People v. Richardson

2022 IL App (2d) 210231-U

Opinion

2022 IL App (2d) 210231-U No. 2-21-0231 Order filed July 18, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) Nos. 17-CF-1700 ) ) VAN DOUGLAS RICHARDSON, JR., ) Honorable ) Brendan A. Maher, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in denying defendant’s pre-trial motion to dismiss the indictment for first-degree murder. The evidence was sufficient to convict. However, as the State concedes, defendant is subject to a 20-year, not a 25-year, firearm sentencing enhancement. Conviction affirmed. Sentence affirmed as modified.

¶2 Defendant, Van Douglas Richardson, Jr., filed a pre-trial motion pursuant to section 114-

1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(a) (West 2018)) to

dismiss the 19-count bill of indictment, which included 16 counts for first-degree murder against

defendant and co-defendant, Deon Hart. Hart filed a similar motion. Both defendants argued that 2022 IL App (2d) 210231-U

the State misled the grand jury when it presented the testimony of an eye-witness, Marshayla

Whitlock, and elicited that she had provided the police with a prior consistent statement but did

not disclose that she had also provided the police with a prior inconsistent statement. The trial

court denied both motions in a single ruling. A jury subsequently convicted defendant of first-

degree murder. 720 ILCS 5/9-1 (a)(2), (a)(3) (West 2016). It also determined that defendant

personally discharged the firearm that proximately caused the victim’s death, making defendant

subject to a 25-year sentencing enhancement. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp. 2017).

The trial court sentenced defendant to 40 years’ imprisonment, plus the 25-year sentencing

enhancement, for a total of 65 years’ imprisonment.

¶3 On appeal, defendant argues that: (1) the trial court erred in denying his motion to dismiss

the indictment1; (2) the evidence was not sufficient to convict for first-degree murder; and (3) even

if the evidence was sufficient to convict for first-degree murder, it was at best sufficient to establish

that defendant, as one of two shooters firing toward the victim, personally discharged a firearm

(730 ILCS 5/5-8-1(a)(d)(ii) (West Supp. 2017) (20-year enhancement)), not that he personally

discharged the firearm that proximately caused the victim’s death (730 ILCS 5/5-8-1(a)(1)(d)(iii)

(West Supp. 2017) (25-year enhancement)).

¶4 We reject defendant’s first two arguments. The State concedes error as to the sentencing

enhancement. Accordingly, we affirm defendant’s conviction for first degree murder but vacate

1 Co-defendant Hart has filed a similar appeal on this issue. See People v. Hart, 2022 IL

App (2d) 200702-U. The trial court adjudicated both motions in a single order. As such, both

codefendants appeal from the same order, so there is great overlap in our analyses in the two

appeals.

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the 25-year enhancement and impose, instead, a 20-year enhancement, for a total of 60 years’

imprisonment. Conviction affirmed. Sentence affirmed as modified.

¶5 I. BACKGROUND

¶6 On May 24, 2017, two persons fired gunshots from an SUV in the vicinity of an apartment

complex on Sablewood Drive in Rockford. Many people were standing outside, and one person,

Lester Sanders, was fatally shot as he sought shelter within his apartment. The State believed that

defendant, then age 27, drove the SUV from which the shots were fired and that both he and

codefendant Hart, then age 22, fired shots from the vehicle while Hart’s friend, Whitlock, then age

17, huddled in the backseat. The State charged defendant with multiple counts of first-degree

murder.

¶7 A. Pre-Trial

¶8 1. Grand Jury Testimony

¶9 On June 21, 2017, and on August 2, 2017, the State conducted grand jury proceedings,

calling Whitlock and Rockford police detective Joseph Danforth.

¶ 10 Whitlock acknowledged that she was presently in custody on a juvenile matter. She

testified that she had not received an offer by the State in exchange for her cooperation. Turning

to the shooting, Whitlock testified that defendant drove Hart and herself to the Sablewood

apartments, where Hart believed he had left his phone. There, Whitlock’s friend, “Biff,” expressed

anger toward Whitlock’s group, because they had caused a “commotion” earlier in the day.

¶ 11 Whitlock’s group returned to the vehicle, with defendant driving, Hart in the front

passenger seat, and Whitlock in the back seat. Whitlock observed that defendant had a gun on his

lap. She also observed that Hart had a gun.

¶ 12 As Whitlock’s group began to drive away, someone outside the vehicle who Whitlock

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could not see yelled “what.” Defendant and the person shouted back and forth. Defendant stuck

his gun out of the window and started to shoot. Whitlock estimated that defendant fired four shots

as she screamed, “No, no, stop.” Hart told her to “shut the f*** up,” and Hart then sat on the

window frame and began to shoot over the roof of the vehicle. Whitlock estimated that Hart fired

six shots. The men then continued to fire in all directions as Whitlock “balled up” in the backseat.

She did not understand the men’s motive: “I didn’t want them to just do all this nonsense that they

were doing for no reason.” When the shooting ended, Whitlock remained in the vehicle for some

time. Whitlock described her eventual departure:

“We were still in the car, and I was stressing the fact that I wanted to get dropped

off. And from there we dropped Deon off onto Green, and [defendant] took me to Auburn

Manor and told me that if I would say anything to the police that they would kill me and

they would put a note by my body noting that they killed me because they were already

going to jail for murder.”

