People v. Walls
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Opinion
2022 IL App (2d) 200459-U No. 2-20-0459 Order filed January 31, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of DeKalb County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-706 ) DAVID WALLS, ) Honorable ) Robbin Stuckert, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court. Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶1 Held: In this first-degree murder case, defense counsel did not provide ineffective assistance in declining to request a second-degree murder instruction. The trial court erred in allowing a lay witness to testify to the manner in which gun-shot residue can be removed, but the error was harmless. The remainder of defendant’s arguments challenging his conviction are forfeited. Finally, the trial court did not abuse its discretion in sentencing defendant to 50 years’ imprisonment. Affirmed.
¶2 The State charged defendant, age 18 at the time of the offense, with four counts of first-
degree murder in the shooting death of Debrece Shields in that defendant intended to kill, intended
to do great bodily harm, knew that his acts created the strong probability of death, and knew that
his acts created a strong probability of bodily harm. 720 ILCS 5/9-1(a)(1), (2) (West 2016). The 2022 IL App (2d) 200459-U
State prosecuted defendant on the theory that he was the shooter and sought a sentencing
enhancement based on the allegation that defendant personally discharged the firearm that caused
Shields’s death. A jury convicted defendant of first-degree murder, and the trial court sentenced
him to 50 years’ imprisonment, which included a 25-year enhancement for personally discharging
the firearm that caused Shields’s death.
¶3 On appeal, defendant argues that: (1) defense counsel was ineffective for failing to pursue
jury instructions on second-degree murder; (2) the trial court erred in allowing improper lay
opinion testimony, to which defense counsel objected at trial and in a posttrial motion, concerning
the manner in which gunshot residue can be removed; (3) the trial court erred in allowing improper
lay opinion testimony, to which defense counsel did not object, concerning the collection of
fingerprints and the improper narration of a surveillance video; (4) the State improperly bolstered
codefendant’s testimony during redirect examination; (5) the State made improper remarks in
opening statements and closing argument; (6) the jury instructions regarding the elements of first-
degree murder omitted the language “intends to kill” and were, therefore, plainly erroneous; and
(7) defendant’s 50-year sentence is excessive in that the trial court did not did not adequately
consider his youth, mental-health conditions, or rehabilitative potential.
¶4 For the reasons that follow, we disagree that defense counsel was ineffective. We agree
that the trial court erred in allowing a lay witness to testify to the manner in which gunshot residue
can be removed, but we determine that the error was harmless because there is no reasonable
probability that the jury would have acquitted defendant absent the error. Defendant’s remaining
challenges against his conviction are forfeited, and the errors, if any, do not amount to plain error.
Finally, the trial court did not abuse its discretion in sentencing defendant to 50 years’
imprisonment. Accordingly, we affirm.
-2- 2022 IL App (2d) 200459-U
¶5 I. BACKGROUND
¶6 In its opening statement, the State introduced its theory of the case to the jury by stating:
“[W]e all know that unfortunately there are neighborhoods where illegal and violent activity are a
common occurrence, and those neighborhoods are places that we avoid going.” The State
continued that, on October 6, 2016, the parking lot of the apartment complex located at 810 and
820 Kimberly drive in DeKalb near Northern Illinois University (NIU) “became one of those
places.” The State informed the jury that defendant did not live in DeKalb. Rather, codefendant
Nico Griggs drove him and two other men to DeKalb in his tan Jeep to purchase marijuana from
Shields. Defendant went into Shield’s red car to perform the transaction and, as they both exited
the car from the driver’s side, defendant shot Shields in the back. The defense responded by
encouraging the jury to look for gaps in the State’s evidence, inconsistencies in witness testimony,
and bias in the State’s key witness, Griggs.
¶7 A. Physical Descriptions of Shields and the Suspect
¶8 LaDonna English, Shields’s mother, testified that a photograph presented by the State
represented an accurate image of her son shortly before his death. The photograph showed Shields
to be an African American man with long dreadlocks. He was 25 years old.
¶9 The State presented two witnesses who, after hearing shots fired, saw a suspect move from
Shields’s body to the tan Jeep: Tilly-Ana Ceriser (an NIU graduate student living at the Kimberly
apartments) and Emily Cavazos (an NIU patrol officer). The State also presented a surveillance
video and still-frame photograph purporting to capture an image of the suspect (Exhibit Nos. 27
and 28, testified to by DeKalb police detective Keith Ehrke).
¶ 10 Ceriser, an NIU graduate student, testified that she lived in a second-floor unit of the
Kimberly apartments. At approximately 10:30 p.m., she had been inside her apartment talking to
-3- 2022 IL App (2d) 200459-U
her friend on the phone. She heard a “crackling” sound, like a firecracker. She initially thought
the sound had something to do with NIU football festivities, such as a mock cannon. Then, she
heard a second firing and saw a white flash. She did not walk over to the window immediately,
but she did so within 30 seconds. She looked out and saw a man trying to get into a tannish-
colored, four-seat vehicle, shouting, “Open up the door. Open up the door.” She could not see the
man’s face or his skin color. However, she saw that he was wearing a dark-colored hoodie, red
boxers, and white pants. The man got in the tan vehicle, and it drove away. She also saw the
victim laying on the ground of the parking lot next to his car, with the car door still open. Very
shortly thereafter, the police arrived.
¶ 11 On cross-examination, Ceriser conceded that she could not be sure of the suspect’s height.
She estimated his height to be between 5 feet, 9 inches and 6 feet, 1 inch. He was “not heavyset.”
She did not see him with a weapon.
¶ 12 Cavazos, an NIU patrol officer, testified that she and Nicole Folz were on foot patrol near
the area of the shooting. She heard a “loud pop,” which she thought was either a gunshot or
fireworks. The sound came from the north, in the parking lot of the Kimberly apartments. She
noticed a red car, idling. She heard two more “loud popping sounds.” She could see flashes of
light and smoke coming from behind the red car. A group of young women who had been sitting
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2022 IL App (2d) 200459-U No. 2-20-0459 Order filed January 31, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of DeKalb County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-706 ) DAVID WALLS, ) Honorable ) Robbin Stuckert, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court. Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶1 Held: In this first-degree murder case, defense counsel did not provide ineffective assistance in declining to request a second-degree murder instruction. The trial court erred in allowing a lay witness to testify to the manner in which gun-shot residue can be removed, but the error was harmless. The remainder of defendant’s arguments challenging his conviction are forfeited. Finally, the trial court did not abuse its discretion in sentencing defendant to 50 years’ imprisonment. Affirmed.
¶2 The State charged defendant, age 18 at the time of the offense, with four counts of first-
degree murder in the shooting death of Debrece Shields in that defendant intended to kill, intended
to do great bodily harm, knew that his acts created the strong probability of death, and knew that
his acts created a strong probability of bodily harm. 720 ILCS 5/9-1(a)(1), (2) (West 2016). The 2022 IL App (2d) 200459-U
State prosecuted defendant on the theory that he was the shooter and sought a sentencing
enhancement based on the allegation that defendant personally discharged the firearm that caused
Shields’s death. A jury convicted defendant of first-degree murder, and the trial court sentenced
him to 50 years’ imprisonment, which included a 25-year enhancement for personally discharging
the firearm that caused Shields’s death.
¶3 On appeal, defendant argues that: (1) defense counsel was ineffective for failing to pursue
jury instructions on second-degree murder; (2) the trial court erred in allowing improper lay
opinion testimony, to which defense counsel objected at trial and in a posttrial motion, concerning
the manner in which gunshot residue can be removed; (3) the trial court erred in allowing improper
lay opinion testimony, to which defense counsel did not object, concerning the collection of
fingerprints and the improper narration of a surveillance video; (4) the State improperly bolstered
codefendant’s testimony during redirect examination; (5) the State made improper remarks in
opening statements and closing argument; (6) the jury instructions regarding the elements of first-
degree murder omitted the language “intends to kill” and were, therefore, plainly erroneous; and
(7) defendant’s 50-year sentence is excessive in that the trial court did not did not adequately
consider his youth, mental-health conditions, or rehabilitative potential.
¶4 For the reasons that follow, we disagree that defense counsel was ineffective. We agree
that the trial court erred in allowing a lay witness to testify to the manner in which gunshot residue
can be removed, but we determine that the error was harmless because there is no reasonable
probability that the jury would have acquitted defendant absent the error. Defendant’s remaining
challenges against his conviction are forfeited, and the errors, if any, do not amount to plain error.
Finally, the trial court did not abuse its discretion in sentencing defendant to 50 years’
imprisonment. Accordingly, we affirm.
-2- 2022 IL App (2d) 200459-U
¶5 I. BACKGROUND
¶6 In its opening statement, the State introduced its theory of the case to the jury by stating:
“[W]e all know that unfortunately there are neighborhoods where illegal and violent activity are a
common occurrence, and those neighborhoods are places that we avoid going.” The State
continued that, on October 6, 2016, the parking lot of the apartment complex located at 810 and
820 Kimberly drive in DeKalb near Northern Illinois University (NIU) “became one of those
places.” The State informed the jury that defendant did not live in DeKalb. Rather, codefendant
Nico Griggs drove him and two other men to DeKalb in his tan Jeep to purchase marijuana from
Shields. Defendant went into Shield’s red car to perform the transaction and, as they both exited
the car from the driver’s side, defendant shot Shields in the back. The defense responded by
encouraging the jury to look for gaps in the State’s evidence, inconsistencies in witness testimony,
and bias in the State’s key witness, Griggs.
¶7 A. Physical Descriptions of Shields and the Suspect
¶8 LaDonna English, Shields’s mother, testified that a photograph presented by the State
represented an accurate image of her son shortly before his death. The photograph showed Shields
to be an African American man with long dreadlocks. He was 25 years old.
¶9 The State presented two witnesses who, after hearing shots fired, saw a suspect move from
Shields’s body to the tan Jeep: Tilly-Ana Ceriser (an NIU graduate student living at the Kimberly
apartments) and Emily Cavazos (an NIU patrol officer). The State also presented a surveillance
video and still-frame photograph purporting to capture an image of the suspect (Exhibit Nos. 27
and 28, testified to by DeKalb police detective Keith Ehrke).
¶ 10 Ceriser, an NIU graduate student, testified that she lived in a second-floor unit of the
Kimberly apartments. At approximately 10:30 p.m., she had been inside her apartment talking to
-3- 2022 IL App (2d) 200459-U
her friend on the phone. She heard a “crackling” sound, like a firecracker. She initially thought
the sound had something to do with NIU football festivities, such as a mock cannon. Then, she
heard a second firing and saw a white flash. She did not walk over to the window immediately,
but she did so within 30 seconds. She looked out and saw a man trying to get into a tannish-
colored, four-seat vehicle, shouting, “Open up the door. Open up the door.” She could not see the
man’s face or his skin color. However, she saw that he was wearing a dark-colored hoodie, red
boxers, and white pants. The man got in the tan vehicle, and it drove away. She also saw the
victim laying on the ground of the parking lot next to his car, with the car door still open. Very
shortly thereafter, the police arrived.
¶ 11 On cross-examination, Ceriser conceded that she could not be sure of the suspect’s height.
She estimated his height to be between 5 feet, 9 inches and 6 feet, 1 inch. He was “not heavyset.”
She did not see him with a weapon.
