People v. Sanders

2024 IL App (4th) 230746-U

Opinion

NOTICE 2024 IL App (4th) 230746-U FILED This Order was filed under September 19, 2024 Supreme Court Rule 23 and is NO. 4-23-0746 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT under Rule 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County CHRISTOPHER JAMES SANDERS, ) No. 21CF31 Defendant-Appellant. ) ) Honorable ) Katherine S. Gorman, ) Judge Presiding.

JUSTICE GRISCHOW delivered the judgment of the court. Justices Harris and Vancil concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding (1) trial counsel’s failure to object to the admission of defendant’s cousin’s prior inconsistent statement incriminating defendant was not tantamount to ineffective assistance of counsel; (2) the trial court was not obligated to conduct a Krankel inquiry into defendant’s pro se posttrial claim of ineffective assistance of counsel when the court was not aware of the claim; and (3) the court did not deny defendant a fair sentencing hearing.

¶2 Following a jury trial in June 2023, defendant, Christopher James Sanders, was

convicted of first degree murder for the fatal beating and strangulation of his girlfriend, Mona

Ellison, in January 2021 (720 ILCS 5/9-1(A)(1) (West 2020)). In finding defendant guilty, the

jury concluded the State had proven the offense was accompanied by brutal and heinous

behavior indicative of wanton cruelty. The trial court sentenced defendant to natural life

imprisonment. ¶3 Defendant appeals, arguing (1) he was denied his constitutional right to the

effective assistance of counsel, (2) his pro se posttrial claim of ineffective assistance of counsel

required the trial court to either conduct a Krankel inquiry (see People v. Krankel, 102 Ill. 2d 181

(1984)) or obtain his waiver of said inquiry, and (3) the court denied him a fair sentencing

hearing. For the reasons that follow, we affirm.

¶4 I. BACKGROUND

¶5 A. The Charges

¶6 On February 2, 2021, the State charged defendant by indictment with two counts

of first degree murder in connection with the fatal beating and strangulation of his girlfriend,

Mona Ellison, on January 20, 2021 (720 ILCS 5/9-1(A)(1), 9-1(A)(3) (West 2020)). Count I

alleged defendant “without legal justification, strangled and struck Mona Ellison knowing such

acts created a strong probability of death or great bodily harm.” Count II alleged defendant

“without legal justification and with the intent to kill Mona Ellison, strangled and struck [her],”

thereby causing her death. Both counts alleged the actions at issue reflected “exceptionally brutal

or heinous behavior indicative of wanton cruelty.”

¶7 B. Jury Trial

¶8 Defendant’s jury trial was conducted from June 5 to June 7, 2023.

¶9 1. The State’s Evidence

¶ 10 a. Officer Kenneth Lopez

¶ 11 Peoria police officer Kenneth Lopez responded to a missing person call at

Ellison’s residence in Peoria on January 20, 2021. Officer Lopez spoke with Brett Zahner, who

reported not having seen Ellison in approximately three days. Zahner stated he believed Ellison

was missing because “groups of people had stopped by her house also looking for her.” Zahner

-2- had gone inside the house, but nobody was there. Officer Lopez and a sergeant went into the

house through an unlocked back door. In an upstairs bedroom, Officer Lopez discovered a cell

phone on Ellison’s bed. Officer Lopez explained he called the number for that phone before he

went to the house “with hopes that [he] would get an answer.” When Officer Lopez did not get

an answer, he called again, whereupon the phone “lit up.”

¶ 12 Eventually, Officer Lopez left the house and went to defendant’s residence, which

was approximately six to seven blocks away. Once there, Officer Lopez observed a three-

wheeled green pushcart with “a red blood-like stained substance on the handles *** [and] on the

actual seated portion of the cart.” Officer Lopez informed his supervisor, and the crime scene

unit “came out and processed the scene.” On January 23, 2021, Officer Lopez went to the

residence of defendant’s cousin, Perry Sanders, which was approximately four to five blocks

away from defendant’s residence. On the exterior of the rear of the building, Officer Lopez

observed a “red blood-like stained substance on a pole as well as [on] the stairwell leading to the

basement.”

¶ 13 b. Brett Zahner

¶ 14 Brett Zahner lived directly across the street from Ellison. Zahner had known

Ellison for approximately two years and saw her “almost every day.” In January 2021, Zahner

became concerned about Ellison after “[a] couple of her friends stopped by [his] house looking

for her, thinking she might be over.” Zahner and the other individuals went to Ellison’s

residence, noticed the doors were unlocked, and went inside. Zahner discovered Ellison’s cell

phone on her bed upstairs, and “knew that was unusual” because “that phone never left her

hand.” After checking the house for Ellison, Zahner saw a black car pull up in front. People

exited the car and walked up the driveway towards the back door. (Zahner did not believe

-3- defendant was among these people because he “didn’t get that close.”) Zahner caught up with

them and asked if he could help them. “And they looked at [him] and said, Is [Ellison] home?”

Zahner said no. They “left promptly after that” without going inside. Zahner then called the

police.

¶ 15 Zahner explained Ellison was a caretaker for his brother. Zahner had last seen

Ellison on either the Sunday or Monday preceding Wednesday, January 20, 2021. On that

occasion, Zahner went across the street to Ellison’s residence to retrieve the keys to his brother’s

van, which Ellison would drive to do errands for Zahner’s brother. After Zahner knocked on the

door, Ellison opened the door “and just cracked it a very little.” Zahner thought, “well, that was

odd,” because they were friends. Ellison returned the keys to Zahner, “but she just cracked the

door just enough to slide the keys through.” Ellison did not say anything to Zahner—“[n]ot a

word.” On cross-examination, Zahner testified he did not see defendant at Ellison’s residence.

Ellison “didn’t open the door enough to see anything actually.”

¶ 16 c. Tyronda Sanders

¶ 17 Defendant’s cousin, Tyronda Sanders, lived near defendant in January 2021. At

approximately 6:30 a.m. on January 20, 2021, while outside as her son was boarding the school

bus, Tyronda observed defendant rolling a cart down the street. The cart appeared to contain

blankets. According to Tyronda, defendant said “he was doing laundry.” Tyronda felt this was

“nothing out of the ordinary.” Later that day, after receiving a phone call about Ellison, she and

Perry went to Ellison’s residence. They got a ride there in a “black sedan” driven by a person

who gives Tyronda rides. While there, Tyronda spoke to a police officer who was already at the

house.

