NOTICE 2020 IL App (4th) 180479-U This order was filed under Supreme FILED Court Rule 23 and may not be cited NO. 4-18-0479 November 20, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macon County DEVOE D. RANDALL, ) No. 17CF1037 Defendant-Appellant. ) ) Honorable ) Jeffrey S. Geisler, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices DeArmond and Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding defendant failed to establish either plain error or ineffective assistance of trial counsel.
¶2 Following a jury trial, defendant, Devoe D. Randall, was convicted of aggravated
battery with a firearm, aggravated discharge of a firearm, and being an armed habitual criminal.
At sentencing, the trial court merged the aggravated discharge of a firearm conviction into the
aggravated battery with a firearm conviction and then sentenced defendant to two concurrently
imposed terms of 14 years’ imprisonment.
¶3 Defendant appeals, arguing (1) plain error occurred, or his trial counsel provided
ineffective assistance by failing to object, when two police officers provided lay-witness
identification testimony that a man seen inside a car wash was defendant and that defendant was wearing a certain type of undershirt; (2) his trial counsel provided ineffective assistance by failing
to (a) ensure the potential jurors were examined about their prejudices against street gang
affiliation and activity and (b) seek the redaction of those portions of his recorded police interview
when the officer gave inadmissible and prejudicial lay-witness opinions that defendant was a liar
and that defendant was the man seen inside the car wash; and (3) plain error occurred, or his trial
counsel provided ineffective assistance by failing to object, when the trial court relied upon factors
inherent in the offenses for which he was convicted in reaching its sentencing decisions.
¶4 For the reasons that follow, we find defendant has failed to establish either plain
error or ineffective assistance of trial counsel and, therefore, affirm the trial court’s judgment.
¶5 I. BACKGROUND
¶6 A. Information
¶7 In July 2017, the State charged defendant by information with attempt (first degree
murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2016)) (count I), aggravated battery with a firearm
(720 ILCS 5/12-4.2(a)(1) (West 2010)) (count II), aggravated discharge of a firearm (720 ILCS
5/24-1.2(a)(2) (West 2016)) (count III), and being an armed habitual criminal (720 ILCS
5/24-1.7(a) (West 2016)) (count IV). The charges stemmed from a shooting incident occurring
during the early morning hours of July 9, 2017, at a gas station located at 2185 East Wood Street
in Decatur (the gas station). The incident resulted in Marlone Dishman sustaining gunshot wounds
to his knee.
¶8 B. Jury Trial
¶9 In February 2018, the trial court conducted a jury trial. During voir dire, the
potential jurors were not examined concerning any bias they may have had against street gang
-2- affiliation and activity.
¶ 10 Marlone Dishman testified, around 2:45 a.m. on July 9, 2017, he, along with
several other people, were at the gas station. He did not argue with anyone that night, nor did
anyone make threats towards him. At one point, he was shot in the knee while he was standing by
the gas pumps with his relatives, Javaris and Jerrin Milan. He did not see who shot him or what
direction the shots came from. He did not hear more than one shot being fired. He was taken by
car to the hospital, where he spent one night and had surgery on his knee. On cross-examination,
Dishman testified neither he nor his friends had any affiliation with a group known as “Moes” or
“Eastside Boys.” He also testified he did not know why anyone would have a reason to shoot at
him and he did not have any problems with anyone.
¶ 11 Jazmyne Milan testified she was at the gas station with her brother, Dishman, as
well as her relatives, Javaris and Jerrin, and some friends. While she was standing by an air pump,
she heard gunshots, approximately seven or eight, and then saw her brother had been shot. She
saw the shooter come from the gas station’s car wash. She recalled the shooter was a black male
who had a red scarf or bandana covering his face and was wearing a white undershirt and dark
blue or black “sweats.” After the shooting, Jazmyne left in a car and called the police. She then
spoke to a police officer later that night and gave the officer the names of people who had been at
the gas station. Jazmyne later identified the shooter during a recorded police interview as
“Dontaeveous Williams,” whom she recognized from the tattoos he had on his face. Jazmyne
testified nothing blocked her view of the shooter but acknowledged she could not tell exactly who
the shooter was because most of his face was covered. She did not know why her brother was shot.
On cross-examination, Jazmyne testified her brother was not in a gang. She further testified the
-3- officer she spoke with identified defendant as a suspect.