¶ 12 Cavazos, an NIU patrol officer, testified that she and Nicole Folz were on foot patrol near
the area of the shooting. She heard a “loud pop,” which she thought was either a gunshot or
fireworks. The sound came from the north, in the parking lot of the Kimberly apartments. She
noticed a red car, idling. She heard two more “loud popping sounds.” She could see flashes of
light and smoke coming from behind the red car. A group of young women who had been sitting
on the apartment stoop told Cavaso and Folz that there was a male lying on the ground on the other
side of the red car, and the young women believed that he had been shot. Cavazos and Folz began
moving toward the red car. Cavazos saw “a black male individual move from behind the red
vehicle into the direction of a *** light brown or tan SUV-style vehicle.” The tan SUV was not
in a parking space. The suspect was “running” toward the vehicle, he got inside, and the vehicle
-4- 2022 IL App (2d) 200459-U
drove west. She was not able to take note of the suspect’s clothing or face. Her view was partially
obstructed by vehicles in the parking lot.
¶ 13 After going to the red car, Cavazos saw Shields, bleeding from his mouth and chest. He
had a faint pulse. She notified dispatch of the shooting and the tan vehicle and returned her
attention to Shields. Shields had stopped breathing, so Cavazos began chest compressions until
the DeKalb Fire Department arrived and took over.
¶ 14 Cavazos noticed that there was a bullet casing on Shields’s chest. She also saw a small
bag of cannabis and some keys. She did not see a gun anywhere near the scene.
¶ 15 On cross-examination, Cavazos testified that the suspect was African American and
appeared to have “long dreadlock-styled hair, but I wasn’t entirely sure.” Still, Cavazos agreed
that she mentioned the dreadlocks in her police report. Cavazos also testified that, unlike Ceriser,
she did not hear the suspect yell to open the door to the tan SUV. On redirect examination, Cavazos
clarified that the young women on the stoop had not given a physical description of the suspect.
In addition, Cavazos viewed the State’s Exhibit No. 26, an excerpt from the surveillance video at
the Kimberly apartments and confirmed that it accurately portrayed the parking lot area.
¶ 16 The State presented one video (Exhibit No. 27) and one still frame shot (Exhibit No. 28)
of the suspect. Exhibit Nos. 27 and 28 came from a surveillance camera at the Kimberly
apartments. DeKalb police detective Keith Ehrke viewed the surveillance video on the night of
the incident. It aided his investigation, because he was able to slow down the video:
“When I put it in a slower speed, I was able to see two individuals coming out of
the driver’s door, one down probably about his hands and knees with the second individual
behind him. I was able to see the clothing description of the second individual, specifically
-5- 2022 IL App (2d) 200459-U
being light-colored pants, dark hooded sweatshirt and some pink or orange underwear or
undergarments between the pants and the sweatshirt.”
The State played Exhibit No. 27, a slow-motion version of the surveillance video, for the jury. At
times, the State paused the video to question Ehrke:
“Q. All right, sergeant, what’s happening now?
A. The victim’s vehicle the red Nissan is pulling forward and stopping.
Q. What do you see here?
A. The driver’s door opening.
Q. And what do you see here?
A. So right there I see an individual that’s bent forward. The individual behind that
person is wearing light-colored pants, he’s got like a dark hooded sweatshirt or shirt on. It
might be hard to see right there but he actually has a little bit of pink or orange on the back
underwear and his arm is extended downwards towards the first individual that’s on his
hands and knees what appears [sic].
Q. And so you’re saying that the person with the light-colored pants is the one
whose arm is extended downward?
A. That’s correct.
Q. That’s what you’re able to determine from the video.
A. Yes, yes.
Q. And is it that same person you’re saying that had light-colored pink or something
also on his clothing?
A. Yeah. It was like light-colored pants and then there’s like a very small almost
like a triangle section of either pink or orange but it appears to be his underwear.
-6- 2022 IL App (2d) 200459-U
Q. And by slowing it down you were able to see that a little bit clearer?
A. Yes.
(People’s Exhibit No. 27 continued to be played.)
BY MS. COLLINS:
Q. And what does it show that the person is doing now?
A. It appears that they both moved to the back of the car.
Q. What next?
A. Again they’re out of view. You see some moving around during this part but
you can’t really see what’s going on back there.”
Defense counsel did not object to Ehrke’s description of the video, Exhibit No. 27.
¶ 17 The State then asked Ehrke to identify a still-frame shot extracted from the video, Exhibit
No. 28. Ehrke agreed that the still-frame shot “truly and accurately depict[ed] the slower version
close-up of the video that [the jury] just watched from the DeKalb mobile cam[era].” He did not
otherwise comment on the still-frame shot. The State then sought to admit Exhibit No. 28.
Defense counsel objected: “[T]hat still photo [is] not the best evidence. They have the video.”
The trial court admitted the still-frame shot over defense counsel’s objection. This court has
viewed Exhibit No. 28. Though blurry, Exhibit No. 28 does appear to show a suspect in white
pants and a dark top, with a bright pink/orange/reddish color between the pants and top, bent over
another individual. Both individuals are outside the driver’s door of a red car.
¶ 18 During cross-examination, Ehrke agreed that he watched the surveillance video for the first
time after interviewing Ceriser. Ceriser had provided Ehrke with a description of the suspect’s
clothing. The images captured in Exhibit Nos. 27 and 28 were the only available images of the
suspect.
-7- 2022 IL App (2d) 200459-U
¶ 19 Finally, Ehrke testified that he used buccal swabs to obtain defendant’s and Griggs’s DNA.
Ehrke did not believe that the DNA of any other suspect was taken.
¶ 20 B. Codefendant Nico Griggs Testifies to the Incident
¶ 21 Griggs testified that he was the driver of the tan Jeep involved in the shooting. That night,
Griggs’s friend of two years, Norris Davison, asked Griggs to drive him to several stops for the
purpose of procuring marijuana. Davison would pay Griggs in the form of gas money, and Griggs
agreed. First, Griggs picked up Davison in Chicago. Then, Griggs drove Davison to a different
location in Chicago. Davison left the car to purchase marijuana and came back with defendant,
whom Griggs had never met before. Next, Griggs drove Davison to a 7-Eleven in DeKalb. There,
Davison’s cousin, whom Griggs also had never met before and whom Griggs knew only as “Head,”
joined the group.
¶ 22 The original seating arrangement was Griggs in the driver’s seat, Davison in the front-
passenger seat, and defendant and Head in the back seats. After leaving the 7-Eleven, Griggs
drove Head to his apartment, because Head had forgotten to lock his apartment door. At Head’s
apartment, only Head left the Jeep. After Head returned to the Jeep, Griggs drove the group to a
second apartment, hoping to purchase marijuana. The group was not successful. However, in the
parking lot of the second apartment, the group switched seating arrangements.
¶ 23 The new seating arrangement was Griggs in the driver’s seat, defendant in the front-
passenger seat, and Davison and Head in the back seat. Griggs then drove to the Kimberly
apartments. Head had arranged to purchase marijuana there. Head made the arrangements over
the phone; Griggs did not know whom they were meeting. Griggs pulled into a parking space, and
he saw a red car pull into the aisle and idle. Davison and Head told defendant to get out of the car
to purchase the marijuana. Griggs saw defendant get into the red car. He heard a shot. Then, a
-8- 2022 IL App (2d) 200459-U
few seconds later, he heard a second shot. He started the Jeep and was about to pull away when
defendant got back in the front-passenger seat of the Jeep. Griggs recounted:
“I was going to pull off and then [Davison and Head] was like, no, don’t leave
[defendant] and then we looked around for him, he came, hopped in. After he hopped in[,]
I pulled out, pulled out of the parking lot. Head was giving me directions on where to go
and as he was giving me directions they asked him what happened. He said that the guy
tried to up a gun.” (Emphasis added.)
¶ 24 Griggs repeated defendant’s words upon getting into the Jeep:
“Q. What did he say?
A. He said that the guy tried to up on him and he shot him.
Q. What does—he says somebody tried to up on him, what does that mean?
A. Tried to pull a gun on him.
Q. Did the defendant David Walls provide any description of the gun that was
pulled on him, that he claimed was pulled on him?
A. Yes. He said it was big and chrome.
Q. And just to be clear, after the defendant David Walls said that ‘He tried to up on
me,’ he said that—David Walls said ‘I shot him?’
A. Yes.”
¶ 25 During cross-examination, Griggs agreed that, on the date of the incident, he and Davison
both had long dreadlocks. Griggs’s dreadlocks were “long[,] somewhere down [his] back ***.”
Davison’s dreadlocks were “about the same length.” Griggs also agreed that, on the date of the
incident, he had a picture on his cellular phone of one of the two guns that the police later found
outside his Jeep, the Stalker gun. The gun belonged to Davison. Griggs had taken a picture of it,
-9- 2022 IL App (2d) 200459-U
because he was trying to help Davison sell it. Prior to the shooting, however, Griggs was not aware
that anyone in the Jeep had a weapon.
¶ 26 Griggs addressed the change in seating arrangements that had occurred at the second
apartment complex. Davison had asked to change seats, because his foot hurt. Davison had
recently been shot in the foot, and his foot started locking up. Davison thought that the back seat
had more room, so he went to the back seat and defendant went to the front-passenger seat.
¶ 27 Griggs clarified that, although he heard two shots, he did not see anything. Griggs did not
hear defendant yell to open up the door. Defendant was able to get into the Jeep, because the doors
were unlocked.
¶ 28 C. Codefendant Nico Griggs Testifies to His Deal with the State
¶ 29 On direct examination, Griggs acknowledged that he had testified pursuant to an agreement
with the State. He had been charged with first-degree murder under an accountability theory,
which carried a sentencing range of 20 to 60 years, and aggravated unlawful use of a weapon,
which carried a sentencing range of 1 to 3 years. If Griggs testified truthfully, as determined by
the State, the State would dismiss the first-degree murder charge. At the time of his testimony,
Griggs had already pled guilty to the weapons charge and received an agreed sentence of 3 years.
¶ 30 On cross-examination, Griggs testified that, when he first spoke with the police in 2016,
he asked for an attorney. It was not until May 29, 2019, that he signed an agreement with the
State. He was represented by counsel, and his counsel also signed the agreement. He has had
conversations with the State “about [his] testimony here today.” He anticipated that he would be
released shortly after giving the instant testimony. The agreement could be voided if the State
determined that Griggs did not testify truthfully. Griggs understood that the State was trying to
convict defendant. Griggs further agreed that when he told the police that defendant shot Shields,
- 10 - 2022 IL App (2d) 200459-U
Griggs knew defendant had been arrested and Davison and Head had left the scene; they were
“gone.” Griggs did not know defendant, but he knew Davison.
¶ 31 On redirect-examination, Griggs agreed that he had made a prior consistent statement to
Detective Ehrke. Specifically, on February 6, 2019, three months prior to signing an agreement
with the State, Griggs provided Ehrke with an account of the incident that was consistent with his
trial testimony.
¶ 32 D. Deputies James Eklund and Doug Brouwer Testify to Defendant’s Apprehension
¶ 33 Eklund testified that, on the date of the incident, he was employed by the DeKalb County
Sheriff’s Office as a patrol officer. At approximately 10:30 p.m., he had just come off a contract
shift at a local community college and was still in uniform and driving his patrol car when he saw
a tan Jeep, with emergency flashers blinking, on the side of Peace Road. Eklund decided to see if
the occupants of the Jeep needed help. One man, who he later determined to be Griggs, was
starting to exit the driver’s seat. Three other subjects were already outside the Jeep, standing on
the passenger side. He spoke with Griggs, who told him that their vehicle had run out of gas.