-4- ¶ 18 d. Sergeant Matthew Mocilan

¶ 19 Peoria police sergeant Matthew Mocilan spoke with Tyronda on January 21,

2021, in connection with his investigation into Ellison’s disappearance. During this conversation,

Tyronda stated she saw blood on the handle of the cart in front of defendant’s residence and

defendant was wearing “a red sweater with a brown coat with pants with a white stripe on the

side.” The body worn camera video of this conversation was played to the jury.

¶ 20 e. Steve Ballard

¶ 21 Steve Ballard lived next door to defendant. One morning in January 2021, Ballard

saw a vehicle from Big Daddy Cab pull up to defendant’s residence. Ballard observed defendant

standing over a large bag before getting in the cab. Eventually, he put this bag in the trunk of the

cab, got in, and left.

¶ 22 f. Christopher Watts

¶ 23 Christopher Watts was a cab driver for Big Daddy Cab. At approximately 7 a.m.

on January 20, 2021, Watts picked up a passenger at defendant’s address. Watts was informed by

his dispatcher he was the “second or third cab that had been dispatched to that location, because

the previous drivers got tired of waiting for the person to come out, and they left.” Prior to his

arrival, Watts called the passenger, who “gave [him] this big speech about how he had to go do

laundry, or him and his roommate’s washer [and] dryer had broken.” Upon arrival, Watts called

again. Eventually, the passenger exited the residence and “was pushing, looked like an oversized

seed spreader or wheelbarrow full of bags through the front yard.” The passenger alternated

between pushing and pulling. Watts observed the passenger to be “[s]truggling” with

maneuvering this object, “[l]ike it was heavy.” It took this passenger approximately six to seven

minutes to reach the cab. Watts took a picture of the passenger. The passenger “was having a

-5- pretty tough time getting his belongings in the back” of the cab. The passenger asked Watts if he

could lay the backseat down “so he had enough room to get them in the car.” Watts asked the

passenger if he wanted any help, “[a]nd he completely flipped out.” The passenger “[d]id not

want me touching his bags, didn’t want any help, nothing like that.” Watts found this “odd

because most people don’t refuse our help.” Once they reached their destination, an “apartment

building on [a] hill” in East Peoria, Watts backed up the driveway to the top of the hill. The

passenger paid and unloaded his bags. Upon Watts asking again if he would like help, the

passenger “flipped out just like he did the first time” and “didn’t want [Watts] touching his

stuff.” When Watts left, the unloaded bags were sitting in the driveway.

¶ 24 The next morning, Watts’s manager informed him detectives wanted to speak

with him. Watts took the detectives to where he dropped the passenger off the day before. Later

that day, detectives came to Watts’s residence and showed him a photo array. Watts identified

the passenger from the day before as defendant. Later, Watts was shown a second photo array

and again identified defendant.

¶ 25 g. Sergeant Todd Leach

¶ 26 On January 21, 2021, in connection with the investigation into Ellison’s

disappearance, Peoria police sergeant Todd Leach went to the building in East Peoria at which

Watts dropped off defendant. Sergeant Leach explored the wooded area behind the building. A

detective directed Sergeant Leach’s attention to an “object by a downed tree” located “about 50

yards from the street behind the residence up on the hillside.” The “object” was covered with a

tarp with leaves on top. Sergeant Leach assisted with securing the scene so it could be “turned

over to the violent crime detectives.”

-6- ¶ 27 h. Officer Scott Bowers

¶ 28 Peoria police officer Scott Bowers went to this same wooded area in East Peoria

on January 21, 2021, to take photographs and process the scene other officers previously

investigated. Officer Bowers was directed to the area of the porch and air conditioner located at

the rear of the building. While there, Officer Bowers discovered “a pair of corduroy pants that

had [a] reddish-colored stain on the legs,” a white T-shirt, a green T-shirt, and a “tan[-]like

winter button-up jacket” with “numerous stains” on it. Officer Bowers also discovered a “floral

design fitted bedsheet that had items of clothing, pieces of carpet, [and] a tote with some foam in

it as well.” There was “a pair of blue jeans and a gray sweatshirt that were sitting on top.”

Officer Bowers went to this same area again later that day and went “deeper” into it than before.

Other officers directed Officer Bowers to an area where a human body was found. Bowers also

found a blue sleeping bag with “possible reddish-color stains.” Clumps of hair were found on the

sleeping bag. The deceased individual was determined to be Ellison. Officer Bowers and Officer

Paul Tuttle attended the autopsy.

¶ 29 i. Dr. Amanda Youmans

¶ 30 Dr. Amanda Youmans was the forensic pathologist who conducted Ellison’s

autopsy on January 22, 2021. Dr. Youmans cataloged an extensive array of injuries to Ellison’s

body. Ellison’s injuries included (1) a fracture to the hyoid bone in her neck; (2) severe fractures

to her nose; (3) a fracture and stab wound to her left cheek bone; (4) stab wounds in her neck,

back, and right breast; (5) severe fractures to her ribs; (6) blunt force injuries to her abdomen;

(7) bruises and abrasions to her scalp, face, neck, breasts, back, arms, hands, and legs; (8) a stab

wound into the muscles of her left thigh; and (9) a cut to the muscles of her left big toe. The

fingernails on Ellison’s left hand were “broken and chipped,” which Youmans testified was

-7- “consistent with defensive injuries” Ellison sustained. Youmans testified Ellison was alive for all

these injuries. Ellison’s cause of death was determined to be strangulation, with blunt force

injuries as contributing factors.

¶ 31 j. Officer Brittany Martzluf

¶ 32 Peoria police officer Brittany Martzluf was sent to defendant’s residence on

January 20, 2021, to photograph the residence and the cart. Defendant’s residence was “in a great

state of disarray,” with clutter and garbage strewn about. Officer Martzluf observed a “red blood-

like substance” on various areas of defendant’s residence, including the railing of a stairwell, the

door at the bottom of the stairwell, the frame of a door at the top of the stairs, and a bedroom

light switch.