¶ 13 Whitlock also testified that, on June 14, 2017, she provided a video-recorded statement to

police. The statement was, overall, consistent with the testimony she had just given. In the

statement, Whitlock had told police that defendant and Hart may have fired 30 to 50 shots, total,

and that no one fired back at them. Also on June 14, 2017, Whitlock identified both defendant and

Hart from a photo lineup.

¶ 14 Danforth testified, inter alia, that, on May 24, 2017, he and other officers had responded

to the scene of the crime. Among the witnesses to later provide written statements was Stacey

McCaleb. McCaleb stated that, earlier on May 24, 2017, she had been in a fight with Whitlock at

the Sablewood apartments (the “commotion” to which Biff would later refer). Then, later that day,

she saw Whitlock return to the Sablewood apartments with two black males (who Danforth

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believed to be defendant and Hart).

¶ 15 Danforth also testified that, on June 14, 2017, he interviewed Whitlock. Whitlock informed

him that defendant and Hart shot in the direction of the Sablewood apartments for no apparent

reason. This occurred after an unknown person shouted “what” at defendant and Hart. Whitlock

was able to pick out defendant and Hart from a photo lineup.

¶ 16 The grand jury returned a 19-count bill of indictment, which included 16 counts of first-

degree murder. The counts alleged, variously, that defendant was the shooter that proximately

caused the victim’s death, that defendant fired a gun during the commission of the offense (but not

necessarily that he fired the fatal shot), that defendant was accountable for the victim’s murder,

and that defendant participated in a forcible felony (aggravated discharge of a firearm) and the

victim was killed in the course of that felony.

¶ 17 2. Motion to Dismiss Indictment

¶ 18 On May 29, 2018, defendant moved to dismiss the indictment pursuant to section 114-1(a)

of the Code. 725 ILCS 5/114-1(a) (West 2018). He argued that the State violated his due process

rights by misleading the jury. Specifically, defendant argued that the State misled the jury when

it elicited that, on June 14, 2017, Whitlock gave a statement to police that was consistent with her

grand jury testimony, in that she implicated defendant and Hart, but failed to disclose that, on May

25, 2017, Whitlock gave a statement to police that was inconsistent with her grand jury testimony,

in that she stated that she did not know the shooters. Defendant did not reference Danforth’s

testimony.

¶ 19 Hart filed a similar motion to dismiss the indictment. However, Hart also referenced

Danforth’s testimony. The State filed substantively identical responses to defendant and Hart’s

motion to dismiss, and the trial court heard the motions at a joint hearing.

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¶ 20 During the hearing, both defendants contended that People v. Oliver, 368 Ill. App. 3d 690,

697 (2006), controlled. The State, in turn, urged that People v. Torres, 245 Ill. App. 3d 297, 300

(1993), was more on-point. The trial court recognized that, per Oliver, the State was not permitted

to mislead a grand jury or allow a witness to testify falsely before a grand jury. The court further

recognized that, per Torres and unlike at a trial where guilt beyond a reasonable doubt is at issue,

the State was not required to present exculpatory evidence to the grand jury. The court

acknowledged that, because the State referenced Whitlock’s prior consistent statement but not her

prior inconsistent statement, “it had some concerns.” Still, the court believed that what had

occurred was more similar to a decision to withhold exculpatory evidence than to outright mislead

a grand jury or allow a witness to testify falsely. As such, the court denied the motions to dismiss

the indictments. The court further indicated that, even if it had granted the motions to dismiss, it

would have been with leave to seek reindictment.

¶ 21 B. Trial

¶ 22 At trial, the State prosecuted defendant for first-degree murder. As stated, it pursued

multiple theories, including that defendant was the shooter that fired the fatal shot, that defendant

shot a firearm during the commission of the offense, that defendant was accountable for the

victim’s death, and felony murder.

¶ 23 1. The State’s Case

¶ 24 The State called three occurrence witnesses: Christine Sanders (the victim’s wife),

Marshayla Whitlock (the witness who had testified before the grand jury), and Emily Arrington

(who happened to be on the grounds of the apartment complex on the day of the murder). The

State also called Shaquaya Sago (defendant’s girlfriend and owner of the vehicle from which the

shots were believed to have been fired) and several investigators, including Joseph Danforth, Bruce

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Voyles, Matthew Gibbons, and Mark Peters.

¶ 25 i. Christine Sanders

¶ 26 Christine Sanders, Lester Sanders’s wife, testified that she, Sanders, and a friend were

watching television in the living room of their apartment. Through the screen door, they watched

their children and the children from the neighboring apartment play outside. Then, they heard

yelling and arguing outside. There were a lot of people outside. Christine and Sanders realized

that “there could be the involvement of a gun.” Sanders stepped outside and told his own children

to get in the apartment and the neighbor children to go into their apartment. A short while later,

Sanders saw that one neighbor child, a little boy, had wandered back outside. Sanders again

stepped outside and shouted at the child to get inside. Sanders’s voice drew the attention of those

causing the commotion. Sanders explained to them that he had only been speaking to the child.