¶ 12 The State published to the jury a stipulation concerning the testimony of Larry
Faulkener. According to the stipulation, on July 9, 2017, Faulkener was working as the clerk at the
gas station. At approximately 2:50 a.m., he heard 10 to 15 gunshots from the station’s parking lot,
a pause, and then approximately 10 more gunshots. An injured black man was then brought into
the store by a group of people who asked Faulkener not to call the police. The group then carried
the man out of the store. Faulkener later gave a police officer access to the gas station’s surveillance
system.
¶ 13 Police officers Peter Hackleman and Jason Danner both testified they attempted to
interview Dishman at a hospital at different times on the morning of July 9, 2017. Dishman was
uncooperative and did not give any information. Officer Danner arrived while Dishman was being
treated and saw he appeared to have two gunshot wounds in his left knee. Officer Danner was
unable to photograph the wounds because Dishman put his hands over his knee. Officer Danner
explained a photograph was of Dishman being wheeled into the emergency room at approximately
2:55 a.m. that morning.
¶ 14 Police officers Megan Welge and Malcolm Livingston processed the scene at the
gas station. Officer Welge testified about a series of photographs she took showing the location of
bullet fragments, shell casings, and impact damage. She also saw, photographed, and collected a
sample from a drop of blood just inside the store of the gas station. Officer Livingston collected
shell casings with gloves to preserve prints. He did not know if any collected casings were sent to
be tested for prints.
¶ 15 Officer Welge found a bullet fragment between gas pumps in front of the gas
-4- station’s entrance, which she photographed and then collected as evidence. On the side of the store,
to the left of its entrance, there were multiple shell casings on the ground and a defect in the station
wall that appeared to be from a gunshot. To the left of the defect in the wall, further away from the
store’s entrance, was the entrance to the car wash. There were several shell casings in that area.
Officer Welge testified several 9-millimeter casings were found inside the car wash and just
outside of it, while some .45-caliber casings were located closer to the entrance of the gas station.
She also saw shell casings among hoses just inside the car wash and photographed an apparent
casing in the drain path of the car wash. She did not know if any fingerprint tests were done on the
collected casings. She agreed the group of the two different types of casings suggested it was not
a situation where one person had two different guns.
¶ 16 The State published to the jury a stipulation concerning the testimony of Chad
Cravens. According to the stipulation, Cravens was the assistant manager of the gas station.
Cravens, who had been trained in the function and operation of the gas station’s surveillance
system, observed the system was in working order and had been recording from all cameras from
2 a.m. to 4 a.m. on July 9, 2017. Video footage from the cameras was preserved on the station’s
server and had not been altered or compromised. Cravens downloaded the video footage to DVDs.
The video footage on the DVDs provided a fair and accurate representation of the video on the
server from July 9, 2017, between the hours of 2 a.m. and 4 a.m. Cravens gave the DVDs to a
police detective.
¶ 17 Officer Robert Hoecker testified he responded to the gas station shortly after the
shooting and reviewed video footage from the gas station’s surveillance system to find footage
relevant to the investigation. The surveillance system had multiple cameras covering the exterior
-5- and interior of the area. Officer Hoecker’s knowledge of the approximate time frame of the
shooting and the location of shell casings influenced the cameras and times on which he focused.
He prepared a written report detailing the footage from various cameras and times which he
thought was relevant.
¶ 18 The State played about a dozen video clips for the jury, and Officer Hoecker
described what he found relevant in those clips. The video clips came from People’s Exhibit 1,
which was two DVDs containing surveillance footage from the gas station’s sixteen security
cameras. Each clip contains the camera number, the year, the date, and the time. In addition to
Dishman, Officer Hoecker identified three men in the video clips whom he called suspect one,
suspect two, and suspect three. He believed only suspect one was “relevant” to the shooting of
Dishman.
¶ 19 Officer Hoecker described suspect one as a black man with a red t-shirt with white
writing on the chest, logos on the sleeves, black shorts, white and black tennis shoes, and a green
wristband on his right hand. Officer Hoecker testified the video clips showed suspect one talking
to several women and another man who wore black pants, a red shirt, and white and black shoes
on the north side of the station’s parking lot. Suspect one then went into the store to purchase a
bottle of water, left the store, and walked to the south end of the parking lot, and finally returned
to the north end of the parking lot, where the women who previously spoke with suspect one were
located. At one point, suspect one walked past Dishman, who was with suspects two and three.