¶ 33 k. Officer Clay Blum

¶ 34 Peoria police officer Clay Blum went to Perry’s residence on January 23, 2021, in

connection with the investigation into Ellison’s homicide. Officer Blum observed “red blood-like

stains” throughout Perry’s basement. These included (1) stains on the floor near a doorway, (2) a

stain at the top of the stairway, (3) stains “making their way down the stairs to the basement,”

and (4) a stain on a “can of spray foam insulation.” Officer Blum found this last stain significant

because he noticed a substance similar to spray foam insulation on Ellison’s pants at her autopsy.

Additionally, Officer Blum found a pendant similar to the one Ellison wore and a “necklace

chain” to which the pendant was previously attached on the basement floor. (During her

testimony, Ellison’s niece, Alyssa Rosanova, identified this as being the pendant Ellison wore in

a photo she was shown.) Officer Blum also discovered stains on the exterior stairs leading down

to the basement and a stain on the inside of the door to Perry’s apartment.

-8- ¶ 35 l. Kelly Krajnik

¶ 36 Illinois State Police forensic scientist Kelly Krajnik tested the bloodstains

discovered on the cart outside defendant’s residence and the blood discovered inside both

defendant’s and Perry’s residences. Ellison’s DNA was found in the stain in the stairwell at

defendant’s residence and on the can of foam insulation. Defendant’s and Ellison’s DNA was

found in the bloodstains on the cart, on a pair of shears found in the basement, and in the stains

in the exterior stairway leading to the basement. Defendant’s DNA was found in a stain on a

steel I-beam in the basement. DNA from “at least three individuals” was found in the stain on the

inside of the door to Perry’s apartment. (Krajnik testified “obtaining a mixture from a common

touch point like a door is not uncommon at all.”)

¶ 37 m. Perry Sanders

¶ 38 Perry Sanders testified defendant was his cousin and came to his apartment one

morning the week of January 18, 2021. After Perry let defendant inside, Perry “laid back down.”

When asked what defendant was doing inside, Perry first said, “Nothing.” Shortly thereafter,

Perry stated defendant was “pacing” in the apartment. Perry then told defendant to sit down, but

defendant “just stood there.” Defendant then asked Perry for some water.

¶ 39 At some point thereafter, Perry was “walking from the store and the police just

rode up on [him].” The police “grabbed” Perry and told him a detective wanted to talk to him.

Perry later spoke with a detective but testified he did not recall who the detective was or telling

the detective (1) defendant asked him for a sheet, (2) he saw defendant with blood on him or his

jacket, (3) defendant allegedly stated, “[Y]ou don’t understand,” and “[W]hen I left, she had a

pulse,” or (4) he saw defendant with a light green three-wheeled cart. Perry accompanied his

cousin Tyronda to Ellison’s house to check to see if “a lady that [he] didn’t know” was okay.

-9- ¶ 40 n. Additional Testimony of Sergeant Mocilan

¶ 41 Sergeant Mocilan was recalled to the stand to testify about his interaction with

Perry at the Peoria police station on January 25, 2021. Perry told Sergeant Mocilan he observed

defendant with blood on him, and defendant asked him for a sheet when he was at Perry’s

apartment. Perry told Sergeant Mocilan that defendant told him, “[Y]ou don’t understand, she

had a pulse when I left,” though, on cross-examination, Sergeant Mocilan admitted defendant

apparently did not specify who “she” was. Perry reported seeing defendant with a pushcart. The

video of this conversation was played to the jury.

¶ 42 o. Roberto Vasquez

¶ 43 Peoria police detective Roberto Vasquez and Sergeant Mocilan met with

defendant on January 22, 2021. Defendant stated he “didn’t want to be dishonest in any way,

shape or form,” he knew Ellison was missing, and he “wanted to help” the police. At this time,

however, Detective Vasquez knew defendant took a cab to East Peoria and that Ellison was

found dead there. After their conversation, Detective Vasquez took photographs of defendant.

Defendant had a “small abrasion on his [right] pinkie” and “some sort of injury to his [left]

middle finger.” The video of this conversation was played to the jury.

¶ 44 2. Defendant’s Evidence

¶ 45 Defendant testified he and Ellison dated for approximately one year. Defendant

stated Sunday, January 17, 2021, was the last time he saw Ellison alive. Defendant was at

Ellison’s home, though he could not recall why. Defendant returned home from East Peoria

around 11 p.m. on January 19, 2021. Shortly before midnight, defendant discovered Ellison

deceased in an alley approximately 40 yards from his residence. Defendant explained:

- 10 - “I was upstairs in my bedroom, and I heard a noise outside.

I thought that someone was breaking into my cousin’s garage who

lives next door. So I went out to investigate, and I didn’t see

anything or anyone in the area, but I saw something up the alley

ways that was out of place. It’s something that was—I couldn’t

identify it at that distance and at that time of night.

***

I—initially I thought it was a homeless person or somebody

drunk or under the influence of drugs of some sort. I didn’t realize

that the person was injured or anything. So I just called out to them

a few times. When they didn’t respond, I knelt down beside them

and shook them a little bit, and still no response.”

¶ 46 After realizing it was Ellison in the alley, defendant picked her up and carried her

into his house. Defendant did not immediately call the police. When asked why, defendant

explained:

“Initially, I was—initially, I checked for a pulse, a pulse

and respiration. I was trying to assess and see how bad the injuries

was [sic] to see how bad the situation was. It was just a—I guess a

first instinct. I realized that she wasn’t breathing. So I tried to do

CPR before I did anything else.”

¶ 47 At that point, defendant tried to find his phone to call 911. Defendant claimed he

“ran upstairs to [his] bedroom” and “tore the bedroom apart looking for [his] phone.” Defendant

eventually found his phone “downstairs by the chair in the living room.” While searching for his

- 11 - phone, his housemate was shouting as to what was going on. Defendant eventually told his

housemate what was going on, but his housemate also did not call the police, as he had lost his

phone a few weeks before. Defendant eventually found his phone but still did not call the police.