Sanders turned around and re-entered his apartment, at which time he was shot through the screen

door. Christine could not go to him immediately, because the shooters continued to fire. When

the shots stopped, Christine called 9-1-1 and gave Sanders mouth-to-mouth resuscitation until the

paramedics arrived.

¶ 27 On cross-examination, Christine agreed that she did not see the shooters. She was not

looking outside when the shots were fired, and she did not go outside after the shots were fired.

¶ 28 ii. Marshayla Whitlock

¶ 29 Marshayla Whitlock testified that she planned to meet up with Hart and defendant at a

mutual friend’s house. She had not met defendant before, though she knew him as “Bud.”

Whitlock stopped at the Sablewood apartments, a few blocks short of her destination when she got

into a fist fight with another girl, Stacey McCaleb. Her friend, Biff, happened to live at or near

the Sablewood apartments. As such, after the fist fight, Whitlock went into Biff’s apartment to

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clean herself up.

¶ 30 Hart and defendant then arrived at Biff’s apartment. When Hart, defendant, and Whitlock

went back outside, people had gathered around. The crowd was trying to get Whitlock and

McCaleb to fight again, but Whitlock refused. McCaleb’s brother said some words, and Hart drew

a gun. The gun was black with an affixed laser. According to Whitlock, Hart was not pointing to

shoot, but merely to display the gun. Whitlock calmed Hart down, and she left with Hart and

defendant in an SUV.

¶ 31 After driving a short way, Hart noticed that his phone was missing. Hart, defendant, and

Whitlock returned to Biff’s apartment. Biff began to argue with defendant, saying “he didn’t need

that stuff,” i.e., the fighting and the commotion, around his apartment. Biff was on parole and did

not want trouble.

¶ 32 Defendant, Hart, and Whitlock then got back into the SUV. Defendant sat in the driver’s

seat, Hart sat in the front-passenger seat, and Whitlock sat behind Hart in the back seat. Defendant

was starting to drive away when Whitlock heard defendant and an unknown person shout the word

“what” at each other. Then, defendant and Hart started shooting. Defendant shot out of his open

window and Hart sat on the window frame and shot over the roof of the SUV. Whitlock balled up

in the back seat and screamed at them to stop shooting. She did not know whom defendant and

Hart were shooting at. The shooting lasted “a good two to three minutes.”

¶ 33 Whitlock first saw defendant with a gun while in the SUV. The gun was black without an

affixed laser. Following the shooting, Whitlock remained in the SUV with defendant and Hart for

another hour. When she left the SUV, defendant told her that he would kill her if she said anything.

¶ 34 Whitlock testified to two different video-taped statements she had given to police. In the

first statement, given the day after the shooting on May 25, 2017, Whitlock provided as follows.

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After her fight with McCaleb, Whitlock began to walk home. She was upset, and two men in a

dark SUV, whom she did not know, asked if she was okay. A short while later, she heard about

30 gunshots. She did not know what happened. She did not know who the shooters were, and she

denied knowing defendant and Hart. The detectives challenged that assertion, telling her that other

witnesses had told them that she had been at the scene with defendant and Hart.

¶ 35 In the second statement, given June 14, 2017, Whitlock provided an account of the incident

consistent with her trial testimony and implicated defendant and Hart in the shooting. Whitlock

provided that statement to two police officers in the presence of a woman whom she referred to as

“mom”; that woman had been her guardian since she was a baby.

¶ 36 Both recorded statements were played for the jury. Whitlock testified that, in the first

recording, she had lied. She explained that, at that time, defendant and Hart were not in custody

and she was afraid for her life. She acknowledged that, in the second recording, she recently had

been arrested in conjunction with her fight with McCaleb and, also, she had been “high” on

marijuana. She testified that she was not presently “high.”

¶ 37 iii. Emily Arrington

¶ 38 Emily Arrington testified that she witnessed the shooting. Prior to the shooting, it had been

a very busy and chaotic night, with more than 20 people near the premises of the apartment

complex. The people were talking and arguing. She observed the fight between Whitlock and

McCaleb. She knew Whitlock but she did not know McCaleb. She saw defendant and Hart

outside, but she could not recall whether she saw them before or after Whitlock’s fight. She could

hear that Hart was shouting, but she could not hear whether he said anything to defendant.

¶ 39 Arrington saw a person shoot a gun from a green SUV. She believed the shooter to be

Hart, but she could not be sure, because she only saw the shooter from the back. Arrington agreed,

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however, that she had told the police that she had seen Hart perform the shooting from over the

roof of the SUV and that she had seen Hart and defendant in the SUV together.

¶ 40 During cross-examination, Arrington first said that she saw defendant driving the SUV.

She later said she could not be sure, because Hart obscured her view. She only saw one shooter,

Hart.

¶ 41 Arrington provided the police with a statement on September 14, 2017. She did so while

in custody on charges of marijuana possession. She agreed to speak about the instant case if

Danforth, one of the interviewers, would agree to help her in regard to a different shooting case in

which her daughter had been present. Danforth agreed, but, in actuality, he did not help her. At

trial, Arrington denied several of her September 14, 2017, statements. She denied stating that Hart

pulled out a gun before Sanders tried to get the children inside the apartment building and that Hart

shot Sanders with no explanation.

