People v. Whetstone
This text of 2020 IL App (2d) 170919-U (People v. Whetstone) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
2020 IL App (2d) 170919-U No. 2-17-0919 Order filed August 17, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 14-CF-74 ) CHRISTOPHER WHETSTONE, ) Honorable ) John A. Barsanti, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Justices McLaren and Bridges concurred in the judgment.
ORDER
¶1 Held: Defendant was not denied a fair trial through jury bias, other-crimes evidence, ineffective representation, or prosecutorial misconduct. Affirmed.
¶2 On January 13, 2014, Rachel Taylor died after being shot on a driveway near defendant’s,
Christopher Whetstone’s, home in Aurora. After a jury trial, defendant was convicted of first-
degree murder (720 ILCS 5/9-1(a)(1) (West 2016)) and sentenced to 60 years’ imprisonment.
¶3 On appeal, defendant argues that he was deprived of his right to a fair and impartial trial
for four overarching reasons: (1) jury irregularities and bias; (2) improper injection of other-crimes
evidence; (3) ineffective assistance where his counsel failed to object to the introduction of dog- 2020 IL App (2d) 170919-U
tracking evidence; and (4) one of the prosecutors engaged in unprofessional conduct during closing
arguments. For the following reasons, we affirm.
¶4 I. BACKGROUND
¶5 Defendant was charged with two counts of first-degree murder in connection with Taylor’s
death. Taylor was defendant’s ex-girlfriend and the mother of his two children, who were in a
vehicle in the driveway when their mother was killed.
¶6 Prior to trial, the court denied defendant’s motion to transfer venue due to local publicity,
subject to renewal after jury selection. The court also denied defendant’s motion to suppress
certain statements that he made upon arrest and while pending transport to the police station.
Defendant’s motion in limine to admit evidence of his theory of the case, namely, that Taylor was
killed in a gang-related, drive-by shooting, was denied. However, the court granted defendant’s
motion in limine to bar reference to defendant’s prior bad acts or convictions.
¶7 A. Jury Selection and Notes
¶8 i. Questioning Regarding Racial Bias
¶9 During jury selection, one of defendant’s attorneys asked a prospective juror about the
diversity of the community in which that juror lived. After objection, counsel explained that the
questions were intended to explore implicit racial bias. The court sustained the State’s objection
on the basis that race was not an issue in the case, given that defendant was African-American,
and Taylor was white and African-American. Defense counsel noted that defendant was the only
African-American person in the courtroom and further argued that studies show that implicit racial
biases may impact how jurors hear evidence and consider guilt. The court stated that it would
permit counsel to ask jurors if they would be biased against defendant because of his race, but that
questions concerning diversity or where they grew up were “too far afield.” Defense counsel asked
-2- 2020 IL App (2d) 170919-U
jurors if defendant’s race would affect their deliberations, and they each responded in the negative.
Similarly, counsel asked jurors if they thought that defendant was more likely to be guilty because
he was African-American, and they all answered, “no.”
¶ 10 During a break, defense counsel made a record of defendant’s position concerning
questioning jurors about potential racial bias. Counsel explained that, according to research,
everyone has implicit biases and that it was important to question more deeply whether the jurors
would acknowledge those implicit biases and whether those biases would affect their deliberations.
Counsel again noted that defendant was the only African-American in the courtroom at that point, 1
and that research showed that such biases could alter how a juror both heard evidence and
considered guilt and innocence. Counsel provided the court with an instruction that is purportedly
used in California that defendant suggested should be read to the jury prior to hearing any evidence:
“Each one of us has biases about or certain perceptions or stereotypes of other
people. We may be aware of some of our biases, though we may not share them with
others. We may not be fully aware of some of our other biases.
Our biases often affect how we act, favorably or unfavorably, toward someone.
Bias can affect our thoughts, how we remember, what we see and hear, whom we believe
or disbelieve, and how we make important decisions.
As jurors you are being asked to make very important decisions in this case. You
must not let bias, prejudice, or public opinion influence your decision. You must not be
1 According to the State’s argument on defendant’s motion for a new trial, on the second
day of jury selection, an African-American juror was selected to sit on the jury.
-3- 2020 IL App (2d) 170919-U
biased in favor of or against any party or witness because of his or her disability, gender,
race, religion, ethnicity, sexual orientation, age, national origin, or socioeconomic status.
Your verdict must be based solely on the evidence presented. You must carefully
evaluate the evidence and resist any urge to reach a verdict that is influenced by bias for or
against any party or witness.” 2
¶ 11 The court rejected counsel’s proposed instruction, noting that an African-American
defendant is not constitutionally entitled to question prospective jurors about race. The court
further noted, however, that it would permit some inquiry into whether a juror might be biased
against defendant due to his race. Nevertheless, it would not allow voir dire to morph into
indoctrination and extensive education on the topic. It further noted that it had not received any
proposed questions that counsel would ask the venire, nor would it, at that point, allow any to be
presented.
¶ 12 After jury selection, defense counsel again presented the court with the California
instruction on implicit bias, requesting that it be read to the jury prior to hearing any evidence, as
well as the supporting California canons of judicial ethics, which concerned a trial judge’s
obligation to conduct proceedings free from bias and prejudice (counsel noted that the Illinois
Canons of Judicial Ethics had corollaries), and a 2016 resolution and report from the American
Bar Association, advising that trial courts should advise juries about implicit bias and how it may
2 Although the proposed instruction from California and other similar documents appear in
the record, there are no official citations displayed on those documents, nor does defendant provide
any in his briefs.
-4- 2020 IL App (2d) 170919-U
affect decisionmaking. 3 The court again rejected the request, but read instead to the jury Illinois
Pattern Instruction, Criminal, No. 1.01 (4th ed.
Free access — add to your briefcase to read the full text and ask questions with AI
2020 IL App (2d) 170919-U No. 2-17-0919 Order filed August 17, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 14-CF-74 ) CHRISTOPHER WHETSTONE, ) Honorable ) John A. Barsanti, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Justices McLaren and Bridges concurred in the judgment.
ORDER
¶1 Held: Defendant was not denied a fair trial through jury bias, other-crimes evidence, ineffective representation, or prosecutorial misconduct. Affirmed.
¶2 On January 13, 2014, Rachel Taylor died after being shot on a driveway near defendant’s,
Christopher Whetstone’s, home in Aurora. After a jury trial, defendant was convicted of first-
degree murder (720 ILCS 5/9-1(a)(1) (West 2016)) and sentenced to 60 years’ imprisonment.
¶3 On appeal, defendant argues that he was deprived of his right to a fair and impartial trial
for four overarching reasons: (1) jury irregularities and bias; (2) improper injection of other-crimes
evidence; (3) ineffective assistance where his counsel failed to object to the introduction of dog- 2020 IL App (2d) 170919-U
tracking evidence; and (4) one of the prosecutors engaged in unprofessional conduct during closing
arguments. For the following reasons, we affirm.
¶4 I. BACKGROUND
¶5 Defendant was charged with two counts of first-degree murder in connection with Taylor’s
death. Taylor was defendant’s ex-girlfriend and the mother of his two children, who were in a
vehicle in the driveway when their mother was killed.
¶6 Prior to trial, the court denied defendant’s motion to transfer venue due to local publicity,
subject to renewal after jury selection. The court also denied defendant’s motion to suppress
certain statements that he made upon arrest and while pending transport to the police station.
Defendant’s motion in limine to admit evidence of his theory of the case, namely, that Taylor was
killed in a gang-related, drive-by shooting, was denied. However, the court granted defendant’s
motion in limine to bar reference to defendant’s prior bad acts or convictions.