Griggs declined help and explained that two of his friends were going to get gas. While Eklund
was speaking with Griggs, two of the other subjects walked away, heading north on Peace Road.
Eklund got back in his vehicle and drove toward the other two subjects to see if they would like a
ride. The subjects were walking in a ditch beside the road. It was dark, and there were no
streetlights. Eklund could not see their faces or their clothing. He asked them if they would like
a ride. They responded, but their response was inaudible. Eklund assumed they did not want help
and kept driving. At this time, Eklund was not suspicious of the subjects.
¶ 34 After Eklund drove away, he heard through dispatch that a tan Jeep had been involved in a
DeKalb shooting. Eklund decided to return to speak to the occupants of the Jeep again. When he
- 11 - 2022 IL App (2d) 200459-U
returned to the Jeep, he noticed that the two remaining occupants, Griggs and defendant, were
outside and to the north of the Jeep. Griggs and defendant were walking back toward the Jeep and
Eklund observed that Griggs wore a dark-colored shirt and dark-colored pants and had long
dreadlocks. Defendant had a dark-colored sweatshirt, white or light-colored pants, and had short
hair.
¶ 35 By this time, Deputy Marks (first name not stated) had arrived to assist Eklund. Marks
spoke with Griggs, and Eklund spoke with defendant. Both Griggs and defendant denied any
knowledge of a shooting in DeKalb. Defendant told Eklund that they had been in DeKalb to visit
a girl. Defendant provided his identification. Defendant did not make eye contact, his hands were
restless, and he was sweating “a little bit.”
¶ 36 Deputy Doug Brouwer then arrived on the scene. Brouwer informed Eklund and Marks
that he found two guns on the side of the road, a Stalker and a Beretta. He found them 10 to 15
feet from the passenger side of the Jeep. On this information, Eklund and Marks took defendant
and Griggs into custody. Eklund checked defendant for weapons and found none. He handcuffed
defendant and put him in the back of the squad car. Eklund again mentioned that defendant was
sweating: “He’s starting to sweat profusely on his forehead area”; and “He was sweating quite a
lot so I turned my air-conditioning on [in the squad car].”
¶ 37 Eklund then reviewed Exhibit Nos. 74 and 75, videos of the initial encounter and arrest.
Exhibit No. 74 showed the view from the outside of Eklund’s squad car. The video showed
Eklund’s squad car heading north on Peace Road. As Eklund approached the Jeep for the first
time, the driver of the Jeep can be seen exiting. Three other subjects can be seen on the other side
of the Jeep: “one with light-colored pants which would be [defendant] and two others that were in
dark clothing that were the ones that had walked away.” Later, the video showed the squad car
- 12 - 2022 IL App (2d) 200459-U
slowing; this was the moment that Eklund spoke to the two individuals walking in the ditch. Those
individuals were not captured on film, because the camera could not turn to the side.
¶ 38 Exhibit No. 75 showed the interior of Eklund’s squad car following defendant’s arrest.
Defendant had been placed in the squad car. However, because the air conditioning was running,
defendant’s comments were inaudible. Eklund recounted that the conversation involved Eklund
checking on defendant’s comfort and “ke[eping] defendant up to speed on what [the police] were
doing, letting him know, stuff like that basically.” Defendant is visibly sweating in the squad car
video.
¶ 39 During cross-examination, Eklund agreed that, when he initially pulled over alongside the
Jeep, defendant stood the furthest back and to the rear of the Jeep as compared to the other two
subjects. He also agreed that Exhibit No. 74 shows that a person other than defendant is possibly
wearing light-colored, but not white, blue jeans. Only the person’s leg can be seen. (That person
can be seen at the same time as defendant, so it cannot be defendant.) Still, Eklund thought that
the two subjects walking in the ditch had on dark clothing. He did acknowledge that he could not
see or hear the two subjects walking in the ditch very well.
¶ 40 Last, Eklund testified that, at the time that he arrested defendant, he did not yet have a
physical description of the suspect. Brouwer, however, testified that, by the time of defendant’s
apprehension, he had received a dispatch report concerning a possible shooting and had been given
a description of the tan Jeep and “an African American with dreadlocks.”
¶ 41 E. Detective Michael Stewart Testifies to His Interview with Defendant,
Specifically Addressing Gun Shot Residue
¶ 42 Michael Stewart, a detective for the DeKalb Police Department (retired at the time of trial),
interviewed defendant. Defendant waived his Miranda rights on a written form time-stamped at
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1:37 a.m. on October 7, 2016. The State played a recorded, excerpted portion of Stewart’s
interview with defendant for the jury, Exhibit No. 12. Defendant can be seen fidgeting throughout
the video. He put his arms and hands inside his shirt, and Stewart asked him if he wanted a blanket.
Substantively, defendant denied being in DeKalb that evening.
¶ 43 On cross-examination, Stewart agreed that defendant was of “large build,” approximately
6 feet, 2 inches tall, with short hair. (Indeed, defendant’s arrest warrant states that he is 6 feet, 2
inches tall, and 198 pounds.) Defense counsel then questioned Stewart about the interview,
specifically asking him to address the topic of gunshot residue:
“Q. *** [Y]ou were talking to him as though you had a lot of the answers. Would
that be fair, it’s an investigative technique?
A. On some things, yes.
***
Q. And you had told him that at that point he had already had gunshot residue. Do
you recall that?
A. Told him that somebody had collected a gunshot residue test from him, yes.
Q. And that was from Mr. Walls; is that correct?
Q. So you knew that had been done at that point?
Q. And you did not have the results at that point; correct?
A. No.
Q. But you told him as soon as those results came in it would resolve all doubt;
correct?
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Q. And he had told you that he didn’t know anything; correct?
A. Correct.” (Emphasis added.)
¶ 44 On redirect-examination, the State returned to the topic of gunshot residue:
“Q. Now, detective, you were asked about telling the defendant that tests would
remove all doubt. Were you specifically saying that the gunshot residue test would remove
all doubt?
A. No. I was saying specifically as an investigative tool that DNA that would be
collected could potentially remove all doubt along with GSR, gunshot residue, and other
evidence.
Q. And the gunshot residue test [was] administered to the defendant’s hands;
A. Correct.
Q. And you didn’t know the results at the time you were interviewing the
defendant?
Q. If a person had gunshot residue on their hands and they were sweating
excessively, would that affect the ability to collect gunshot residue from their hands?
MR. DIXON: Objection.
THE COURT: Overruled.
A. (Continuing.) Yes.
BY MS. KLEIN:
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Q. Could a person also rubbing their hands on fabric or putting their hands in their
pockets remove gunshot residue from their hands?
A. Yes.” (Emphasis added.)
¶ 45 F. Detectives and Forensic Experts Testify to Defendant’s Clothing
¶ 46 The following police officers, detectives, and forensic experts testified to the evidence
recovered from defendant’s clothing: Brian Bollow, Stewart, Angel Reyes, Blake Aper, and Laurie
Lee. Bollow, a DeKalb police officer, participated in booking defendant. During booking, Bollow
removed defendant’s shoes and hoodie. This was a standard safety procedure; the laces and strings
were a safety risk. Bollow placed the shoes and hoodie in an evidence locker. On cross-
examination, Bollow agreed that he did not notice anything unusual about defendant.
¶ 47 Stewart, who had interviewed defendant, also photographed and collected defendant’s
clothing. Defendant’s shoes and hoodie had already been taken during the booking process by
Bollow. Stewart reviewed the photographs he had taken. Exhibit No. 14 showed an image of
defendant from the rear. Defendant wore his pants low; Stewart did not direct him to do so.
Defendant’s white pants and orangish underwear can be seen. Exhibit No. 15 showed a spot of
blood on his white pants near the kneecap. The spot is small and was later described by forensics
as being 1/16 of an inch.
¶ 48 Angel Reyes, a detective with the DeKalb Police Department, testified that he observed
defendant’s clothing, which had been packaged by Stewart. Reyes observed a “red dot” on the
white pants, which appeared to be blood. Reyes also observed that the front toe and the front-right
side of the inner sole of the left shoe appeared to have blood on it. The jury was shown the actual
pants and shoes as well as photographs of the same.
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¶ 49 Aper, who was accepted as an expert in the field of forensic biology, testified that he tested
defendant’s pants and shoes for blood. On the pants, he noticed several “small” reddish brown
spots. On one of the more prominent spots (still only 1/16 of an inch), Aper performed a
preliminary test to confirm that the substance was blood. He did not test each spot, because the
lab does not have the resources to do so. He also performed a preliminary test on the shoes. Upon
learning that the stains on the pants and the shoes were in fact blood stains, he extracted samples
and sent them to the lab for DNA testing.
¶ 50 Lee, who was accepted as in expert in the field of DNA analysis, performed a DNA test on
the samples extracted from defendant’s pants and shoes. The DNA from the blood stains on the
pants had two contributors. The major contributor, for whom all 24 points typically tested on the
DNA profile were found, was Shields. The minor contributor, for whom only 2 of the 24 points
typically tested on the DNA profile, was possibly defendant, i.e., “[Defendant] could not be
excluded from having contributed to the minor profile.” Nico Griggs was excluded from having
contributed to the minor profile on the pants. The DNA profile from the blood stain on the shoes
had one contributor, Shields.
¶ 51 During cross-examination, Lee agreed that she could not discern whether the source of the
minor profile was blood or saliva or a different bodily fluid. Moreover, she expected to find
portions of defendant’s profile, because the material came from his pants. “They were the person’s
pants so we would expect their profile.” She never received a DNA sample from Davison, so she
could not rule him out as a contributor to the minor profile. Lee further agreed that DNA could be
transferred from one person to another, that the DNA profile would not change if the DNA was
“shaken off” a metal object (and onto another surface), and that she did not know how the DNA
in this case got on the pants and shoes.
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¶ 52 G. Detectives and Forensic Experts Testify to Other Evidence
¶ 53 Reyes testified that he processed the crime scene. There were not big pools of blood on
the ground. He did, however, find a bullet casing on the ground outside the red car. He also found
a shell casing in the center console of the car. The State submitted photographs of other items
collected in and around the red car, which Reyes recognized. In particular, Exhibit Nos. 45 and
49 showed a set of keys, a baggie of marijuana, a swisher sweets package, and a cell phone. No
gun was found outside the car.
¶ 54 The red car was towed to the police station and processed there. Along the driver’s side
door, there were two small red drops, which appeared to be blood. These drops were not tested,
however. No gun was located in or about the vehicle.
¶ 55 Reyes also observed Shields’s autopsy. He observed Shields’s clothing being removed.
Shields had been wearing black pants and a black sweatshirt. Exhibit No. 71 shows the shirt that
Shields wore when shot. A small amount of blood circles the tear made by the bullet. No gun was
found in Shields’s clothing. Shields’s DNA was taken at the autopsy.
¶ 56 On cross-examination, Reyes testified that, when he arrived at the scene, the red car was
still running, but the doors were closed. The interior and exterior of the car were dusted for
fingerprints.
¶ 57 On redirect, Reyes testified that no fingerprints were found on the car. The State asked
Reyes why “there may not be fingerprints from a vehicle that people were obviously in.” Defense
counsel did not object to Reyes’s qualifications to answer the question, but the trial court asked
the State to lay a foundation. Before answering the question, Reyes testified that he had taken
three classes on evidence collection, which covered the retrieval of fingerprints. Reyes then
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explained that fingerprints might not be found on a dusty surface, a frequently touched surface, or
when there was not enough oil on a person’s hands.