Defendant explained, “I was scared that I was going to be blamed for this.” When asked what he

did then, defendant stated:

“A long period of time passed. It was almost like I was in a

state of shock and it’s hard to put time frames on things. So I was

sitting there for a while just trying to think and figure out what to

do. At that point I went back out to the alley where I had found her

and looked around. I was trying to assess the items that were

around her to see if they were involved in some way with the crime

and that may help to prove that I didn’t do this.”

Defendant found “things” in the alley but did not specify what they were. Defendant did not know

“if they would help to prove that [he] didn’t do it or not” because he is “not a forensics expert.”

¶ 48 Thereafter, defendant walked to Perry’s residence in an effort to “find people who

might have been awake during the wee hours of the night” and “might have seen something.”

Upon arriving at Perry’s residence, defendant found three people, “but [he] didn’t really get a

chance to talk to them.” One of these three people was Perry, but he refused to allow defendant

inside his apartment. When defendant tried to get inside, Perry put him in a chokehold, dragged

him back down two steps, and threw him down the stairs, reopening a cut to his right hand.

Defendant was leaving Perry’s residence when he observed what “appeared to be a blood-like

substance by the basement door leading downstairs.” Defendant told Perry, “[W]e need to call

the police.” In response, Perry “grabbed [defendant] and threatened [him] and told [him] not to

- 12 - call the police over there and made [him] leave.” After Perry exited the building, defendant went

down into the basement “[t]o better investigate, to see.” After seeing blood in the basement,

defendant left, went back home, and “was trying to figure out what to do.”

¶ 49 On January 20, 2021, defendant arranged to transport Ellison’s body in a cab to

the woods. When asked why, defendant confessed he knew this was a bad situation and he

needed an attorney. Defendant was “trying to buy some time.”

¶ 50 Defendant admitted he did not tell the detectives Ellison was in the woods. When

asked why, defendant explained:

“Well, because I know that moving a body is illegal. And

that’s—you know, I mean, I know that—I know that’s a major

offense. And so I don’t want to get in trouble for that. And also,

like I said, I was still trying to hire an attorney. I was still hoping to

hire an attorney before any of this came out.”

¶ 51 On cross-examination, defendant admitted he could have cried out for help upon

discovering Ellison in the alley. Defendant admitted not only taking Ellison’s body to the

wooded area in East Peoria, but wrapping it up (while still at his residence) and covering it with

leaves in an attempt to hide it. Defendant stated his plan was to then leave Illinois to meet with a

family member out of state who would provide him money to hire an attorney. When asked why

he could not have simply called this family member, defendant stated, “It was something and the

amount of money that I needed, I felt it was better to speak to that person in person.” Defendant

admitted to lying to the detectives, having known exactly where Ellison was but telling them she

was missing and he wanted to help them.

- 13 - ¶ 52 3. Verdict

¶ 53 On June 7, 2023, the jury found defendant guilty of first degree murder. The jury

also found the State proved the offense was accompanied by exceptionally brutal or heinous

behavior indicative of wanton cruelty. The trial court scheduled the sentencing hearing for

August 17, 2023.

¶ 54 4. Posttrial Proceedings

¶ 55 On June 23, 2023, defendant filed a pro se docketing statement and (premature)

notice of appeal with the Peoria County circuit court clerk. In the section of the docketing

statement entitled “General statement of issues proposed to be raised,” defendant typed,

“Ineffective Assistance of Counsel.”

¶ 56 On August 17, 2023, defendant’s counsel made an oral motion to continue the

sentencing hearing, explaining a final judgment was needed before filing an appeal and that he

intended on filing a motion for a new trial. Despite defendant’s refusal to appear, the State

announced it was ready to proceed, as witnesses were present for the sentencing hearing. The

State also conceded a motion for a new trial needed to be filed prior to any sentencing.

¶ 57 The trial court rescheduled the sentencing hearing for August 24, 2023. In the

rescheduling order, the court stated, “[I]f defendant again refuse[s] to attend his sentencing

hearing, [he] will waive his right to be present at post-trial motions and sentencing and both will

be held in his [absence].” The Peoria County Sheriff’s Office served defendant with this order

the same day. The document confirming service contained a handwritten annotation at the

bottom, reading, “It was explained to him as well and he understood the section regarding waive

right to be present at next hearing.” The following day, defendant’s counsel filed a motion for a

new trial.

- 14 - ¶ 58 Defendant refused to appear for the rescheduled sentencing hearing. The trial

court denied defense counsel’s motion for a new trial. After hearing a victim impact statement

from one of Ellison’s relatives, the court delivered its sentencing judgment:

“The Court has considered the presentence investigation report, the

evidence and arguments presented, has considered all of the

statutory factors in aggravation and mitigation, the history and

character of the defendant, having due regard for the circumstances

and the nature of the offense I find as follows:

In aggravation the conduct was exceptionally brutal and

heinous as the jury found. I really—I find [defendant] a coward

with no heart and no soul and he has demonstrated that at every

single point in this case. He got up on the stand and did not take

accountability for his actions. Well, let’s back up. After it

happened, he ran, coward. Then he appeared, he took the stand,

and he lied. And then here we are today. He doesn’t appear to face

all of you. I can’t find anything redeeming about [defendant],

nothing.

And I’m sorry to all of you that the court system can’t bring

[Ellison] back. The court system can’t undo this tragedy and it was

senseless. It was unnecessary. It was cruel and heartless. And this

sort of behavior, it doesn’t even seem enough to say it needs to be

deterred. I mean, the Court cannot say enough about the heinous

- 15 - nature of this crime and [defendant’s] behavior. I have tried to find

something mitigating about [defendant]. I cannot.

He is sentenced to natural life in prison.”

¶ 59 This appeal followed.

