
¶ 66 1. Plain Error
¶ 67 “Plain error may be demonstrated in one of two ways. To establish first-prong plain
error, defendant must show that the evidence was closely balanced and that the prosecutor’s
comments were ‘clear or obvious’ reversible error that changed the outcome of the trial.” People
v. Mudd, 2022 IL 126830, ¶ 22. To establish second-prong plain error, “defendant must prove that
- 19 - the alleged error was serious enough to affect the fairness of the trial or to undermine the integrity
of the judicial process.” Id. “The initial analytical step under either prong of the plain error doctrine
is determining whether there was a clear or obvious error at trial.” People v. Sebby, 2017 IL
119445, ¶ 49. Accordingly, we first consider whether the State’s closing and rebuttal arguments
constitute error. Defendant “bears the burden of persuasion under both prongs of the plain error
doctrine.” People v. Reese, 2017 IL 120011, ¶ 69. If he fails to meet his burden, we will honor his
procedural default. People v. Hillier, 237 Ill. 2d 539, 545 (2010). We review claims of plain error
de novo. Mudd, 2022 IL 126830, ¶ 22.
¶ 68 Defendant alleges that the State erred by misstating the strength of the DNA
evidence related to the gun in its closing and rebuttal arguments. Specifically, defendant contends
that the State “repeatedly mischaracterized the DNA evidence as conclusively showing that
[defendant] was in possession of the gun.” To the contrary, defendant asserts the DNA evidence
did not demonstrate anywhere near a certain match for defendant’s profile.
¶ 69 “A prosecutor has wide latitude in making a closing argument and is permitted to
comment on the evidence and any fair, reasonable inferences it yields.” People v. Glasper, 234 Ill.
2d 173, 204 (2009). While prosecutors have wide latitude in closing arguments, “there are limits
to proper argument.” People v. Simms, 168 Ill. 2d 176, 196 (1995). Regardless of the procedural
posture of defendant’s improper closing argument challenge, a reviewing court will reverse a
judgment only if the prosecutor’s comment was “damaging enough that it severely threatened to
tip the scales of justice against the defendant.” (Internal quotation marks omitted.) People v.
Williams, 2022 IL 126918, ¶ 57.
¶ 70 At trial, Gershburg testified that “[defendant] could not be excluded from people
who potentially contributed to” DNA taken from the gun. She clarified that the major DNA profile
- 20 - “can be seen independently in other people, with one in every five people.” This is relevant and
probative evidence, as it showed that defendant’s DNA was consistent with that left on the gun,
though it was not specific to defendant. However, the prosecutor severely overstated the
significance of the DNA evidence, going so far as to state that the gun “had [defendant’s] DNA,
the defendant’s DNA on it” and the forensic testing “confirmed that his DNA was on the gun.” It
can be “highly persuasive” to jurors to suggest that a defendant is “a DNA match” to a relevant
sample. People v. Wright, 2012 IL App (1st) 073106, ¶ 96. Because the prosecutor’s statement that
testing “confirmed” that defendant’s “DNA was on the gun” was not supported by the evidence or
reasonable inferences to be drawn from it, we conclude that the State’s representations were clearly
erroneous. Having found error, we must continue with our plain error analysis under both prongs.
¶ 71 a. First Prong
¶ 72 The next step in our analysis under the first prong is to determine whether the
evidence was “damaging enough that it severely threatened to tip the scales of justice against the
defendant.” (Internal quotation marks omitted.) Williams, 2022 IL 126918, ¶ 57. To determine
whether the evidence was, in fact, so closely balanced that an error severely threatened to tip the
scales of justice against defendant, we conduct a qualitative, commonsense assessment of the
evidence relating to the elements of the charged offense, as well as any evidence regarding the
witnesses’ credibility. Id. ¶ 58.
¶ 73 The sole element of the charge contested by defendant on appeal is that of identity.
He argues that, with respect to identification of the man who fled from officers, the jury was faced
with a credibility contest and two plausible versions of events. On one side, Birge and Troglia both
testified that they knew defendant and he was the individual that fled. On the other, defendant
testified the individual that fled was not him but another person, a friend whom he lent his car to
- 21 - and who was wearing his clothing.
