2013 IL App (2d) 120183 No. 2-12-0183 Opinion filed November 21, 2013 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 10-CF-638 ) TYRONE D. WATT, ) Honorable ) Fred Foreman, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Tyrone D. Watt, and three codefendants were charged in an 18-count indictment
with offenses arising out of events on February 24, 2010, in Waukegan, Illinois. Defendant, alone,
stood trial on counts I through V of the indictment. The record indicates that the three codefendants’
cases were disposed of separately. Defendant appeals from the February 3, 2012, judgment order
showing that he was convicted of armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)), aggravated
kidnapping (720 ILCS 5/10-1(a)(1) (West 2010)), and home invasion (720 ILCS 5/12-11(a)(2) (West
2010)). For the reasons that follow, we affirm as modified.
¶2 BACKGROUND 2013 IL App (2d) 120183
¶3 A. The Indictment
¶4 Defendant and codefendants George C. Bates, Roger D. Golden, and Kevin J. Martin were
charged in relevant part as follows:
• Count I—“[D]efendants *** committed the offense of [home invasion], in
that the said defendants, who were not peace officers acting in the line of
duty, knowingly, and without authority, entered the dwelling place of
Domonique Kyle *** having reason to know that Domonique Kyle was
present in that dwelling place and while armed with a firearm, used force
against Domonique Kyle ***.”
• Count II—“[Defendants] *** committed the offense of [aggravated
kidnapping], in that the said defendants while armed with a firearm,
committed the offense of kidnapping *** in that they knowingly and secretly
confined Domonique Kyle against her will ***.”
• Count III—“[Defendants] *** committed the offense of [armed robbery], in
that said defendants, while armed with a firearm, knowingly took property,
being United States [c]urrency, from the presence of Domonique Kyle, by the
use of force ***.”
• Count IV—“[Defendants] *** committed the offense of [aggravated
kidnapping], in that the said defendants, in committing the offense of
kidnapping *** knowingly and secretly confined Domonque Kyle against her
will while wearing masks ***.”
-2- 2013 IL App (2d) 120183
• Count V—“[Defendants] *** committed the offense of [home invasion], in
that the said defendants, who were not peace officers acting in the line of
duty, knowingly, and without authority, entered the dwelling place of
Domonique Kyle *** having reason to know that Domonique Kyle was
present in that dwelling place, intentionally caused an injury to Domonique
Kyle, in that the said defendants struck Domonique Kyle about the head ***.”
¶5 B. The State’s Fourth Motion in Limine
¶6 The State filed a motion in limine seeking to introduce at trial a recording and a transcript
of the 911 call the victim made to the Waukegan police at approximately 12:30 a.m. on February 24,
2010. According to the State, the call was admissible under the excited utterance exception to the
hearsay rule. At the hearing on the motion, defendant objected only on the bases that not all of the
victim’s statements in the 911 call were excited utterances, that none of the dispatcher’s statements
qualified as excited utterances, and that the 911 call was cumulative. Over these objections, the trial
court granted the motion.
¶7 C. The Evidence at Trial
¶8 On February 24, 2010, the victim, who was 26 years old at the time of trial, lived in an
apartment at 1030 Lakehurst Drive in Waukegan with her boyfriend, Gino Adams, and Gino’s two-
year-old daughter, Heaven. Gino left the apartment on February 23, 2010, at about 10 p.m. and then
returned close to midnight, picked up Heaven, and left again. At that time, the victim was in bed in
the bedroom. She had awakened when Gino came in, but she fell back asleep after Gino and Heaven
left.
-3- 2013 IL App (2d) 120183
¶9 The victim was awakened again when she heard voices outside the door to her bedroom.
Then the hallway lights came on. The victim saw three men, one in the hallway and two approaching
her. One of the men who approached her had a dark-colored revolver. He was wearing plaid. The
other two men wore dark clothing. All three wore masks and gloves. They asked the victim where
the money and the “work” were. According to the victim, “work” meant drugs. The man with the
gun went through dresser drawers and asked the victim for her jewelry. The other men were going
through an armoire. One of the unarmed men ordered the victim off the bed and flipped the mattress.
He said, “So you going to lie to me, bitch,” and punched the victim in the left eye.
¶ 10 The victim had put on the dresser between $4,000 and $5,000 in cash, which the men took.
The three men in the bedroom then led the victim into the kitchen. A fourth masked man, in dark
clothing and gloves, was standing by the door to the kitchen. They all asked the victim “where is
the money,” “where is the work,” as they ransacked the refrigerator and the cabinets. Then one of
the men took the victim into the bathroom, where he taped her ankles and wrists with duct tape.
