People v. Sanders

2025 IL App (5th) 230474-U

Opinion

NOTICE 2025 IL App (5th) 230474-U NOTICE Decision filed 08/08/25. The This order was filed under text of this decision may be NO. 5-23-0474 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) No. 21-CF-1274 ) MICHAEL J. SANDERS, ) Honorable ) Randall B. Rosenbaum, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE McHANEY delivered the judgment of the court. Justices Cates and Barberis * concurred in the judgment.

ORDER

¶1 Held: Defendant’s convictions for attempt first degree murder and aggravated battery with a firearm are affirmed where the evidence was sufficient to prove defendant’s identity as the offender beyond a reasonable doubt. Defendant was not prejudiced by trial counsel’s failure to object to alleged errors by the State. Defendant’s sentence was not excessive.

¶2 Following a jury trial, the defendant, Michael J. Sanders, was convicted of one count of

attempt first degree murder in violation of section 9-1(a)(1) of the Criminal Code of 2012 (Code)

(720 ILCS 5/9-1(a)(1) (West 2022)) and one count of aggravated battery with a firearm in violation

of section 12-3.05(e)(1) of the Code (id. § 12-3.05(e)(1)), and was sentenced to respective,

concurrent terms of 38 and 15 years’ imprisonment in the Illinois Department of Corrections

* Justice Welch participated in oral argument. Justice Barberis was later substituted on the panel and has read the briefs and listened to the recording of oral argument. 1 (DOC) plus 3 years of mandatory supervised release. On appeal, the defendant contends that the

State failed to prove him guilty beyond a reasonable doubt where the sole eyewitness’s

identification was unreliable; that he received ineffective assistance of counsel where trial

counsel’s failure to object to two errors by the State prejudiced him; and that his 38-year sentence

was excessive where the trial court failed to adequately weigh his potential for rehabilitation as an

objective of the sentence and improperly considered during its sentencing determinations conduct

for which he had been acquitted. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 On October 18, 2021, Eldridge Robinson reported to the police that at approximately 9:48

p.m. shots had been fired at him while he was driving his vehicle near the intersection of Cheryl

and Gleason Drive in Rantoul. Officers responded to the defendant’s house located at 1327 Cheryl

Drive where the shooting had occurred. Though Robinson had not been shot, police observed

bullet hole damage to his vehicle. When interviewed by the police, Robinson reported that he had

seen three people, only two of which shot at him; that he did not recognize the third person; and

that he thought he heard seven to eight shots. He also stated that he had known the defendant since

the 1990s when they both lived in Chicago.

¶5 Officers learned that during the shooting reported by Robinson, a stray bullet entered a

nearby residence. Officer Edgar Garcia was dispatched to 1417 Gleason where a juvenile female

had been shot in the arm. Officers took photographs of projectiles on the floor between a bed and

the dresser as well as photographs of the damage caused by the projectiles going through a

television and other items. One of the projectiles recovered was a 9-millimeter bullet and the other

was a .40-caliber bullet. Photographs of the juvenile’s injuries were later shown to the jury.

2 ¶6 When questioned by police, the defendant stated he was in Chicago the entire day on

October 18, 2021. When the defendant was arrested, he possessed two cell phones, but the officer

who recovered the cell phones could not access them because they were locked. Further physical

evidence was recovered during the investigation, including evidence from search warrants

executed for a car that was parked in the defendant’s driveway and for the defendant’s house.

During the search of the car, officers discovered a semiautomatic handgun located in the center

console between the front seats and a backpack containing two .40-caliber bullets. The officers

determined that the vehicle belonged to Eileen Davis. Receipts and traffic citations belonging to

Antwian Davis were found in the vehicle. During the search of the house, officers found a variety

of ammunition: .32-caliber auto and .38 special caliber rounds, .45-caliber Colt rounds, and .22

short caliber rounds.

¶7 From the driveway of the defendant’s house, police recovered approximately 23 total shell

casings from three different caliber firearms. Officers observed that the shell casings were in three

distinct groupings at the top, middle, and end of the driveway. A forensic scientist specializing in

firearms identification analyzed the 23 shell casings and concluded there were three different

firearms used based on the cartridges recovered: a .9-millimeter Luger, a .22 long rifle caliber, and

a .40-caliber Smith and Wesson. No weapons were ever recovered.

¶8 The defendant was charged with three counts of attempt first degree murder of Robinson

based on the theory of accountability 1 (id. § 9-1(a)(1)), one count of aggravated battery with a

firearm based on the theory of accountability (id. § 12-3.05(e)(1)), and one count of aggravated

discharge of a firearm (id. § 24-1.2(a)(2)).

1 A defendant is accountable for the conduct of a codefendant when “either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2022). 3 ¶9 A. State’s Motion in Limine

¶ 10 Prior to trial, the State moved to admit evidence of a second shooting that took place on

November 29, 2021, for the limited purpose of showing the defendant’s intent. The State argued

the second shooting showed that the defendant intended to kill Robinson after the first attempt on

October 18, 2021, was unsuccessful. Defense counsel objected to the State’s motion, arguing it

would create a trial within a trial because Robinson’s identification from the second shooting was

unreliable. Defense counsel pointed to the fact that Robinson did not identify the defendant as the

shooter in the November incident until the third time he spoke with police, nearly nine months

later. The trial court overruled the objection concluding this was a credibility issue for the jury to

decide and held that the evidence would be admissible for the limited purpose of showing intent.

¶ 11 B. Trial

¶ 12 At trial, the State alleged the defendant was accountable for the actions of those that shot

at Robinson, even if he did not fire a weapon himself. Robinson testified as a witness for the State.

Robinson testified he had known the defendant and the defendant’s ex-wife, Lucille Sanders, since

approximately 2018. Robinson stated that giving testimony against the defendant was difficult for

him because he knew the defendant’s kids and his family. He stated that he and the defendant had

played cards and had gone to Las Vegas together. He had spent time at the defendant’s house

watching the Super Bowl and at holidays.