¶7 A. Jury Selection and Notes
¶8 i. Questioning Regarding Racial Bias
¶9 During jury selection, one of defendant’s attorneys asked a prospective juror about the
diversity of the community in which that juror lived. After objection, counsel explained that the
questions were intended to explore implicit racial bias. The court sustained the State’s objection
on the basis that race was not an issue in the case, given that defendant was African-American,
and Taylor was white and African-American. Defense counsel noted that defendant was the only
African-American person in the courtroom and further argued that studies show that implicit racial
biases may impact how jurors hear evidence and consider guilt. The court stated that it would
permit counsel to ask jurors if they would be biased against defendant because of his race, but that
questions concerning diversity or where they grew up were “too far afield.” Defense counsel asked
-2- 2020 IL App (2d) 170919-U
jurors if defendant’s race would affect their deliberations, and they each responded in the negative.
Similarly, counsel asked jurors if they thought that defendant was more likely to be guilty because
he was African-American, and they all answered, “no.”
¶ 10 During a break, defense counsel made a record of defendant’s position concerning
questioning jurors about potential racial bias. Counsel explained that, according to research,
everyone has implicit biases and that it was important to question more deeply whether the jurors
would acknowledge those implicit biases and whether those biases would affect their deliberations.
Counsel again noted that defendant was the only African-American in the courtroom at that point, 1
and that research showed that such biases could alter how a juror both heard evidence and
considered guilt and innocence. Counsel provided the court with an instruction that is purportedly
used in California that defendant suggested should be read to the jury prior to hearing any evidence:
“Each one of us has biases about or certain perceptions or stereotypes of other
people. We may be aware of some of our biases, though we may not share them with
others. We may not be fully aware of some of our other biases.
Our biases often affect how we act, favorably or unfavorably, toward someone.
Bias can affect our thoughts, how we remember, what we see and hear, whom we believe
or disbelieve, and how we make important decisions.
As jurors you are being asked to make very important decisions in this case. You
must not let bias, prejudice, or public opinion influence your decision. You must not be
1 According to the State’s argument on defendant’s motion for a new trial, on the second
day of jury selection, an African-American juror was selected to sit on the jury.
-3- 2020 IL App (2d) 170919-U
biased in favor of or against any party or witness because of his or her disability, gender,
race, religion, ethnicity, sexual orientation, age, national origin, or socioeconomic status.
Your verdict must be based solely on the evidence presented. You must carefully
evaluate the evidence and resist any urge to reach a verdict that is influenced by bias for or
against any party or witness.” 2
¶ 11 The court rejected counsel’s proposed instruction, noting that an African-American
defendant is not constitutionally entitled to question prospective jurors about race. The court
further noted, however, that it would permit some inquiry into whether a juror might be biased
against defendant due to his race. Nevertheless, it would not allow voir dire to morph into
indoctrination and extensive education on the topic. It further noted that it had not received any
proposed questions that counsel would ask the venire, nor would it, at that point, allow any to be
presented.
¶ 12 After jury selection, defense counsel again presented the court with the California
instruction on implicit bias, requesting that it be read to the jury prior to hearing any evidence, as
well as the supporting California canons of judicial ethics, which concerned a trial judge’s
obligation to conduct proceedings free from bias and prejudice (counsel noted that the Illinois
Canons of Judicial Ethics had corollaries), and a 2016 resolution and report from the American
Bar Association, advising that trial courts should advise juries about implicit bias and how it may
2 Although the proposed instruction from California and other similar documents appear in
the record, there are no official citations displayed on those documents, nor does defendant provide
any in his briefs.
-4- 2020 IL App (2d) 170919-U
affect decisionmaking. 3 The court again rejected the request, but read instead to the jury Illinois
Pattern Instruction, Criminal, No. 1.01 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 1.01),
which it found sufficiently apprised the jury of its responsibility to be free from bias:
“Neither sympathy nor prejudice should influence you. You should not be
influenced by any person’s race, color, religion, national ancestry, gender or sexual
orientation.” IPI Criminal 4th No. 1.01.
¶ 13 b. Jury Notes
¶ 14 Over the course of jury selection and trial, the court received three notes from the jury.
First, on the second morning of jury selection, the bailiff provided the court with a note from a
juror that read:
“I have a moral/philosophical issue with sentencing someone to death. I do not
believe this is moral to do. I’m sorry, this was not covered yesterday and I realized this
overnight. I do not know whether the sentencing in this case involved this issue. It was
not covered. I thought it would have been.”
3 According to the document in the record, American Bar Association Resolution 116
states:
“The court should: 1) Instruct the jury on implicit bias and how such bias may impact the
decision making process without the juror being aware of it; and 2) Encourage the jurors to resist
making decisions based on personal likes or dislikes or gut feelings that may be based on attitudes
towards race, national origin, gender, age, religious belief, income, occupation, disability, marital
status, sexual orientation, gender identity, or gender expression.”
-5- 2020 IL App (2d) 170919-U
¶ 15 Defense counsel agreed with the court that the entire panel that had so far been selected
should be instructed that it was not to concern itself with punishment, that this was not a death-
penalty case, and that the death penalty in Illinois was repealed. The State had no objection. The
court instructed the eight chosen jurors:
“You are not to concern yourself with the possible punishment or sentence for the
offense charged during your deliberations. It is the function of the trial judge to determine
the sentence, should there be a verdict of guilty; but I can tell you there is no death penalty
in Illinois anymore. That was repealed years ago, so death is not an option, no matter what
would happen. No matter what somebody could be convicted of, the death penalty is not
an option as a punishment in Illinois anymore; so it’s off the table.”
¶ 16 Further, prior to hearing any evidence, the court again instructed the jury:
“You are not to concern yourself with possible punishment or sentence for the
offense charged during your deliberation. It is the function of the trial judge to determine
the sentence, should there be a verdict of guilty.”
¶ 17 After trial commenced, the court received a second note from the jury. This note concerned
defendant’s position in the courtroom when various exhibits were being displayed. Specifically,
the court had allowed defendant to physically move to a position where he could see the evidence
being displayed for the jury. The jury note read: “Difficult for jurors to take notes when defendant
stands next to the jury.” The court discussed the note with counsel. Apparently, defendant had
been standing behind the jury, and defense counsel stated, “I interpret that they just don’t want
him behind so much that he can see their notes.” Counsel questioned whether, if the concern was
defendant seeing the jurors’ notes, it might be better to position defendant in front of the jury. The
State suggested placing a chair in front of the podium. Defense counsel stated that she would agree
-6- 2020 IL App (2d) 170919-U
to “the best suggestion that relieves any tension with the jurors.” The court said it would try
positioning defendant in front of the podium. It sent a note back to the jury stating simply that
defendant would take a position in a different spot. Later, the jury sent the court a reply note
stating: “your seat decision is agreeable by jury.”
¶ 18 The next day, the court received a third note from the jury. The note read:
“Jurors feel uncomfortable with defendant’s family parking in lot along side of
jurors. When walking to and from b[ui]ld[i]ng, they are walking in very close proximatey
[sic] to many jurors, making eye contact also.”
¶ 19 In response to this note, defense counsel filed a “motion for juror discharge or mistrial.”
Defendant noted, in part, that no jury foreman had been selected, and it was therefore unclear
whether the person sending the notes to the court was communicating individual or group
concerns. Defendant asked that the court conduct an inquiry to determine whether the concern
communicated in the note was limited to one individual, or whether that individual had
disseminated the feeling of threat or fear to others in the jury. If it was one individual, counsel
requested that he or she be asked whether impartiality had been affected or if he or she had
prejudged the case. If the issue had been discussed in the jury, counsel argued, then the risk was
that the entire pool had been tainted and it showed that they failed to follow the court’s initial
instructions to refrain from discussing the case. The motion indicated that, depending on the result
of the inquiry, defendant might request various remedies, including discharge of the single juror
and/or a mistrial.
¶ 20 The court asked defense counsel to propose a procedure that might address the problem.