When the man ordered the victim to lie on the floor, she told him she was pregnant and pleaded with
him not to hurt her. The man turned off the light and closed the bathroom door. The victim heard
the men leave her apartment and then she freed herself and called 911. The victim testified that she
was “terrified” at the moment she called 911.
¶ 11 The State moved to admit and publish the 911 recording and the transcript. Defendant
objected to publishing the 911 recording without stating a basis and also objected to the use of the
transcript. The court admitted both the recording and the transcript1 but cautioned the jury that the
transcript was admitted only to assist it in understanding the recording. The recording was then
1 The 911 dispatcher had already laid a foundation for the admission of the recording.
-4- 2013 IL App (2d) 120183
played for the jury. In the call, the victim related that four masked black men broke into her
apartment, went through her “stuff,” hit her, and locked her in the bathroom. The victim told the 911
dispatcher that one of the men was wearing a plaid shirt.
¶ 12 At approximately 12:30 a.m. on February 24, 2010, Waukegan police officer Byrd was
dispatched to an address on Lakehurst Road and he asked for assistance making a traffic stop.
Officers Spiewak and Tran were in the area and responded. They saw Byrd following a white
vehicle at Lakehurst Road and Route 43, which is Waukegan Road. Byrd activated his overhead
lights and the white vehicle slowed and pulled over. The stop occurred approximately a block or a
block and a half from the victim’s apartment. Byrd, Spiewak, and Tran all exited their cars and
approached the white vehicle. The driver’s door of the white vehicle opened and a male, identified
as defendant, fell out of the white vehicle onto the road. The vehicle took off and Byrd chased it.
¶ 13 Spiewak and Tran pointed their guns at defendant, who walked away from them. Officer
Spiewak testified that there was money “falling all over.” He said, “I don’t know from [defendant’s]
pockets, maybe from—it was just falling everywhere, blowing around in the wind, just blowing
away.”2 Spiewak ordered defendant to get down on the ground. Defendant complied. When
Spiewak searched defendant for weapons, he felt what turned out to be “clumps” and “wads” of
2 In the video of the traffic stop of the white vehicle, recorded by Byrd’s in-car camera, we
see the vehicle pull over and the driver’s door open. Then the entire frame is obscured by a white
flash, which could be the car’s exhaust. The first time defendant is visible on the video, he is
walking upright from the right side of the frame to the left. The roadway is dark, engulfed in a
snowstorm, and the squad car’s windshield, through which the dash-mounted camera is pointed, is
blurred with snow and drizzle.
-5- 2013 IL App (2d) 120183
money “in every pocket [defendant] had on his clothing.” Defendant also had a black hat stuffed
with money. Defendant was dressed in black clothing. The officers then transported defendant to
the police station. At the police station, Spiewak counted the money he recovered from defendant
at the scene. It totaled $5,633.
¶ 14 At trial, evidence of defendant’s participation in the crimes was introduced through
codefendant Bates. Bates had pleaded guilty to home invasion and armed robbery, in exchange for
dismissal of the other charges and a sentencing range of 21 to 30 years in prison. Bates would not
be sentenced until he completed his testimony against defendant. While Bates was in the county jail,
he incurred a charge for fighting, for which he received no consideration from the State in exchange
for his testimony. Bates testified that he had prior convictions of aggravated driving under the
influence, kidnapping, and aggravated battery, and he had “a drug case.”
¶ 15 Bates testified that he knew defendant, because defendant had a child with Bates’s cousin.
At approximately 3 or 4 p.m. on February 23, 2010, Bates spoke with defendant about “going to do
a robbery.” The idea of a robbery had originated with codefendant Martin the day before, and it was
Bates’s job to find a “ride,” so he contacted defendant. According to Bates, defendant agreed to
participate because defendant needed rent money. At about 8 p.m. on February 23, 2010, defendant
picked up Bates. Defendant was driving a white car. They then picked up Martin and drove to the
Lakehurst Apartments. Their target was Adams, whom they believed had narcotics and money.
When they got to the Lakehurst Apartments, they discovered that the front door to the building was
locked, so they needed someone to help them break into the building. Defendant called codefendant
Golden. Defendant then drove the white car to Zion, Illinois, where they picked up Golden.
Defendant, Golden, Martin, and Bates made a couple more stops, during which defendant procured
-6- 2013 IL App (2d) 120183
“burglary tools”—hammers and screwdrivers. According to Bates, defendant also had a “chrome”
revolver.