¶ 13 Robinson testified that on October 18, 2021, he spoke with the defendant, and they made

plans to get together later to discuss money the defendant owed to Robinson. When Robinson

arrived at the defendant’s residence, four people came out of the house: the defendant, Antwian

“A.D.” Davis, Rory “Ro” Nelson, and William Gray. Robinson refused to enter the residence after

he observed that each person there was armed with a firearm, so the defendant came out to talk to

4 him. The defendant told Robinson to come back in 15 minutes, explaining that everyone was armed

because the defendant had been arguing on the phone with a person that had threatened to shoot

up his house. Robinson left and drove back roughly 15 minutes later.

¶ 14 When Robinson got to the corner of Gleason and Cheryl Drive—the intersection down the

street from the defendant’s house—as he was preparing to turn onto Cheryl Drive, he saw the

defendant, Nelson, and Gray standing “in the same spot in front of the house” in the driveway of

the defendant’s residence. Before Robinson could make the turn onto Cheryl Drive, gunshots were

fired in his direction. Robinson testified that he “paused in the turn” in the middle of the

intersection before proceeding straight through the intersection down Gleason Drive. He headed

directly to the police station where he reported the incident. According to Robinson’s testimony,

Gray was the first to fire his weapon in Robinson’s direction. Robinson then saw Nelson and the

defendant begin to fire their weapons as well, with all three shooters firing off “maybe over 30

rounds.” Robinson testified he clearly saw the defendant fire a gun towards him. He stated that

Davis was the only one who did not come outside of the defendant’s house when Robinson came

back around the second time. When asked if he could clearly see the defendant firing a gun towards

him, Robinson answered in the affirmative.

¶ 15 On direct examination, the State read out loud a phone number to Robinson and asked if

he recognized it: “Do you know this phone number? It’s area code (217)-991-2736.” Robinson

replied that it was one of the defendant’s phone numbers. He stated he knew the number belonged

to the defendant because the defendant had called and texted him from that number. Robinson

testified he had multiple numbers saved in his phone for the defendant; he explained, however, he

did not have them saved under the defendant’s name. Robinson also was asked if he recognized

another phone number (217)-480-1337, and he responded it was Lucille’s number. He testified

5 that he knew it was her number because they talked every day. Robinson admitted to being in a

romantic relationship with Lucile beginning in November 2021, but he denied being in such a

relationship with her prior to that even though the defendant believed they were sleeping together.

¶ 16 On cross-examination, when defense counsel asked if he could remember any of the

defendant’s other numbers, Robinson indicated he was not able to do so without looking in his

phone:

“Q. What are his other numbers?

A. You know what? They’re in my phone.

Q. Oh, you don’t know them off the top of your head?

A. No.”

¶ 17 On cross-examination, Robinson admitted that he did not originally tell police about

speaking with the defendant earlier that day. He denied recalling that he initially told police there

were only two people shooting at him. Robinson insisted that Gray fired first and that he had seen

Gray’s face before. He denied telling officers he had known the defendant since the 1990s when

they lived in Chicago, insisting he did not meet the defendant until 2018. When pressed on the

inconsistencies between his prior statements to police and his present testimony, Robinson started

having trouble answering defense counsel’s questions, saying “every question is going to be I don’t

remember” and that he is “ready to just move to get over it.” After Robinson answered “I don’t

remember” to numerous questions, the court declared a recess to address his unwillingness to

testify. After the State spoke with Robinson, he continued testifying.

¶ 18 The State also questioned Robinson about an incident that occurred approximately one

month after the charged offense, with the trial court instructing the jury to only consider the

evidence for purposes of the defendant’s intent. Robinson testified that on November 29, 2021, he

6 was shot at again while driving his vehicle near the overpass at Prospect and Interstate 74. He

stated that Lucille and “Little Michael” were with him at the time. Robinson recounted that he

noticed Davis driving the car next to his with the defendant in the passenger seat before four

gunshots were fired in his direction. None of the shots hit Robinson’s vehicle.

¶ 19 Robinson testified that recently he had started a romantic relationship with Lucille.

Robinson and claimed the relationship started just after the shooting in November, though he

admitted the defendant suspected them of sleeping together prior to the first shooting. Robinson

further admitted that when he met with police directly after the November 29 shooting, he told

them that while he suspected the defendant was the shooter, he did not actually see the person who

shot at him. When he spoke with the police again on December 27, Robinson reaffirmed that he

did not see the shooter. It was not until August 2022, nine months after the November shooting,

when Robinson spoke with the police for a third time that he told them he had seen the defendant

lean out of the front passenger seat holding a large chrome revolver that he fired in Robinson’s

direction.

¶ 20 On redirect examination, Robinson testified he did not tell the truth initially about the

November shooting because Lucille was having an anxiety attack, “Little Michael was screaming,”

and they did not want the defendant to get into any more trouble. Robinson testified that the

defendant threatened him between the October and November shootings via text messages and

phone calls, telling Robinson to stay away from Lucille.

¶ 21 Police collected four shell casings from the overpass near where Robinson reported being

shot at in November. These shell casings were determined to be semiautomatic .40-caliber bullets.

An investigator for the public defender’s office later explained that revolvers do not eject the empty

shell casings out of the gun like semiautomatic weapons do. The forensic scientist confirmed that

7 the .40-caliber bullets from the November shooting came from the same gun that fired the .40-

caliber bullets in the October shooting.

¶ 22 Steve Guess, an investigator for the public defender’s office, testified on behalf of the

defense. On the night of October 18, 2022, exactly one year after the shooting, he went to the scene

of the incident on Cheryl Drive to observe the conditions. Guess stated that there were several trees

and some streetlights in the area; nevertheless, he described the neighborhood as “very dark” due

to poor lighting. Guess observed the streetlight at the T-intersection of Gleason and Cheryl Drive

that randomly turned off and on. He determined the distance between the closest edge of the

driveway to the streetlight at the intersection was 175 feet. Guess stated that when standing at the

intersection of Gleason and Cheryl, he could not see any identifying features of individuals

standing in the defendant’s driveway due to the distance and darkness.