After some discussion about a proper manner of inquiry that investigated the juror’s thoughts
without providing superfluous information that might actually serve to taint an otherwise-unaware
-7- 2020 IL App (2d) 170919-U
juror, the parties agreed that the court would question each juror individually in a general manner.
Specifically, for each juror, the court asked, essentially, the following question (occasionally, with
only minor variation):
“The Court has been made aware that a juror or a number of jurors were concerned
about some contact. Now, I call it alleged contact because I wasn’t there, I didn’t see
anything and I’m not sure exactly what happened, alleged contact between a juror or jurors
and the defendant’s family or supporters. Did you observe anything that made you
concerned, that gave you some concern?”
Depending on the juror’s response, the court engaged in follow-up questions, but always asked
each juror whether he or she could continue to be fair to each side. The court admonished each
juror that he or she should decide the case solely on the evidence and that he or she should not
discuss the case, nor the court’s inquiry, with the other jurors. The court did not ask any juror
whether he or she wrote the note. All jurors stated that they were aware of the parking-lot situation,
and that it had been discussed in the jury room, but none claimed to have seen anything involving
contact or improper behavior, and no juror claimed to be concerned. One, alternate juror, stated
only that “it gets maybe a little uncomfortable just because we’re all in the same place, other than,
you know, seeing everybody,” but stated that he or she could “[a]bsolutely” remain fair and
impartial, if he or she were to be seated on the jury. Indeed, all jurors stated that they could
continue to be fair to each side.
¶ 21 In light of the jurors’ responses, defense counsel stated: “[A]t this time, based on the
inquiry of each juror questioned did say they could be fair and impartial and that they would follow
the law as instructed by the Court, so at this time I’m not moving for discharge of any juror.”
¶ 22 As follow up, the court also sent the jury a note:
-8- 2020 IL App (2d) 170919-U
“You are not required to park in any particular area. You are allowed to park
anywhere you wish.
I have no authority to order any citizen to park or refrain from parking in any
particular place.
If you feel threatened[,] inform the Bailiff and he will inform me.
If you wish to be escorted from the courthouse to your vehicle, I will make a deputy
available. Inform the Bailiff if you wish to be escorted.”
¶ 23 B. Trial
¶ 24 As defendant does not raise a sufficiency argument on appeal, we depict only the evidence
at trial that is relevant and gives context to his appellate arguments.
¶ 25 Defendant lived at 552 Charles Street in Aurora. Taylor and their two children lived there
with him from October 2012 to September 2013. On January 13, 2014, Taylor bought a white
Dodge Durango.
¶ 26 i. Occurrence Witnesses
¶ 27 Timothy Williams, defendant’s half-brother, also lived at 552 Charles Street. He testified
that, like many couples, defendant and Taylor argued. On January 13, 2014, Williams heard them
arguing in the house, but could not hear their words. He asked them to “tone it down.” Williams
went upstairs and noticed defendant and Taylor outside behind Taylor’s Durango. Later, the
talking outside was louder, and Williams returned downstairs to tell defendant and Taylor to calm
down before someone called the police. At that time, defendant and Taylor were still behind the
Durango. He opened the door and gave them “a look,” which quieted them down, and Williams
returned upstairs. Williams later noticed that it was quiet outside; he came downstairs, opened the
door, and a neighbor across the street said that someone had been shot.
-9- 2020 IL App (2d) 170919-U
¶ 28 Williams had not heard any gunshots, nor had he seen a gun in defendant’s hands. Williams
followed the neighbors and, about two houses down the street, he recognized Taylor lying face
down in the lower part of the driveway. He heard someone calling 911. Williams tapped Taylor’s
shoulder, asked if she was alright, and turned her over to check for wounds. He saw two punctures
in her skin, but did not see any bullets or cartridges near her. Williams yelled for someone to get
a blanket and, once a blanket arrived, he returned to his home to put on warmer clothes. Williams
did not see Taylor again.
¶ 29 That same night, at around 8:20 p.m., Abigail Galarza was leaving 549 Charles Street with
her daughter. Galarza was taking her daughter to their car, a burgundy Nissan Altima, when she
saw Taylor come out of the back seat, driver’s side of the Durango, yelling for help and stating,
“he shot me, he shot me.” Taylor ran down the street, and Galarza saw a man, whom she later
identified as defendant, get out of the same door of the Durango, wearing a “doo-rag,” white
hoodie, dark pants and, according to Galarza, carrying in his right hand a long-barrel gun.
Defendant ran after Taylor. Galarza and her daughter got into the car, pulled out of the driveway,
and drove away. She looked in her mirror and saw defendant and Taylor; she heard a gunshot and
did not see any other vehicles in the area. Galarza telephoned her brother, an Aurora police officer,
and went home.
¶ 30 Adrianna Saaverda lived at 556 Charles Street. Around 8 p.m. on January 13, 2014, she
heard two people arguing. She recognized defendant, who was grabbing at Taylor as Taylor was
pulling away. Taylor had a cell phone in her hand; she later saw Taylor pick it up, because it was
broken. Saaverda alerted her daughter, daughter’s boyfriend, and nephew, who were in the living
room, and they all looked out of the window. According to Saaverda, Taylor was in the rear
driver’s side door of the vehicle, buckling up the children. Saaverda stopped looking for awhile,
- 10 - 2020 IL App (2d) 170919-U
but next saw Taylor’s body on the ground. Saaverda explained that she did not hear a gunshot and
would not say that defendant shot Taylor; only that defendant and Taylor were arguing.
¶ 31 Manuel Saenz lived with his family, including his son Misael, at 549 Charles Street
(Galarza was at his house that evening). Manuel stopped at home briefly around 6:30-6:45 p.m.
and saw defendant, whom he knew as “Mo,” and Taylor. Misael said, “Damn it, what the hell’s
wrong with Mo fighting with his girlfriend.” Manuel heard defendant say multiple times, “give
me the goddamn phone,” while he and Taylor struggled. Manuel testified over objection that he
heard Taylor say, “I hate your fucking family” and “I hate you, I’m tired of you.” Manuel and
Misael left home. When they returned, there was an ambulance in the street and a crime scene set
up. Manuel told police that defendant had been wearing a white hoodie and black leather jacket.
¶ 32 Misael testified that he and Manuel left home between 7 and 8 p.m. He knew defendant,
defendant and Taylor were arguing, defendant was aggressively trying to grab something from
Taylor, and defendant said, “give me your phone.”
¶ 33 Lynette and C.J. Klimas lived at 541 Charles Street. Around 8:20 p.m., they were in their
garage, when they heard a female voice yell for help and a gunshot. They ran outside, and Lynette
told C.J. to call 911. C.J. did so, and stated that they saw a man wearing a gray hoodie running
from the scene. He testified that the man in the hoodie wore dark jeans or pants and ran to the blue
house (i.e., defendant’s house). Lynette testified that it was dark outside and that she saw a dark-
colored car driving away, but she could not identify the car’s make or model. C.J. said that the car
was a black Nissan 350Z. Lynette testified that Taylor was laying in the driveway apron at 540
Charles Street (i.e., a few doors down from defendant’s house). She was comforting her, when a
man in basketball shorts and a tee-shirt knelt down and rolled her over. There were two red spots
in the area at the top of Taylor’s stomach. Lynette got a blanket, and the man left.
- 11 - 2020 IL App (2d) 170919-U
¶ 34 Emergency technicians arrived around 8:30 p.m. They cut Taylor’s clothing and two
gunshot wounds to her abdomen were visible, although they stated that there was no external
bleeding. The shirt Taylor was wearing, however, was produced at trial, and blood, powder, and
soot are visible on it. Taylor never regained consciousness and died during emergency surgery at
Mercy Center Hospital.