¶ 20 Officer Hoecker testified suspect one walked westbound off camera toward the car
wash exit. Approximately 90 seconds after suspect one walked west off camera, a man could be
seen on camera walking through the interior of the car wash. Officer Hoecker testified, “So now I
-6- can’t describe that per se as suspect one as the outfit has changed, but there were several
characteristics that matched suspect one’s description.” Specifically, Officer Hoecker noted
suspect one and the man in the car wash had similar shoes, shorts, and a watch or wristband on the
right hand. Officer Hoecker also testified the man in the car wash appeared to have a red shirt like
suspect one, which was wrapped around the man’s face. On cross-examination, Officer Hoecker
was asked if he previously testified suspect one was the man inside the car wash, to which Officer
Hoecker testified, “I could not 100 percent confirm suspect one as the outfit had changed but the
same characteristics of suspect one, yes.”
¶ 21 Officer Hoecker testified the man in the car wash drew a weapon from his
waistband and went to the entrance of car wash, raised his hand, and went off camera. At that time,
suspects two and three, Dishman, and others ran and ducked. Dishman then could be seen falling
outside of the entrance of the store. The man originally seen in the car wash then returned to the
car wash walking in the opposite direction. Officer Hoecker described suspect three handing
something to suspect two, who then ran to the entrance of the car wash and pointed a handgun
toward the car wash exit. Hoecker described how Dishman was then brought into the store and
then carried to a car.
¶ 22 Detective Jason Hesse, a detective with the street crimes unit, testified it was
common in the Decatur Police Department to send out department-wide emails with photographs
asking for assistance to identify someone. He received such an email around July 9, 2017, and
identified defendant from a still photograph taken from the surveillance footage inside the store of
the gas station. He identified defendant in two additional photographs from inside the gas station
but did not remember if he had seen those photographs with the original email. On
-7- cross-examination, Detective Hesse was asked about if he was shown a still photograph of an
individual walking through a car wash, to which he stated he vaguely remembered looking at a
photograph of someone walking through a car wash but he could not identify that person based on
facial features.
¶ 23 Detective Timothy Wittmer testified as part of the investigation he reviewed all the
initial reports and video clips from the surveillance cameras that had been gathered. He reviewed
the video clips to put together a narrative of the timeline of events as they occurred, as well as to
identify individual suspects and note their involvement in the reported shooting. He noted the clips
contained “very high quality surveillance footage.” Through his review of the clips, Detective
Wittmer was able to identify the individuals previously identified as suspects two and three as
Jerrin and Javaris Milan based on his previous police contacts with them.
¶ 24 Detective Wittmer also took screenshots while watching the video clips. The still
photographs are not as clear as the footage in the video clips. To identify the individual previously
identified as suspect one, Detective Wittmer sent a department-wide email with still photographs
of suspect one. He learned Detective Hesse was able to identify suspect one as defendant. Detective
Wittmer identified several still photographs of the screenshots made from the video clips as
showing defendant outside and inside the store of the gas station. Detective Wittmer testified in
certain photographs an outline of a tank top style undershirt can be seen underneath defendant’s
red t-shirt.
¶ 25 The jury was shown two still photographs of screenshots made from the
surveillance footage from inside the car wash. The photographs depict a man in the car wash
walking toward the car wash entrance and exit. Detective Wittmer testified he found the
-8- photographs significant in his investigation because it showed the man in the car wash and
defendant wearing similar shoes, clothing, and wristbands. With respect to the shoes, Detective
Wittmer noted not only were the shoes similar in style but the Velcro straps on the shoes were
being worn in a similar manner. Detective Wittmer further testified he did not observe any other
patron at the gas station to be wearing similar clothing during his review of the video clips.
¶ 26 After familiarizing the jury with the layout of the area around the gas station with
an overhead map, Detective Wittmer narrated to the jurors what they saw on approximately 15
different video clips from different cameras. When discussing the video clips that showed
defendant walk south and then north by the gas pumps, Detective Wittmer agreed with the
prosecutor that two groups were seen on the clip and stated Dishman was “affiliated” with the
Milans’ group because he was related to them. He further narrated the clips showing defendant
speaking with a group of women and then walking south, defendant entering the store, defendant
purchasing a bottle of water, Dishman falling outside the store’s entrance, and Dishman being
brought into the store.