¶ 23 Guess took two photographs which were shown to the jury. One photograph depicted the

area to the east of the defendant’s house towards the intersection of Gleason and Cheryl, and the

other photograph depicted the area to the west. He testified the streetlights did not illuminate the

entirety of the defendant’s driveway. Guess also recorded a video as he was walking on Cheryl

Drive to the east toward the intersection and a video facing towards the west, towards the

defendant’s house. These videos were shown to the jury. On cross-examination, Guess admitted

he did not record a video of the scene while driving north on Gleason approaching the intersection

as Robinson did on the night of the shooting.

¶ 24 The trial court read for the jury the following information, of which it took judicial notice:

that on October 18, 2021, at 9:45 p.m. there was no cloud cover in Rantoul, and the moon was lit

up 96.4%, while on October 18, 2022, there was 75% cloud cover at 9:45 p.m., and the moon was

lit up 40.7%.

8 ¶ 25 The defendant’s neighbor, Jeff Warner, testified on behalf of the defense. Warner’s house

was located at the corner of Gleason and Cheryl. On the night of October 18, 2021, he had just laid

down for bed when he heard gunshots outside. Warner looked through his bedroom window and

saw two people standing on the opposite corner from his house with numerous cars leaving the

area. Warner stated he could not see any details of the people because it was completely dark out,

and there was insufficient outdoor lighting to make out identifying features. Warner said the only

illumination came from the single streetlight at the intersection and the brake lights of the cars that

were leaving.

¶ 26 Makayla Sanders, the defendant’s daughter, testified that on October 18, she saw the

defendant and his friend in a car at the defendant’s house between five and six in the evening. The

defendant told her he was leaving to go to Chicago.

¶ 27 The trial court granted the State’s motion to admit into evidence cell phone records

pertaining to the phone number (217) 991-2736, which Robinson testified belonged to the

defendant. One such record was for October 18, 2021, and the other was for November 29, 2021.

The State argued that those records would show that the phone number identified as the

defendant’s was present in Rantoul on October 18, 2021, and would rebut Makayla’s testimony

that the defendant went to Chicago and was not present at the time of the shooting.

¶ 28 James Sean Barnwell, who worked for the Mid-States Organized Crime and Information

Center, testified on behalf of the State. Barnwell explained that the cell phone data showed the

general location of a cell phone with the number (217) 991-2736 for the time frames in question

on October 18 and November 29, 2021. These records showed that the cell phone had been in the

area of the defendant’s residence at the time of the shooting on October 18 and in the area of the

overpass near Interstate 74 on November 29 when the second shooting reportedly occurred.

9 Further, the cell phone data showed that the phone number which Robinson testified belonged to

the defendant called the phone number which Robinson testified belonged to Lucille

approximately three minutes after the November 29 shooting.

¶ 29 During closing argument, defense counsel emphasized Robinson’s inconsistent statements,

the lack of corroboration of the cell phone number, the lack of direct evidence that the defendant

ever possessed or fired a gun, and the subjectivity of the forensic expert’s determination that the

bullets from the October and November shootings matched. The State’s closing argument focused

on Robinson’s testimony and the theory of accountability. The State acknowledged that the phone

records only put a cell phone at both shootings but argued the evidence provided at trial was

sufficient to connect it to the defendant:

“Cell phone testimony puts a phone at both shootings. Doesn’t put the defendant,

that’s not how cell phone data works. But it puts a cell phone. How do we know that’s the

defendant’s cell phone? You heard from Eldridge Robinson, he said that’s the number. In

arguments it was said well, what about the other numbers? Do you have them memorized?

He said no, let me show you in my phone. Defense shut that down pretty quick. They didn’t

want you to see what was in his phone because they know exactly what it would have

shown.”

¶ 30 During deliberations, the jury asked for the definition of “abet” and what it means to be

“armed with a firearm.” The trial court responded that the definition for abet was to “encourage,

incite, or set another on to commit a crime. This word is usually applied to aiding the commission

of a crime.” The trial court further responded that armed with a firearm was defined as “being on

his person, or in his hand.”

10 ¶ 31 Following deliberations, the jury found the defendant guilty of count 3, attempt first degree

murder, and count 4, aggravated battery with a firearm under the theory of accountability.

However, the jury found the State failed to prove the defendant had personally discharged a firearm

during the attempt first degree murder. The defendant was sentenced to 38 years for the attempt

first degree murder to be served concurrently with a 15-year sentence for the aggravated battery

with a firearm.

¶ 32 C. Posttrial

¶ 33 The defense made a motion for acquittal, or in the alternative, a new trial. Defense counsel

argued that the court erred in granting the State’s motion to introduce evidence of the second

shooting because Robinson’s identification of the defendant was unreliable; there was no physical

evidence tying the defendant to the shooting; and no weapons were ever recovered. The motion

was denied.

¶ 34 D. Sentencing

¶ 35 At sentencing, the trial court first addressed whether to impose consecutive sentences for

attempt murder and aggravated battery with a firearm. Because both offenses were Class X

felonies, mandatory consecutive sentences would be required if the court found there was an

infliction of severe bodily injury. The trial court found that while the minor victim was shot in the

arm, the facts presented at trial did not support the conclusion that the injury qualified as severe

bodily harm. The trial court then discussed whether consecutive sentences were necessary to

protect the public. During its consideration of whether to impose discretionary consecutive

sentences, the trial court discussed the important mitigating and aggravating factors. The trial court

declined to impose discretionary consecutive sentences and sentenced the defendant to 38 years

for the attempt first degree murder and 15 years for the aggravated battery with a firearm to be

11 served concurrently. The defense filed a written motion to reconsider the sentence. The court,

noting the large sentencing range and the fact that it did not impose the discretionary consecutive

sentences, denied the motion.

¶ 36 II. ANALYSIS

¶ 37 In his opening brief, the defendant argued that the State failed to prove him guilty of

attempt first degree murder and aggravated battery with a firearm beyond a reasonable doubt where

the sole eyewitness’s identification was unreliable; that he received ineffective assistance of

counsel where trial counsel’s failure to object to two errors by the State—a leading question and

an insinuation of unintroduced evidence—prejudiced him; and that his 38-year sentence was

excessive where the trial court failed to adequately weigh his potential for rehabilitation as an

objective of the sentence and improperly considered during its sentencing determination conduct

for which he had been acquitted.