¶ 35 ii. Arrest and Investigation
¶ 36 Three officers from the Aurora Special Operations Group, Michael Corrigan, Christopher
McWilliams, and David Tellner, were performing an undercover narcotics investigation when they
heard a dispatch about a shooting on Charles Street. The suspect was described as wearing a white
hoodie, and it was further mentioned that a black Nissan might be involved. As they headed to the
scene, they encountered another shooting investigation taking place near Lake Street and a black
Nissan. They followed the Nissan, but asked another police vehicle to stop that car. While
watching the traffic stop, they saw a man walking nearby and wearing a white hoodie. According
to police, the man looked at the traffic stop, “opened his eyes wide,” and started to jog away. The
officers followed the man, later determined to be defendant, and called for backup. They donned
tactical vests, exited the van, and approached defendant with their weapons drawn. They ordered
defendant to the ground. Defendant complied, saying “you got me, you got me.” After
handcuffing defendant, they searched him; no weapons were found. The officers testified that they
recognized defendant from “prior police contacts.” Later, defense counsel objected to this
reference, the court agreed that the reference should have been avoided, and it asked defense
counsel for a proposed remedy. Defense counsel proposed a curative instruction and stated that
she would draft one.
- 12 - 2020 IL App (2d) 170919-U
¶ 37 While waiting at the arrest scene for witnesses Galarza and Saenz to arrive for show-up
identifications, defendant asked officer Tellner for a cigarette because “it was going to be the last
cigarette for awhile, I made a big mistake.” In addition, defendant asked to speak specifically with
Tellner. When he approached, defendant said, “my life is done, I made a big mistake,” and “just
tell me if he, she’s okay.” Defendant asked how “he or she was,” and Tellner asked defendant
who he was referring to. Defendant replied, “you know who” and eventually asked about Taylor.
Defendant told Tellner that, when they saw him on the street, he had been on his way to his sister’s
house to turn himself in.
¶ 38 When defendant was getting into the transport van, another officer noticed what appeared
to be blood stains on defendant’s shirt. Those stains, and some found on his jacket, later tested
positive for Taylor’s DNA. Defendant sat on a bench in the transport van; the bench had no
seatbelts, but contained straps that he could hold onto to prevent himself from falling. Defendant’s
hands later tested positive for gunshot residue.
¶ 39 A K-9 unit was called to 552 Charles Street. In sum, the officer and handler, Chris Sherwin,
testified that the dog, Sabek, was a patrol narcotics dog, trained for narcotics tracking and
apprehension. If the dog was tracking and a human was involved, Sabek would be released in
order to apprehend the offender. Sabek was taken to where Taylor’s body had lain. Sabek was
allowed to pickup any odors, and he then tracked a scent to 552 Charles Street, defendant’s home,
first by tracking to the backyard and then alerting at the side door. Sabek was later taken to the
arrest scene, and he did “reverse tracking” to follow a scent and in an attempt to find a weapon.
However, no weapon was ever found.
¶ 40 The night of the shooting, police recovered from 552 Charles Street a .22-long rifle bullet
(the same caliber of bullet found in Taylor’s body) in the basement. Two days after the shooting,
- 13 - 2020 IL App (2d) 170919-U
two .22-caliber casings, one .40-caliber bullet, and an unfired cartridge were found on the ground
near where Taylor’s body had been lying in the driveway. Five days after the shooting, a .22-
caliber cartridge was found on the floor of the back seat of the Durango. According to ballistics,
the cartridge cases were fired from the same firearm.
¶ 41 iii. Autopsy
¶ 42 Dr. Mitra Kalelkar conducted Taylor’s autopsy. Kalelkar testified that death was caused
by multiple gunshot wounds. She removed two bullets from the body. The left abdomen wound
had powder and soot around it, reflecting a close-range shot, fired from within approximately two
feet of the body. Taylor had some abrasions on her hands.
¶ 43 iv. Defendant’s Case
¶ 44 Defendant did not testify. He produced an expert to challenge the testing and results of the
gunshot residue and cartridge analyses. Another witness testified that, after the shooting, she was
given permission to remove the children from the back of the Durango. Although she had a clear
view of the floor, she did not see any metal objects (i.e., cartridges) or anything similar there.
¶ 45 In addition, defendant’s nephew, Michael Whetstone, testified as an expert in the Vice
Lords street gang. At the time of trial, Michael was incarcerated as an armed habitual criminal.
He had been a member of the street gang Vice Lords for decades and had been “shot at” multiple
times, including from cars in drive-by, presumably gang-related, shootings. Defendant’s home at
552 Charles Street had sustained bullet holes from a drive-by shooting in 2009. On January 13,
2014, Michael was on parole and was living at 552 Charles Street, but was not present that evening.
He was “shocked” when he heard that Taylor had been shot. He thought that he was the intended
target of the shooting.
¶ 46 C. Jury Instructions
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¶ 47 Prior to deliberating, the jury received numerous instructions, including again the
instruction that, “Neither sympathy nor prejudice should influence you. You should not be
influenced by any person’s race, color, religion, national ancestry, gender or sexual orientation.”
IPI Criminal 4th No. 1.01.
¶ 48 In addition, in response to the officers’ testimony that they knew defendant from prior
contacts, the jury was instructed that “[t]he testimony of any witness that he or she knew the
defendant from prior police contacts may not be considered by you in any way in arriving at your
verdict.”
¶ 49 D. Posttrial
¶ 50 Defendant moved for a new trial or judgment n.o.v. At argument on the motion, with
respect to jury bias and, specifically, the third juror note, defense counsel noted that, while she had
no issue with the court’s individual inquiries, it had never determined which juror had authored
the note. Defense counsel argued that, although, upon the court’s questioning, all jurors responded
that they were not uncomfortable with anything that had happened in the parking lot, someone was
not being truthful. “I would have made a motion to strike the individual juror who provided this
note knowing that they were clearly bias[ed], clearly had some problem, and possibly because of
race with the defendant’s family being just in a public parking lot.” Further, counsel reiterated
that, because no one admitted to being uncomfortable, she did not, at that time, pursue a motion
for mistrial based on the entire panel being biased; however, if the court had determined which
juror wrote the note, she would have moved to strike that juror.
¶ 51 Further, although no contemporaneous objection was raised, counsel noted that one of the
prosecutors engaged in improper and prejudicial conduct during the defense closing argument and
during portions of the trial, specifically, rolling of eyes and laughing. In response, one of the
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assistant State’s Attorney’s acknowledged feeling frustrated during the defense closing argument,
as defense counsel’s argument was lengthier than anticipated and he had a plane to catch, and that
it was possible that he might have rolled his eyes. However, he asserted that neither he nor his co-
counsel ever laughed. Defense counsel replied that she personally observed the behavior from his
co-counsel, that it occurred during trial too, and that it included persistent laughing, rolling eyes,
and throwing back of his head.
¶ 52 The court denied the motion for new trial or judgment n.o.v. In part, the court ruled that it
found no evidence that the jury was prejudiced against defendant, it had decided not to explicitly
ask the jurors who wrote the third note, and that it believed its rulings addressing the issue of
potential bias remained correct. Further, the court ruled that the “prosecutors’ conduct” was not
so egregious or inflammatory as to cause the jury to be biased against defendant. The court
sentenced defendant to a total of 60 years’ imprisonment (35 years for the murder and 25 years for
personally discharging the firearm that caused death). Defendant’s motion to reconsider was also
denied. He appeals.
¶ 53 II. ANALYSIS
¶ 54 Defendant argues that, whether considered singularly or cumulatively, multiple errors
deprived him of a fair trial. He asks this court to address each in turn, but to also consider whether
the errors, collectively, were of such gravity that the integrity of the judicial process was
compromised. Defendant seeks reversal of his conviction and remand for a new trial.