¶ 58 On recross examination, Reyes testified that the red car had an “average” amount of dust
on it. Reyes again stated that no prints had been found, even though they had tested the car “inside
and out” to “identify anybody that would possibly [have been] in that vehicle.”
¶ 59 Erick Lambert, the property manager at the Kimberly apartments, testified that he found a
bullet the day after the shooting. He found the bullet in the stairwell to the lower apartments. He
picked it up. Upon realizing what it was, he put it back down and called the police. He found the
bullet after students had held a vigil at the apartment complex.
¶ 60 Detectives Reyes, Doug Brouwer, Josh Duehning, and Jackie Lane each testified to the
chain of custody of the two guns that were found near the tan Jeep on Peace Road. The State did
not present any evidence that the guns were tested for fingerprints.
¶ 61 Christina Davison (not related to Norris Davison), a forensic scientist specializing in
firearms identification, testified that the two fired cartridge cases that she received were fired by
the Beretta. The casing that she had received also came from the Beretta. It was impossible to tell
from which gun the bullet core came. During cross-examination, Davison agreed that she saw
nothing in the lab records to indicate that the gun had been tested for DNA or fingerprints. When
asked about gunshot residue, Davison declined to answer. She stated that gunshot residue was
outside her area of expertise. She stated that there were experts specifically tasked to analyze
gunshot residue.
¶ 62 The State then presented a stipulation regarding gunshot residue. That is, if called to testify,
DeKalb Police detective Mark Nachman would testify that he performed a gunshot residue test on
Griggs and defendant. He performed the tests on October 7, 2016, at 12:22 a.m. and at 12:30 a.m.,
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respectively, and sent the samples to the labs. Scott Rochowicz, a forensic scientist with the
Illinois State Police and, as stipulated, an expert in gunshot residue testing, performed the lab
analysis. The results as to both Griggs and defendant were:
“The test indicated that [Griggs/Defendant] may not have discharged a firearm with
either hand and that if [Griggs/Defendant] did discharge a firearm, then the particles of
gunshot residue were removed by activity, were not deposited[,] or were not detected by
the procedure.” (Emphasis added.)
¶ 63 H. Mitra Kalekar Testifies to Shields’s Autopsy
¶ 64 Mitra Kalekar, who performed Shields’s autopsy, testified that there were two gunshot
wounds; one of entrance and one of exit. The entrance wound was on the right upper back. It was
round and regular. Soot near the wound indicated that it was a contact-range firing, meaning that
the muzzle of the gun was touching Shields when the shot was fired.
¶ 65 The exit wound was on the left front chest wall. There was “a lot” of internal bleeding.
Both chest cavities were full of blood. The toxicology reports tested positive for marijuana and a
“small” amount of alcohol. The alcohol was in Shields’s urine, not his blood. Shields was not
under the influence of alcohol at the time of death.
¶ 66 During cross examination, Kalekar clarified that Shields died of single gunshot wound.
There were no other gunshot wounds. Kalekar would expect fluid to “come out” of the wound
when a person is shot at contact range. However, the muzzle of the gun would have “jammed” the
fluid. Also, the human back does not have major blood vessels. Shields’s bleeding came from the
lungs and the heart. Kalekar might have expected blood droplets on the muzzle of the gun.
¶ 67 I. Defendant’s Case
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¶ 68 Folz testified consistent with Cavazos that, while on foot patrol near the Kimberly
apartments, she heard one “loud pop.” She and Cavazos began walking in the direction of the
noise. Within one minute, they had walked to a view of the Kimberly apartments. Shields’s red
car was about 50 feet from them. She saw three young women on the apartment stoop. She also
saw a flash of light from behind the red car and heard two more pops. She saw a man in a crouched
position get up and run over to a tan SUV. He got in the passenger side of the SUV, and it reversed
and then drove west. She saw the man from his profile. She thought that the man had “something
about his head, either dreadlocks or a long hood.” In her report, she wrote that the suspect possibly
had long dreadlocks. She did not write anything about a hood.
¶ 69 On cross-examination, Folz agreed that she had been a relatively new officer at the time,
the area was not well-lit, and she only saw the suspect for a short time. The next day she told
Detective Brad Carls of the DeKalb County Sheriff’s Office that the suspect wore either
dreadlocks or a hood. On redirect examination, Folz agreed that there were lights on the apartment
buildings surrounding the parking lot, and the lights shone down on the parking lot.
¶ 70 J. Closing Arguments
¶ 71 In closing, the State argued: “Now, ladies and gentleman, it has been said that the jury is
the conscience of the community. The acts that defendant performed on the unarmed Debrece
Shields that night were utterly unconscionable.” The State told the jury that the evidence showed
that defendant was the shooter, because “the person who did this had white pants on [and]
defendant was the only one in white pants.” (Emphasis added.) The State also emphasized that
the surveillance video shows the shooter wearing bright colored underwear, and defendant wore
bright colored underwear. Further, the State noted, Shield’s blood was found on defendant’s pants
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and shoes. The State also commented that there were small spots of blood in the car and on the
ground by the car.
¶ 72 Defense counsel stressed gaps in the State’s evidence and Griggs’s bias. As to gaps in the
State’s evidence, counsel noted that the NIU patrol officers, Cavazos and Folz, did not ask for the
names and contact information of the three young women standing on the apartment stoop who
may have witnessed the shooting. Counsel found it noteworthy that the State did not account for
Davison or Head in its closing argument. Cavazos and Folz believed the suspect to have
dreadlocks like Griggs and Davison. The police allowed Davison and Head to “walk away” and
did not test them for gunshot residue or other forensic evidence. On the flipside, no fingerprints
or gunshot residue connected defendant to the crime. While defendant had a small amount of
blood on his pants and shoes, defense counsel pointed to Lee’s testimony that blood and DNA can
be transferred from one person to another. Counsel further argued that Griggs was a biased witness
who did not come forward to implicate defendant until nearly three years after the shooting and
only then to his own great benefit.
¶ 73 In rebuttal, the State addressed defense counsel’s point that no gunshot residue connected
defendant to the crime:
“Well, you saw for yourselves this defendant *** even before he was in the squad
car fidgeting around, putting his hands in his pockets ***, and then you also saw him in
the squad car sweating profusely with the sweat literally running down his face and his
skin, both of which can remove gunshot particles.”
The State also argued:
“Defense counsel just told you that we can’t tell you how the blood got onto David
Walls’s hands. Well, we most certainly can tell you how the blood got on David Walls’s
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hands. That blood got onto David Walls’s hands when David Walls took this gun, the
Beretta, and put it against Debrece Shields’s back and pulled the trigger. That is how the
blood got onto his pants.” (Emphases added.)
Finally, the State told the jury that, although this case was “real life,” in Hollywood, the murder
“would be called an execution.”
¶ 74 K. Jury Instructions and Verdict
¶ 75 The trial court provided the jury with the Illinois Pattern Jury Instructions (IPI) Criminal
Nos. 7.01 (“Definition of First Degree Murder”) (4th ed. 2000) and 7.02 (“Issues in First Degree
Murder,” i.e., the elements instruction) (4th ed. 2000) both orally and in writing. The definition
instruction, the State’s Instruction No. 19, perfectly mirrored the language of IPI Criminal No.
7.01, providing:
“A person commits the offense of first degree murder when he kills an individual
if, in performing the acts which cause the death, he intends to kill or do great bodily harm
to that individual or he knows that such acts create a strong probability of death or great
bodily harm to that individual.” (Emphasis added.)
¶ 76 However, the elements instruction, the State’s Instruction No. 20, omitted the phrase
“intended to kill,” from the second proposition in IPI Criminal No. 7.02, providing:
“To sustain the charge of first-degree murder, the State must prove the following
propositions:
First Proposition: That the defendant performed the acts which caused the death of
Debrece Shields; and
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Second Proposition: That when the defendant did so he intended to do great bodily
harm to Debrece Shields or he knew that his acts created a strong probability of death or
great bodily harm to Debrece Shields.
If you find from your consideration of all the evidence that each one of these
propositions has been proved beyond a reasonable doubt, you should find the defendant
guilty.
If you find from your consideration of all the evidence that any one of these
propositions has not been proved beyond a reasonable doubt, you should find the defendant
not guilty.” (Emphasis added.)
¶ 77 Had the elements instruction perfectly mirrored the language in the IPI Criminal No. 7.02,
the second proposition would have read:
“Second Proposition: That when the defendant did so, he intended to kill or do great
bodily harm to Debrece Shields ***.” (Emphasis added.) IPI Criminal No. 7.02.
¶ 78 Next, in orally instructing the jury on the firearm enhancement, the trial court stated that,
to sustain the firearm enhancement, the State had to prove that “during the commission of the
offense of attempt first-degree murder the defendant personally discharged a firearm that
proximately caused death to another person.” (Emphasis added.) After the court dismissed the
jury, it informed the attorneys that it had misspoken, and it should not have read the word
“attempt.” The attorneys agreed that the jury would receive a written correction. In the written
instructions for the firearm enhancement, the trial court provided the jury with the correct
instructions and the court crossed out the word “attempt.” The jury found defendant guilty of first-
degree murder and of personally discharging the firearm that caused Shields’s death.
¶ 79 L. Posttrial Motion
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¶ 80 On April 17, 2020, defense counsel filed a written posttrial motion. He argued, inter alia,
that the trial court erred in allowing an officer (Stewart), who was not qualified as an expert, to
opine that gunshot residue could be removed by sweat. This testimony went beyond the parties’
stipulation to the expert’s (Rochowicz’s) finding regarding gunshot residue. The trial court denied
the motion.
¶ 81 M. Sentencing
¶ 82 The presentencing report provided that, at the time of the offense, defendant was 18 and
had just graduated from high school. He had participated in a summer jobs program and he planned
to go to community college. Defendant’s father was currently in federal prison for a drug-related
offense. Defendant described his neighborhood as “real wild” due to drugs and gun violence.
Defendant also stated that nearly one-third of his friends were involved in crime. However,
defendant himself had no criminal history, either as an adult or a juvenile. Defendant had
previously been diagnosed with bipolar disorder, schizophrenia, and attention deficit hyperactivity
disorder. He had used drugs in the past, including alcohol, cannabis, and ecstasy. Defendant
reported that, on the date of the offense, he had “smok[ed] and popp[ed] pills.” Defendant
expressed condolences to Shields’s family, stating that they must feel “disappointed, hurt,
emotional, terrible, and [feelings] words cannot describe” and stating that he “regret[ted] what
happened.”
¶ 83 At the sentencing hearing, the State requested a term of 60 years. It noted that the
sentencing range for first-degree murder was 20 to 60 years, plus a 25-to-life term for the firearm
enhancement. The State submitted the victim impact statements. It also noted that, in addition to
the information contained in the presentencing report, defendant had been named as a respondent
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in an order of protection at the time of the offense. This was relevant because it would have
precluded him from possessing a gun.
¶ 84 Defense counsel sought the minimum sentence, 45 years (20 years, plus 25 years for the
firearms enhancement). He and defendant were unaware of any order of protection. He stressed
that defendant had no criminal history and was very young, just 18, at the time of the offense. He
also noted that defendant suffered from mental-health issues and had expressed great empathy for
Shields’s family. Finally, he asked the court to consider “some of the residual doubt” as to
defendant’s guilt.