¶ 42 iv. Shaquaya Sago

¶ 43 Sago testified that she was presently in custody for failure to respond to a subpoena in the

instant case. At the time of the shooting, Sago was dating defendant. She owned a green 1999

Mitsubishi Montero SUV. Defendant had use of the SUV. He had a key, and he did not need to

ask to use it. Sago knew that defendant took the SUV on the evening of the shooting, but she did

not know where he was going. She herself went to a graduation party. When she returned from

the graduation party, there was a note on her door to call a police detective. She did not see her

SUV; she later learned that it had already been impounded.

¶ 44 The day after the shooting, the police came to Sago’s house, and she gave them permission

to search the impounded SUV. In addition, on June 4, 2017, she went to the police station and

provided the police with a written statement. She gave the statement one day after finding out that

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defendant had been cheating on her. She was six months pregnant with his child at the time and

she was mad at him.

¶ 45 In the statement, Sago recounted that, the morning after the shooting, she started to get

phone calls from defendant’s sister, telling her that there had been a murder and that defendant had

done something stupid. When Sago got a hold of defendant, defendant denied being the shooter

and told her that Hart did it. However, defendant admitted to Sago that he had been with Hart at

the time of the shooting. Sago had seen defendant with a black gun in the past.

¶ 46 Presently, Sago disagreed with certain aspects of her written statement. In particular, Sago

denied that defendant ever talked to her about the shooting. Rather, she learned about the shooting

from detectives and from Facebook. She explained that, although she signed the written statement,

she did not read the statement before signing it. She did not bother to read the statement, because

she was mad at defendant.

¶ 47 She agreed, however, that she had signed an acknowledgement that she had read the

statement and that the acknowledgement had also been signed by two witnesses.

¶ 48 On cross-examination, Sago testified, contrary to her statement to police, that she had never

seen defendant with a gun. Danforth, the detective who had interviewed her, told her that he knew

defendant had been cheating on her. Sago believed that Danforth did this to sway her against

defendant.

¶ 49 v. Investigating Officers

¶ 50 Joseph Danforth testified that he interviewed Arrington and Sago. As for Arrington,

Danforth testified that he showed Arrington two photo lineups. In the first lineup, she identified

Hart as the shooter. In the second lineup, she identified defendant as being in what she believed

to be a green jeep SUV with Hart. Further, Arrington told Danforth that Hart had gotten out over

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the front-passenger window and shot over the roof of the SUV. Danforth agreed that he had

promised Arrington that he would investigate the shooting case in which her daughter had been

present, and, contrary to Arrington’s testimony, that he had done so. As for his interview with

Sago, Danforth acknowledged that he told Sago that he knew defendant was cheating on her.

Danforth typed Sago’s statement as she spoke. It was his practice to have witnesses read what he

had typed before signing a statement.

¶ 51 Bruce Voyles, a Rockford police detective, testified to the security camera video footage

that he recovered from the apartment complex. Several different cameras, each of which were set

to record upon detecting motion, contained footage of the incident. The footage was shown to the

jury. Voyles testified that, based on his training, the footage showed shots being fired from an

SUV. “When the vehicle is here you see a small explosion coming from the driver’s side of the

vehicle.” Voyles acknowledged that, in the video, it was unclear whether the SUV was green. (It

is clear, however, that the SUV is dark in color.)

¶ 52 Danforth, Voyles, and Matthew Gibbons testified to evidence contained within Sago’s

SUV. Danforth testified that he responded to the scene. He learned that the suspects’ vehicle, a

green SUV, was parked nearby on Searles Avenue (Sago’s residence). He located the vehicle

within one hour of the shooting. It was not hidden in any way. Voyles impounded and processed

Sago’s SUV. Inside, he found sealed Nicor and ComEd bills addressed to defendant at Sago’s

address. He also found Sago’s insurance papers showing that she owned the vehicle. Gibbons, a

Rockford police detective, also processed Sago’s SUV. He found a spent, 40-caliber shell casing

stuck to the rubber molding above the front passenger door of the SUV. Casings are hot when

they are expelled, “[a]nd this casing appeared to have just rolled off the roofline and stuck in that

rubber molding.” Still, it was not melted into the molding. Gibbons was able to remove the casing

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simply by picking it up with his (gloved) fingers. He did not recover any latent fingerprints from

the SUV.

¶ 53 Gibbons also processed evidence at the crime scene. By the time Gibbons arrived at the

scene, other officers had identified items that they considered to be potential evidence. Gibbons

walked through the scene with another officer to mark the items. Gibbons recovered 14 spent shell

casings of two different calibers on the street near the shooting. He found two 40-caliber casings

and twelve 9-millimeter casings. Gibbons informed the jury that the same firearm cannot

discharge two different calibers of casings.

¶ 54 Mark Peters, the forensic pathologist who performed the autopsy testified that Sanders was

killed by a single gunshot wound to the left side of his back.