¶ 60 II. ANALYSIS

¶ 61 On appeal, defendant argues (1) he was denied his constitutional right to the

effective assistance of counsel when trial counsel failed to object to the admission of Perry’s

prior inconsistent statement incriminating defendant in Ellison’s murder; (2) his pro se posttrial

claim, in a docketing statement accompanying a premature notice of appeal, of receiving

ineffective assistance of counsel required the trial court to either conduct a Krankel inquiry or

obtain his waiver of said inquiry; and (3) the court denied him a fair sentencing hearing by

imposing a natural life sentence in part due to his exercising his right to be absent for the

hearing.

¶ 62 A. Trial Counsel Was Not Ineffective for Failing to Object to the Admission of

Perry’s Prior Inconsistent Statement

¶ 63 First, defendant argues he was denied his constitutional right to the effective

assistance of counsel when trial counsel failed to object to the admission of Perry’s prior

inconsistent statement incriminating defendant in Ellison’s murder. Specifically, defendant

contends Perry’s statement during his interview with Sergeant Mocilan that defendant told Perry,

“[Y]ou don’t understand, she had a pulse when I left,” is inconsistent with his testimony

disclaiming any recollection of making such a remark to Sergeant Mocilan. Defendant argues

this statement was not admissible either as substantive or impeachment evidence.

- 16 - ¶ 64 Criminal defendants have the right to the effective assistance of counsel under

both the United States and Illinois constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970,

art. I, § 8. Claims of ineffective assistance of counsel are analyzed under the framework set forth

by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and

adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 525-26 (1984). “To prevail

on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s

performance was deficient and that the deficient performance prejudiced the defendant.” People

v. Domagala, 2013 IL 113688, ¶ 36. “More specifically, a defendant must show that counsel’s

performance was objectively unreasonable under prevailing professional norms and that there is

a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 694). “Because a

defendant must establish both a deficiency in counsel’s performance and prejudice resulting from

the alleged deficiency, failure to establish either proposition will be fatal to the claim.” People v.

Sanchez, 169 Ill. 2d 472, 487 (1996). A court may decide a claim of ineffective assistance of

counsel by proceeding to the prejudice prong without addressing counsel’s performance. People

v. Hale, 2013 IL 113140, ¶ 17. We review claims of ineffective assistance of counsel de novo. Id.

¶ 15.

¶ 65 As our supreme court has explained:

“It is a well settled general rule that what a witness states

out of court and out of the presence of the defendant is pure

hearsay and is incompetent as substantive evidence. [Citation.]

However, section 115-10.1 of the Code [of Criminal Procedure of

1963 (Code)] allows a party to use a witness’s prior inconsistent

- 17 - statement as substantive evidence under certain circumstances.”

People v. Simpson, 2015 IL 116512, ¶ 27.

¶ 66 Section 115-10.1 of the Code provides, in pertinent part:

“In all criminal cases, evidence of a statement made by a witness is

not made inadmissible by the hearsay rule if

(a) the statement is inconsistent with his testimony at the

hearing or trial, and

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

the statement, and

(c) the statement—

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

which the witness had personal knowledge, and

(C) the statement is proved to have been accurately

recorded by a tape recorder, videotape recording, or any other

similar electronic means of sound recording.” 725 ILCS 5/115-

10.1 (West 2022).

¶ 67 The “personal knowledge” component of section 115-10.1 “means the witness

must have actually perceived the events that are the subject of the statement.” People v.

Thornton, 2024 IL App (4th) 220798, ¶ 61. More specifically, “the witness must have observed

the events being spoken of, rather than simply hearing about them afterwards.” People v.

McCarter, 385 Ill. App. 3d 919, 930 (2008). “One of the policies underlying section 115-10.1 of

- 18 - the Code is to protect parties from ‘turncoat’ witnesses who back away from a former statement

made under circumstances indicating that it was likely to be true.” People v. Speed, 315 Ill. App.

3d 511, 517 (2000).

¶ 68 Here, the State concedes defendant’s statement to Perry, “[Y]ou don’t understand,

she had a pulse when I left,” which Perry conveyed to Sergeant Mocilan during his interview,

was inadmissible as substantive evidence due to Perry’s lack of personal knowledge of

defendant’s final interaction with Ellison. However, “even if a statement is not admissible for the

truth of the matter asserted under section 115-10.1, that does not automatically preclude it from

being used for impeachment purposes.” McCarter, 385 Ill. App. 3d at 932. After setting forth the

criteria for the admission of a prior inconsistent statement as substantive evidence, section 115-

10.1 provides, “Nothing in this Section shall render a prior inconsistent statement inadmissible

for purposes of impeachment because such statement was not recorded or otherwise fails to meet

the criteria set forth herein.” 725 ILCS 5/115-10.1 (West 2022). It is not enough that a prior

statement is inconsistent with trial testimony for it to be admissible for impeachment purposes.

Instead,

“[a] party may only impeach its own witness through use of a prior

inconsistent statement when the testimony of that witness does

‘affirmative damage’ to the party’s case. [Citations.] For witness

testimony to be affirmatively damaging, it must do more than fail to

support the State’s position; it must give ‘positive aid’ to the

defendant’s case, for instance, by being inconsistent with the

defendant’s guilt under the State’s theory of the case. [Citations.] It

- 19 - is insufficient that a witness merely disappoints the State by failing

to incriminate the defendant. [Citation.]

This limitation on the use of prior inconsistent statements is

necessary because the purpose of impeachment is to cancel out

damaging testimony by a witness; if no such damaging testimony

has been proffered, then the only purpose of introducing a prior

inconsistent statement is to get it before the jury as substantive

evidence.” McCarter, 385 Ill. App. 3d at 933.

¶ 69 Here, Perry’s testimony did not affirmatively damage the State’s case. Perry’s

testimony established (1) defendant was familiar with, and had access to, Perry’s apartment

(where the State argued Ellison’s murder took place) and exhibited behavior in the apartment

consistent with a nervous, guilty state of mind, such as pacing the apartment and asking for

water, and (2) Perry accompanied Tyronda to “check to see” if “a lady [he] didn’t know” was

alright—this coming after Tyronda’s testimony that she and Perry went to Ellison’s residence

after Tyronda received a phone call about Ellison. Perry’s earlier recitation to Sergeant Mocilan

of the highly incriminating statement from defendant about Ellison having a pulse when

defendant last saw her is inconsistent with his testimony that he did not recall making such a

statement. “Where a witness claims that he cannot recall a matter at trial, a former affirmation of

it should be admitted as a contradiction.” People v. Leonard, 391 Ill. App. 3d 926, 933 (2009).