¶ 27 Detective Wittmer narrated two video clips containing surveillance footage from
inside the car wash, telling the jurors “the suspect” drew a handgun from his waistband, faced
towards the store, and the handgun had its slide to the rear as if it was in the process of firing. Next,
“the suspect” walked back through the car wash and placed the handgun in his waistband. When
asked on direct examination what occurred after the suspect walked back through the car wash,
Detective Wittmer testified, “you’re going to see here is Jerrin Milan firing back a handgun firing
at Mr. Randall [(defendant)] as he’s exiting the carwash.”
¶ 28 On redirect examination, the following inquiry occurred:
-9- “Q. Now, you were asked about the clipboard in the bottom
corner you could see the defendant’s hand raised and the gun it
appeared to be in the process of firing, mid firing?
A. Correct.
Q. When that clip continued to play, did the defendant’s
hand move out of the line of sight of the camera?
A. Throughout that clip, the—the defendant is not in view
the entire time, no. There was some time before you’ll notice he goes
off camera for several seconds, and then he comes back and as he’s
coming back, that’s when that other—when it was paused so there
was a brief period of time where you could see him off camera.
A. So he’s moving—
Q. That he was off camera, excuse me
[TRIAL COUNSEL]: Objection. I don’t know how you see
somebody off camera.
THE COURT: I’m going to sustain the objection
Q. Is it accurate to say that the defendant was moving as he
was firing the gun?
A. Yes.”
¶ 29 Detective Wittmer testified he issued a “person’s wanted” for Jerrin and Javaris
Milan as well as defendant and then interviewed defendant on July 18, 2017. The interview was
recorded. An audio and video recording was entered into evidence and played for the jury. The
- 10 - recording is approximately eight minutes in length. In the first three minutes of the recording,
defendant confirmed he was at the gas station, Detective Wittmer showed defendant photographs
on his cell phone which were purportedly taken from the surveillance system of the gas station,
and defendant denied he was the man seen inside the car wash. In the next thirty seconds, defendant
told Detective Wittmer he left the gas station and was at his cousin’s house on Wood Street at the
time of the shooting. At various points during the remainder of the interview, Detective Wittmer
stated defendant was lying to him, he did not believe defendant, he was not stupid, defendant fired
gunshots and struck a person in the knee, defendant’s insistence it was not him on camera was
absurd, and defendant was depicted in the photographs on his cell phone. In response to Detective
Wittmer’s statements, defendant maintained he was not the shooter, provided an explanation of
what he was doing at his cousin’s house and the other individuals who were present at the house,
and asserted he did not return to the gas station after he went to his cousin’s house.
¶ 30 When questioned about the recording, Detective Wittmer testified a dispute
between two groups of people which he mentioned during the interview was in reference to an
ongoing feud between the “Moes” and the “Eastside.” Detective Wittmer testified Dishman was a
documented member of the Moes and Jerrin Milan was a gang associate. He also testified he
recognized Dontaeveous Williams, who was affiliated with the Eastside, when reviewing the video
clips of the surveillance footage. Detective Wittmer did not recall any interaction between
Williams and defendant. Detective Wittmer further testified he could not say if defendant was
known to associate with anyone with the Eastside.
¶ 31 On cross-examination, Detective Wittmer was examined about his investigation
into Williams. He made several attempts to call Williams and visit him at his last known address,
- 11 - all of which were unsuccessful. After a few days, he stopped his attempt to contact Williams as he
believed Williams was not involved in the shooting. Detective Wittmer testified he did not have
any of the recovered shell casings sent for fingerprint testing because the discovery of useable
prints from a casing was rare. Detective Wittmer explained he intentionally shouted and cursed
during the defendant’s interview as part of an interviewing technique, not because he lost control.
He acknowledged he was angry at the time given the nature of the crimes and the crimes repeated
occurrence in Decatur.
¶ 32 The State introduced evidence of two of defendant’s prior convictions. The jury
was informed defendant had been convicted of unlawful possession of a controlled substance with
intent to deliver in case No. 08-CF-554 and of unlawful delivery of a controlled substance in case
No. 13-CF-1189.
¶ 33 In closing, the State focused on the video clips of the surveillance footage. The
State argued defendant was the man seen inside the car wash. In support, the State focused on the
similar gait and appearance of both individuals as well as the fact the man in the car wash appeared
approximately 90 seconds after defendant could no longer be seen on camera. With respect to the
appearance, the State highlighted both individuals wore distinctive multicolored Nike shoes that
had a swoosh and large Velcro tab on top, dark shorts, similarly styled undershirts, and wristbands.