¶ 55 2. Defendant’s Case

¶ 56 Defendant called Danforth, who had previously testified as a witness for the State, as his

only witness. Danforth testified to his interviews of Whitlock and Arrington. As to Whitlock,

Danforth testified to both the May 25, 2017, and the June 14, 2017, statements. On May 25, 2017,

Whitlock denied being present during the shooting, though she admitted to being in a fight near

Sablewood apartments earlier in the day. Danforth first mentioned defendant’s and Hart’s names,

not Whitlock. Whitlock denied knowing defendant and Hart. However, Danforth did not accept

her denials. Danforth believed Whitlock was in a dating relationship with Hart. On June 14, 2017,

Whitlock was in custody on a juvenile matter (due to her fight with McCaleb). During that

interview, Whitlock identified defendant and Hart as the shooters. Whitlock was presented with a

photo lineup that was compiled and administered by a different officer, who was not part of the

investigation and did not know which photos depicted the suspects in the case. As to Arrington,

Danforth testified that he administered the photo line up, even though he was familiar with the

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investigation and the suspects. This was less than ideal, but, at the time, there was no one

independent of the investigation to administer the line up.

¶ 57 The jury found defendant guilty of first-degree murder in that he committed an act which

he knew created a great probability of death or bodily harm. 720 ILCS 5/9-1 (a)(2) (West 2016).

It also found defendant guilty of first-degree murder under a felony murder theory in that he

committed a forcible felony (aggravated discharge of a firearm) and during the commission of the

felony, Sanders was killed. 720 ILCS 5/9-1(a)(3) (West 2016). Further, the jury found that the

State proved the following two allegations: defendant personally discharged a firearm during the

commission of the offense and defendant personally discharged the firearm that proximately

caused Sanders’s death. The trial court sentenced defendant to 40 years, plus a 25-year firearm

enhancement based the jury’s finding that defendant personally discharged the firearm that

proximately caused Sanders’s death, for a total of 65 years of imprisonment. Defendant filed an

unsuccessful post-trial motion, and this appeal followed.

¶ 58 II. ANALYSIS

¶ 59 On appeal, defendant argues that: (1) the trial court erred in denying his motion to dismiss

the grand jury’s indictment; (2) the evidence was not sufficient to convict for first-degree murder;

and (3) even if the evidence was sufficient to convict for first-degree murder, it was at best

sufficient to establish that defendant, as one of two shooters firing toward the victim, personally

discharged a firearm (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West Supp. 2017) (20-year enhancement)),

not that he personally discharged a firearm that proximately caused the victim’s death (730 ILCS

5/5-8-1(a)(1)(d)(iii) (West Supp. 2017) (25-year enhancement)).

¶ 60 A. Indictment

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¶ 61 Defendant argues that the trial court erred in denying his motion to dismiss the grand jury’s

indictment. We begin with a general overview of grand jury proceedings. The role of the State’s

Attorney’s office in grand jury proceedings is to inform the grand jury of the proposed criminal

charges and the applicable law. People v. DiVincenzo, 183 Ill. 2d 239, 254 (1998), abrogated on

other grounds by People v. McDonald, 2016 IL 118882 (grand jury analysis continually endorsed

by Illinois courts, particularly People v. Wright, 2017 IL 119561, ¶ 61). The role of the grand jury,

in turn, is to determine whether probable cause exists that the person who is the subject of the

proceedings has committed a crime, thus warranting a trial. Id. The grand jury does not finally

adjudicate guilt or innocence. People v. J.H., 136 Ill. 2d 1, 10 (1990). As such, grand jury

proceedings are not mini-trials and the State is not bound by technical evidentiary rules and

procedures applicable in a criminal trial. Id.; People v. Creque, 72 Ill. 2d 515, 527-28 (1978). For

instance, the State has no duty to disclose exculpatory evidence during grand jury proceedings.

Torres, 245 Ill. App. 3d at 301. “ ‘[R]equiring the [State] to present exculpatory as well as

inculpatory evidence would alter the grand jury’s historical role, transforming it from an

accusatory to an adjudicatory body.’ ” Id. (quoting United States v. Williams, 504 U.S. 36, 50

(1992)).

¶ 62 A defendant’s ability to challenge a grand jury indictment is limited. See DiVincenzo, 183

Ill. 2d at 255. For example, a defendant may not challenge the sufficiency of the evidence

considered by a grand jury, so long as some evidence was presented. Id. An indictment returned

by a legally constituted grand jury is presumed valid (id.), and a defendant may seek the dismissal

of the indictment only when: (1) the dismissal is authorized under section 114-1(a) of the Code

(725 ILCS 5/114-1(a) (West 2018) (dismissal warranted when, inter alia, defendant has received

immunity for the defense charged, the trial court does not have jurisdiction, the charge does not

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state an offense, or the grand jury was improperly selected or acted in violation of article 112 of

the Code)); or (2) there is a clear denial of due process. People v. Stapinski, 2015 IL 118278, ¶ 33.

¶ 63 Here, defendant alleges that there has been a clear denial of due process. “The due process

rights of a defendant may be violated if the prosecutor deliberately and intentionally misleads the

grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate

evidence.” DiVincenzo, 183 Ill. 2d at 257. However, the court should exercise great restraint in

exercising its power to dismiss an indictment based on an allegation that the defendant’s due

process rights were violated, and it should only do so when a violation is clear and can be

ascertained with certainty. Torres, 245 Ill. App. 3d at 300. Even when the violation is clear, the

defendant still must establish actual and substantial prejudice. Id. The burden of proving actual

and substantial prejudice rests with the defendant. Id. Prejudice is actual and substantial “only if

without [the alleged misconduct] the grand jury would not have indicted the defendant.” Oliver,

368 Ill. App. 3d at 697. The court must balance the gravity of the due process violation against

the strength of the evidence supporting the finding of probable cause. Id. “If the evidence was

strong enough that the grand jury would have indicted the defendant despite the [State’s]

misconduct, the misconduct was not prejudicial. However, if the evidence was so weak that the

misconduct induced the grand jury to indict, prejudice is shown.” Id. The mere possibility that an

indictment might have been avoided but for the alleged misconduct is not enough to show actual

and substantial prejudice. Torres, 245 Ill. App. 3d at 301.