¶ 55 A. Jury Bias
¶ 56 Defendant alleges that, for a myriad of reasons, he was deprived of his right to an impartial
jury. He notes first that, pre-trial, his motion to transfer venue due to publicity was denied, and
then his attempts to determine implicit bias during voir dire, through questioning and a proposed
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non-IPI instruction, were thwarted. Jury irregularities followed, as reflected by the three notes
submitted to the court.
¶ 57 With respect to the first note, defendant argues that, although the court instructed all of the
then-selected jurors that there was no longer a death penalty in Illinois, the admonishment did
nothing to establish whether: (1) the juror, who was apparently preoccupied with the idea of
punishment, was presuming guilt and would be unable to examine the evidence at trial without the
concept of punishment foremost in mind; (2) the juror’s moral/philosophical dilemma was
restricted to the death penalty; and/or (3) sitting judgment of another person, regardless of
sentence, was the source of the dilemma.
¶ 58 As to the second note, defendant argues that the jurors’ discomfort with defendant’s
physical position while viewing certain exhibits begs the question whether their feelings were
based on an underlying belief that he was guilty. In addition, defendant asserts that this question
connects to implicit bias, as the jurors might have implicitly believed that he was guilty because
he is an African-American man. Defendant questions what possible concern or problem the jurors
could have had with him standing near them, if they did not have a premature, underlying belief
(by the second day of trial) that he was guilty. He disagrees that confidentiality of juror notes was
truly of primary concern, as the notes presumably pertained only to evidence and, if not, would
instead reflect that jurors were not performing their duties fairly and impartially by being attentive.
Defendant maintains that “the reason the jurors did not want [him] standing near them was because
of their implicit bias that, as an African-American man sitting in the defendant’s chair and having
been charged with this serious offense, he was a guilty man.”
¶ 59 The third note, concerning where defendant’s family parked in the parking lot is
problematic, defendant argues, because, although the judge properly individually questioned each
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juror to assess whether he or she remained impartial, at least one juror must have been untruthful
to the court. Moreover, the questioning reflected that, although the judge admonished the jurors
repeatedly not to do so, they clearly were discussing the case prior to deliberations. Although
defense counsel could not proceed on the motion to discharge a juror, since no single juror admitted
to experiencing or feeling that which was described in the note, defendant argues that his counsel’s
failure to pursue the motion for mistrial should be considered ineffective assistance. Defendant
notes that, since it was impossible to strike the juror responsible for the note, the only reasonable
action to take, based on the fact that someone on the jury must have been untruthful in his or her
responses to the court, was to pursue the motion for mistrial. He argues that the failure to pursue
the motion was unreasonable and that, given that at least one juror was untruthful, prejudice is
established because there is a reasonable probability that the motion would have been granted.
¶ 60 Finally, defendant notes that the trial lasted three weeks and involved 40 witnesses, yet the
jury deliberated only a mere two hours before convicting him. He asserts that this reflects that the
jurors were either explicitly or implicitly biased, again noting that his counsel was not permitted
to investigate during voir dire whether the jurors had experience with diverse populations and
persons of another race. Defendant notes that, although the court allowed his counsel to make a
narrow inquiry into whether the jurors would be prejudiced against him based upon his race, the
permitted inquiry could provide insight into understanding only explicit bias, which completely
defeated the purpose. Defendant asserts that studies have shown that the issue of explicit bias
persists, but has become less prominent, while implicit biases are likely more pervasive and have
“real-world” effects. He cites a law-review article that summarizes social scientists’ empirical
findings that there are negative implicit associations between African-Americans and weapons, a
“shooter bias” against African-Americans, and stereotypes that African-Americans are violent and
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criminal. These findings, defendant argues, are in addition to research concerning racial
outgroups, i.e., that jurors of one race tend to show bias against defendants who belong to another
race. Further, defendant continues, research shows that the trial court’s belief here—that voir dire
on race was not necessary because race was not a central issue in the case—was inaccurate, as
research shows that, when race is an issue in the case, jurors want to be fair and are more careful
and thoughtful about race and their assumptions, but, in contrast, when the case is not racially
charged, jurors are not vigilant about the possibility of racial bias influencing their decision
making. Defendant argues that the color of his skin could have had grave consequences on how
the evidence of his guilt was assessed. He notes that, in Pena-Rodriguez v. Colorado, __ U.S. ___,
137 S. Ct. 855 (2017), the Court explained that the judicial system has a duty, even after trial, to
confront racial bias in the jury system to protect against a systemic loss of confidence in verdicts.
Id., __ U.S. at __, 137 S. Ct. at 868-69. Defendant contends that the failure to allow questions
during voir dire and to use the proposed jury instruction and accompanying resolution prepared by
the American Bar Association resulted in an unfair trial. Defendant concludes that all of the
foregoing issues involving the jury reflect that he did not receive a fair trial before an impartial
jury, and the gravity of these errors, coupled with defense counsel’s failure to seek a mistrial when
given the opportunity, should result in a reversal of his conviction and a remand for a new trial.
¶ 61 Defendant’s arguments fall into three general categories: pre-trial (voir dire questioning
and proposed instruction), the court’s response to the three jury notes, and ineffective assistance.
All categories concern bias and the right to a fair and impartial trial, a right that is protected by
both the federal and state constitutions. See People v. Bull, 185 Ill. 2d 179, 214 (1998); see U.S.
Const., amend. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. We address each in turn.
¶ 62 i. Voir Dire and Proposed Instruction
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¶ 63 We first address defendant’s points regarding pre-trial procedures. Initially, we emphasize
that we do not take issue with the concepts defendant raises here, namely the existence, generally,
of racial biases, including implicit ones, and the significant roles such biases may play. We
acknowledge the judiciary’s important responsibility to take seriously these unfortunate realities
that may affect juror impartiality. We also do not necessarily disagree with defendant’s point that,
even in cases where race is not a central issue, racial biases may nevertheless be triggered,
potentially requiring attention. However, the entire purpose of voir dire is to select an impartial
jury. See Duncan v. Peterson, 408 Ill. App. 3d 911, 923 (2010). The trial court’s management of
that process, along with its decision to ask specific questions to prospective jurors, is reviewed for
an abuse of discretion. Id. An abuse of discretion occurs only where the trial court’s decision is
arbitrary, fanciful, or unreasonable. People v. Lerma, 2016 IL 118496, ¶ 23. Reversible error will
be found only where the trial judge’s conduct during voir dire thwarted the selection of an impartial
jury. Duncan, 408 Ill. App. 3d at 923. Moreover, “it may be error for the court to fail to curtail
voir dire that becomes an attempt to indoctrinate or pre[-]educate jurors or to obtain a pledge as to
how they would decide under a given set of facts or determine which party they would favor in
litigation.” Rub v. Consolidated Rail Corp., 331 Ill. App. 3d 692, 696 (2002).
¶ 64 Here, the court’s decisions during voir dire were not unreasonable. Defendant relies
heavily on Pena-Rodriguez. 4 Again, we have no quarrel, generally, with the principles enunciated
4 The issue before the Court in Pena-Rodriguez concerned jury impeachment, and the facts
were far more egregious than here, as they involved a juror who made clear statements during
deliberations that reflected reliance on racial stereotypes and animus to convict the defendant.
Specifically, the “alleged statements by a juror were egregious and unmistakable in their reliance
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therein. However, that “the duty to confront racial animus in the justice system is not the
legislature’s alone” (Pena-Rodriguez, __ U.S. at ___, 137 S. Ct. at 867), and that there is a “sound
basis to treat racial bias with added precaution” (id., __U.S. at __,137 S. Ct. at 869) does not render
the court’s actions here an abuse of discretion. Indeed, as defendant acknowledges, the Court in
Pena-Rodriguez also noted some of the difficulties that trial courts face in attempting to address
racial bias with prospective jurors. Specifically:
“this Court has noted the dilemma faced by trial court judges and counsel in
deciding whether to explore potential racial bias at voir dire. [Citations.] Generic
questions about juror impartiality may not expose specific attitudes or biases that can
poison jury deliberations. Yet more pointed questions ‘could well exacerbate whatever
prejudice might exist without substantially aiding in exposing it.’ ” Id., __ U.S. at ___, 137
S. Ct. at 869 (quoting Rosales-Lopez v. United States, 451 U.S. 182, 195 (1981)).
¶ 65 Thus, mindful of that struggle, we conclude that the court here did not abuse its discretion.