The State also highlighted defendant was wearing a bright red t-shirt and the man in the car wash
had wrapped around his face what appeared to be a t-shirt of the same color. The State also focused
on the actions of defendant before the shooting, noting he briefly spoke with a group of women
whom he had previously spoken to and those women then quickly left before defendant headed
towards the car wash. As to a possible motive for his actions, the State suggested defendant may
- 12 - have “wanted to escalate the ongoing feud between the two groups that [D]etective Wittmer told
you about,” “thought he could impress someone,” or “wanted to impress some of the women that
he had been talking to[.]”
¶ 34 In response, the defense argued this was a case of mistaken identity caused by an
inadequate investigation. The defense asserted the evidence pointed towards Williams as opposed
to defendant. The defense maintained the State did not provide a motive for why defendant would
have committed the shooting. With respect to the State’s suggestion that defendant may have
wanted to escalate the ongoing feud between the two groups, the defense asserted there was no
evidence of defendant being part of one of those groups. The defense alternatively argued, to the
extent the jury accepted such a motive, any consistencies in the clothing of defendant and the man
in the car wash were not determinative as members of gangs commonly wore similar clothing.
¶ 35 Following deliberations, the jury returned verdicts finding defendant guilty of
counts II, III, and IV. Because the jury indicated it was unable to reach a unanimous verdict on
count I, the trial court declared a mistrial on that count.
¶ 36 C. Posttrial Motion
¶ 37 In May 2018, defendant filed a motion for a new trial, raising various complaints
unrelated to those made in this appeal. Following a hearing that same month, the trial court denied
defendant’s motion.
¶ 38 D. Sentencing
¶ 39 In July 2018, the trial court held a sentencing hearing. The court merged the
aggravated discharge of a firearm conviction into the aggravated battery with a firearm conviction
and ordered it to be served concurrent to the armed habitual criminal conviction. The court received
- 13 - a presentence investigation report and several letters from defendant’s family and friends.
Defendant declined to give a statement in allocution.
¶ 40 The State recommended defendant receive middle-range sentences, while the
defense recommended defendant receive lower-range sentences. The State, in support of its
recommendation, asserted defendant was lucky no one was killed when he opened fire in a public
place and middle-range sentences would serve to deter others from committing similar crimes in
Decatur.
¶ 41 In the oral pronouncement of its decision, the trial court stated it considered the
evidence and recommendations presented as well as the statutory factors in aggravation and
mitigation. As to statutory factors in aggravation, the court stated:
“As I look at the factors in aggravation, I don’t have to look any
further than what happened in this case. A person was shot, had to
go to the hospital.
I do look at the prior criminal history, of course, the
08-CF-554 and the 13-CF-1189 are factored into the armed habitual
criminal. But I do look that as a juvenile, he does have [a] prior
record, an aggravated battery. He does have other record other than
what is part of the armed habitual case so he does have a prior
criminal history in this matter. Certainly there is a need for a
deterrent.
The Court was present during the testimony of the trial.
Somebody who is shooting a gun in a public place in Macon County,
- 14 - as the State has stated, is not something that the People of Decatur
should tolerate. I do believe a message needs to be sent to the public.
A sentence in the minimum range is not appropriate given the facts
and circumstances the Court has in front of it.”
The court sentenced defendant to two concurrently imposed terms of 14 years’ imprisonment.
¶ 42 This appeal followed.
¶ 43 II. ANALYSIS
¶ 44 On appeal, defendant argues (1) plain error occurred, or his trial counsel provided
ineffective assistance by failing to object, when Detective Wittmer and Officer Hoecker provided
lay-witness identification testimony that the man seen inside the car wash was defendant and that
defendant was wearing a certain type of undershirt; (2) his trial counsel provided ineffective
assistance by failing to (a) ensure the potential jurors were examined about their prejudices against
street gang affiliation and activity and (b) seek the redaction of those portions of his recorded
police interview when Detective Wittmer gave inadmissible and prejudicial lay-witness opinions
that defendant was a liar and that defendant was the man seen inside the car wash; and (3) plain
error occurred, or his trial counsel provided ineffective assistance by failing to object, when the
trial court relied upon factors inherent in the offenses for which he was convicted in reaching its
sentencing decisions. In response, the State asserts each of defendant’s arguments are meritless.