¶ 64 When the facts are not in dispute, we review de novo whether the defendant suffered a

prejudicial denial of due process. Stapinski, 2015 IL 118278, ¶ 35. “However, once [that is

determined], the trial court’s decision on the appropriate remedy—whether it be dismissal of the

indictment or some other remedy—is reviewed for an abuse of discretion.” Id. Further, while a

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prejudicial violation of due process need not be intentional to warrant dismissal, Oliver, 368 Ill.

App. 3d at 696, a determination that State acted intentionally in presenting false or misleading

evidence can inform the trial court’s decision as to whether the dismissal will be with prejudice or

whether the State may seek to reindict a defendant. See People v. Hunter, 298 Ill. App. 3d 126,

131-32 (1998). Where the State willfully brings perjured testimony before the grand jury, the court

is well within its discretion to dismiss the criminal charge against a defendant and prohibit the

State from reindicting him. Id. Dismissing an indictment with prejudice is an extreme sanction.

People v. Mattis, 367 Ill. App. 3d 432, 436 (2006). In this case, the trial court indicated that, even

if it had chosen to dismiss the indictment, it would have been with leave to seek reindictment.

¶ 65 Here, the parties dispute whether the State’s presentation of the evidence at the grand jury

proceedings amounted to the mere failure to present exculpatory evidence, as in Torres, or whether

the State misled the jury to a degree which would warrant the dismissal of the indictment, as in

Oliver.

¶ 66 In Torres, a possession-with-intent-to-deliver case, the State had presented the grand jury

with evidence that defendant was apprehended while a passenger in a vehicle containing weapons

and eight grams of cocaine. See Torres, 245 Ill. App. 3d at 299, 301-02. 2 However, the State did

not inform the grand jury that the driver of the vehicle told police that he had just picked up

2 The Torres court did not expressly provide which inculpatory evidence the State presented

at the grand jury proceedings. Instead, we infer which inculpatory evidence the State presented

based on the court’s summation of the alleged crime and the defendant’s complaints as to which

information was omitted.

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defendant minutes before being apprehended and defendant was not aware of the contraband. Id.

at 299.

¶ 67 The defendant moved to dismiss the indictment, arguing that the State was required to

present the driver’s exculpating statements to the grand jury. Id. at 299. The trial court agreed,

dismissing the indictment, but the appellate court reversed. Id. at 299, 301. The appellate court

determined that the State had not committed a due process violation. Id. at 301. It explained that

the State has no duty to present exculpatory evidence to the grand jury. Id. at 301. Such a

requirement would frustrate the grand jury’s “critical purpose of promptly determining probable

cause.” (Emphasis in original.) Id. at 302. For example, were the State required to present the

grand jury with exculpatory evidence, it might, as a practical matter, be compelled to gather

additional inculpatory evidence to secure an indictment. Id. at 301. Such a cycle would transform

the grand jury proceedings into the sort of mini-trial cautioned against by the supreme court in

Creque (72 Ill. 2d at 527-28). Id. at 302.

¶ 68 In addition, the appellate court determined that the defendant could not establish prejudice.

It explained that the driver’s exculpatory statements

“were not evidence of such a degree or character as would have absolutely prevented

defendant’s indictment. The fact that the grand jury might have chosen not to indict

defendant if [the driver’s] statements had been presented is not enough. Defendant does

not satisfy his burden to establish clearly actual and substantial prejudice merely by

demonstrating the possibility of avoiding indictment.” (Emphasis in original and internal

quotation marks omitted.) Id. at 301.

¶ 69 In Oliver, also a possession-with-intent-to-deliver case, the testifying police officer

informed the grand jury that he had personally witnessed the defendant perform a hand-to-hand

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transaction involving what was believed to be cocaine. Id. at 691-93. The defendant moved to

dismiss the indictment, arguing that the State presented false and misleading evidence to the jury.

Id. at 694. The testifying officer did not personally witness the hand-to-hand transaction. Id.

Moreover, the officer who had actually witnessed the transaction did not see what was passed

between defendant and the other men. Id. The trial court granted the motion to dismiss the

indictment, and the appellate court affirmed. Id. at 694, 700. The appellate court explained:

“Here, if the only defect in [the officer’s grand jury] testimony were that its hearsay

nature was concealed, we would be hard-pressed to determine that, had the grand juries

known that the testimony was hearsay, they would not have indicted defendant. However,

*** [the officer’s] testimony was doubly deceptive. Not only was its hearsay nature

concealed, but it also mischaracterized the observations of the actual eyewitness so as to

establish probable cause where none existed. It is on this point that prejudice arises.”