The court properly attempted to strike a balance, allowing questioning about racial bias, while
mitigating against indoctrination or, essentially, overkill that could exacerbate the issue without
necessarily illuminating jurors’ implicit beliefs. Defendant’s point that direct questioning about
explicit bias may not be helpful, either because most jurors know the “correct” response to such
blatant questions, is well-taken. Nevertheless, if, as defendant notes, implicit biases are sometimes
not recognized by the holder of such biases, it is easy to see how juror questioning on implicit
on racial bias. Not only did juror H.C. deploy a dangerous racial stereotype to conclude petitioner
was guilty and his alibi witness should not be believed, but he also encouraged other jurors to join
him in convicting on that basis.” Id., __ U.S. at ___, 137 S. Ct. at 870.
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biases may not be effective or might go so far as to become akin to cross-examination and backfire.
Indeed, it remains unclear what questions defendant believes would have properly shed light on
implicit bias. Other than the question aimed at exploring whether jurors had lived in racially-
diverse communities, no offer of proof was made concerning the questions that defendant would
have asked, and how those questions would have been effective on this issue.
¶ 66 As such, we conclude that the court’s actions here were reasonable. The jurors were asked
if they could be impartial to both sides. They were asked whether they believed that defendant, an
African-American man was likely to be guilty, and whether his race would affect their
deliberations. The court instructed the jury, before it heard any evidence, pursuant to IPI Criminal
4th No. 1.01, that “[n]either sympathy nor prejudice should influence you. You should not be
influenced by any person’s race, color, religion, national ancestry, gender or sexual orientation.”
(Emphases added). We note that the instruction is not qualified, such that it applies to both explicit
and implicit biases. In addition, we see no abuse of discretion in the court’s decision to utilize this
IPI, as opposed to the proposed non-IPI instruction defendant proffered. “Approved pattern
instructions are to be used generally, and may be modified or supplemented only when the facts
of the particular case make them inadequate.” People v. Mitchell, 129 Ill. App. 3d 189, 199 (1984).
In contrast, “[a] non-IPI instruction should be given if a pattern instruction does not contain an
accurate instruction on the subject the jury should be instructed upon ***.” People v. Sequoia
Books, Inc., 160 Ill. App. 3d 750, 759 (1987). Frankly, the proposed non-IPI instruction, while
lengthier, was unnecessary here, as the pattern instruction was both accurate and adequate. The
court’s exercise of discretion, allowing some questioning on racial bias and instructing the jury,
both before hearing evidence and prior to deliberations, that it must not be influenced by prejudice
or bias, was reasonable.
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¶ 67 ii. Jury Notes
¶ 68 As summarized above, defendant raises arguments concerning all three jury notes, namely,
that they allegedly-suggested bias against him and that the court utilized inadequate methods to
address them.
¶ 69 Preliminarily, defendant offered no objection to the processes used by the court with
respect to any of the notes, had input into the court’s responses thereto, and, indeed, agreed with
the court’s approach each time. “ ‘An accused may not sit idly by and allow irregular proceedings
to occur without objection and afterwards seek to reverse his conviction by reason of those same
irregularities.’ ” People v. Ramey, 151 Ill. 2d 498, 522 (1992) (quoting People v. Ford, 19 Ill. 2d
466, 478-79 (1960)). “Where a party acquiesces in proceeding in a given manner, ‘he is not in a
position to claim he was prejudiced thereby.’” People v. Hollahan, 2019 IL App (3d) 150556, ¶
17 (quoting People v. Villarreal, 198 Ill. 2d 209, 227 (2001)).
¶ 70 In any event, we recognize that receipt of three jury notes during a three-week trial might
be uncommon. Still, we think it a stretch to call them “irregularities,” and we further believe that
defendant overstates their significance. Specifically, for a juror to question whether the death
penalty is at issue and to be morally concerned about imposing that sentence simply does not
translate to a presumption of guilt or an inability to remain impartial while evaluating evidence.
The court alleviated the relevant concern by informing the entire seated jury not only that the death
penalty was not at issue, but that it should not concern itself with punishment at all. We do not
find an abuse of discretion the court’s decision to not further explore the juror’s hesitation,
particularly where the juror was repeatedly reminded to be fair and impartial and where defense
counsel, at the time, agreed with the court’s approach.
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¶ 71 The question concerning defendant’s placement in the courtroom while the jury was trying
to listen to evidence and take notes likely reflects nothing more than the obvious, i.e., it is simply
awkward and distracting to take notes with someone, particularly the accused, standing over one’s
shoulder. Indeed, that is exactly how defense counsel interpreted the note when it was presented.
As such, the jury’s note to the court reflects zealous recognition of its duty to remain attentive to
the evidence, without undue distraction. Counsel agreed that moving defendant to a different
position, or any approach that would alleviate tension with the jury, was acceptable.
¶ 72 Similarly, the third note, regarding defendant’s family in the parking lot, was handled
reasonably. We do not believe that the expressed discomfort necessarily reflects premature
determination of guilt or racially-based animus. Indeed, it is easy to imagine that, when one is
sitting in judgment of another person’s loved one, close, unsupervised, physical proximity to those
family members might be uncomfortable, even without any conclusion of guilt, due to the
inherently-great responsibility being borne. Still, to err on the side of caution, the court properly
granted defense counsel’s request that it perform an individualized inquiry to ensure impartiality.
After inquiry, no juror had expressed an inability to remain impartial.
¶ 73 We find instructive People v. Luellen, 2019 IL App (1st) 172019. Specifically, in
circumstances that we view as more egregious than those here, a trial court received a note from
the jury that read: “If the primary witness is so scared to testify that he dismissed the subpoena,
what are the safety concerns for us? We are concerned.” Id. ¶ 22. The trial court noted, “It’s not
signed, it doesn’t say which juror wrote this or how many jurors ascribe to this feeling, but this is
what they wrote.” Id. The court initially did not individually question the jurors; rather, it brought
out the jury and explained that the information on juror cards is not shared with anyone, assured
them of the “paramountcy of their safety,” and asked them to raise their hands if they felt they
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could not give both sides a fair trial. No hands were raised. Id. ¶ 24. A second note from the jury
was received, however, expressing continued concern that, although the court maintained the juror
cards, the defendant knew their names. The defendant’s counsel asked that the jurors be
questioned individually to determine whether he or she could give both sides a fair trial or,
alternatively, for mistrial. The court questioned the jurors individually; only one juror responded
that she was not sure if she could remain impartial. That juror was excused and the motion for
mistrial was denied.
¶ 74 On appeal, the court affirmed. Id. ¶ 82. It held that the trial court did not abuse its
discretion in either assessing possible juror bias or denying the mistrial, as: the court questioned
the jurors individually; the court dismissed the only juror concerned about maintaining her
impartiality; the remaining jurors were “well-instructed” not to arrive at conclusions until they
heard all of the evidence; there was no reason to doubt that the remaining jurors could not keep an
open mind; and nothing suggested that the jurors had pre-determined the merits. Id. ¶¶ 40-41. The
court emphasized that, although the notes reflected discussion between jurors about a witness’s
fear of the defendant, the notes did not reflect discussion related to the defendant’s guilt or
innocence. Id. ¶ 42. In addition, the court had repeatedly instructed the jury not to deliberate
before the completion of the evidence. Id. ¶ 44.