¶ 74 Following our review of the record, we are unable to conclude that the evidence in
this case was closely balanced or that there were two plausible versions of events placed before
the jury. Both Birge and Troglia testified that they recognized defendant as the man who fled and
discarded the gun. Birge had arrested defendant previously and was familiar with him. During that
arrest, defendant was wearing what Birge believed was the same red sweatshirt collected at the
scene of the incident at issue. Birge stated that while seated in the patrol vehicle, he was able to
get a look at defendant from 15 feet away while his face was illuminated under a streetlight. Troglia
similarly testified that he was familiar with defendant from previous encounters and that he
recognized defendant’s face when illuminated under the streetlight, stating he was able to identify
defendant from approximately 30 feet away. Troglia also previously arrested defendant while he
was wearing a red sweatshirt. While not conclusive, the DNA evidence supports the officer’s
testimony. Defendant could not be excluded from the profile obtained from the handgun but almost
certainly contributed the profile found on the red sweatshirt.
¶ 75 Although defendant admitted that he owned the vehicle from which the individual
fled, he stated he let a friend borrow it. Defendant denied that he told Troglia he was unaware of
who had his car. This friend was similar in physical stature to defendant, and the two shared
clothes. Defendant kept clothing in his vehicle, and his friend likely put on his red sweatshirt.
Defendant denied telling Troglia he did not own a red sweatshirt. Although defendant claimed it
was his friend who was pounding on the apartment door and fled from police, he acknowledged
that this friend lived at the apartment and would have had keys to enter the apartment, obviating a
need to pound on the door for entry.
¶ 76 In sum, defendant was identified by two officers that he had fairly extensive prior
- 22 - involvement with, that identification was generally supported by DNA evidence, and the version
of events put forth by defendant does not appear plausible. The evidence in this case was not
closely balanced.
¶ 77 b. Second Prong
¶ 78 Defendant also argues that the error committed by the prosecutor during closing
arguments constituted second-prong plain error. Under the second prong, we determine whether
the “ ‘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.’ ” Galarza, 2023 IL
127678, ¶ 45 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). The Illinois Supreme
Court has noted that “comments in prosecutorial closing arguments will rarely constitute second-
prong plain error because the vast majority of such comments generally do not undermine basic
protections afforded to criminal defendants.” Williams, 2022 IL 126918, ¶ 56 (citing People v.
Moon, 2022 IL 125959, ¶ 29, citing Neder v. United States, 527 U.S. 1, 8-9 (1999)).
¶ 79 We find that defendant has failed to establish second-prong plain error. We note
that prior to closing argument, the trial court admonished the jurors as follows, “What the lawyers
say during arguments is not evidence and should not be considered by you as evidence. If a lawyer
makes a statement that is not based on the evidence or reasonable inferences to be drawn from the
evidence, you should disregard the statement.” Having received this admonishment, the jury was
aware it should disregard comments in closing inconsistent with the evidence. See People v. Macri,
185 Ill. 2d 1, 52 (1998) (noting that any alleged error resulting from the prosecutor’s argument
would have been cured by the trial court’s jury instructions); Glasper, 234 Ill. 2d at 215 (finding
where the trial court properly instructed the jury, a prosecutor’s improper argument was not so
prejudicial that the jury ignored the court’s instructions and based its verdict on such an argument).
- 23 - Further, despite the improper argument from the prosecutor, defense counsel explained in his
closing the true import of the forensic evidence as testified to by Gershburg—that defendant was
identified as a possible contributor of the DNA on the handgun and the profile had an occurrence
of one in five in the population at large.
¶ 80 Given the instructions and defense counsel’s clarifying argument, this is not the
kind of extreme circumstance where the prosecutor’s improper argument during the initial closing
argument amounted to structural error or second-prong plain error. See People v. Albanese, 104
Ill. 2d 504, 518 (1984) (finding plain error only where prosecutor’s comments “were so
inflammatory that defendant could not have received a fair trial or so flagrant as to threaten
deterioration of the judicial process”); People v. Johnson, 208 Ill. 2d 53, 85 (2003) (finding that
“pervasive prosecutorial misconduct” amounts to structural error).