¶ 38 A. Sufficiency of the Evidence

¶ 39 We first turn to the defendant’s contention that the State failed to prove him guilty beyond

a reasonable doubt. Due process protects an accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime with which he is charged. U.S.

Const., amend. XIV; Ill. Const. 1970, art. I, § 2. In determining whether there is sufficient evidence

to convict, the relevant inquiry is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); People v.

Cunningham, 212 Ill. 2d 274, 278-79 (2004).

¶ 40 A defendant’s conviction will be overturned where the evidence is so “unreasonable,

improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” People v. Ortiz,

12 196 Ill. 2d 236, 259 (2001). However, it is not the function of a reviewing court to retry the

defendant or substitute its judgment for that of the fact finder. People v. Teague, 2013 IL App (1st)

110349, ¶ 26. A reviewing court gives the State the benefit of all reasonable inferences. People v.

Wheeler, 226 Ill. 2d 92, 116 (2007). It is the duty of the trier of fact to assess the credibility of the

witnesses, assign the appropriate weight to testimony, and resolve discrepancies in the evidence.

People v. Evans, 209 Ill. 2d 194, 211 (2004).

¶ 41 The defendant maintains the State’s case against him hinged on the unreliable identification

from a sole eyewitness. He argues that Robinson’s identification was unreliable where the

evidence demonstrated that Robinson would have had an insufficient opportunity to view the

shooters: the incident occurred quickly; Robinson’s attention was focused on driving away from

the gunshots; and the incident occurred at night in a location with poor outdoor lighting. He argues

further that the presence of a firearm and the stressful situation created by the shooting impeded

Robinson from making a reliable identification and rendered it improbable that he could see any

identifying features of the shooters.

¶ 42 The State has the burden to prove beyond a reasonable doubt the identity of the person who

committed the crime. People v. Slim, 127 Ill. 2d 302, 307 (1989). “An identification will not be

deemed sufficient to support a conviction if it is vague or doubtful.” Id. Reviewing courts assess

the reliability of an identification under the totality of the circumstances, considering: (1) the

witness’s opportunity to view the offender at the time of the crime; (2) the witness’s degree of

attention; (3) the accuracy of the witness’s prior description; (4) the level of certainty demonstrated

by the witness at the identification confrontation; and (5) the length of time between the crime and

the witness’s identification. Neil v. Biggers, 409 U.S. 188, 199-200 (1972), which our state

supreme court adopted as the applicable factors in People v. Piatkowski, 225 Ill. 2d 561, 567

13 (2007). A reviewing court applies the Biggers factors where, as here, a defendant asserts the

evidence was insufficient to prove his identity.

¶ 43 After the appeal had been fully briefed, and prior to oral argument, the defendant filed a

motion for leave to cite a newly issued case as additional authority, People v. Johnson, 2024 IL

App (1st) 220494, pet. for leave to appeal granted. We note the State neither objected nor filed a

response to the defendant’s motion. The motion, which was taken with the case, is hereby granted.

The defendant notes the court in Johnson discussed the importance of analyzing the reliability of

eyewitness identifications using the Biggers factors. Id. ¶ 3. The Johnson court, citing a 2021 law

review article, explained it must weigh the totality of the circumstances to evaluate the likelihood

of misidentification, as opposed to the likelihood of identification. Id. ¶ 72. The defendant

maintains the analysis in Johnson is relevant to the evaluation of whether Robinson’s eyewitness

account was reliable and, consequently, whether the State’s evidence was sufficient to prove he

was responsible for the shooting beyond a reasonable doubt. The defendant contends that instead

of arguing that Robinson’s eyewitness identification was reliable based on the factors from

Biggers, the State focused in its brief on Robinson’s prior familiarity with him in an attempt to

demonstrate that his eyewitness identification was reliable, going so far as to say that Robinson

“did not need to recall specific facial features of the people who shot at him” and that a person can

identify a friend “even though he or she could not make out the specific details of that friend’s

face.”

¶ 44 In Johnson, the jury delivered a split verdict, finding the defendant guilty of first degree

murder of one victim while acquitting him of the attempted first degree murder of another victim,

although both were shot by the same assailant at the same time. Id. ¶ 6. At trial, the State presented

no physical evidence tying the defendant to the shooting, relying instead on the testimony of four

14 eyewitnesses. Id. In evaluating the opportunity the eyewitnesses had to view the offender at the

time of the offense, the Johnson court stated that each eyewitness caught a fleeting glimpse of the

shooter, mainly from behind, amid an extremely stressful situation. Id. ¶ 33. The Johnson court

determined that the first Biggers factor—opportunity to observe—benefitted the defendant. Id.

¶ 37. In response to the dissent’s heavy reliance on the fact that two of the eyewitnesses were

familiar with the defendant prior to the shooting, the Johnson court said, “Biggers contains no

exception for eyewitness familiarity.” Id. ¶ 89.

¶ 45 First, we note although we may consider a decision of our sister districts as instructive, we

are not bound by their decision. See O’Casek v. Children’s Home & Aid Society of Illinois, 229

Ill. 2d 421, 440 (2008). Second, this case does not aid the defendant as the First District based its

holding on facts not present here. Finally, as the dissent in Johnson correctly notes:

“This court has repeatedly held that descriptions of the offender are unnecessary when the

eyewitness knows the suspect and can identify him by name. See, e.g., People v. Luellen,

2019 IL App (1st) 172019, ¶ 73 (stating that ‘concern about a witness’s physical

description of the offenders disappears when the witness knows the suspect’ and reasoning

that because the witness knew the defendant and identified him by name, ‘[i]t would have

been unnecessary and redundant for [the witness] to give the police a physical description’

and that ‘[t]he absence of an initial description of the offender does not diminish the

reliability of [the witness’s] identification’).” Johnson, 2024 IL App (1st) 220494, ¶ 130.