(Emphasis added.) Id. at 697.

¶ 70 With Torres and Oliver in mind, we turn to the facts of the instant case. As noted by the

trial court, unlike Torres, this case does not involve a pure question of the State’s failure to disclose

exculpatory information—Whitlock’s May 25, 2017, statement. The June 14, 2017, statement is

also at issue. With its affirmative decision to introduce Whitlock’s June 14, 2017, statement but

not the May 25, 2017, statement, the State arguably implied that Whitlock consistently implicated

defendant and Hart when she did not. Still, unlike in Oliver, the State did not present false

evidence. Whitlock did make a statement on June 14, 2017, that was consistent with her grand

jury testimony. As such, we agree with the trial court that the circumstances of the instant case

are more like Torres than Oliver. Like the trial court, this court has viewed the video recording of

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both statements and we determine that defendant has not demonstrated that a clear and certain

violation of his due process rights has occurred.

¶ 71 Moreover, assuming for the sake of analysis that defendant had established a clear and

certain violation of his due process rights, he certainly cannot be said to have demonstrated actual

and substantial prejudice. There are two ways that the State might have avoided implying that

Whitlock consistently implicated defendant and Hart. First, it might have chosen not to disclose

either prior statement. Second, it might have chosen to disclose both statements. Defendant cannot

establish actual and substantial prejudice due to the State’s failure to take either of these two

avenues. As to the first approach, if the State had chosen not to disclose either statement, the State

would still be left with Whitlock’s grand jury testimony. This testimony, by itself, was enough to

establish probable cause. Whitlock testified before the grand jury that she saw defendant fire a

gun in the direction of the victim. This is not a case, like Oliver, where the alleged misleading

evidence “established probable cause where none existed.” Oliver, 368 Ill. App. 3d at 697.

¶ 72 As to the second approach, if the State had chosen to introduce both statements, the State

also would have been able to question Whitlock as to why she did not implicate defendant and

Hart in her first statement. Whitlock would have been able to answer, as she did indeed testify

before the grand jury, that defendant told her that, if she implicated him, he would kill her.

Whitlock received this threat shortly after witnessing defendant indiscriminately fire his gun

toward a crowd of people. A reasonable grand jury could believe that Whitlock was still acting

under the influence of defendant’s threat just one day later when she made her initial statement

denying that she knew the shooters. To be sure, any time the State takes a different approach in

presenting the evidence there is a chance for a different result. Again, however, the mere

possibility that an indictment might have been avoided had the State presented the evidence at

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issue is not enough to warrant the dismissal of the indictment, Torres, 245 Ill. App. 3d at 301. For

the reasons stated, the evidence at issue here, the May 25, 2017, statement, is not so clear cut as

defendant would have us believe, and defendant cannot show more than a mere possibility he

might have avoided indictment had the State introduced the May 25, 2017, statement.

¶ 73 B. Sufficiency

¶ 74 Defendant argues that the evidence was not sufficient to convict him of first-degree murder.

Section 9-1 of the Criminal Code of 2012 provides:

“A person who kills an individual without lawful justification commits first degree

murder if, in performing the acts which cause the death: (1) he or she either intends to kill

or do great bodily harm to that individual or another, or knows that such acts will cause

death to that individual or another; or (2) he or she knows that such acts create a strong

probability of death or great bodily harm to that individual or another; or (3) he or she,

acting alone or with one or more participants, commits or attempts to commit a forcible

felony other than second degree murder, and in the course of or in furtherance of such

crime or flight therefrom, he or she or another participant causes the death of a person.”

720 ILCS 5/9-1(a)(1), (2), (3) (West 2016).

Here, the jury found defendant guilty pursuant to sections 9-1(a)(2), (3). The State pursued

multiple theories at trial, including both that defendant was the principal shooter and that he was

accountable for Hart’s actions. The alleged factual premise supporting each of these theories was

that defendant and Hart perceived Sanders as being confrontational when Sanders yelled at the

neighbor child to get into his apartment. This is when, according to Whitlock, the word “what”

was shouted, and, according to Christine, Sanders explained that he was only talking to the child.

Shots from the SUV then followed.

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¶ 75 In reviewing a challenge to the sufficiency of the evidence, the question is whether,

viewing the evidence in a light favorable to the prosecution, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. People v. Collins, 214 Ill.

2d 206, 217 (2005). We will reverse a criminal conviction only where the evidence is so

improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. Id.

¶ 76 While true that the testimony of an accomplice must be scrutinized because of the

motivation to shift blame to others (People v. James, 118 Ill. 2d 214, 224 (1987)), it is not our role

to retry the defendant or substitute our judgment for that of the trier of fact. Collins, 214 Ill. 2d at

217. Rather, we defer to the trier of fact on matters of witness credibility and the weight to be

afforded to the evidence. People v. Ross, 229 Ill. 2d 255, 272 (2008). It is the trier of fact’s

responsibility to resolve conflicts in the testimony and to draw reasonable inferences from the

evidence. People v. Phelps, 211 Ill. 2d 1, 7 (2004).