¶ 81 Turning to the comments challenged in the State’s rebuttal, the prosecution stated:
“Now the 1 in 5 that he talks about, he goes, well, there is 15 males here,
that means one of us [(the prosecution team)]—there is only one person in this
courtroom that was out at Fair Oaks that night with that gun and it’s him, the
defendant, and that’s what the science establishes and corroborates the two
officers.”
These comments fall far short of constituting reversible error. If these comments constituted the
totality of the prosecution’s argument on the DNA evidence found on the handgun, it would be
unclear whether any error occurred at all.
¶ 82 Accordingly, the prosecutor’s argument in closing did not equate to second-prong
plain error, and we must honor defendant’s procedural forfeiture.
¶ 83 2. Ineffective Assistance of Counsel
- 24 - ¶ 84 Defendant argues in the alternative that his counsel’s failure to object to the
improper closing argument constituted ineffective assistance of counsel.
¶ 85 Having found that the State’s improper closing argument did not amount to plain
error, defendant cannot establish ineffective assistance of counsel for a failure to preserve this
issue. See Glasper, 234 Ill. 2d at 216 (finding the defendant could not meet the requirements to
show ineffective assistance of counsel in the absence of plain error).
¶ 86 C. Jury Instruction
¶ 87 Defendant’s final argument is that effective trial counsel would have tendered
Illinois Criminal Pattern Jury Instructions, Criminal, No. 3.15 (approved July 28, 2017), and by
failing to do so, his counsel rendered ineffective assistance. The particular jury instruction at issue
provides that:
“When you weigh the identification testimony of a witness, you should
consider all the facts and circumstances in evidence, including, but not limited to,
the following:
[1] The opportunity the witness had to view the offender at the time of the
offense.
[2] The witness’s degree of attention at the time of the offense.
[3] The witness’s earlier description of the offender.
[4] The level of certainty shown by the witness when confronting the
defendant.
[5] The length of time between the offense and the identification
confrontation.” Id.
¶ 88 To prevail on an ineffective assistance claim, a defendant must demonstrate that
- 25 - (1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s
deficient performance arguably prejudiced the defendant. People v. Veach, 2017 IL 120649, ¶ 30
(citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). A failure to satisfy either prong
precludes a finding of ineffectiveness. People v. Simpson, 2015 IL 116512, ¶ 35.
¶ 89 Regarding the first prong, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” (Internal quotation marks omitted.) People v. McGath, 2017 IL
App (4th) 150608, ¶ 38. Regarding prejudice, a defendant must demonstrate “that there is a
‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” People v. Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland, 466
U.S. at 694).
¶ 90 With regard to the selection of jury instructions, it is well established that,
“[g]enerally, counsel’s choice of what jury instructions to tender to the court is a matter of trial
strategy.” People v. Bruemmer, 2021 IL App (4th) 190877, ¶ 53. “Such decisions enjoy a strong
presumption that they reflect sound trial strategy, rather than incompetence,” and thus, they are
“generally immune from claims of ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d
361, 378 (2000).
¶ 91 We have already found that the evidence in this case was not closely balanced.
Given that defendant could not establish plain error, his claim of ineffective assistance of counsel
fails due to his inability to establish prejudice. See Glasper, 234 Ill. 2d at 216. Moreover, defense
counsel could have concluded that submitting this instruction would only aid the State in making
arguments in support of its case while mitigating the aspersions defense counsel was casting on
- 26 - the officers’ identification of defendant. See People v. Jones, 2021 IL App (3d) 190131, ¶ 29 ( “By
intentionally declining to have that instruction delivered, defense counsel was able to argue the
shortcomings of the identifications *** while not calling any attention to factors that would
actually hurt his case.”). This is an eminently reasonable trial strategy, so trial counsel did not
render ineffective assistance.
¶ 92 III. CONCLUSION
¶ 93 For the reasons stated, we affirm the judgment of the trial court.
¶ 94 Affirmed.
- 27 -