Also see People v. Williams, 2015 IL App (1st) 131103, ¶ 74 (identification sufficient where

eyewitness knew defendant’s nickname and had met him “on multiple occasions” over the past

two to three years); People v. Sullivan, 366 Ill. App. 3d 770, 783 (2006) (identification sufficient

where eyewitness had seen the defendant “plenty of times” and identified him by his nickname on

15 the night of the crime); People v. Robinson, 42 Ill. 2d 371, 375-76 (1969) (person identified known

to trial witness before crime; identification independent of and uninfluenced by any pretrial

confrontation); People v. Nelson, 40 Ill. 2d 146, 151 (1968) (defendants known to eyewitnesses

before commission of offenses). The appropriate consideration here, is after applying the Biggers

factors, was Robinson’s identification of the defendant sufficiently reliable.

¶ 46 1. Opportunity to View

¶ 47 The defendant focuses the greatest portion of his argument attacking Robinson’s

opportunity to view. While a witness’s ability to view the offender has been described as the “most

important” factor in the reliability analysis, it is not dispositive as Biggers instructs that all factors

are to be considered with no single factor conclusively establishing the reliability of identification

testimony. Johnson, 2024 IL App (1st) 220494, ¶ 32; In re O.F., 2020 IL App (1st) 190662, ¶ 32

(citing Biggers, 409 U.S. at 199-200). Variables such as distance, lighting, and length of time can

affect the witness’s opportunity to view the offender. Johnson, 2024 IL App (1st) 220494, ¶ 32.

The inquiry is “whether the witness was close enough to the accused for a sufficient period of time

under conditions adequate for observation.” (Internal quotation marks omitted.) People v. Tomei,

2013 IL App (1st) 112632, ¶ 40.

¶ 48 Here, the defendant argues that Robinson had an insufficient opportunity to view the

shooters as he had only a very brief opportunity to observe as they opened fire on him. He further

argues that given the distance, poor lighting, and chaos of the moment, it would be exceedingly

difficult, if not impossible, to provide an accurate identification. The State counters that Robinson

was not tasked with identifying a stranger who had shot at him as Robinson had known the

defendant for a number of years. Robinson, who had left the defendant’s house less than 15 minutes

before, testified that when he returned, he saw the defendant and two other individuals standing in

16 the driveway as he approached the intersection near the defendant’s house and that he clearly saw

the defendant fire a gun toward him. Robinson’s identification of the defendant was bolstered by

the fact that he had known the defendant for a number of years prior to the incident.

¶ 49 We find unpersuasive the defendant’s argument that Robinson’s identification was

unreliable given the very brief opportunity he had to observe the shooters before they opened fired.

“The brevity of a witness’s opportunity to view, by itself, will not discredit an identification,

although it is a factor that a trier of fact may consider when weighing the testimony.” People v.

Thompson, 2020 IL App (1st) 171265, ¶ 45 (evidence was not insufficient, although one witness

saw one of the shooters for 5 to 10 seconds and another witness observed him for less than 5

seconds); People v. Petermon, 2014 IL App (1st) 113536, ¶ 32 (identification was found to be

reliable, although “the entire incident took less than a minute”). The amount of time an eyewitness

has to see the offender is just one factor that a factfinder can consider in weighing testimony.

Thompson, 2020 IL App (1st) 171265, ¶ 45.

¶ 50 Next, the defendant argues that given the distance between the intersection and the

defendant’s driveway, Robinson’s identification was unreliable. In support of his argument, the

defendant relies on academic studies designed to test eyewitness perception at various distances,

which have uniformly shown that the ability to make an identification diminishes rapidly as the

distance between the witness and the suspect increases. As these academic studies were not

presented at the trial court below, we will not consider them on appeal. People v. Smallwood, 2024

IL App (5th) 210407, ¶ 39 (citing In re R.M., 2022 IL App (4th) 210426, ¶ 46).

¶ 51 The defendant next maintains that Robinson’s identification was unreliable given that the

incident occurred at night in a location with poor outdoor lighting, arguing it was “particularly

dark” due to the time of night in combination with the neighborhood’s substantial tree cover and

17 minimal outdoor lighting. The State counters that while the defendant presented video and

photographic depictions of the scene taken in 2022, the trial evidence showed that the conditions

at the scene were different in 2021 when the shooting occurred. The trial court took judicial notice

that there was no cloud cover on the night of the shooting in 2021, and the moon was almost

entirely lit; while in 2022, there was 75% more cloud cover, and the moon was far less lit up than

on the night of the shooting.

¶ 52 The State argues that while the defendant emphasizes the poor outdoor lighting, he fails to

acknowledge the additional illumination that would have come from Robinson’s headlights. While

it is a reasonable inference that Robinson had his headlights on as he was driving at night towards

the intersection, none of the videos shown to the jury account for this additional lighting that would

have allowed Robinson the opportunity to view the defendant shooting at him. Additionally, there

were streetlights on the block; there was no cloud cover on the night of the shooting; and the moon

was almost entirely lit. We find the State’s argument persuasive. Accordingly, viewing the

evidence in the light most favorable to the State, as we must, we find this factor weighs in favor

of the State.

¶ 53 The defendant next suggests that given the chaos of the moment, the presence of a firearm,

and the stressful situation created by the shooting, Robinson would have been impeded from

making a reliable identification, rendering it improbable that he could see any identifying features

of the shooters. We note that the same arguments could be made in most shooting situations and,

therefore, reject the defendant’s invitation to speculate as he fails to identify any evidence in the

record supporting this argument. Based on our review of the record, it is reasonable to conclude

that Robinson had a sufficient opportunity to observe the defendant on the night of the shooting.

Thus, this factor does not weigh in favor of the defendant.

18 ¶ 54 2. Degree of Attention

¶ 55 As to the second Biggers factors, the defendant contends that Robinson’s attention would

have been focused on driving his vehicle when the gunshots began, at which point he turned his

focus to survival, driving off in the opposite direction. The defendant maintains that whatever parts

of Robinson’s attention that were not focused on driving away would have been focused on the

gunshots themselves, as opposed to who was doing the shooting. This argument conflicts with

Robinson’s trial testimony that as he was preparing to turn onto Cheryl Drive, he clearly saw the

defendant, Nelson, and Gray standing in the driveway of the defendant’s residence before the

gunshots were fired in his direction. However brief the amount of time, Robinson’s attention was

focused on the shooters prior to the shots being fired. This factor does not weigh in favor of the

defendant.