¶ 85 Defendant made a statement in allocution, again expressing his condolences to Shields’s
family. However, defendant stated that he was innocent and that he regretted having gotten in the
car that day.
¶ 86 The trial court sentenced defendant to 50 years’ imprisonment, to be served at one hundred
percent. The court stated that it considered “many factors.” It remarked specifically on
defendant’s age:
“[Defendant] at the time of this offense had just turned 18 and I have to consider
that as well. If it had been 17 when he committed this offense, I would be looking at many
different factors as well that the Courts have required as the years have gone by to be
considered, so I have to look at what I have in front of me as a young man of 18 years old.”
The court noted that, even if it imposed the minimum sentence, defendant would be an older man
upon release. The court stated that it had read the presentencing report and it commented that
defendant grew up without a father. It also noted that, ordinarily, defendants standing before it
ready to be sentenced for first-degree murder have a lengthy criminal history, often “pages” “going
on and on,” and, here defendant had no criminal history. It appreciated defendant’s assertion of
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innocence, but it stated that a jury had determined otherwise. Finally, the court also observed:
“[Y]ou committed this crime and took this life for no reason at all, none that I can even fathom.”
Defendant did not file a motion to reconsider sentence. This appeal followed.
¶ 87 II. ANALYSIS
¶ 88 On appeal, defendant argues that: (1) defense counsel was ineffective for failing to pursue
jury instructions on second-degree murder; (2) the trial court erred in allowing improper lay
opinion testimony concerning the manner in which gunshot residue can be removed; (3) the trial
court committed plain error in allowing improper lay opinion testimony concerning the collection
of fingerprints and the narration of a surveillance video; (4) the trial court committed plain error
when it allowed the State to improperly bolster codefendant’s testimony during redirect
examination; (5) the trial court committed plain error when it allowed the State to make improper
remarks in opening statements and closing argument; (6) the jury instructions regarding the
elements of first-degree murder omitted the language “intends to kill” and were, therefore, plainly
erroneous; and (7) defendant’s 50-year sentence is excessive.
¶ 89 A. Ineffective-Assistance Claim:
Declining to Request Second-Degree Murder Instructions
¶ 90 Defendant argues that defense counsel provided ineffective assistance of counsel when he
failed to request an instruction for second-degree murder. Defendant contends that the evidence
supported the instruction because Griggs testified that, immediately after the shooting, defendant
told the occupants of the tan Jeep that Shields had tried to pull a “big and chrome” gun on him.
According to defendant, Griggs’s testimony constituted the only evidence regarding the reason for
the shooting. Additionally, defendant notes that, although only two bullet casings were found at
the scene, Cavazos and Folz testified to hearing three shots. Also, although no gun was found at
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the scene, several objects that defendant may have mistaken for a gun—a lighter, a cell phone, and
a cigar package—were found near the scene. Had defense counsel requested second-degree
murder instructions, and had the jury subscribed to that theory, defendant would have been subject
to a significantly lower sentence. The sentencing range for second-degree murder is 4 to 20 years.
730 ILCS 5/5-4.5-30 (West 2016).
¶ 91 Defense counsel provides ineffective assistance where: (1) counsel’s performance fell
below an objective standard of reasonableness; and (2) the defendant was prejudiced as a result of
counsel’s performance in that there is a reasonable probability that the result would have been
different but for counsel’s error. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. Defense counsel has wide latitude in making tactical decisions and there is a presumption
that counsel’s conduct was the product of sound trial strategy. Id. at 689. As such, decisions that
involve matters of trial strategy typically will not sustain a claim of ineffective assistance. People
v. Sanchez, 2014 IL App (1st) 120514, ¶ 30.
¶ 92 “A person commits the offense of second degree murder when he or she commits the
offense of first degree murder *** and either of the following mitigating factors are present: (1) at
the time of the killing he or she is acting under a sudden and intense passion resulting from serious
provocation by the individual killed or another whom the offender endeavors to kill, but he or she
negligently or accidentally causes the death of the individual killed; or (2) at the time of the killing
he or she believes the circumstances to be such that, if they existed, would justify or exonerate the
killing ***, but his or her belief is unreasonable.” 720 ILCS 5/9-2(a) (West 2016). The second
mitigating factor, which is at issue here, has become known as “imperfect self-defense.” People
v. Jeffries, 164 Ill. 2d 104, 129 (1995).
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¶ 93 Once the State has proved the elements of first-degree murder beyond a reasonable doubt,
the defendant may prove by a preponderance of the evidence that he believed the circumstances
justified the killing, although his belief was unreasonable. 720 ILCS 5/9-2(c) (West 2016).
Second-degree murder is a not a lesser-included offense of first-degree murder, because second-
degree murder requires proof of the same elements as first-degree murder. People v. Neasom,
2017 IL App (1st) 143875, ¶ 39. Rather, second-degree murder is a lesser-mitigated offense of
first-degree murder. People v. Manning, 2018 IL 122081, ¶ 18.
¶ 94 A requested second-degree murder instruction should be given even where the evidence
supporting the theory is very slight. People v. Goods, 2016 IL App (1st) 140511, ¶ 50. Counsel
may request a second-degree murder instruction even if that theory is in conflict with other
evidence. See, e.g., People v. Everette, 141 Ill. 2d 147, 156 (1990). Assuming for the sake of
analysis that a second-degree murder instruction would have been given had defense counsel so
requested, we focus our analysis on whether defense counsel provided ineffective assistance in
declining to do so.
¶ 95 In requesting an instruction on a lesser-mitigated offense, defense counsel necessarily
decides against an all-or-nothing strategy in favor of providing the jury with a “middle way” that
could still result in a conviction. People v. Edmundson, 2018 IL App (1st) 151381, ¶ 37; People
v. DuPree, 397 Ill. App. 3d 719, 735 (2010). Defendant concedes that the decision to request an
instruction on a lesser-mitigated offense is typically one of strategy. See, e.g., Edmundson, 2018
IL App (1st) 151381, ¶ 40 (the decision to request a second-degree murder instruction belongs to
defense counsel). The decision not to request an instruction on a lesser-mitigated offense may not
be reasonable trial strategy, however, when the omitted instructions would be consistent with the
theory of defense at trial or when counsel’s decision is based on a misapprehension of the law.
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Goods, 2016 IL App (1st) 140511, ¶ 57; People v. Lemke, 349 Ill. App. 3d 391, 399 (2004).
Defendant argues that both are the case here. We disagree.
¶ 96 Defendant’s reliance on Goods, 2016 IL App (1st) 140511, is misplaced. In Goods,
defense counsel was ineffective for failing to request self-defense instructions despite pursuing a
consistent but invalid defense theory of compulsion. Id. ¶¶ 54, 57. In this case, second-degree
murder instructions would have been inconsistent with the defense theory of misidentification,
leaving the decision of whether to request the instruction squarely in the realm of trial strategy.
Indeed, we note that in certain portions of his brief, defendant concedes that second-degree murder
instructions would have been inconsistent with the defense theory of misidentification.
¶ 97 Defendant next argues that counsel’s decision to pursue an all-or-nothing strategy of
misidentification was based on a misapprehension of the law. He asserts that defense counsel did
not appear to consider that, even if the jury believed that someone else shot Shields, defendant still
could have been found guilty under a theory of accountability. Defendant discusses the factors
used to consider accountability, People v. Batchelor, 171 Ill. 2d 367, 376 (1996), and notes that
defendant was in the car used as a getaway vehicle, maintained a common association with the
other occupants of the car, failed to report the crime, misled the police as to his whereabouts, and
was found near the gun used to shoot Shields.
¶ 98 Defendant’s accountability argument is misplaced, however, because the State prosecuted
him under the theory that he was the principal shooter and never argued at trial that he could be
guilty under a theory of accountability. Indeed, a defendant cannot be convicted under an
accountability theory if the State does not pursue an accountability theory at trial. People v.
Peoples, 2015 IL App (1st) 121717, ¶ 97.
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¶ 99 Defendant argues in his reply brief that the risk of providing the jury with an instruction
inconsistent with the defense theory at trial is not so great as the State suggests. Rather, as the jury
would never be in a position to convict defendant of second-degree murder unless it had already
found him guilty of first-degree murder, there was no downside to offering the jury the lesser-
mitigated option. In support, he cites to People v. Wilmington, 2013 IL 112938, ¶ 20, where
defense counsel’s decision to request second-degree murder instructions was in conflict with the
defense theory of innocence. Specifically, defense counsel questioned the reliability of the
defendant’s statement to police and pursued a theory of innocence. Id. However, in closing, he
“briefly referenced” the second-degree murder instructions to be given and explained that,
although he believed defendant to be innocent, “if it’s anything, it’s second-degree murder.” Id.
On appeal, the defendant argued that the trial court should have asked the defendant if he
personally agreed with counsel’s request to give the instruction. Id. ¶ 44. The supreme court
rejected that argument. Id. It noted that the defendant did not raise an ineffective-assistance claim,
but it nevertheless observed that counsel was able to have the jury instructed on second-degree
murder “without really arguing for it.” Id. ¶ 50.
¶ 100 Defendant fails to recognize that a holding that arguably approves of defense counsel
taking such an approach is not the same as a holding that requires defense counsel to take such an
approach. In Wilmington, the supreme court merely observed that defense counsel exercised a
strategy to have the jury instructed on second-degree murder while maintaining defendant’s
innocence. It did not hold that, in all cases, this would be the required strategy. Here, not only
would a second-degree instruction have been inconsistent with defense counsel’s theory of
misidentification, but also with the physical evidence. Though Griggs testified that defendant told
him that Shields “tried to up on him” with a “big chrome gun,” no such weapon was found at the
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scene. Defendant’s appellate theory that defendant may have mistaken other items found on the
scene—a lighter, a cell phone, or a cigar package—is speculative. Further, the close contact
shooting of Shield’s in the back is similarly inconsistent with an argument that a lighter, cell phone
or cigar package prompted the shooting. Per valid trial strategy, defense counsel focused on a
misidentification theory and elected not to pursue an inconsistent mitigated defense.
¶ 101 For these reasons, defense counsel was not ineffective for declining to request a second-
degree murder instruction.
¶ 102 B. Lay Witness Testimony: Stewart and Gunshot Residue
¶ 103 Defendant next argues that the trial court erred when it allowed Stewart to testify as to how
gunshot residue can be removed without first accepting him as an expert witness. Illinois Rule of
Evidence 701 provides that a lay witness’s testimony, opinions, and inferences are limited to those
which are “(a) rationally based on the perception of the witness, and (b) helpful to a clear
understanding of the witness’s determination of the issue, and (c) not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011).
In turn, Illinois Rule of Evidence 702 provides that a witness must be qualified as an expert in
order to testify to scientific, technical, or other specialized knowledge that will aid the trier of fact.
Ill. R. Evid. 702 (eff. Jan. 1, 2011). The admission of evidence is reviewed for an abuse of
discretion. People v. Taylor, 2011 IL 110067, ¶ 67. A trial court abuses its discretion when its
ruling is arbitrary, fanciful, or unreasonable, such that no reasonable person would take the view
adopted by the court. People v. Edwards, 343 Ill. App. 3d 1168, 1183 (2003). For the reasons
that follow, we agree that the trial court erred in allowing the gunshot residue testimony from a lay
witness, but we determine that the error was harmless.