¶ 45 A. Lay-Witness Identification Testimony
¶ 46 Defendant argues plain error occurred or his trial counsel provided ineffective
assistance by failing to object when Detective Wittmer and Officer Hoecker provided lay-witness
- 15 - identification testimony that the man seen inside the car wash was defendant and that defendant
was wearing a certain type of undershirt.
¶ 47 The plain-error doctrine provides a “narrow and limited exception” allowing courts
of review to address forfeited claims. People v. Reese, 2017 IL 120011, ¶ 72, 102 N.E.3d 126.
Under the plain-error doctrine, a reviewing court may disregard a defendant’s forfeiture and
consider an unpreserved claim of error where:
“ ‘(1) a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or
(2) a clear or obvious error occurred and that error is so serious that
it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the
evidence.’ ” People v. Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d
403, 413 (2010) (quoting People v. Piatkowski, 225 Ill. 2d 551, 565,
870 N.E.2d 403, 410-11 (2007)).
Under both prongs of the plain-error doctrine, the defendant bears the burden of persuasion. People
v. Wilmington, 2013 IL 112938, ¶ 43, 983 N.E.2d 1015.
¶ 48 Forfeited claims may also be addressed as a matter of ineffective assistance of trial
counsel. To prevail on a claim of ineffective assistance of counsel, it must be shown both
(1) counsel’s performance was objectively unreasonable under prevailing professional norms and
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
- 16 - proceeding would have been different. People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
The defendant bears the burden of persuasion of satisfying both prongs. Id.
¶ 49 Under either theory, we must determine whether error occurred. Under the
plain-error doctrine, the first step is to determine whether a clear or obvious error occurred. People
v. Eppinger, 2013 IL 114121, ¶ 19, 984 N.E.2d 475. Similarly, to succeed on a claim of ineffective
assistance of counsel, a defendant must show an error by counsel which was so serious that counsel
cannot be said to have been functioning as the counsel guaranteed by the sixth amendment. People
v. Perry, 224 Ill. 2d 312, 342, 864 N.E.2d 196, 214-15 (2007).
¶ 50 Lay-witness identification testimony is admissible under Illinois Rule of Evidence
701 (eff. Jan. 1, 2011) if “(a) the testimony is rationally based on the perception of the witness and
(b) the testimony is helpful to a clear understanding of the witness’s testimony or a determination
of a fact in issue.” People v. Thompson, 2016 IL 118667, ¶ 50, 49 N.E.3d 393. Testimony is
“rationally based on a witness’s perception if the opinion is ‘one that a layperson could normally
form from observed facts.’ ”People v. Gharrett, 2016 IL App (4th) 140315, ¶ 72, 53 N.E.3d 332
(quoting Michael H. Graham, Graham’s Handbook of Illinois Evidence § 701.1, at 618 (10th ed.
2010)). Testimony is helpful to a clear understanding of the witness’s testimony or a determination
of a fact in issue if there is some basis for concluding the witness is more likely to correctly identify
the person or object depicted in surveillance footage than the jury. Thompson, 2016 IL 118667,
¶ 50 (identity of a person); Gharrett, 2016 IL App (4th) 140315, ¶ 76 (identify an object). In
determining whether a witness’s opinion as to the identity of a person or object is helpful, we apply
a totality of the circumstances approach. Thompson, 2016 IL 118667, ¶ 51 (adopting such an
approach and setting forth several factors to consider in determining whether there is some basis
- 17 - for concluding the witness is more likely to correctly identify the defendant); Gharrett, 2016 IL
App (4th) 140315, ¶ 77.
¶ 51 First, defendant complains Officer Hoecker provided inadmissible lay-witness
identification testimony that the man seen inside the car wash was defendant. We disagree. Officer
Hoecker never identified the man seen inside the car wash as defendant. In fact, Officer Hoecker
never even identified the man seen inside the car wash as suspect one. Defendant cites Officer
Hoecker’s testimony indicating he believed “suspect one” was the only suspect “relevant” to the
shooting of Dishman. Officer Hoecker’s belief that suspect one was the only suspect relevant to
the shooting of Dishman does not, however, constitute lay-witness identification testimony that
the man seen inside the car wash was defendant. See Thompson, 2016 IL 118667, ¶¶ 8, 61 (law
enforcement officer’s testimony describing the actions of “the subject” in the surveillance
recording did not identify the defendant as the individual depicted in the recording and thus was
not lay-witness identification testimony).