¶ 56 3. Accuracy of Description

¶ 57 The defendant next argues that the accuracy of Robinson’s description further demonstrates

that his identification was unreliable. He goes on to emphasize inconsistencies in Robinson’s initial

statements to the police that he did not know Gray before that night and that Gray was not one of

the shooters, before later reporting that Gray was the third shooter and the first to open fire on him.

The defendant also emphasizes inconsistencies between statements Robinson initially made to the

police versus his trial testimony. We do not find the defendant’s argument persuasive as none of

the inconsistencies point to an inaccuracy of Robinson’s description of the defendant. Nor does it

appear from the record that Robinson provided a description of the defendant; instead, he reported

to the police the names of the individuals who shot at him on the night in question. This factor

does not weigh in favor of the defendant.

19 ¶ 58 4. Degree of Certainty

¶ 59 Although the case cited by the defendant as additional authority calls into question the

validity of this factor, Robinson expressed certainty that the defendant was the shooter in his

uncontroverted trial testimony. Johnson, 2024 IL App (1st) 220494, ¶ 53. Thus, what little

evidence exists on this factor weighs in favor of the reliability of Robinson’s identification and not

in favor of the defendant.

¶ 60 5. Length of Time

¶ 61 Regarding the final Biggers factor, the defendant simply rehashes his previous arguments

regarding Robinson’s opportunity to view the shooters and his degree of attention. Review of the

record reveals that immediately after the shooting, Robinson went to the police station to report

the incident. This factor does not weigh in favor of the defendant.

¶ 62 After carefully examining the defendant’s arguments in relation to the facts in the record,

we find the totality of the Biggers factors support the reliability of Robinson’s identification of the

defendant as one of the shooters. “A single, positive identification by someone who had ample

opportunity to observe the offender is sufficient to support a conviction.” People v. Conway, 2023

IL 127670, ¶ 18; People v. Smith, 185 Ill. 2d 532, 541 (1999).

¶ 63 The defendant next contends that Robinson’s trial testimony was doubtful and inconsistent

with statements he made to the police on the night of the shooting. He argues that Robinson had

no answer for his changing accounts and that after the inconsistencies were pointed out while he

was on the witness stand, he began to have trouble answering questions. He suggests that

Robinson’s trial testimony, including his identification of the defendant, might have been biased

due to Robinson’s recent romantic relationship with Lucille, the defendant’s ex-wife. The

defendant acknowledges that the jury’s acceptance of trial testimony and assessment of a witness’s

20 credibility are entitled to due deference and correctly notes that such determinations are not

conclusive as a reviewing court “will reverse a conviction where the evidence is so unreasonable,

improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” People v.

Smith, 185 Ill. 2d 532, 542 (1999).

¶ 64 To the extent that there were conflicts in Robinson’s trial testimony, it was the function of

the jury to resolve them. People v. McPherson, 306 Ill. App. 3d 758, 766 (1999). The

inconsistencies identified in Robinson’s testimony do not usurp the role of the jury in resolving

conflicts. People v. Woodson, 2023 IL App (1st) 191353, ¶ 67 (it is the jury’s duty to resolve

conflicts in witness testimony, weigh evidence, and draw reasonable inferences). “All reasonable

inferences are drawn in favor of finding a guilty verdict.” Id. ¶ 68. We cannot say that the evidence

was so unreasonable, improbable, or unsatisfactory as to cause a reasonable doubt of the

defendant’s guilt.

¶ 65 B. Ineffective Assistance of Counsel

¶ 66 The defendant claims defense counsel made two critical errors that allowed the State to

argue that the cell phone belonged to him and insinuated that Robinson’s cell phone contained

additional, unintroduced evidence incriminating the defendant. He argues that together, these

errors prejudiced him because it made it appear that Robinson’s testimony was independently

corroborated and undermined the outcome of the trial. We will examine each claim in turn.

¶ 67 A defendant’s claim of ineffective assistance of counsel is analyzed under the two-pronged

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach, 2017 IL 120649,

¶ 29. To prevail on a claim of ineffective assistance of counsel, “a defendant must show that

counsel’s performance was (1) deficient and (2) prejudicial.” People v. Westfall, 2018 IL App (4th)

150997, ¶ 61. To establish counsel’s deficient performance, a defendant must show that “counsel’s

21 performance ‘fell below an objective standard of reasonableness.’ ” People v. Valdez, 2016 IL

119860, ¶ 14 (quoting Strickland, 466 U.S. at 688). To establish prejudice, a defendant must show

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

proceeding would have been different. People v. Evans, 209 Ill. 2d 194, 219-20 (2004) (citing

Strickland, 466 U.S. at 694). Whether counsel was ineffective is a mixed question of fact and law.

People v. Peterson, 2015 IL App (3d) 130157, ¶ 222. “[T]he ultimate question of whether

counsel’s actions support a claim of ineffective assistance is a question of law that is subject to

de novo review on appeal.” Id.

¶ 68 Initially, the defendant maintains he received ineffective assistance where trial counsel

failed to object to a leading question when the prosecutor asked Robinson “Do you know this

phone number? It’s area code (217)-991-2736.” He argues that by failing to object, defense counsel

allowed the State to connect the cell phone to the defendant through improper means.

¶ 69 Leading questions are, by definition, suggestive. “A ‘leading question’ is one ‘that suggests

the answer to the person being interrogated; espec[ially] a question that may be answered by a

mere “yes” or “no.” ’ ” People v. Miles, 351 Ill. App. 3d 857, 866 (2004) (quoting Black’s Law

Dictionary 897 (7th ed. 1999)). Here, Robinson was free to answer that he did not know the

individual associated with that cell phone number; thus, the record does not support the defendant’s

claim that the State improperly suggested the answer. Accordingly, the defendant’s challenge fails

because the State’s question was not leading.