¶ 75 In Luellen, jurors directly expressed concern for their safety, whereas, here, the note
expressed, at most, potential discomfort parking near defendant’s family. Like Luellen, the note
here did not reflect discussion related to guilt or innocence, and the trial judge properly questioned
each juror to assess impartiality. The court was in the best position to evaluate the jurors’ responses
to that questioning. See, e.g., Bull, 185 Ill. 2d at 202. Further, the court repeatedly instructed the
jury that it was not to deliberate before completion of the evidence. Moreover, while we
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understand defendant’s point that no juror claimed to author the note, we think characterizing the
responses as untruthful is too far a stretch. The court made a decision to not directly ask each juror
whether he or she authored the note; the goal of inquiry was instead to assess overall jury bias and
impartiality. Therefore, no juror necessarily lied. He or she might have been aware that close
proximity to defendant’s family could be uncomfortable, but nevertheless remained committed to
fairly evaluating defendant’s guilt or innocence based solely on the evidence. Similarly, there was
never anything to suggest, either before trial or later upon questioning, that any juror was unable
to perform his or her duties fairly and as instructed. Thus, given the record, which simply does
not reflect that the jury was, in fact, prejudiced against defendant, we cannot find an abuse of
discretion in the trial judge’s approach to the third note, which defense counsel requested, and its
determination that the jurors remained able to fairly evaluate the evidence. See id. at 202-03.
¶ 76 iii. Ineffective-Assistance Claim
¶ 77 Finally, and related to our previous discussion, defendant raises an ineffective-assistance
claim, arguing that, given the “irregularities” that occurred during voir dire with one selected juror
or, later, with the whole panel, defense counsel should have pursued the motion for mistrial.
¶ 78 To establish a claim of ineffective assistance of counsel, a criminal defendant must
establish deficiency and prejudice, namely: that counsel’s deficient performance rendered the
result of the trial unreliable or the proceeding fundamentally unfair and that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Bull, 185 Ill. 2d at 203. If the
ineffective-assistance claim can be disposed of on the ground that the defendant did not suffer
prejudice, we need not determine whether counsel’s performance was deficient. Id.
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¶ 79 In Bull, the defendant’s ineffective-assistance claim failed on the prejudice-prong, because
he could not establish that, despite his counsel’s challenged conduct, the jury was actually
prejudiced against him. Id. 203-04. Here, too, defendant fails to establish that the jury was
prejudiced against him. We do not agree with his presumption that, if pursued, the motion for
mistrial would likely have been granted. A trial court should grant a mistrial “where an error of
such gravity has occurred that it has infected the fundamental fairness of the trial, such that
continuation of the proceeding would defeat the ends of justice.” People v. Bishop, 218 Ill. 2d 232,
251 (2006). We review for an abuse of discretion the court’s decision, as well as its determination
whether the trial has been infected such that it is fundamentally unfair. Id.; Luellon, 2019 IL App
(1st) 172019, ¶ 36. In this instance, the trial court would not likely have granted a motion for
mistrial, as individual questioning did not reflect that any juror’s impartiality had been
compromised. Again, no juror necessarily lied, and, after inquiry, the court reasonably remained
confident that the jurors would fairly evaluate defendant’s guilt or innocence based solely on the
evidence. As defendant’s motion for mistrial would not likely have been granted, nor has he shown
that the jury was actually prejudiced against him, his ineffective-assistance claim fails.
¶ 80 iv. Jury Bias - Conclusion
¶ 81 In sum, our judicial system is not infallible: “perfection in trial procedure is virtually
unattainable” and, thus, it is fundamental that a defendant in a criminal case is “entitled to a fair
trial, not a perfect one.” Bull, 185 Ill. 2d at 214. The determination of whether a jury has been
“irrecoverably compromised by interjuror communications,” as well as the initial decision about
whether and how to ask jurors about possible bias, rests in the trial court’s sound judicial
discretion.” Luellen, 2019 IL App (1st) 172019, ¶ 36. The law requires simply that “a juror will
be able to set aside all information he [or she] has acquired outside the courtroom, along with any
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opinions he [or she] has formed, and decide the case strictly on the evidence as presented in the
courtroom.” People v. Taylor, 101 Ill. 2d 377, 386 (1984). Nothing here suggests that, alone or
collectively, the issues defendant raises compromised the jurors’ ability to decide the case fairly.
As defendant notes, “voir dire at the outset of trial, observation of juror demeanor and conduct
during trial, juror reports before the verdict, and nonjuror evidence after trial are important
mechanisms for discovering bias,” (Pena-Rodriguez, __ U.S. __, 137 S. Ct. at 868); however, those
circumstances in this case do not suggest jury bias against defendant, or that it decided the case on
anything other than the evidence. We do not agree with defendant that the two-hour deliberation
period reflected bias, as the evidence against defendant was, for the reasons discussed later in this
decision, overwhelming. Accordingly, defendant has not demonstrated that the jury-related issues
deprived him of a fair trial.
¶ 82 B. Suggestion of Other Crimes
¶ 83 Defendant next raises the argument that other-crimes evidence was improperly injected
into the trial. Specifically, he notes that his motion in limine to exclude evidence of other crimes
was granted (with a minor exception not relevant here). Nevertheless, various police officers
testified that, on January 13, 2014, they recognized defendant from “prior contacts.” In addition,
various officers testified that they dealt with narcotics investigation and, further, the evidence
reflected that Sabek was a “patrol narcotics dog which meant that he was able to search for
narcotics, track and apprehension.” Together, defendant argues, the references to prior contacts
and the notion that narcotics were somehow involved in the case, prejudiced him and violated the
court’s order. Further, he notes, although the court provided the jury with a limiting instruction,
the damage was too great and had already been done.
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¶ 84 Defendant objected to introduction of other crimes before trial, and, at trial, his counsel
requested a limiting instruction pertaining to the “prior contacts.” Counsel did not, apparently,
object to the “narcotics” references, and it appears that defendant argues that these errors,
collectively, require reversal under the second-prong of the plain error rule. For the following
reasons, under we conclude that his argument fails.
¶ 85 First, we are not convinced that error occurred here. The evidence defendant points to
reflects the officers’ explanation that, when they heard the dispatch call about the shooting, they
were already in the area conducting a narcotics investigation. Similarly, reference to the patrol
dog being trained to search for narcotics was mentioned along with the fact that the dog was trained
to track and apprehend. No one ever testified or implied that defendant was involved with
narcotics or that the dog was, in this case, tracking narcotics. Thus, the references were contextual
and not directly linked to defendant personally.
¶ 86 Further, that officers mentioned knowing defendant from “prior contacts” was not entirely
irrelevant. Defendant apparently requested specifically to speak with officer Tellner, and that
officers knew defendant from prior contacts provided context to explain that request. Moreover,
to the extent that error occurred on this point, defense counsel objected, and the trial court, upon
defense counsel’s request, provided the jury with a limiting instruction that “[t]he testimony of
any witness that he or she knew the defendant from prior police contacts may not be considered
by you in anyway in arriving at your verdict.” Again, one may not sit back and allow error, then
seek reversal based on that alleged error. See, e.g., Ramey, 151 Ill. 2d at 522. Further, we have
no reason to suspect that the jury did not follow this instruction and, thus, defendant did not suffer
prejudice. See People v. Taylor, 166 Ill. 2d 414, 438 (1995) (“The jury is presumed to follow the
instructions that the court gives it”).
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¶ 87 Further, to the extent that counsel did not properly object or preserve the issue, defendant’s
plain-error argument fails. Plain error allows a criminal defendant to obtain appellate review of
procedurally-forfeited errors that occurred at trial. People v. Rinehart, 2012 IL 111719, ¶ 15; see
Ill. Sup. Ct. R. 615(a) (eff. Jan. 1, 1967). Plain error is invoked only where the evidence is closely
balanced (prong one), or the alleged error is so substantial that it deprived the defendant of a fair
trial (prong two). People v. Hampton, 149 Ill. 2d 71, 100 (1992). In this appeal, defendant asserts
only prong-two error. Both prongs of plain error require an initial determination that error occurred
(People v. Glasper, 234 Ill. 2d 173, 203-04 (2009)) and, therefore, defendant’s claim fails because,
for the reasons stated above, we find no error.