¶ 52 Next, defendant complains Detective Wittmer provided inadmissible lay-witness
identification testimony that defendant was wearing a certain type of undershirt. We disagree.
Detective Wittmer’s opinion was based on his perception of the surveillance footage, which he
reviewed in detail as part of his investigation. See Gharrett, 2016 IL App (4th) 140315, ¶ 72 (“An
opinion as to what a video depicts is an opinion that a layperson could normally form from
observing the video.”) Detective Wittmer’s opinion was also helpful to the determination of a fact
in issue—whether the man seen inside the car wash was defendant. The man in the car wash
disguised his face with what appeared to be a t-shirt and was wearing a tank top style undershirt.
It was difficult to recognize in the surveillance footage whether defendant was wearing an
- 18 - undershirt and what kind. Detective Wittmer’s review of the surveillance footage allowed him to
point out an issue that may have gone unnoticed by the jury.
¶ 53 Last, defendant complains Detective Wittmer provided inadmissible lay-witness
identification testimony that the man seen inside the car wash was defendant. We agree. While
Detective Wittmer largely avoided identifying the man seen inside the car wash as defendant on
direct-examination, he did so when he described Jerrin Milan firing a handgun “at Mr. Randall
[(defendant)] as he’s exiting the carwash.” The State then, on redirect examination, made clear to
the jury that Detective Wittmer believed the man seen inside the car wash was defendant. This
lay-witness identification testimony was improper. As Detective Wittmer noted, the surveillance
footage was of high quality. Through the footage, the jury could observe defendant and easily
identify his shoes, clothing (except for his undershirt), and gait. The jury could also observe the
man in the car wash and easily identify his shoes, clothing, and gait. The lay-witness identification
testimony offered by Detective Wittmer was not helpful to a clear understanding of the detective’s
testimony or a determination of a fact in issue. Accordingly, we find the testimony was
inadmissible and trial counsel should have objected to its introduction.
¶ 54 Defendant contends the introduction of Detective Wittmer’s inadmissible
lay-witness identification testimony that the man seen inside the car wash was defendant tipped
the scales of justice against him as the evidence was closely balanced or, alternatively, there is a
reasonable probability that, but for trial counsel’s failure to object to the testimony, the result of
the proceeding would have been different. We disagree. The issue of whether the man inside the
car wash was defendant was not close. Both defendant and the man inside the car wash wore the
same multi-colored Nike shoes. The Velcro tab on top of the shoes worn by both individuals was
- 19 - not connected and moved with physical activity. Both defendant and the man inside the car wash
wore the same clothing and wristbands. Defendant was wearing a bright red t-shirt and the man in
the car wash had wrapped around his face a t-shirt of the same color. Both individuals had a similar
gait. Shortly before the shooting, defendant briefly spoke with a group of women who then quickly
left before defendant headed towards the car wash. Approximately 90 seconds after defendant
could no longer be seen on camera, the man in the car wash appeared. The evidence made clear
defendant was the man inside the car wash. Even if trial counsel had objected to the testimony, we
find there is no reasonable probability the result of the proceeding would have been different.
¶ 55 B. Voir Dire Examination
¶ 56 Defendant argues his trial counsel provided ineffective assistance by failing to
ensure the potential jurors were examined about their prejudices against street gang affiliation and
activity.
¶ 57 Criminal defendants have a constitutional right to a trial by a fair and impartial jury.
U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Our supreme court has held, “[W]hen
testimony regarding gang membership and gang-related activity is to be an integral part of the
defendant’s trial, the defendant must be afforded an opportunity to question the prospective jurors,
either directly or through questions submitted to the trial court, concerning gang bias.” People v.
Strain, 194 Ill. 2d 467, 477, 742 N.E.2d 315, 321. This is because jurors may hold a “strong
prejudice against street gangs.” Id.
¶ 58 Based on the record before us, we are unconvinced trial counsel’s failure to ensure
the potential jurors were examined about their prejudices against street gang affiliation and activity
constituted objectively unreasonable performance. As trial counsel pointed out during closing
- 20 - argument, there was no evidence at trial indicating defendant had any street gang affiliation or
activity. There was, however, evidence indicating the victim, Dishman, was a member of a gang,
which had an ongoing conflict with another gang. There was also evidence indicating a member
of the other gang, Williams, was present at the gas station and had been identified as the man seen
inside the car wash. Given this evidence, trial counsel could have reasonably concluded as a matter
of trial strategy that any prejudice against gang members would have operated against the State as
opposed to defendant.