¶ 70 The defendant next argues that trial counsel’s failure to object when the prosecutor

insinuated during closing argument that there was incriminating information on Robinson’s cell

phone that was not introduced into evidence fell below an objective standard of reasonableness.

Specifically, the defendant complains the following statement by the prosecutor was improper:

22 “[Robinson] said no, let me show you in my phone. Defense shut that down pretty

quick. They didn’t want you to see what was in his phone because they know exactly what

it would have shown.”

¶ 71 The defendant maintains the insinuation that there was additional evidence on Robinson’s

cell phone left the jury free to speculate as to the severity of that evidence without any

corroboration that it even existed. In support of his argument, the defendant relies on People v.

Williams, 2023 IL App (1st) 192463. In Williams, the defendant contended that the following

remarks by the prosecutor in closing argument were improper because no evidence had been

introduced at trial that the police had received an anonymous tip:

“ ‘When you have in your own life experience you are aware that often law

enforcement ask [sic] for anonymous tips, murders, serious violent crimes. Call in. There

may even be an award for an anonymous tip. We will keep your identity secret.

So you got [sic] to ask yourself how valuable is that. Because an anonymous tip

wouldn’t get you into this courthouse. Anonymous tipsters can’t testify. They are not of

any evidentiary value.

What it is it’s an investigatory tool. It helps police get the case started.’ ” Id. ¶¶ 136-

37.

The Williams court held that the “argument improperly insinuated that additional inculpatory

evidence existed that the jury did not hear due to evidentiary rules.” Id. ¶ 140.

¶ 72 While it is true that an insinuation which leaves the jury to speculate may be more

prejudicial than erroneously admitted evidence (People v. Emerson, 97 Ill. 2d 487, 497 (1983)),

we find that, when reviewed in context, the complained-of remark in the instant case falls far short

of that standard. “Reviewing courts will consider the closing argument as a whole, rather than

23 focusing on selected phrases or remarks, and will find reversible error only if the defendant

demonstrates that the improper remarks were so prejudicial that real justice was denied or that the

verdict resulted from the error.” People v. Runge, 234 Ill. 2d 68, 142 (2009). Contrary to the

argument made in Williams, the remark made by the prosecutor was brief and isolated in the

context of a lengthy closing argument. Accordingly, we find that the remark was not prejudicial.

¶ 73 Failure to satisfy either prong of the Strickland standard negates a claim of ineffective

assistance of counsel. People v. Hibbler, 2019 IL App (4th) 160897, ¶ 88. “[I]f it is easier to

dispose of an ineffective-assistance claim on the ground that it lacks a showing of sufficient

prejudice, a court may proceed directly to Strickland’s prejudice prong and need not determine

whether counsel’s performance was deficient.” People v. Johnson, 2021 IL 126291, ¶ 53. “ ‘[A]n

error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment

of a criminal proceeding if the error had no effect on the judgment.’ ” People v. Johnson, 2021 IL

126291, ¶ 54 (quoting Strickland, 466 U.S. at 691). In order to satisfy the prejudice prong, it is

necessary to show actual prejudice, not simply speculation that a defendant may have been

prejudiced. Id. ¶ 55. In the instant matter, the defendant’s claim fails to satisfy the prejudice prong

of Strickland. Upon thorough review of the record, we find the defendant’s claims of ineffective

assistance of counsel are without merit as he has not shown that the outcome of his trial would

have been different were it not for the complained-of remark.

¶ 74 C. Excessive Sentence

¶ 75 The defendant argues that his 38-year sentence is excessive where the trial court failed to

adequately weigh his potential for rehabilitation as an objective of the sentence. Specifically, the

defendant maintains that his sentence is excessive in light of his rehabilitative potential, the

objectives of sentencing, and the fact that his current sentence is essentially a life sentence.

24 ¶ 76 The State counters that the defendant’s course of conduct warranted the sentences imposed

given the seriousness of the offenses. The State contends that the defendant’s sentence is

reasonable in light of his criminal history which included a 1987 felony conviction for robbery;

1988 and 1991 felony convictions for possession of a controlled substance with intent to deliver;

a 1994 felony conviction for armed robbery; and a 2016 felony conviction for unlawful possession

of a weapon by a felon. The presentence investigation (PSI) report included the defendant’s two

pending cases: one for unlawful possession of a controlled substance, cocaine, in case No. 2020-

CF-221, and the other for attempt first degree murder for having shot at Robinson on November

29, 2021, in case No. 2022-CF-1680. Both cases were dismissed following the guilty verdicts in

the instant case.

¶ 77 Under the Illinois Constitution, all penalties must be determined both according to the

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

Const. 1970, art. I, § 11; People v. Clemons, 2012 IL 107821, ¶ 29. The balancing process

conducted at sentencing requires the sentencing judge to carefully consider all the factors in

aggravation and mitigation, including the nature of the crime, protection of the public, deterrence

and punishment, as well as the defendant’s rehabilitative potential, age, social history, criminal

background, and education. People v. Jackson, 357 Ill. App. 3d 313, 329 (2005); People v.

Quintana, 332 Ill. App. 3d 96, 109 (2002).

¶ 78 A reviewing court must afford great deference to the trial court’s judgment regarding

sentencing because the trial court, having observed the defendant and the proceedings, has a far

better opportunity to consider such factors as the defendant’s credibility, demeanor, general moral

character, mentality, social environment, and habits. People v. Fern, 189 Ill. 2d 48, 53 (1999). “In

considering the propriety of a sentence, the reviewing court must proceed with great caution and

25 must not substitute its judgment for that of the trial court merely because it would have weighed

the factors differently.” Id.

¶ 79 While trial courts are required to determine penalties both according to the seriousness of

the offense and with the objective of restoring the offender to useful citizenship, “[n]ot all criminal

defendants must be given an opportunity for rehabilitation or else life imprisonment would not be

constitutionally permissible.” (Emphasis in original.) People v. Bien, 277 Ill. App. 3d 744, 755-56

(1996). The trial court is vested with the responsibility for balancing between rendering justice and

rehabilitating the defendant. Id. at 756. The seriousness of the crime committed is considered the

most important factor in fashioning an appropriate sentence. People v. Tye, 323 Ill. App. 3d 872,

890 (2001).