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¶ 104 Testimony concerning the specific manner in which gunshot residue can be removed such
that a person who fired a gun may nevertheless test negative for gunshot residue falls under Rule
702 because it concerns scientific, specialized knowledge. The case law is replete with examples
of gunshot residue experts who have scientific training in gunshot residue. See, e.g., People v.
Allison, 236 Ill. App. 3d 175, 190-191 (1992) (a chemist with a Ph.D. who had read multiple
scientific articles on gunshot residue, had performed 60 gunshot residue tests, and had been
qualified as an expert in gunshot residue 10 to 12 times was qualified as an expert in gunshot
residue, though he had never taken a gunshot residue course); People v. Cole, 170 Ill. App. 3d 912,
928-29 (1988) (police department chemist who had performed 300 gunshot residue tests to
establish baseline levels to use as testing guidelines was qualified as an expert in gunshot residue,
though his gunshot residue course took place in a single day); see also People v. Brown, 2020 IL
App (1st) 190828, ¶ 35 (anecdotally, the gunshot residue expert who testified that gunshot residue
particles could be removed by sweat was a trace chemist); People v. Anderson, 2017 IL App (1st)
122640, ¶ 25 (a forensic scientist stated that wind, moisture, and friction from brushing up against
something were the types of activities that could prevent gunshot residue from being deposited);
and People v. Munoz, 398 Ill. App. 3d 455, 467 (2010) (anecdotally, the gunshot residue expert
who testified to, inter alia, gunshot residue transfer was a trace evidence analyst employed by the
Illinois State Police crime lab).
¶ 105 Here, as the State acknowledges, it did not seek to qualify Stewart as an expert before
eliciting his scientific testimony. Nor is this case like People v. Loggins, 2019 IL App (1st)
160482, ¶ 111, where the foundational testimony elicited from the officer at trial would have
resulted in him being accepted as an expert had the State so moved. Id. (officer’s testimony about
his training and experience in narcotics investigations would have qualified him as an expert to
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testify regarding the drug trade). Rather, this case is more like People v. Moody, 199 Ill. App. 3d
455, 462-63 (1989), where the State failed to establish that the officer was an expert in the area of
gunshot residue analysis based on the officer’s testimony that his experience was limited to the
administration of the test and he learned of the test result from others who analyzed the swabs.
¶ 106 While it may be possible to infer from Stewart’s testimony that he, as the State puts it,
“spent decades investigating and collecting evidence from crime scenes, which would have
included incidents involving guns,” this is not enough to establish him as a gunshot residue expert.
Stewart did not testify that he was trained to administer or analyze gunshot residue testing. Unlike
the experts in Allison, Cole, Brown, Anderson, Munoz, or even the stipulated expert in the instant
case—Rochowicz—Stewart was not a chemist or trace evidence analyst working in a crime lab.
¶ 107 Moreover, contrary to the State’s assertion, defense counsel did not invite the error, and
the State certainly capitalized on it in closing argument. Under the invited-error doctrine, a
defendant cannot claim error in the admission of improper evidence where the defendant procured,
invited, or acquiesced to the admission. People v. Alvarado, 2013 IL App (3d) 120467, ¶ 11. “To
permit a defendant to use the exact ruling or action procured in the trial court as a vehicle for
reversal on appeal ‘would offend all notions of fair play’ [Citation], and ‘encourage defendants to
become duplicitous’ [Citation].” People v. Harvey, 211 Ill. 2d 368, 385 (2004).
¶ 108 To be sure, defense counsel questioned Stewart briefly and in a general manner regarding
gunshot residue. The context is as follows. During Stewart’s direct examination, the State played
an excerpt of Stewart’s interview with defendant, Exhibit No. 12. In the relatively brief substantive
portion of the interview, defendant denies all involvement in the shooting, denies knowing about
the shooting, and denies being in DeKalb that evening. In response to defendant’s denials, Stewart
informs defendant that he knew defendant had been at the scene of the shooting. He tells defendant
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that there are cameras everywhere and that officers would collect defendant’s DNA and had
performed a gunshot residue test; soon they would know the truth. Stewart told defendant that he
was giving defendant a chance to explain why the shooting occurred.
¶ 109 Concerning this excerpt from the interview, defense counsel engaged in the following
colloquy with Stewart on cross-examination:
“Q. *** [Y]ou were talking to him as though you had a lot of the answers. Would
Q. And you had told him that at that point he had already had gunshot residue. Do
A. Told him that somebody had collected a gunshot residue test from him, yes.
Q. But you told him as soon as those results came in it would resolve all doubt;
Q. And he had told you that he didn’t know anything; correct?
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¶ 110 Contrary to the State’s position, this line of questioning did not invite Stewart to testify to
a scientific explanation as to the absence of gunshot residue. Rather, defendant’s response to
Stewart’s comment that the test results would resolve all doubt was elicited to show the strength
of defendant’s denial. The defendant was told that, if he was the shooter, the gunshot residue test
would prove it, yet knowing this, he continued to deny all involvement.
¶ 111 Moreover, even if defense counsel’s cross-examination did somehow invite further
questioning on the general topic of gunshot residue, it was sufficient for the State to elicit on
redirect, as it did, that Stewart meant that “DNA that would be collected could potentially remove
all doubt along with GSR, gunshot residue, and other evidence.” (Emphasis added.) By continuing
further to have Stewart inform the jury that gunshot residue could be removed from a person’s
hands by sweating, rubbing one’s hands on fabric, or putting one’s hands in his pockets, the State
elicited improper scientific testimony that was not invited.
¶ 112 In considering the likely harm caused by this improper evidence, we note that the State
capitalized on Stewart’s improper testimony, stressing exhibits that showed defendant
participating in the specific activities that Stewart testified could remove gunshot residue. In
closing, the State remarked: “Well, you saw for yourselves this defendant *** even before he was
in the squad car fidgeting around, putting his hands in his pockets ***, and then you also saw him
in the squad car sweating profusely with the sweat literally running down his face and his skin,
both of which can remove gunshot particles.” In this way, Stewart’s improper testimony was not
merely cumulative to the general stipulation that gunshot residue could be removed by activity.
¶ 113 However, we nevertheless determine that the admission of Stewart’s testimony was
harmless, because we do not believe there is a reasonable probability that it affected the outcome
of the trial. The error at issue concerns the Rules of Evidence 701 and 702. An evidentiary error
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is harmless where there is no reasonable probability that the jury would have acquitted the
defendant absent the error. In re E.H., 224 Ill. 2d 172, 180 (2006) (citing People v. Nevitt, 135 Ill.
2d 423, 447 (1990)).
¶ 114 Here, without Stewart’s testimony that gunshot residue can be removed by sweating and
rubbing one’s hands in one’s pockets, the jury would have been left with a stipulation that
defendant’s gunshot residue test was negative and that gunshot residue can be removed by
“activity.” The other properly admitted evidence against defendant was strong. For example, the
evidence showed that defendant was one of the four people in the tan Jeep associated with the
shooting. The murder weapon was found within feet of the tan Jeep. Defendant was the only
person in the tan Jeep wearing white pants. Exhibit No. 28, the still-frame shot from the
surveillance video, shows that the suspect was wearing white pants, orangish underwear, and dark
top. Defendant was apprehended shortly after the shooting just outside the tan Jeep wearing white
pants, orange underwear, and a dark hoodie. Defendant had the victim’s blood on his pants and
shoes. Although the amount of blood on defendant’s pants was small, just 1/16 of an inch, Kalekar,
who performed the autopsy, explained that, when a victim is shot at contact range in the back (an
area of the body without major blood vessels), she would not expect to see a lot of blood. Kalekar
further testified that Shields bled internally. Consistent with Kalekar’s testimony that Shields’s
bleeding was internal, Reyes testified that there was not a lot of blood at the scene. Critically, the
shirt worn by Shields shows only a small amount of his blood circling the tear made by the bullet.
¶ 115 We appreciate that Griggs benefitted greatly in testifying against defendant. We also
appreciate that both Cavazos and Folz initially reported that the shooter had dreadlocks, and that
Davison, a man with dreadlocks, was allowed to walk away from the tan Jeep before any forensics
were collected from him. However, both Cavazos and Folz later hedged on their impression that
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the shooter had dreadlocks, saying that it could have been a hoodie. In actuality, Shields had
dreadlocks and defendant had short hair. Ceriser, whose visual impression was confirmed by the
still-frame shot, never reported that the shooter had dreadlocks. Additionally, Ceriser’s impression
that the shooter was as tall as 6 feet, 1 inch and “not heavyset” was consistent with defendant’s
actual frame of 6 feet, 2 inches and 198 pounds. As with all the witness testimony, deciding
whether to credit Ceriser’s testimony was within the province of the jury. See People v. Jackson,
232 Ill. 2d 246, 280-81 (2009).
¶ 116 Finally, we recognize that the forensic evidence was not as conclusive as the State might
have hoped. The gunshot residue test was, after all, negative. The gun was not tested for
fingerprints. However, we do not subscribe to defendant’s theory that the small amount of the
Shields’s blood on defendant’s pants and shoes was somehow exculpatory. That Shields’s blood
was on defendant’s pants and shoes is highly inculpatory. As we have already discussed, that
Shields himself exhibited only a small amount of external bleeding explains why the shooter would
have had only a small amount of Shields’s blood on himself, especially where, as shown by the
surveillance video, he fled immediately and did not otherwise interact with Shields’s body.
¶ 117 In short, the evidence as well as gaps in the evidence favoring defendant are speculative,
i.e., maybe a shooter other than defendant transferred what little blood came from Shields’s body
to defendant’s pants and shoe. In contrast, much of the evidence favoring conviction is certain.
Defendant was certainly one of four people in the tan Jeep when Eklund first encountered the
group. The murder weapon was located near the tan Jeep associated with both defendant and the
shooting. Defendant was certainly the only one of those four people wearing white pants. Exhibit
No. 28, the still-frame shot, certainly showed the shooter wearing the same unique constellation
of clothing as defendant, including white pants and orangish underwear. Defendant certainly had
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Shields’s blood on his pants and shoes. For these reasons, we cannot say that there is a reasonable
probability that the jury would have acquitted defendant if it had heard only that activity in
general—as opposed to perspiring or rubbing one’s hands on clothing specifically—can remove
¶ 118 C. Lay Witness Testimony: Reyes and Ehrke
¶ 119 Defendant argues that the trial court erred when it allowed improper lay witness testimony
from Reyes regarding the collection of fingerprints and from Ehrke regarding the narration of the
surveillance video. Defendant acknowledges that these arguments, as well all of his remaining
arguments, are forfeited for failure to object at trial and in a posttrial motion. People v. Enoch,
122 Ill. 2d 176, 186 (1988). However, defendant requests that we review these arguments under
either the plain-error doctrine or as an ineffective-assistance claim. Plain error applies when: (1)
a clear or obvious error occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant or (2) a clear and obvious error occurred
and that error was so serious that it affected the integrity of the judicial process. People v. Herron,
215 Ill. 2d 167, 178-79 (2005). Defendant argues that prong-one plain error applies in both
instances. He also argues, in the alternative, that defense counsel was ineffective for failing to
object and to preserve the error. Again, defense counsel provides ineffective assistance where: (1)
counsel’s performance fell below an objective standard of reasonableness; and (2) the defendant
was prejudiced as a result of counsel’s performance in that there is a reasonable probability that
the result would have been different but for counsel’s error. Strickland, 466 U.S. at 694. For the
reasons that follow, we disagree.