¶ 88 Even if we were to accept defendant’s claim of error, not every trial error qualifies as the
“substantial” error required for prong two to apply. Specifically, “[w]here the defendant claims
second-prong plain error, a reviewing court must decide whether the defendant has shown that the
error was so serious it affected the fairness of the trial and challenged the integrity of the judicial
process.” People v. Sebby, 2017 IL 119445, ¶ 50; see also People v. Clark, 2016 IL 118845, ¶ 42.
The mention of prior contacts and narcotics here was not substantial, such that it affected the
fairness of trial or challenged the integrity of the process. Thus, defendant’s second-prong plain
error claim fails.
¶ 89 C. Improper Use of K-9 Evidence
¶ 90 Defendant argues that his defense team was ineffective where it failed to seek exclusion of
testimony regarding the dog tracking. Defendant notes that counsel never objected to any of the
testimony about Sabek tracking a person or a person’s route, despite the prevailing caselaw at the
time, namely People v. Cruz, 162 Ill. 2d 314, 369-70 (1994), that dog-tracking evidence is
inadmissible in Illinois. Defendant argues that his team should have either moved to preclude or
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objected to the prejudicial references to Sabek being a “narcotics” trained tracking dog, as well as
the unreliable and prejudicial evidence. He argues that counsels’ failures in this regard, and failure
to include the issue in the posttrial motion, constituted ineffective assistance that, coupled with the
additional issues raised on appeal, deprived him of his constitutional right to a fair and impartial
trial. We disagree.
¶ 91 Again, to establish his ineffective-assistance claim, defendant must show that counsel’s
deficient performance rendered the result of the trial unreliable or the proceeding fundamentally
unfair and that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland, 466 U.S. at 687. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Bull, 185 Ill. 2d at
203. If the ineffective-assistance claim can be disposed of on the ground that the defendant did
not suffer prejudice, we need not determine whether counsel’s performance was deficient. Id.
¶ 92 It is true that Cruz reiterated that “testimony as to the trailing of either a man or an animal
by a blood-hound should never be admitted in evidence in any case.” Cruz, 162 Ill. 2d at 368.
Moreover, this court recognized that Cruz “unambiguously announced a broad and clear
prohibition of ‘bloodhound evidence’ presented to prove any factual proposition in a criminal
proceeding ***.” People v. Montano, 2017 IL App (2d) 140326, ¶ 95. Frankly, we remain puzzled
as to why the dog evidence was presented here at all, if not to imply that defendant fled Taylor’s
body and ran back to his house before he was ultimately arrested, which it certainly did not
establish. That Sabek would track from the place where Taylor was found back to defendant’s
house proved nothing, as Williams plainly testified that he came from the home to comfort Taylor,
he turned her over and inspected her wounds, and then he returned to defendant’s home. Sabek
could have picked up Williams’ scent, or even Taylor’s scent from when she was in defendant’s
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house earlier that evening. Nor did Sabek find a weapon in his initial or reverse tracking. Simply
put, the evidence was utterly unpersuasive on any topic and should not have been introduced.
¶ 93 For this same reason, however, we cannot find the prejudice required to sustain defendant’s
ineffective-assistance claim. Even if the evidence was inadmissible and counsel’s failure to object
constituted deficient performance, nothing about the evidence suggests that, but for counsel’s
error, the result of the trial would have been different. Indeed, the evidence of defendant’s guilt
was overwhelming. More specifically, to the extent that Sabek in any way suggested that
defendant was present at the scene, numerous eyewitnesses had already placed him there. Further,
defendant was apprehended wearing the clothes described by witnesses, and his comments to the
officers that he made a mistake, asking if Taylor was all right, and claiming that he was on his way
to turn himself in, also supported the inference that he had been present at the scene. Moreover,
gunshot residue was found on defendant’s hands, and the bloodstains on his clothes tested positive
for Taylor’s DNA. In short, counsel’s failure to object to the use of canine evidence does not
undermine our confidence in the outcome. Defendant’s ineffective-assistance claim fails.
¶ 94 D. Prosecutorial Misconduct
¶ 95 Finally, defendant argues that, in an already-damaged prosecution, one of the prosecutors
put the “icing on the cake” when he engaged in childish behavior during closing arguments.
Specifically, according to defendant, the assistant State’s Attorney persisted, in front of the entire
courtroom, in laughing, throwing back his head, and rolling his eyes. Although defendant did not
raise a contemporaneous objection, he notes that he argued it posttrial and the court ruled that the
conduct was not so egregious as to cause the jury to be biased. Defendant alleges that, setting
aside forfeiture, this argument should simply be considered as part and parcel of his overall
argument that the integrity of this judicial process was compromised and that he was denied his
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constitutional right to a fair trial. Defendant maintains that, even if, alone, the conduct was
insufficient to cause jury bias, it disparaged the defense attorney and defense theory and should be
“most vigorously condemned by this court.”
¶ 96 We cannot conclude that this error is reversible. Again, as there was no contemporaneous
objection, and defendant raises only second-prong plain error, we cannot conclude, in the context
of the entire three-week trial, that this alleged error was so substantial that it challenged the fairness
of trial overall or the integrity of the judicial process. See Sebby, 2017 IL 119445, ¶ 50.
¶ 97 Clearly, however, comments or behavior that disparage the integrity of defense counsel are
totally improper and cannot be condoned. See, e.g., People v. Starks, 116 Ill. App. 3d 384, 394
(1983). Although the State is correct that the record is not extensive on this topic, it suffices to
suggest that at least some improper conduct occurred, as the trial court ruled that it was insufficient
to bias the jury, not that it did not happen. As requested, we vigorously condemn the behavior
described here, and we remind the State that it is held to a very high standard of conduct and has
an obligation to uphold the integrity of the criminal justice system.
¶ 98 E. Cumulative Error
¶ 99 Defendant asserts throughout his brief that the alleged errors, together, warrant reversal
under the second-prong of plain-error review. He argues he did not, overall, receive a fair trial,
when one considers the irregularities regarding the jury (voir dire, notes, instructions, etc.), the
improper evidence of prior contacts, the wholly inadmissible evidence of dog tracking, and the
prosecutorial misconduct.
¶ 100 Although not specifically developed as such, defendant’s argument sounds like a plain-
error argument premised on cumulative error. Generally:
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“ ‘[W]here errors are not individually considered sufficiently egregious for an
appellate court to grant the defendant a new trial, but the errors, nevertheless, create a
pervasive pattern of unfair prejudice to the defendant’s case, a new trial may be granted on
the ground of cumulative error.’ [Citation.] ‘However, the cumulative errors that warrant
such an extreme result must themselves be extreme.’ [Citation.] ‘There generally is no
cumulative error where the alleged errors do not amount to reversible error on any
individual issue.’ ” [Citation.] People v. Sims, 2019 IL App (3d) 170417, ¶ 55 (2019).
¶ 101 Here, defendant’s appellate arguments are not unreasonable, but most of them are not error,
and none amounts to reversible error. The record does not reflect any unfair prejudice to
defendant’s case. As such, they do not, cumulatively, require a new trial. To the extent that the
plain-error argument is premised on cumulative error, therefore, it must fail.
¶ 102 III. CONCLUSION
¶ 103 For the reasons stated, the judgment of the circuit court of Kane County is affirmed.
¶ 104 Affirmed.
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2020 IL App (2d) 170919-U, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-whetstone-illappct-2020.