¶ 80 Review of the record reveals that the trial court considered the PSI, the trial evidence, the

parties’ arguments, the defendant’s statement in allocution, and all statutory and nonstatutory

factors in aggravation and mitigation pertinent to the case before imposing a sentence

proportionate to the offenses. In mitigation, the trial court considered that the defendant was in his

mid-50s in age; had held employment in the past; and had been able to obtain college certificates

while in DOC. The trial court also found it mitigation that the defendant did not intend to hurt the

child that was struck by the stray bullet.

¶ 81 In aggravation, the trial court acknowledged the need to send a deterrent message that the

defendant and people in the community cannot commit such crimes, and that “revenge and

retaliation using weapons is completely inappropriate.” The trial court noted the defendant’s

criminal history as well, commenting that defendant’s 1986 robbery, 1994 armed robbery, and

“weapons charge” were particularly concerning, as the defendant had “a history of using items that

can scare people, threaten people or hurt people.” The court added that the defendant had

26 completed mandatory supervised release in a prior case, but he committed the instant offenses

immediately after such completion. The trial court also found as an aggravating factor that the

defendant was linked to the November 2021 shooting, as had been admitted for a limited purpose

in the instant case.

¶ 82 With regard to the aggravated battery charge, the trial court found the defendant did not

intend to harm the juvenile who was shot in the arm. However, the trial court noted that the

shooting had occurred in a residential area and that other innocent members of the community

could have been harmed as well. The trial court also considered in aggravation the defendant’s

course of conduct in shooting in the direction of Robinson’s car, noting that not all of the bullets

hit the car which meant the bullets all went somewhere. The record also demonstrates that the trial

court properly considered the nature and circumstances of the offenses, noting that there were

multiple gunshots involving two victims, one who was not struck by a bullet and an innocent

bystander who was struck by a stray bullet as she was working a puzzle in her bedroom that night.

Ultimately, the trial court determined there was some mitigation, but substantial aggravation, and

concluded that a sentence at the higher end of the sentencing range was appropriate. The trial court

explicitly stated that it considered the rehabilitative potential of the defendant, but it did so in light

of the seriousness of the offenses.

¶ 83 We find there is nothing in this record upon which to conclude that the trial court abused

its discretion in fashioning the defendant’s sentence. A sentencing court is not obligated to afford

rehabilitative potential more weight than the seriousness of the offense. People v. Coleman, 166

Ill. 2d 247, 261 (1995).

¶ 84 The defendant next argues that the 38-year sentence for attempt first degree murder exceeds

the minimum 21-year sentence by 17 years. 720 ILCS 5/8-4 (West 2022). Hence, the defendant

27 urges this court to reduce his sentence to the statutory minimum of 21 years or, alternatively,

remand for resentencing. The State notes that at the outset of the sentencing hearing, the parties

agreed the sentencing range for count 3, attempt first degree murder, was a Class X felony with a

sentencing range between 6 and 30 years, plus an additional 15-year firearm enhancement, making

the total range between 21 and 45 years in prison to be served at 85%. The parties also agreed that

the range for count 4, aggravated battery with a firearm, was between 6 and 30 years, and that any

such sentence would be served at 85%. Additionally, the State noted it would be dismissing the

two pending cases, 20-CF-221 and 22-CF-1680.

¶ 85 While a reviewing court is not meant to be a “rubber stamp” for a trial court’s sentencing

decision, People v. Daly, 2014 IL App (4th) 140624, ¶ 26, abrogated on other grounds, a

reviewing court may only disturb a sentence within statutory limits if the trial court abused its

discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). “An abuse of discretion occurs only

if a sentence greatly varies from the spirit and purpose of the law or where it is manifestly

disproportionate to the nature of the offense.” People v. Bunning, 2018 IL App (5th) 150114, ¶ 16.

¶ 86 Under the facts presented here, we cannot say that the sentence greatly varies from the

spirit and purpose of the law nor is it manifestly disproportionate to the nature of the offenses; that

is, attempt first degree murder and aggravated battery with a firearm. Affording great deference to

the trial court’s judgment, as we must, we find the trial court did not abuse its discretion in

fashioning the defendant’s 38-year sentence.

¶ 87 The defendant next argues that during its sentencing determinations, the trial court

improperly considered conduct for which he had been acquitted. In fashioning a sentence, a trial

court may not consider prior arrests or charges that did not result in conviction. People v. Shumate,

94 Ill. App. 3d 478, 488 (1981). A trial court abuses its discretion when it considers an improper

28 factor in aggravation. People v. Minter, 2015 IL App (1st) 120598, ¶ 147. The burden is on the

defendant to affirmatively establish the sentence was based on improper considerations. People v.

Bowen, 2015 IL App (1st) 132046, ¶ 49.

¶ 88 The defendant maintains that while discussing the nature and circumstances of the offense,

the trial court improperly considered evidence that the defendant personally discharged a firearm

during the incident, despite the fact that the jury acquitted him of that conduct. Specifically, the

defendant contends that the following two statements by the trial court were improper: “the

Defendant shot more than one bullet and we don’t know who actually shot the bullet that hurt the

girl,” and “[the defendant] was there with at least two other people, and each of them had their

own guns and each was shooting many, many shots.”

¶ 89 The defendant’s argument is without merit. While it is true that the jury found the State

failed to prove the defendant personally discharged a firearm for the purpose of the 25-year

sentence enhancement, it nevertheless found the defendant guilty of aggravated battery with a

firearm for knowingly discharging a firearm causing bodily harm to the juvenile who was struck

in the arm by a stray bullet. Thus, the trial court’s statements were not improper, and we do not

find that the trial court improperly considered conduct for which the defendant had been acquitted.

¶ 90 III. CONCLUSION

¶ 91 For the foregoing reasons, we affirm the trial court’s judgment and sentence.

¶ 92 Affirmed.