But this particular piece of testimony did not assist defendant’s case.

¶ 70 In Leonard, the Third District noted that “[w]hen a witness professes a lack of

memory regarding a prior statement, his testimony may be considered damaging.” Id. In support

of this proposition, the Leonard court cited this court’s decision in Speed. Id.; see Speed, 315 Ill.

- 20 - App. 3d at 517 (“It is just as damaging to a party when such a witness professes a lack of

memory of the event or of making the statement.”).

¶ 71 However, in People v. Wilson, 2012 IL App (1st) 101038, the First District

addressed whether this proposition meant that a witness’s testimony must be “affirmatively

damaging” to its side’s case by giving “positive aid” to the other side’s case for a prior

inconsistent statement to be admissible for impeachment purposes. The Wilson court

acknowledged the above-mentioned statement from Leonard and the Leonard court’s citation to

Speed. However, the Wilson court noted how Speed “only addressed the ‘inconsistency’

requirement in connection with the substantive admission of prior statements, not the affirmative

damage requirement for impeaching one’s own witness.” (Emphasis added.) Id. ¶ 45. The court

continued:

“We also find [this] statement from Leonard contrary to our

supreme court’s instruction that ‘ “[d]amage” *** does not occur

where a party interrogates a witness about a fact which would be

favorable to the examiner if true, but then receives a reply which is

merely negative in its effect on the examiner’s case.’ [People v.

Cruz, 162 Ill. 2d 314, 360 (1994)]; see also Michael H. Graham,

Graham’s Handbook of Illinois Evidence § 607.4 (10th ed. 2010)

(‘To the extent that People v. Leonard *** asserts that a professed

lack of recollection is to be considered affirmatively damaging

with respect to impeachment of a witness called by that party by

means of a prior inconsistent statement not substantively

- 21 - admissible, Leonard is completely wrong and must not be

followed.’).” Id.

We agree with the First District’s qualification of the above-quoted passage from our decision in

Speed and agree that “a witness’s professed lack of memory, standing alone, does not

‘affirmatively damage’ a party’s case for the purpose of impeaching one’s own witness.” Id.

Thus, the prior inconsistent statement at issue was not admissible either as substantive or

impeachment evidence.

¶ 72 Trial counsel was arguably deficient in failing to object to the admission of

Perry’s prior inconsistent statement incriminating defendant in Ellison’s murder. See Simpson,

2015 IL 116512, ¶ 36 (concluding the “defendant [showed] that his counsel’s representation fell

below an objective standard of reasonableness” where there was “no strategic reason for defense

counsel’s failure to object to [a witness’s] videotaped statement to police” because “[the witness]

basically told police that [the] defendant confessed to beating the victim to death”). As

mentioned, however, both prongs of the Strickland standard must be met for a successful claim

of ineffective assistance of counsel. See Sanchez, 169 Ill. 2d at 487 (1996). Even assuming,

arguendo, counsel’s deficiency in this respect, we must consider whether “there is a ‘reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’ ” Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland, 466 U.S. at 694).

¶ 73 Here, there is no such reasonable probability. The evidence adduced points to

only one rational conclusion. Defendant murdered Ellison, his girlfriend, in Perry’s (his cousin’s)

basement, took her body back to his own residence in a pushcart, wrapped her in a sheet, and

used a cab to transport her body to a wooded area some distance from both his residence and the

scene of the murder. No other rational explanation exists for:

- 22 - (1) Ellison’s sudden and otherwise inexplicable

disappearance from her neighborhood, prompting several

acquaintances to go to her residence in an unsuccessful attempt to

find her;

(2) her surreptitious and worrisome behavior in her home

while interacting with her friend just days before her murder;

(3) defendant’s pushcart’s appearance of containing

blankets while he rolled it down the street near his residence and

his alibi that he was going to do laundry;

(4) the pushcart’s otherwise inexplicable heaviness as

Watts observed defendant, approximately 30 minutes after he was

first seen rolling it down the street (supposedly to do laundry),

struggling over several minutes to carry it from his doorstep to the

cab;

(5) defendant’s hostile refusal to allow Watts to help him

get “his bags” in and out of the cab;

(6) the subsequent discovery of the pushcart in front of

defendant’s residence bearing bloodstains determined to contain

both his and Ellison’s DNA;

(7) the discovery of Ellison’s body in the same wooded

area to which Watts took defendant, wrapped up and partially

concealed by leaves;

- 23 - (8) the discovery of defendant’s bloody clothing in this

same area;

(9) the presence of defendant’s and Ellison’s DNA in a

multitude of bloodstains in both his and Perry’s residences;

(10) the presence of Ellison’s necklace on the floor of

Perry’s basement amid these bloodstains;

(11) the presence of both defendant’s and Ellison’s DNA in

bloodstains on a spray can in Perry’s basement;

(12) the presence of this can’s contents in the wooded area

and on Ellison’s pants at her autopsy;

(13) defendant’s erratic behavior at Perry’s residence, with

blood on his body, as described in Perry’s admissible statements

from his police interview, illustrative of a consciousness of guilt;

(14) the injuries discovered on defendant’s hands after his

police interview;

(15) the forensic determination Ellison suffered a

devastating torrent of punches, blunt force injuries, and stab

wounds over every area of her body and died by strangulation; and

(16) defendant’s admissions on the stand to having

(a) taken Ellison’s lifeless body into his residence, (b) wrapped her

up, (c) deposited her body in the woods, and (d) lied to police

when he said he knew she was missing and wanted to help them.

- 24 - All of this evidence was disconnected from the lone prior inconsistent statement from Perry’s

police interview.

¶ 74 In the face of overwhelming evidence of his guilt, defendant offered a version of

events which could at best be described as implausible in the extreme. According to defendant,

he last saw Ellison alive the Sunday before her death, when he was at her home for a reason he

could not recall. While at his home two nights later, shortly before midnight, defendant “heard a

noise outside” and happened to see a person lying immobile and unresponsive in the alley.