¶ 16 The four men returned to the Lakehurst Apartments, where defendant and Golden pried the
front door open. When a car came by, the four men hid in some bushes and then watched Adams
go inside the apartment building. A few minutes later, they saw Adams come out of the building,
carrying a child. Adams and the child got into a car and left. According to Bates, he voiced a
reservation about proceeding with the robbery, but defendant wanted to do it.
¶ 17 Bates testified that they entered the building wearing masks—hats with holes in them so they
could see—and gloves. They went to the second floor, where Bates placed duct tape over the
apartment doors’ peepholes. According to Bates, defendant used his shoulder to break in the door
to the victim’s apartment and the men entered. Bates, defendant, and Golden went into the bedroom.
The victim was in bed. Bates testified that he told her, “[I]t’s not about you, ain’t got nothing to do
with you.” Bates testified that he stood by the victim while defendant and Golden “ransacked” the
closet. According to Bates, defendant asked the victim where the money was, and, when she told
him, he grabbed something from where she was pointing. Defendant told the victim to get off the
bed, then defendant flipped the mattress and hit the victim in her eye.
¶ 18 Bates testified that they took the victim into the kitchen, where Martin was looking through
the cabinets. Then defendant took the victim into the bathroom. When defendant came out of the
bathroom, the four men left the apartment. Bates testified that he took a number of the victim’s
items.
¶ 19 According to Bates, defendant drove them away from the scene. While they were on
Lakehurst Road heading toward Waukegan Road, a police car began following them. Defendant
-7- 2013 IL App (2d) 120183
pulled over to the right-hand side of the road. At that moment, Martin, who was in the front
passenger seat, grabbed the steering wheel, got his foot on the gas, and fought defendant for the gear
shift. Defendant got out of his seat belt and opened the driver’s door. Martin then “knocked”
defendant out of the car. One police car continued to chase the white car, and another police car
stopped for defendant.
¶ 20 In the snowstorm, the white car flipped over and crashed. Bates testified that he and Martin
got out of the wreck and ran into a field, leaving Golden. While they were running, Martin was
passing money to Bates. During their flight, Bates and Martin were captured by the police. At trial,
Bates identified photographs of a revolver and hammers used in the commission of the crimes, and
he identified photographs of property he had taken from the victim’s apartment.
¶ 21 On cross-examination, defendant established that Bates met with prosecutors two or three
days before trial, for 20 or 30 minutes, in the presence of Bates’s lawyer, and was shown a statement
he had written. Defendant further established that, after Bates gave a statement to a detective, the
police allowed Bates and Martin to confer together for 15 or 20 minutes. On redirect, the State
clarified that Bates and Martin spoke in the police station after Bates had already spoken to the
police. The State also clarified that, when Bates wrote his statement for the police on the night he
was arrested, he had not met with prosecutors and had no agreement with the State’s Attorney’s
office. Then the following questions and answers were elicited:
“Q. [PROSECUTOR:] When you wrote that statement for Detective Holman, did you
tell him and write for him the same things that you have told us here today?
A. [BATES:] Yes.
-8- 2013 IL App (2d) 120183
Q. And, specifically, how many people did you tell Detective Holman did this break-
in and robbery?
A. Me and three other individuals.
Q. What were their names?
A. [Defendant], Roger and Kevin.
Q. All of this information was given to the police before you met anybody from my
office?
A. Yes.
[DEFENSE COUNSEL:] Objection.
THE COURT: Overruled.”
¶ 22 Police personnel testified that they recovered and photographed a loaded revolver, two
hammers, a black hat, a black glove, and items belonging to the victim, all found in the snow outside
the overturned white vehicle after the chase. Forensic examination showed that the revolver was an
operable firearm and that no fingerprints were recoverable. The State also established that Golden
was arrested at the scene where the vehicle crashed.
¶ 23 The State rested. The court denied defendant’s motion for a directed verdict, and the defense
presented a stipulation that Bates had told the police that defendant and the codefendants took a
small amount of heroin and crack cocaine from the victim’s apartment and that Martin had snorted
“a nice amount” of heroin prior to the traffic stop. The defense then rested.
¶ 24 D. The Jury Instructions
¶ 25 The jury was instructed that defendant was charged with home invasion, aggravated
kidnapping, and armed robbery. Defendant did not object to the jury instructions stating that these
-9- 2013 IL App (2d) 120183
crimes were committed while defendant was armed with a “dangerous weapon,” although counts I,
II, and III of the indictment charged that the offenses were committed while he was armed with a
“firearm.” The verdict forms relevant to this appeal, which were signed by the 12 jurors, read as
follows:
“We, the jury, find the defendant, Tyrone Watt, guilty of home invasion
(dangerous weapon).”