¶ 120 1. Reyes and Fingerprints
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¶ 121 Defendant argues that the trial court erred in allowing Reyes to testify to why there were
no fingerprints on Shields’s red car even though people had “obviously” been in it. Reyes testified
that dust or the absence of oil on a person’s fingers could negatively affect the officers’ ability to
collect fingerprints. On cross-examination, Reyes reiterated that the car was tested for fingerprints
“inside and out” because the police wanted to “identify anybody that would possibly [have been]
in that vehicle,” but no fingerprints were found. (Emphasis added.)
¶ 122 Any error here was harmless. First, unlike Stewart, who did not testify to his qualifications
to testify to gunshot residue, Reyes testified that he had taken three evidence courses covering the
retrieval of fingerprints. See, e.g., Loggins, 2019 IL App (1st) 160482, ¶ 111 (improper lay opinion
may be harmless error if the witness would have been accepted as an expert by the trial court if so
tendered). Moreover, the substance of Reyes’s testimony was not damaging to defendant’s case
such that the alleged error threatened to tip the scales of justice against defendant. The absence of
fingerprint evidence in the car does not prove defendant was not in the car, though it did allow
defendant to argue that a shooter other than defendant was in the car. Indeed, Reyes’s ultimate
conclusion that no fingerprints were recovered advantaged defendant.
¶ 123 2. Ehrke and Exhibit No. 27
¶ 124 Defendant also argues that the trial court erred in allowing Ehrke to narrate the events
shown on Exhibit No. 27, the surveillance video. Under the silent-witness theory, a surveillance
video may be introduced as substantive evidence so long as a proper foundation is laid. People v.
Sykes, 2012 IL App (4th) 111110, ¶ 34. The evidence speaks for itself. Id. As the State concedes,
a lay witness, such as Ehrke, should not testify to a matter of which he has no personal knowledge
when the jury can just as easily draw its own inferences and conclusions. Freeding-Skokie Roll-
Off Service Inc. v. Hamilton, 108 Ill. 2d 217, 221 (1985). In Sykes, for example, the court
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determined that it was error to let the store’s loss prevention manager testify that the surveillance
video depicted the defendant removing money from the cash register. Sykes, 2012 IL App (4th)
111110, ¶ 42. Instead, since the video was less than three minutes long (and there were no
efficiency issues in having the jury watch the entire video), the defendant was the only person
depicted in the video, and the only question was whether defendant removed money from the cash
register, the store manager invaded the province of the jury when he told it that the video showed
defendant removing money from the cash register. Id.
¶ 125 Here, Ehrke informed the jury that, as part of his investigation, he watched the surveillance
video in slow motion. Ehrke told the jury that the video showed a suspect in light-colored pants
and orangish underwear, which was similar to the clothing defendant was apprehended in. The
jury also watched the video in slow motion. We agree with defendant that Ehrke had no personal
knowledge of the suspect’s clothing. He did not witness the crime. While Ehrke should have let
the jury decide whether the video showed a suspect in light or white pants and orangish underwear,
we determine defendant was not prejudiced. Exhibit No. 28, the still-frame shot from the video,
which defendant does not challenge on appeal, shows the suspect in white pants and orangish
underwear. While it might have been unfair to tell a jury that the moving image they saw was of
a man in a certain color of clothing, Ehrke did not similarly narrate for the jury that the static, still-
frame shot created from that same video showed a suspect in white pants and orangish underwear.
Considering Exhibit Nos. 27 and 28 together, Ehrke’s commentary did not amount to plain error
and counsel was not ineffective for failing to object.
¶ 126 D. Allegedly Improper Comments by the State
¶ 127 Defendant argues that the State committed “prosecutorial misconduct” by misstating the
evidence and using inflammatory remarks to pit the jury against defendant during opening
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statements and closing arguments. Our supreme court has alternatively held that whether a
prosecutor’s misstatements and improper remarks denied defendant of a fair trial is reviewed for
an abuse of discretion (People v. Blue, 189 Ill. 2d 99, 128 (2000)) and de novo (People v. Wheeler,
226 Ill. 2d 92, 121 (2007)). Defendant acknowledges that defense counsel did not object to the
statements and, thus, the claim is forfeited. He requests, however, that we review the error under
the plain-error doctrine or as an ineffective assistance claim. Under either of these analytic
frameworks, and notwithstanding which standard of review we apply, we conclude that defendant
received a fair trial.
¶ 128 It is improper to misstate the evidence or argue facts not in evidence. People v. Green,
2017 IL App (1st) 152513, ¶ 77. Defendant argues that the State misstated the evidence in at least
three instances. First, defendant complains that, in closing argument, the State asserted that, as
captured in the surveillance video, the shooter was wearing white pants and “defendant was the
only one in white pants.” (Emphasis added.) Defendant contends that this is not true, because
Eklund’s squad-car video, Exhibit No. 74, shows that one other person in the tan Jeep wore light
colored pants. Additionally, one of the Kimberly apartment surveillance videos, Exhibit No. 26,
shows one, and possibly two, person or persons in the vicinity wearing white pants.
¶ 129 Though the State’s assertion that defendant was the only one in white pants was highly
incriminating, we disagree that the State misstated the evidence on this point. The person depicted
in the squad-car video, Exhibit No. 74, appears to be wearing light colored pants, but no reasonable
person would say they were white. They appear rather to be ordinary blue jeans. While the person
or persons depicted in one of the Kimberly apartment surveillance videos may be wearing white
pants, it is clear that neither of these persons are the shooter and we do not believe that the jury
would have been confused on this point. One of these persons exits the apartment complex alone,
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puts a garbage bag in the Dumpster, gets in his car, and drives away. The other person exits the
apartment complex to wave down police. In context, when the State asserted that defendant was
the only one wearing white pants, the State meant that defendant was the only one in the tan Jeep
wearing white pants. This was not a misstatement.
¶ 130 Second, defendant complains that the State referred to spots of blood on the ground of the
crime scene, when the red stains were not, in fact, chemically tested. However, it was reasonable
to infer from the evidence that the red stains found near the victim’s body were blood when the
victim was known to have been shot. See, e.g., People v. Glasper, 234 Ill. 2d 173, 212 (2009)
(State may argue reasonable inferences that are based on the evidence). It was also reasonable to
infer from the evidence that the shooter stepped on the red substance on the ground and got it on
his shoe. Accordingly, it follows that the State’s argument was entirely proper that the shooter
was defendant because the substance on defendant’s shoe was the victim’s blood.
¶ 131 Third, defendant argues that the State misstated the evidence when it stated that defendant
had “blood on his hands.” In fact, defendant did not have anything on his hands. The State
contends on appeal that it had merely used a figure of speech. Arguably, such a figure of speech
is problematic in a case where a shooter’s identity is at issue and defendant’s hands were indeed
examined without success for forensic evidence. In any event, in our view, the transcripts read as
though the State inadvertently misspoke rather than purposefully misstated the evidence; the State
immediately corrected itself to reference blood on defendant’s pants, as opposed to his hands; and
the State’s comment did not affect the fairness of defendant’s trial.
¶ 132 Next, defendant complains that the State resorted to inflammatory and prejudicial remarks
that created an “us versus them” dynamic between the jurors and defendant in opening statements
and closing arguments. Specifically, the State informed the jury, in its opening statement that
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“there are neighborhoods [and] places that we avoid going,” that the 800 block of Kimberly Drive
in Dekalb “became one of those places.” The State also told the jury, in its closing argument, that
the jury was the “conscience of the community,” that defendant committed an “unconscionable
act,” and that the shooting was an “execution.”
¶ 133 We recognize that the State must be careful to focus the jury’s attention on the legal issues
at hand and should not resort to inflammatory or prejudicial remarks. People v. Stevens, 2018 IL
App (4th) 160138, ¶ 64. However, on balance, allegedly inflammatory remarks do not warrant
reversal unless they were the result of deliberate misconduct or subjected defendant to substantial
prejudice. People v. Smith, 141 Ill. 2d 40, 63 (1990). Moreover, here, we are examining the State’s
comments for plain error and must consider whether the evidence was so closely balanced that any
of these remarks tipped the scales of justice against defendant. Herron, 215 Ill. 2d at 178-79.
¶ 134 In this case, there were legitimate reasons for the State to reference the neighborhood in
which the crime took place—it believed the evidence would show that defendant came to an
apartment complex near a college campus to buy drugs. And, as we have already discussed, the
evidence was not closely balanced. As such, even assuming for the sake of analysis that the
comment referring to the shooting as an execution was ill-advised, the comments taken together
were not of such an inflammatory character as to affect the outcome of defendant’s trial.
¶ 135 E. Griggs’s Prior Consistent Statement
¶ 136 Defendant argues that the State improperly bolstered Griggs’s testimony during redirect
examination. Specifically, the State elicited a prior consistent statement that, although Griggs
entered into his agreement with the State in May 2019, he first implicated defendant as the shooter
in February 2019. Defendant acknowledges that he did not object at trial and the argument is,
therefore, forfeited. He again asks that we review the error under the plain-error doctrine or as an
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ineffective-assistance claim. We again determine that, under either of these frameworks, there
was no reversible error, certainly no plain error, and defendant did not suffer the requisite
prejudice.
¶ 137 Prior consistent statements are not admissible on direct examination, because they unfairly
bolster a witness’s credibility. People v. Terry, 312 Ill. App. 3d 984, 995 (2000). A trier of fact
is more likely to believe something that is repeated. Id. However, a prior consistent statement is
admissible to rebut the inference that the witness was motivated to testify falsely, so long as the
motive did not exist at the time of the prior consistent statement. People v. Lambert, 288 Ill. App.
3d 450, 453 (1997).
¶ 138 Here, the parties dispute when a witness’s motive to curry favor with the State comes into
existence such that the witness can be said to have had the same motive at the time he made the
prior consistent statement that he had when he testified at trial. Defendant, citing two cases from
the First District, argues that motive may arise as soon as the witness knows that he is a suspect in
the case. See, e.g., Terry, 312 Ill. App. 3d at 995 (because the witness had a motive to give
misinformation when first interviewed by police as a potential suspect, his prior consistent
statement from that interview could not be offered to rebut the inference that he was motivated to
testify falsely at trial); People v. Grisset, 288 Ill. App. 3d 620, 627 (1997) (because the defendant
had a motive to fabricate a claim of self-defense at the time of his arrest, a prior consistent
statement from that time could not be used to rebut the inference that he was motivated to testify
falsely at trial).
¶ 139 However, as noted by the State, our supreme court has affirmed evidentiary rulings to the
contrary. In People v. Powell, 53 Ill. 2d 465, 475 (1973), for example, the supreme court
determined that a codefendant’s prior consistent statement was admissible to rebut the inference
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that the codefendant testified falsely to secure a lenient sentence. In that case, the codefendant
made the prior consistent statement after the murder weapon had been found in his car but before
the State had made any offer of leniency. Id. at 469-470. Since then, this court has followed suit.
In Lambert, 288 Ill. App. 3d at 456, this court determined that a prior consistent written statement
to police was admissible to rebut the inference that the codefendant testified falsely in exchange
for leniency. In that case, two officers affirmatively testified that no deal was made with the
codefendant in exchange for the initial written statement. Id. at 452.