Defendant then discovered this person was Ellison, his girlfriend of approximately one year.

Defendant then attempted CPR, rather than immediately calling the police. Defendant then “tore

the bedroom apart” looking for his phone and still did not call the police after finding it. Rather

than immediately calling for help upon the harrowing discovery of his girlfriend dead in the alley

near his residence, defendant became concerned over being blamed for what happened and,

therefore, went back to the alley to “try[ ] to assess the items that were around her to see if they

were involved in some way with the crime and that may help to prove that [he] didn’t do this.”

Defendant found unspecified “things” in the alley but professed not to know their usefulness for

proving his innocence, as he was “not a forensics expert.” After deciding to try to find people in

the area who may have been awake and witnessed the incident, defendant walked directly to

Perry’s residence, as he was supposedly unable to talk to the other two people he found en route.

When defendant attempted to get into Perry’s apartment, Perry put him in a chokehold and threw

him down the stairs, reopening a cut to his right hand. Moments later, defendant just so happened

to notice what “appeared to be a blood-like substance by the basement door leading downstairs”

and then decided it was time to call the police. Yet defendant still did not make the call. Instead,

defendant, with his freshly cut right hand, went to the basement to “investigate.” Of course,

- 25 - defendant wanted to call the police, but he needed the help of an attorney to do so because of

how concerned he was about the “major offense” of moving Ellison’s body (to say nothing of

wrapping it up, depositing it in the woods, and covering it with leaves to hide it). Hence

defendant’s plan was to meet with a relative out of state to borrow money to hire an attorney, as

the sheer amount of money involved required him to meet this relative in person. When he

eventually spoke to the police, defendant told them how much he wanted to help them, but he

subsequently admitted he lied by telling them Ellison was missing.

¶ 75 In the context of ineffective assistance of counsel, our supreme court has

sanctioned “consider[ing] the claims in light of the strength of the evidence against the defendant

and the possible prejudicial effect of the alleged defective representation.” People v. Enoch, 122

Ill. 2d 176, 202 (1988). Exclusive of the inadmissible prior inconsistent statement at issue, the

evidence of defendant’s guilt was positively overwhelming. There is no reasonable probability

the outcome would have been different had trial counsel successfully objected to the admission

of this statement. This court concludes defendant’s trial counsel was not ineffective.

¶ 76 B. The Trial Court Was Not Required to Conduct a Krankel Inquiry

¶ 77 Following his trial but before his sentencing, defendant filed a pro se docketing

statement and a notice of appeal with the Peoria County Circuit Clerk. In the section of the

docketing statement entitled “General statement of issues proposed to be raised,” defendant

typed, “Ineffective Assistance of Counsel.” The trial court never conducted an inquiry into

defendant’s pro se posttrial claim of ineffective assistance of counsel or obtained his waiver of

his right to said inquiry. Defendant requests this court remand for the narrow purpose of

determining if the appointment of new counsel is warranted.

- 26 - ¶ 78 The duty of a trial court to conduct an inquiry into a defendant’s pro se posttrial

claim of ineffective assistance of counsel was set forth in Krankel. Our supreme court has

explained the appointment of new counsel is not automatic when there is a pro se motion

alleging ineffective assistance of counsel. Instead, the court should examine the factual basis, and

if the claim lacks merit or pertains to trial strategy, then new counsel need not be appointed and

the motion should be denied. If there is possible neglect, new counsel should be appointed.

People v. Moore, 207 Ill. 2d 68, 77-78 (2003).

¶ 79 Our supreme court has explained the relatively low threshold for triggering a trial

court’s obligation to investigate this type of posttrial claim:

“When a criminal defendant believes that he has not

received effective assistance of counsel at his trial and he so

notifies the court, the court must inquire into his claim. [Citation.]

A pro se defendant is not required to do any more than bring his or

her claim to the trial court’s attention. [Citation.] The defendant

may do so by way of a written motion but need not do so in such a

formal manner. [Citation.] He may also make an oral motion

[citation] or give the court a letter or note [citation]. This court has

even held that a pro se defendant need not provide the underlying

factual basis for his claim so long as he alleges that he has received

‘ineffective assistance of counsel.’ [Citation.] To raise a claim of

ineffective assistance of counsel, however, the defendant must

clearly raise that claim with the court. [Citation.]” (Internal

quotation marks omitted.) People v. Bates, 2019 IL 124143, ¶ 15.

- 27 - An appellate court reviews a trial court’s alleged failure to conduct a Krankel inquiry de novo.

Id. ¶ 14.

¶ 80 The fact defendant raised his claim of ineffective assistance of counsel in a

docketing statement and not a formal motion would not obviate the trial court’s need to hold a

Krankel hearing. Id. ¶ 15. Nor would the bare use of the term “ineffective assistance of counsel.”

Id. But this court must consider whether defendant met his burden of bringing this claim to the

trial court’s attention. Id.

¶ 81 Defendant filed his pro se docketing statement on June 23, 2023. The next entry

in the common law record of this case is the filing of defendant’s presentence investigation

report on August 11, 2023. The next hearing took place on August 17, 2023, which was initially

scheduled as the sentencing hearing. In the course of requesting a continuance, defendant’s

counsel indicated he intended to file an appeal but understood there must be a final judgment

entered from which he could appeal. Before that was to occur, he intended to file a motion for a

new trial. If the motion was granted, there would be no sentencing hearing and thus no final

judgment from which he would appeal. If the motion was denied, defendant would then be

sentenced, a final judgment would be entered, and then counsel could initiate the appeal. But the

disposition of the motion for a new trial was the first step in the process towards a potential

appeal. There is nothing in counsel’s or anyone else’s remarks at the August 17, 2023, hearing or

at the rescheduled sentencing hearing on August 24, 2023, for which defendant also refused to

appear, to suggest his counsel, the State, or the trial court were even aware of his pro se

docketing statement reflecting a claim of ineffective assistance of counsel (or his premature

pro se notice of appeal). See People v. Lewis, 165 Ill. App. 3d 97, 109 (1988) (finding the

defendant waived the issue of ineffective assistance of counsel in that, “[o]ther than in his letter

- 28 - to the [trial] court, [the] defendant did not, at any time, claim the incompetence of his trial

attorneys,” and “[i]t would also appear, from the record, that the trial judge, [the] defendant’s

counsel, and the State were all unaware of [the] defendant’s letter as no mention was made of it,

and [the] defendant did not himself refer to it in the post-trial proceedings”). As neither counsel

nor the court was aware of defendant’s claim of ineffective assistance of counsel, we cannot

criticize the court for failing to take any action. Accordingly, defendant waived his ineffective

assistance of counsel claim, and the court was not required to conduct a Krankel inquiry.