“We, the jury, find the defendant, Tyrone Watt, guilty of aggravated
kidnapping (dangerous weapon).”
“We, the jury, find the defendant, Tyrone Watt, guilty of armed robbery.”
The jury also returned guilty verdicts on the charges of home invasion and aggravated kidnapping
that specified “(injury)” and “(hood, robe, or mask).” Following the reading of the verdicts in open
court, and after the jury was discharged, the court entered convictions on the verdicts.
¶ 26 In his second amended posttrial motion, defendant contended that the jury, in returning guilty
verdicts reflecting that the offenses were committed while he was armed with a “dangerous weapon,”
when counts I, II, and III specified a “firearm,” found defendant guilty of offenses with which he had
never been charged. Defendant requested that the court enter a judgment of acquittal on those
counts. The trial court denied the posttrial motion. Ultimately, the court merged count I, upon
which the jury found defendant guilty of home invasion while armed with a dangerous weapon, into
count V, upon which the jury found defendant guilty of home invasion causing injury; and it merged
count II, upon which the jury found defendant guilty of aggravated kidnapping while armed with a
dangerous weapon, into count IV, upon which defendant was found guilty of aggravated kidnapping
while wearing a mask. The court sentenced defendant to 26 years’ imprisonment for armed robbery;
-10- 2013 IL App (2d) 120183
18 years’ imprisonment for aggravated kidnapping (count IV); and 26 years’ imprisonment for home
invasion (count V), all sentences to run concurrently. Defendant was assessed fines, court costs, and
fees in the total amount of $1,094. Defendant filed a timely appeal.
¶ 27 ANALYSIS
¶ 28 A. Defendant’s Conviction of Armed Robbery
¶ 29 Defendant first contends that we must reverse his conviction of armed robbery because the
jury was not correctly instructed as to the elements of the offense. The State charged defendant with
armed robbery in that defendant, while armed with a firearm, took money from the victim by the use
of force. However, the court instructed the jury that defendant allegedly committed the offense while
armed with a dangerous weapon. Defendant posits two alternative theories for reversal of his armed
robbery conviction. First, because the jury was never instructed that being armed with a firearm was
an element of the offense, it did not find defendant guilty of every element of the offense. In other
words, defendant was not convicted beyond a reasonable doubt. Second, and alternatively, defendant
argues that the armed robbery statute under which he was indicted explicitly excludes a firearm as
a dangerous weapon and thus the jury found him guilty of a nonexistent offense, which renders his
conviction void. Defendant’s arguments are premised on the fact that the jury instructions were
based on a prior version of the statute, which was amended in 2000.
¶ 30 Whether jury instructions accurately conveyed the applicable law is reviewed de novo.
People v. Parker, 223 Ill. 2d 494, 501 (2006). Jury instructions are intended to guide the jury and
to assist it in its deliberations and in reaching a proper verdict. Parker, 223 Ill. 2d at 501. Jury
instructions should be construed as a whole, and we must determine whether the instructions, as a
whole, fairly, fully, and comprehensively advised the jury of the relevant legal principles. Parker,
-11- 2013 IL App (2d) 120183
223 Ill. 2d at 501. Because defendant’s convictions of aggravated kidnapping and home invasion
were merged into counts of the indictment not affected by the jury instructions, defendant’s
conviction only of armed robbery is at issue. There is no dispute that the jury was instructed
pursuant to the version of the armed robbery statute in effect prior to the 2000 amendment. The
issue before us is whether the error in the instructions requires outright reversal of defendant’s
conviction.
¶ 31 Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) requires that, in a criminal case, if the
court determines that the jury should be instructed on a subject, and the Illinois Pattern Jury
Instructions (IPI), Criminal, contain an applicable instruction, the IPI instruction shall be given
unless the court determines that it does not accurately state the law. People v. Hopp, 209 Ill. 2d 1,
6 (2004). Here, the court gave the IPI armed robbery definition and armed robbery issues
instructions. See Illinois Pattern Jury Instructions, Criminal, Nos. 14.05, 14.06 (4th ed. 2000)
(hereinafter, IPI Criminal 4th Nos. 14.05, 14.06). As given here, IPI Criminal 4th No. 14.05
provided as follows:
“A person commits the offense of armed robbery when he, while carrying on or about
his person, or while otherwise armed with a dangerous weapon, knowingly takes property
from the person or presence of another by the use of force or by threatening the imminent use
of force.”