¶ 77 Defendant contends that “no credible evidence was presented that [defendant] fired a gun

or had knowledge that Hart planned to open fire while [defendant] drove away.” Defendant

appears to concede that, if the evidence was sufficient to establish either of these two scenarios,

the evidence was sufficient to sustain his conviction for first degree murder. Defendant argues,

however, that the State’s case rests entirely on Whitlock’s testimony, and Whitlock was not a

credible witness. Defendant asserts that Whitlock’s testimony was not credible, because: (1) in

her initial, May 25, 2017, statement to police, Whitlock denied knowing who defendant was; (2) in

her second, June 14, 2017, statement to police, she was high on marijuana; and (3) as a possible

accomplice, she had an incentive to shift blame away from herself and to defendant and Hart.

¶ 78 We determine that the State presented sufficient evidence to show that defendant fired a

gun. As such, we need not entertain the alternate theory of whether, if defendant did not fire a

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gun, he had knowledge that Hart planned to open fire as he drove away. We first address

Whitlock’s testimony. Whitlock testified that she was in the car when defendant fired a gun out

of the driver’s side window. To be sure, Whitlock made a prior inconsistent statement, was under

the influence of marijuana during her second statement to police, and may have had a motive to

shift blame. However, it was for the jury to assess Whitlock’s credibility. See Ross, 229 Ill. 2d at

272. The jury was aware of Whitlock’s prior inconsistent statement—but it also heard evidence

that Whitlock made that statement less than 24 hours after defendant, who remained at large, had

threatened to kill her if she implicated him. The jury was made aware that Whitlock was under

the influence of marijuana at the time she made her second statement—but it also heard Whitlock

testify at trial that she was not currently under the influence. The jury viewed the video recording

of Whitlock’s second statement, and it may have reasonably concluded that Whitlock was not so

addled that she was unable to provide a reliable account of the shooting. Finally, the jury was

aware that Whitlock had participated in a fist fight that was the likely motivation for the group’s

return to the apartment complex and confrontational behavior—but it also was made aware that

the State did not promise Whitlock anything before she implicated defendant and Hart. It was for

the jury to assess Whitlock’s testimony and weigh it against her prior statements and the possible

motive for her testimony. To the extent the jury credited Whitlock’s trial testimony, we cannot

say it was so improbable or unsatisfactory that doing so created a reasonable doubt of the

defendant’s guilt.

¶ 79 Indeed, other evidence corroborated Whitlock’s account of the shooting. Whitlock testified

that two people fired guns, and the police found casings from two types of guns. Whitlock testified

that defendant shot out the driver’s window and Hart shot over the roof of the SUV from the

passenger side while she remained huddled in the back seat. The security video confirms that shots

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were fired from a dark SUV, although it does not clearly depict the color. Arrington identified

defendant as the driver of the SUV from which shots were fired. The security video footage

showed a shooter firing from the driver’s seat, and, from her vantage point, Arrington saw Hart

fire over the roof of the SUV. Whitlock testified that defendant drove north on Sablewood and

then left on Halsted. The security video footage showed the SUV moving in the same direction.

¶ 80 Further, the State presented additional, compelling evidence. For example, Sago testified

that defendant had possession of her green SUV at the time of the shooting. When investigators

impounded and processed Sago’s SUV, they found utility bills addressed to defendant inside.

Investigator Voyles found a spent, 40-caliber shell casing, the same type found at the scene of the

shooting, stuck to the rubber molding above the front passenger door of Sago’s SUV. Finally, in

Sago’s initial statement to police, she stated that defendant told her that he was with Hart when

Hart shot Sanders. In total, this evidence was sufficient to convict defendant of first-degree

¶ 81 C. Sentence

¶ 82 Finally, defendant argues that, even if the State proved that he personally discharged a

firearm during the commission of the offense, it did not prove that defendant personally discharged

the firearm that proximately caused Sanders’s death. Under section 5-8-1(a)(1)(d)(ii), a defendant

who discharges a firearm during the commission of a first-degree murder is subject to a 20-year

sentencing enhancement. 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West Supp. 2017). Under section 5-8-

1(a)(1)(d)(iii), a defendant who discharges a firearm that proximately causes the death of a person

during the commission of a first-degree murder is subject to a 25-year sentencing enhancement.

730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp. 2017). Defendant requests that we vacate the 25-year

firearm enhancement and impose a 20-year firearm enhancement.

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¶ 83 The State concedes that it did not prove that defendant’s gunshot proximately caused

Sanders’s death. Sanders sustained a single, fatal gunshot wound. Two types of casings were

recovered from the scene, 40-caliber casings and 9-mm casings. A 40-caliber casing was found

stuck to the molding near the passenger window, indicating that Hart had fired the 40-caliber

bullets and defendant had fired the 9-mm bullets. However, Peters, the forensic pathologist,

testified that he was unable to determine the caliber of the bullet that he recovered from Sanders’s

body.

¶ 84 As such, pursuant to Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967), we vacate

the 25-year firearm sentencing enhancement and impose a 20-year firearm enhancement, for a total

of 60 years’ imprisonment.

¶ 85 III. CONCLUSION

¶ 86 For the reasons stated, we affirm defendant’s conviction and 40-year sentence. However,

we vacate the 25-year firearm sentencing enhancement and impose a 20-year firearm

enhancement, for a total of 60 years’ imprisonment.

¶ 87 Conviction affirmed. Sentence affirmed as modified.

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