¶ 59 C. Audio and Video Recorded Police Interview
¶ 60 Defendant argues his trial counsel provided ineffective assistance by failing to seek
the redaction of those portions of his recorded police interview when Detective Wittmer gave
inadmissible and prejudicial lay-witness opinions that defendant was a liar and that defendant was
the man seen inside the car wash.
¶ 61 Generally, questions or statements by a police officer made during an interview of
a defendant will be admissible if (1) the officer’s questions or statements will be helpful to the jury
so as to place the defendant’s responses (or lack thereof) into context and (2) the prejudicial effect
of the officer’s questions or statements do not substantially outweigh their probative value. People
v. Whitfield, 2018 IL App (4th) 150948, ¶ 48, 103 N.E.3d 1096.
¶ 62 Based on the record before us, we are unconvinced trial counsel’s failure to seek
the redactions of defendant’s recorded police interview constituted objectively unreasonable
performance. Initially, we note any statements of past opinions do not constitute lay-witness
opinion testimony. People v. Hanson, 238 Ill. 2d 74, 101, 939 N.E.2d 238, 254 (2010). The
defense, through its cross-examination and closing argument, presented its theory that this was a
- 21 - case of mistaken identity caused by an inadequate investigation. The playing of the entirety of the
eight-minute interview supported the defense’s theory—it showed a detective who appeared upset
and was shouting and cursing. Given the theory of defense, trial counsel could have reasonably
concluded as a matter of trial strategy that any prejudicial effect of the detective’s statements did
not substantially outweigh their probative value to the defense.
¶ 63 In reaching this decision, we find defendant’s reliance upon People v. Hardimon,
2017 IL App (3d) 120772, 77 N.E.3d 1184, unpersuasive as that case is factually distinguishable.
In Hardimon, the appellate court found a defendant received ineffective assistance due to his trial
counsel’s failure to seek the redaction of a portion of a recorded police interview which was
irrelevant and more prejudicial than probative. Id. ¶ 37. In so finding, the court found the officer’s
statements made during the complained-of portion of the interview “served only to impermissibly
bolster the State’s case and inflame the passions of the jury.” Id. Unlike Hardimon, trial counsel
in this case presented a theory of an inadequate investigation and the statements of the detective
supported that theory. C.f. id. ¶ 27.
¶ 64 D. Sentencing Decisions
¶ 65 Defendant argues plain error occurred, or his trial counsel provided ineffective
assistance by failing to object, when the trial court relied upon aggravating factors inherent in the
offenses for which he was convicted in reaching its sentencing decisions.
¶ 66 The aggravating factors that may be applied during sentencing is set by
statute. People v. Johnson, 2019 IL 122956, ¶ 38, 129 N.E.3d 1239; see 730 ILCS 5/5-5-3.2 (West
2016). A factor inherent in the offense cannot be used in aggravation to justify a more severe
sentence than might otherwise be imposed. People v. Saldivar, 113 Ill. 2d 256, 267, 497 N.E.2d
- 22 - 1138, 1142 (1986). The burden is on the defendant to establish the trial court improperly
considered an inherent factor. People v. Dowding, 388 Ill. App. 3d 936, 943, 904 N.E.2d 1022,
1028 (2009).
¶ 67 Defendant complains the trial court improperly considered that he possessed a gun
and that he fired a gun and someone was hurt as those facts are inherent in the offenses for which
he was convicted. We disagree. In reviewing the factors in aggravation, the court stated, (1) “A
person was shot, had to go to the hospital” and (2) there was a need for deterrent as “[s]omebody
who is shooting a gun in a public place” should not be tolerated. These statements do not establish
the court was improperly relying on facts inherent in the offenses for which defendant was
convicted. To the contrary, the court’s statements indicate the court was considering the degree of
harm Dishman suffered and the need to deter others from committing similar crimes in public
places. See Saldivar, 113 Ill. 2d at 269 (“[T]he commission of any offense, regardless of whether
the offense itself deals with harm, can have varying degrees of harm or threatened harm.”).
Defendant has failed to show the trial court committed error in reaching its sentencing decisions.
¶ 68 III. CONCLUSION
¶ 69 We affirm the trial court’s judgment.
¶ 70 Affirmed.
- 23 -