IPI Criminal 4th No. 14.06 provided as follows:
“To sustain the charge of armed robbery, the State must prove the following
propositions:
-12- 2013 IL App (2d) 120183
First Proposition: That the defendant, or one for whose conduct he is legally
responsible, knowingly took property from the person or presence of Domonique Kyle; and
Second Proposition: That the defendant, or one for whose conduct he is legally
responsible, did so by the use of force or by threatening the imminent use of force; and
Third Proposition: That the defendant, or one for whose conduct he is legally
responsible, carried on or about his person a dangerous weapon or was otherwise armed with
a dangerous weapon at the time of the taking.
If you find from your consideration of all the evidence that each 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.”
¶ 32 The above-quoted instructions did not accurately state the law. The armed robbery statute
was amended effective January 1, 2000, pursuant to Public Act 91-404 (eff. Jan. 1, 2000). Prior to
the amendment, the statute provided that a person committed the offense of armed robbery if, at the
time of the offense, he “carried on or about his person or otherwise was armed with a dangerous
weapon.” (Internal quotation marks omitted.) People v. Washington, 2012 IL 107993, ¶ 6. The
amendment created substantively distinct offenses, based on whether the offense was committed
with a dangerous weapon “other than a firearm” or whether it was committed with a “firearm.”
(Internal quotation marks omitted.) Washington, 2012 IL 107993, ¶ 6. Consequently, section 18-
2(a), the statute under which defendant in our case was indicted, provided as follows:
“(a) A person commits armed robbery when he or she violates Section 18-1; and
-13- 2013 IL App (2d) 120183
(1) he or she carries on or about his or her person or is otherwise armed with
a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with
a firearm[.]” 720 ILCS 5/18-2(a)(1), (a)(2) (West 2010).
Here, the grand jury indicted defendant under section 18-2(a)(2), armed robbery with a firearm. By
referring to a “dangerous weapon,” the jury instructions did not reflect the substantive change in the
law.
¶ 33 The State argues that defendant forfeited any error in the instructions. The rule in Illinois is
that objections to instructions offered by an opposing party must be made at the time of the
instructions conference and must be specific, otherwise they are forfeited on appeal. Dean v. Keith’s
& Ralph’s Tavern, Inc., 25 Ill. App. 3d 970, 972 (1975). Here, defendant did not object to the
instructions at the conference but included the issue in his second amended posttrial motion.
However, both an objection and a written posttrial motion raising the issue are necessary to preserve
the issue for review. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Where a defendant fails to object
at trial, even though he includes the error in his posttrial motion, forfeiture still occurs. People v.
Fillyaw, 409 Ill. App. 3d 302, 317 (2011). Defendant in our case recognizes the forfeiture, but
argues three things in response: (1) the jury did not convict him beyond a reasonable doubt, which
is not subject to forfeiture; (2) his conviction is void because it is of a nonexistent crime, which is
not subject to forfeiture; and (3) we may review the issue under the doctrine of plain error.
¶ 34 We reject defendant’s argument that his conviction is void. Defendant was indicted for an
offense listed in the amended statute, and he was found guilty by the jury of “armed robbery.” The
written sentencing order reflects that defendant was convicted of violating section 18-2(a)(2), armed
-14- 2013 IL App (2d) 120183
robbery with a firearm, which is an offense listed in the amended statute. Indeed, it is that order
from which defendant appeals. However, Illinois Supreme Court Rule 451(c) (eff. Apr. 8, 2013)
provides that substantial defects in criminal jury instructions are not forfeited by failure to make
timely objections if the interests of justice require. Our supreme court has said that Rule 451(c) is
coextensive with the plain-error clause of Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967), and
that we construe these rules identically. People v. Herron, 215 Ill. 2d 167, 175 (2005).
¶ 35 The plain-error doctrine allows a reviewing court to reach a forfeited error in two
circumstances: (1) where the evidence is so closely balanced that the jury’s guilty verdict might have
resulted from the error and not the evidence; or (2) where the error is so serious that the defendant
was denied a substantial right, and thus a fair trial. Herron, 215 Ill. 2d at 178-79. The defendant has
the burden of persuasion. People v. Woods, 214 Ill. 2d 455, 471 (2005). Before we can find plain
error, we must first determine that the trial court committed error. People v. Piatkowski, 225 Ill. 2d
551, 565 (2007).