¶ 140 Here, on cross-examination, defense counsel elicited the inference that Griggs falsely
implicated defendant to secure the dismissal of his first-degree murder charge. The State was
permitted to rebut this inference. Per Powell and Lambert, any general motive that Griggs may
have had to curry favor with the State in February 2019 is not necessarily the “same motive” that
Griggs had in May 2019 and at trial when he had been offered leniency. There was no indication
in the record that an offer of leniency had been made at the time that Griggs gave his February
2019 statement. As such, we cannot say that, had defendant objected, the trial court would have
abused its discretion in admitting the statement. Rather, the weight to be given to the statement
and to Griggs’s testimony at trial would be for the jury to determine.
¶ 141 In addition, we certainly cannot say that a plain error occurred or that counsel’s failure to
object amounted to ineffective assistance. Even an improperly admitted prior consistent statement
cannot be considered plain error when the State references only the existence of the prior consistent
statement and does not attempt to use it substantively. See, e.g., People v. Crayton, 175 Ill. App.
3d 932, 949 (1988). Here, as in Crayton, the State merely referenced the existence of the February
2019 statement. It did not attempt to read the contents to the jury, use it substantively, or stress it
in closing argument. Cf. Terry, 312 Ill. App. 3d at 996 (error in admitting the prior consistent
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statement was exacerbated where the State stressed it in closing); Lambert, 288 Ill. App. 3d at 457
(prior consistent statement was admissible for rehabilitative purposes but could not be used
substantively). Thus, even if the jury had been informed of the February 2019 statement in error,
and we do not believe it was, defendant did not suffer the requisite prejudice.
¶ 142 F. Jury Instruction Nos. 19 and 20
¶ 143 Defendant argues that he was deprived of a fair trial when, in Instruction No. 20, the trial
court deviated from the language contained in the standard IPI Criminal No. 7.02 elements
instruction for first-degree murder, by omitting the phrase “intended to kill” from the second
proposition. Defendant acknowledges that the trial court properly instructed the jury in Instruction
No. 19 when it gave the jury the standard IPI Criminal No. 7.01 definition instruction for first
degree murder, which included the phrase “intends to kill.” Defendant contends, however, that
the discrepancy between Instruction Nos. 19 and 20 “created an irreconcilable conflict,” left the
jury uninformed of each of the four ways that defendant had been charged, and otherwise confused
the jury. Defendant also acknowledges that defense counsel did not object to the instructions and,
thus, the claim is forfeited. He urges, however, that we review the error under the plain-error
doctrine or as an ineffective assistance claim. We disagree that any discrepancy in the instructions
confused the jury or otherwise prejudiced defendant and, so, we decline to do so.
¶ 144 The purpose of jury instructions is to provide the jury with the correct statement of law
which it should apply to the evidence to reach a proper verdict. People v. Parker, 223 Ill. 2d 494,
500 (2006). The reviewing court must determine whether the instructions, taken as a whole, fairly
and comprehensively apprise the jury of the relevant legal principles. Id. at 501. “It is sufficient
if the series of instructions, considered as a whole, fully and fairly announce the law applicable to
the respective theories of the [State] and the defense.” People v. Kolep, 29 Ill. 2d 116, 125 (1963).
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Jury instructions are generally reviewed for an abuse of discretion. People v. Green, 2017 IL App
(1st) 152513, ¶ 61. However, the question of whether an instruction or set of instructions correctly
conveyed the law is reviewed de novo. Id.
¶ 145 We determine that Instruction Nos. 19 and 20, construed together as part of the larger body
of instructions, correctly informed the jury of the law. The law provides: “A person who kills an
individual without lawful justification commits first degree murder if, in performing the acts which
cause the death: (1) he or she either intends to kill or do great bodily harm to that individual or
another, or knows that such acts will cause death to that individual or another; or (2) he or she
knows that such acts create a strong probability of death or great bodily harm to that individual or
another.” 720 ILCS 5/9-1(a)(1), (2) (West 2016). All of this information was conveyed in
Instruction No. 19. Contrary to defendant’s position, Instruction No. 20, which provides that, to
sustain the charge of first-degree murder, the State must prove that defendant “intended to do great
bodily harm,” does not conflict with Instruction No. 19, which provides that a person commits first
degree murder if he “intends to kill or do great bodily harm.”
¶ 146 We also reject defendant’s argument that Instruction Nos. 19 and 20 failed to inform the
jury of each of the four ways defendant had been charged. We agree that jury instructions should
confine the jury’s attention to the theories that the State sought to prove. People v. Elhert, 274 Ill.
App. 3d 1026, 1037-38 (1995). Here, defendant was informed, through the charging instrument,
discovery process, and pretrial proceedings, that that he would have to defend against the
allegation that he committed the offense set forth in section 9-1(a)(1), (2), in that he shot Shields.
The jury instructions confined the jury’s attention to that theory.
¶ 147 Finally, we reject defendant’s argument that the jury was likely confused by the
instructions. As already discussed, the instructions accurately informed the jury of the law.
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Defendant points to the trial court’s misstatement when orally instructing the jury that, to sustain
the firearm enhancement, the State had to prove that “during the commission of the offense of
attempt first-degree murder the defendant personally discharged a firearm that proximately caused
death to another person.” (Emphasis added.) However, as noted, the trial court corrected this
misstatement in its written instructions to the jury, an approach to which the attorneys for both
sides acquiesced. See People v. Mescall, 379 Ill. App. 3d 670, 677 (2008) (defendant cannot
complain of an error in instructions to which he acquiesced). No trial unfolds perfectly and there
is no indication that this misstatement, which the trial court promptly corrected, combined with
the discrepancy between Instruction Nos. 19 and 20, somehow rendered the instructions
“conflicting and confusing *** as a whole.”
¶ 148 G. Sentencing
¶ 149 Defendant argues that his 50-year sentence was excessive. Defendant acknowledges that
he did not file a motion to reconsider sentence and, thus, his claim is forfeited. See People v.
Hillier, 237 Ill. 2d 539, 545 (2010). He argues, however, that his claim should be reviewed under
the plain-error doctrine or as an ineffective assistance claim. We find no error and, therefore, we
decline to do so.
¶ 150 First, defendant hints at but does not develop an argument pursuant to Miller v. Alabama,
567 U.S. 460 (2012), and People v. Buffer, 2019 IL 122327. Defendant recounts that, when
sentencing a juvenile, the supreme court has held that a 40-year sentence constitutes a de facto life
sentence. Buffer, 2019 IL 122327, ¶ 40 (“In determining when a juvenile defendant’s prison term
is long enough to be considered de facto life without parole, we choose to draw a line at 40 years”).
Also, when sentencing a juvenile, the trial court must consider a set of factors codified in section
5-4.5-105 of the Unified Code of Corrections. 730 ILCS 5/5-4.5-105 (West 2016). These factors
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include the person’s age, impetuousness, and maturity at the time of the offense, including the
ability to consider risks and consequences and the presence of cognitive or developmental
disabilities. Id. Upon consideration of these factors, the trial court may decline to impose any
applicable sentencing enhancement. Id.
¶ 151 Defendant acknowledges that he was not a juvenile at the time of the offense. He does not
argue that the trial court should have declined to impose the firearms enhancement. Neither does
he argue that the trial court should have imposed a sentence of less than the minimum 45 years,
which qualifies as a de facto life sentence under Buffer. Indeed, this court has determined that
Miller does not apply to sentences imposed on a defendant who was at least 18 at the time of the
offense. People v. LaPointe, 2018 IL App (2d) 160903, ¶ 47. Defendant appears to argue that his
sentence was unconstitutional as applied, but he does not use that terminology. To argue that a
sentence is unconstitutional as applied, a defendant must have developed “an adequate factual
record, that [his] own specific characteristics were so like those of a juvenile that imposition of a
life sentence absent the safeguards established in Miller was ‘cruel, degrading, or so wholly
disproportionate to the offense that it shocks the moral sense of the community.’ ” (Emphasis
added.) People v. Daniels, 2020 IL App (1st) 171738, ¶ 25.
¶ 152 Here, defendant has not developed a record to show that his own specific characteristics
were like those of a juvenile other than to argue, generally, that the crime itself appeared to be an
act of impetuosity. Defendant argues: “[Defendant] seems to have been caught up in a situation
brought on by his peers’ collective decision to seek marijuana in an unfamiliar location and after
consuming drugs and alcohol.” This is insufficient to bring an as-applied Miller challenge. See,
e.g., People v. Harris, 2018 IL 121932, ¶¶ 45-46 (where the record is inadequate to address how
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Miller applies to an 18-year-old defendant’s circumstances, an unconstitutional as-applied
challenge is premature).
¶ 153 Distilled, defendant’s argument is merely that the trial court failed to consider his mental-
health condition, youth, and rehabilitative potential. This is not a constitutional challenge under
Miller but, rather, simply an argument that the trial court abused its discretion in sentencing
defendant. See, e.g., LaPointe, 2018 IL App (2d) 160903, ¶¶ 61-63. This argument also fails.
¶ 154 In sentencing a defendant, the trial court must consider a defendant’s rehabilitative
potential, the seriousness of the offense, and the protection of the public. People v. Young, 124 Ill.
2d 147, 156 (1988). The trial court has great discretion to sentence a defendant within the statutory
range and must consider the unique circumstances of the defendant and the offense. People v.
Fern, 189 Ill. 2d 48, 53 (1999). A sentence within the statutory limits will not be considered an
abuse of discretion unless it is manifestly disproportionate to the nature of the offense. People v.
Stacey, 193 Ill. 2d 203, 210 (2000).
¶ 155 Defendant recounts the facts and circumstances set forth in his presentencing report, as
described in the background section of this disposition. Briefly, these include being raised without
a father, being raised in a violent neighborhood, the absence of a criminal history, youth, and
mental-health and drug-abuse issues. Defendant notes that mental-health conditions and addiction
are significant mitigating factors, see, e.g., People v. Young, 250 Ill. App. 3d 55, 65-66 (1993), and
he contends that the trial court did not consider these factors.
¶ 156 We disagree. A trial court is not required to mention every mitigating factor and the weight
assigned to each factor. People v. Halerewicz, 2013 IL App (4th) 120388, ¶ 43. There is a
presumption that the trial court has considered all the relevant mitigating and aggravating factors,
and that presumption will not be overcome absent explicit evidence in the record. Id. Here, the
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court stated that it had read the presentence report. This statement supports the presumption that
the court it considered defendant’s mental-health history and drug-abuse issues.
¶ 157 Moreover, the trial court here made clear that it considered defendant’s youth and future
life upon release. It stated:
“[Defendant] at the time of this offense had just turned 18 and I have to consider
that as well. If it had been 17 when he committed this offense, I would be looking at many
different factors as well that the Courts have required as the years have gone by to be
considered, so I have to look at what I have in front of me as a young man of 18 years old.”
It also commented that, even if it issued the minimum sentence of 45 years, defendant would be
an older man upon release.
¶ 158 Finally, the court considered that defendant had no criminal history, going so far as to
remark that this was unusual in a first-degree murder case. Thus, contrary to defendant’s position,
it cannot be said that the trial court failed to consider his youth, mental-health conditions, or
rehabilitative potential. The trial court did not abuse its discretion in sentencing defendant to 50
years’ imprisonment.
¶ 159 III. CONCLUSION
¶ 160 For the reasons stated, we affirm the judgment of the trial court.
¶ 161 Affirmed.
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