¶ 82 C. Defendant Was Not Denied a Fair Sentencing Hearing

¶ 83 Finally, defendant argues the trial court denied him a fair sentencing hearing by

imposing a natural life sentence in part due to his exercising his right to be absent for the

¶ 84 As a preliminary matter, defendant acknowledges he did not preserve this issue in

the trial court for this court’s review. “It is well settled that, to preserve a claim of sentencing

error, both a contemporaneous objection and a written postsentencing motion raising the issue

are required.” People v. Hillier, 237 Ill. 2d 539, 544 (2010). However, “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Under the plain error doctrine,

“a defendant must first show that a clear or obvious error occurred.

[Citation.] In the sentencing context, a defendant must then show

either that (1) the evidence at the sentencing hearing was closely

balanced, or (2) the error was so egregious as to deny the

defendant a fair sentencing hearing. [Citation.] Under both prongs

of the plain-error doctrine, the defendant has the burden of

- 29 - persuasion. [Citations.] If the defendant fails to meet his burden,

the procedural default will be honored.” Hillier, 237 Ill. 2d at 545.

“The initial step in conducting plain-error analysis is to determine whether error occurred at all.”

People v. Walker, 232 Ill. 2d 113, 124 (2009).

¶ 85 The Illinois Constitution requires that sentences be determined according to the

seriousness of the offense and with the objective of restoring the offender to useful citizenship.

Ill. Const. 1970, art. I, § 11. In determining an appropriate sentence, the trial court must carefully

balance the factors in aggravation and mitigation. People v. Quintana, 332 Ill. App. 3d 96, 109

(2002). The court is not required to specifically outline the exact process by which it determined

the sentence, nor is it required to make an express finding the defendant lacked rehabilitative

potential. People v. Redmond, 265 Ill. App. 3d 292, 307 (1994). “The seriousness of the crime is

the most important factor in determining an appropriate sentence, not the presence of mitigating

factors such as the lack of a prior record, and the statute does not mandate that the absence of

aggravating factors requires the minimum sentence be imposed.” Quintana, 332 Ill. App. 3d at

109.

¶ 86 A trial court must confine its consideration of sentence to the proper factors.

“Consideration of an improper factor in aggravation clearly affects the defendant’s fundamental

right to liberty, and a court of review must remand such a cause for resentencing, except in

circumstances where the factor is an insignificant element of the defendant’s sentence.” People v.

Reed, 376 Ill. App. 3d 121, 128 (2007). In reviewing a claim that a trial court relied on an improper

factor in fashioning its sentence, the defendant must show more than the mere mentioning of an

improper fact. The defendant must show the trial court relied on the improper fact when imposing

the sentence. Id. Whether the trial court relied on an improper aggravating factor in sentencing a

- 30 - defendant is a question of law reviewed de novo. People v. Matute, 2020 IL App (2d) 170786,

¶ 53.

¶ 87 At defendant’s sentencing hearing, before imposing its sentence of natural life

imprisonment, the trial court stated, in pertinent part:

“In aggravation the conduct was exceptionally brutal and

heinous as the jury found. I really—I find [defendant] a coward

with no heart and no soul and he has demonstrated that at every

single point in this case. He got up on the stand and did not take

accountability for his actions. Well, let’s back up. After it

happened, he ran, coward. Then he appeared, he took the stand,

and he lied. And then here we are today. He doesn’t appear to face

all of you. I can’t find anything redeeming about [defendant],

nothing.”

¶ 88 This court concludes that far from “relying on” defendant’s absence from the

hearing in imposing a natural life sentence, the trial court merely observed his absence in a

passing remark in the context of the whole hearing. This is significantly different from an

instance where a trial judge explicitly states their sentencing decision is based, at least in part, on

the defendant’s decision to exercise one of his rights, particularly one of a constitutional

dimension. See id. ¶¶ 56-57, 63 (When the trial judge stated, “I find [it] a little bit disturbing that

the defendant has not offered any allocution whatsoever,” and “I also considered heavily the

defendant’s lack of remorse,” the judge “relied at least in part on an improper sentencing factor,”

namely his fifth amendment (U.S. Const., amend. V) right against self-incrimination, which

“impinged upon [the defendant’s] fundamental right to liberty,” and thus “he has established

- 31 - plain error under the second prong.”); see also People v. Maggio, 2017 IL App (4th) 150287,

¶¶ 49-50 (When the trial court found the defendant’s refusal to participate in the presentence

investigation was “significant *** and troubling” and was “a telling indication of defendant’s

attitude,” it improperly commented on his fifth amendment right to remain silent during the

investigation and said comment “weighed heavily in the court’s sentencing decision.”).

However, to the extent the court’s comment could be construed as “relying” at all on defendant’s

absence from the sentencing hearing for its imposition of a natural life sentence, the significance

it attached to this, as reflected in its other comments, was dwarfed by the significance it attached

to the extremely violent nature of Ellison’s death at defendant’s hands—hands which bludgeoned

and stabbed her, covering virtually every inch of her body with injuries while she was still alive,

before strangling her to death and discarding her in the woods. Under either interpretation, the

court did not err in making this reference to defendant’s absence at his sentencing hearing.

“Where there is no error, there can be no plain error.” People v. Bair, 379 Ill. App. 3d 51, 60

(2008). Defendant was not deprived of a fair sentencing hearing.

¶ 89 III. CONCLUSION

¶ 90 For the reasons stated, we affirm the trial court’s judgment.

¶ 91 Affirmed.

- 32 -