¶ 36 Under the current statute, armed robbery with a “dangerous weapon” no longer exists. For
these reasons, we find that the trial court erred in giving IPI Criminal 4th Nos. 14.05 and 14.06. In
our research of this issue, we found a plethora of unpublished orders from other districts in which
this same error occurred. We publish this opinion to alert trial judges, defense lawyers, and
prosecutors that, until the committee updates the IPI instructions, the instructions must be modified
to reflect the 2000 amendment to the statute.
¶ 37 We now address whether the error rises to the level of plain error. Defendant argues that both
prongs of the plain-error analysis apply. We disagree that the evidence was closely balanced.
Contrary to defendant’s argument that the State’s entire case rested on the testimony of Bates, a
-15- 2013 IL App (2d) 120183
“greedy” felon, the State presented evidence corroborating Bates. The victim testified that four men
broke into her apartment and robbed her at gunpoint. Spiewak saw defendant fall out of the driver’s
side of the getaway car in which the codefendants were riding. The video shows defendant looking
at the police over his shoulder and attempting to saunter away from them, while, according to
Spiewak, money was billowing out of his clothing. The evidence showed that the getaway car
contained a gun and items taken from the presence of the victim. Moreover, the jury considered
Bates’s testimony and was charged with assessing his credibility. See People v. Matthews, 2012 IL
App (1st) 102540, ¶ 19 (the function of juries is to assess the credibility of witnesses, to determine
the weight to give testimony, and to resolve conflicts or inconsistencies in the evidence).
¶ 38 We move on to consider the second prong of the plain-error analysis. The second prong deals
with presumptively prejudicial errors, which must be remedied although they might not have affected
the outcome. People v. Magallanes, 409 Ill. App. 3d 720, 733 (2011) (citing People v. Nitz, 219 Ill.
2d 400, 415-16 (2006)). In Herron, our supreme court held that a jury-instruction error rises to the
level of plain error only when it “ ‘creates a serious risk that the jurors incorrectly convicted the
defendant because they did not understand the applicable law, so as to severely threaten the fairness
of the trial.’ ” Herron, 215 Ill. 2d at 193 (quoting People v. Hopp, 209 Ill. 2d 1, 8 (2004)).
Following Herron, in People v. Glasper, 234 Ill. 2d 173 (2009), our supreme court held that a
presumptively prejudicial error requiring automatic reversal occurs “only” where the error is deemed
“structural,” i.e., “a systemic error which serves to ‘erode the integrity of the judicial process and
undermine the fairness of the defendant’s trial.’ ” Glasper, 234 Ill. 2d at 197-98 (quoting Herron,
215 Ill. 2d at 186). The Glasper court noted that, in Neder v. United States, 527 U.S. 1, 8 (1999),
the Supreme Court stated that it had found structural error to exist “only in a very limited class of
-16- 2013 IL App (2d) 120183
cases.” (Internal quotation marks omitted.) The Neder Court described that class as a complete
denial of counsel, a biased trial judge, racial discrimination in the selection of a grand jury, denial
of self-representation, denial of a public trial, and a defective reasonable-doubt instruction. Neder,
527 U.S. at 8. In People v. Thompson, 238 Ill. 2d 598, 613-14 (2010), our supreme court confirmed
that in Glasper it had “equated” the second prong of plain-error review with structural error, again
citing Neder. Here, without engaging in any further second-prong analysis, defendant categorizes
the jury-instruction error as “structural.” We disagree. In Neder, the Supreme Court held that an
instruction that either omits an element or misdescribes an element is not a structural error. Neder,
527 U.S. at 8-10.
¶ 39 In the present case, when the instructions referred to a “dangerous weapon” rather than a
“firearm,” they misdescribed an element. A person charged under section 18-2(a)(1) is charged with
armed robbery with a “dangerous weapon other than a firearm,” while a person charged under
section 18-2(a)(2) is charged with armed robbery with a “firearm.” Therefore, a firearm is still a
class of dangerous weapon. Because an error in an instruction that either omits an element or
misdescribes an element is not a structural error (Neder, 527 U.S. at 8-10), automatic reversal is not
required. Moreover, the jury’s verdict of guilty of armed robbery in the present case was based on
evidence that defendant was armed with a firearm. It follows that, in finding that defendant was
armed with a “dangerous weapon,” the jury implicitly found that defendant was armed with a
firearm.3 The error did not create a serious risk that the jurors incorrectly convicted defendant
3 For this reason, defendant’s reasonable-doubt argument also fails. Defendant asks us to
adopt Chief Justice Kilbride’s reasoning, in his dissent in Washington, that a firearm is not included
in the category of dangerous weapons. Washington, 2012 IL 107993, ¶ 54 (Kilbride, C.J.,
-17- 2013 IL App (2d) 120183
because they did not understand the applicable law, so as to severely threaten the fairness of the trial.
See Herron, 215 Ill. 2d at 193. Consequently, defendant cannot prevail under a plain-error analysis.
Accordingly, we affirm the armed robbery conviction.
¶ 40 B. Prior Consistent Statements
¶ 41 Defendant next contends that his convictions of home invasion and aggravated kidnapping
should be reversed because the trial court impermissibly admitted two prior consistent statements.
Defendant argues that the victim’s 911 call was a prior consistent statement and that the content of
Bates’s written statement to the police, disclosed to the jury during the State’s redirect examination
of Bates, was a prior consistent statement. Defendant claims that he was prejudiced when the State
used these statements in closing argument to bolster Bates’s and the victim’s credibility.
¶ 42 The general rule is that a witness cannot be corroborated on direct examination by admission
of a prior statement that is consistent with his or her trial testimony. People v. Ruback, 2013 IL App
(3d) 110256, ¶ 26. Such a statement is inadmissible hearsay and cannot be used to bolster a
witness’s credibility. Ruback, 2013 IL App (3d) 110256, ¶ 26. However, the statement may be
introduced to rebut an express or implied charge on cross-examination that (1) the witness is
motivated to testify falsely, or (2) the witness’s testimony is a recent fabrication. Ruback, 2013 IL
App (3d) 110256, ¶ 26. Prior consistent statements are admitted solely for rehabilitative purposes,
not as substantive evidence. Ruback, 2013 IL App (3d) 110256, ¶ 34. Whether to admit evidence
is within the trial court’s discretion. People v. Ward, 2011 IL 108690, ¶ 3.
dissenting). In using the language, “dangerous weapon other than a firearm,” we believe that the
legislature simply distinguished a “firearm” from other types of dangerous weapons. The legislature
could have expressly excluded a firearm from the genus of dangerous weapons but did not do so.
-18- 2013 IL App (2d) 120183
¶ 43 We first consider the victim’s 911 call. A prior consistent statement that meets the
requirements for admission as an excited utterance, sometimes called a spontaneous declaration, is
admissible as an exception to the hearsay rule. People v. Davis, 130 Ill. App. 3d 41, 54-56 (1984).
Illinois Rule of Evidence 803(2) (eff. Jan. 1, 2011) provides that an excited utterance is not excluded
by the hearsay rule, even though the declarant is available as a witness. In our case, the State urged
that the 911 call was admissible as an excited utterance, and the trial court properly admitted it on
that basis. On appeal, defendant argues only that it was inadmissible as a prior consistent statement
and he makes no argument that the call was not an excited utterance. We, therefore, reject
defendant’s argument.
¶ 44 Moreover, this issue is forfeited. At trial, defendant objected to the admission of the 911 call
only on the bases that not all of the victim’s statements were excited utterances; that none of the
dispatcher’s statements was an excited utterance; and that the evidence was cumulative. Defendant
did not raise the additional objection he now urges on appeal, that the 911 call was barred as a prior
consistent statement in spite of its nature as an excited utterance. On review, a defendant cannot
change or add to the basis for his objection. People v. McClendon, 197 Ill. App. 3d 472, 482 (1990).
A specific objection at trial eliminates all grounds not specified. McClendon, 197 Ill. App. 3d at
482.
¶ 45 We next consider the admission of the content of Bates’s written statement to the police.
This issue has also been forfeited. First, defendant did not timely object at trial. Illinois Rule of
Evidence 103(a)(1) (eff. Jan. 1, 2011) requires a timely objection stating the specific ground of the
objection. Second, the issue was not raised in the second amended posttrial motion. As noted, in
-19- 2013 IL App (2d) 120183
order to preserve an error for review, a defendant must object to the error at trial and include the
objection in a posttrial motion. Enoch, 122 Ill. 2d at 186.
¶ 46 Here, the State elicited from Bates, without objection, that (1) Bates told Detective Holman
and wrote for him “the same thing that [he] told us here today”; (2) Bates told Detective Holman that
he and three other individuals did the break-in and robbery; and (3) those individuals were defendant,
Golden, and Martin. The State then asked Bates the following:
“Q. [PROSECUTOR:] All of this information was given to the police before you met
anybody from my office?
[DEFENSE COUNSEL]: Objection.”
The entire sequence that defendant now posits was error occurred without objection. When defense
counsel finally interposed an objection to the question about the information having been given to
the police before Bates met with prosecutors, no basis for the objection was stated, and Bates had
already answered the question. A mere objection is not enough to preserve an error for review. York
v. El-Ganzouri, 353 Ill. App. 3d 1, 17 (2004). To preserve an error, an objection must be timely,
meaning contemporaneous with the objectionable conduct, and the objecting party must identify the
same basis for his objection that he will argue on appeal. York, 353 Ill. App. 3d at 17-18.
¶ 47 Recognizing the forfeiture by failing to include the claimed error in the posttrial motion,
defendant nevertheless asserts that we may review the issue as plain error. As we noted above, the
plain-error doctrine allows a reviewing court to reach a forfeited error in two circumstances: (1)
where the evidence is so closely balanced that the jury’s guilty verdict might have resulted from the
error and not the evidence; or (2) where the error is so serious that the defendant was denied a
-20- 2013 IL App (2d) 120183
substantial right, and thus a fair trial. Herron, 215 Ill. 2d at 178-79. Defendant argues only that the
evidence was so closely balanced that the claimed error threatened to tip the scales against him.
Defendant maintains that the evidence was closely balanced because Bates was the “meat” of the
State’s case and was a “felonious, greedy, criminal co-defendant.” However, as we have already
determined, the evidence was not closely balanced. Thus, we need not engage in the “meaningless
endeavor” of determining whether error occurred. See People v. White, 2011 IL 109689, ¶ 148.
Accordingly, we reject defendant’s arguments related to the admission of Bates’s prior statement to
the police.
¶ 48 C. Sentence
¶ 49 Next, defendant argues that his sentence was excessive. The trial court sentenced him to 26
years’ imprisonment for armed robbery, 18 years’ imprisonment for aggravated kidnapping, and 26
years’ imprisonment for home invasion, to be served concurrently. Defendant was assessed fines,
fees, and costs in the amount of $1,094. After listening to defendant’s witnesses in mitigation, the
trial court stated that it could not find a factor in mitigation that would cause it to impose any lesser
sentences. A sentence within the statutory limits for the offense will not be disturbed unless the trial
court abused its discretion. People v. Coleman, 166 Ill. 2d 247, 258 (1995). An abuse of discretion
occurs if the trial court imposes a sentence that is greatly at variance with the spirit and purpose of
the law, or is manifestly disproportionate to the crime. People v. Stacey, 193 Ill. 2d 203, 210 (2000).
It is well established that the court has wide latitude in sentencing a defendant, so long as it neither
ignores relevant factors in mitigation nor considers improper factors in aggravation. People v.
Roberts, 338 Ill. App. 3d 245, 251 (2003).
-21- 2013 IL App (2d) 120183
¶ 50 Here, defendant claims that the trial court ignored the mitigating factors that defendant had
a good work history and strong family ties. Defendant argues that the trial court should have
considered his rehabilitative potential in light of those mitigating factors. However, in 1986
defendant was sentenced to 25 years in the Wisconsin Department of Corrections for his role in a
felony murder. He escaped from the Wisconsin Department of Corrections, he was caught and
returned to finish his sentence, and Wisconsin had a parole hold on defendant at the time of his
sentencing in the instant case. The Illinois Constitution requires that “[a]ll penalties shall be
determined both according to the seriousness of the offense and with the objective of restoring the
offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. The seriousness of the offense is the
most important sentencing factor. People v. Evans, 373 Ill. App. 3d 948, 968 (2007). Here, as the
trial court noted, defendant, with Bates, Martin, and Golden, planned a home invasion to get money
and drugs. The four masked and armed codefendants broke into the victim’s apartment while she
was sleeping in her bed, and defendant hit her and tied her up in her bathroom. Her terror was
palpable on the 911 call. The offenses were Class X offenses for which the sentences were well
within statutory limits. We cannot say that the trial court abused its discretion.
¶ 51 With respect to the fines, fees, and costs, defendant and the State agree that defendant is
entitled to a $40.75 reduction. We also agree. Accordingly, we reduce the total amount of fines,
fees, and costs to $1,053.25 and amend the sentencing order to so reflect.
¶ 52 CONCLUSION
¶ 53 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed as
modified.
¶ 54 Affirmed as modified.
-22- 2013 IL App (2d) 120183
-23-