2023 IL App (5th) 220073-U NOTICE NOTICE Decision filed 08/16/23. The This order was filed under text of this decision may be NO. 5-22-0073 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Macon County. ) v. ) No. 17-CF-1343 ) JASON WHITE, ) Honorable ) Thomas E. Griffith, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: Cause affirmed where the prosecutor’s rebuttal closing argument did not deprive defendant of a fair trial, the circuit court properly instructed the jury following a question during deliberations, and defendant failed to satisfy his burden of showing that the evidence was closely balanced or that plain error occurred in the admission of Matthew Brandt’s videotaped statement to police.
¶2 Defendant, Jason White, appeals his conviction, following a trial by jury in Macon County,
for the offense of first degree murder. On appeal, defendant raises three contentions of error. First,
defendant argues that the prosecutor’s rebuttal closing argument confused the jury and deprived
him of a fair trial. Second, defendant argues that the circuit court committed reversible error where
it failed to clarify the law of accountability for the jury. Third, defendant argues that the circuit
court erred by allowing the State to publish to the jury portions of Matthew Brandt’s videotaped
statement to police. For the reasons that follow, we affirm defendant’s conviction.
1 ¶3 I. Background
¶4 A. The Charges
¶5 On September 18, 2017, the State charged defendant by five-count information. Counts I,
II, III, and IV charged defendant with the offenses of first degree murder, in violation of sections
9-1(a)(1), (a)(2), and (a)(3) of the Criminal Code of 2012 (720 ILCS 5/9-1(a)(1) (West 2016)
(count I), 720 ILCS 5/9-1(a)(1) (West 2016) (count II), 720 ILCS 5/9-1(a)(2) (West 2016) (count
III), and 720 ILCS 5/9-1(a)(3) (West 2016) (count IV)). All four counts alleged that defendant
personally discharged the firearm that proximately caused death to Zachary Hubbart. 1 Count V
charged defendant with the offense of armed robbery, in that defendant, while carrying a dangerous
weapon, a firearm, knowingly took property, U.S. currency, from Hubbart by the use of force. 720
ILCS 5/18-2(a)(2) (West 2016)). Count V alleged that defendant personally discharged the firearm
that proximately caused death to Hubbart.
¶6 During a preliminary hearing on October 4, 2017, Detective Timothy Wittmer of the city
of Decatur police testified. On August 27, 2017, law enforcement found Hubbart shot to death
from multiple gunshot wounds. The owner of the residence, defendant’s landlord, indicated that
defendant was the last tenant in the home. According to Wittmer, prior to the victim’s death, Alex
McDaniel and Tanner McGlothlin assisted the victim in negotiating a deal to purchase cannabis
from defendant. Cell phone records obtained indicated that both defendant and the victim were
present in the vicinity of the crime scene at the time of the murder. Cell phone activity showed
communications between the victim’s cell phone and defendant’s cell phone.
1 The record contains numerous variations in the spelling of the victim’s name. For purposes of this order, this court will use “Zachary Hubbart.” 2 ¶7 Prior to the murder, defendant’s cell phone was used to communicate with the cell phone
of Ryan Waters. Law enforcement interviewed Bryanta Hart, who stated that on the night of the
murder she and Ryan Waters were contacted by defendant by cell phone. Defendant indicated that
he wished to pretend that he, Waters, and Hart had cannabis to sell Hubbart. Hart informed law
enforcement that when they arrived at the home, the victim, Waters, and defendant walked into
the back room of the house. A few minutes later, Hart heard multiple gunshots. Waters ran from
the house, entered the vehicle, and advised Hart that defendant shot the victim. Hart advised law
enforcement that she assisted in collecting and disposing of evidence at the crime scene on two
separate occasions that morning.
¶8 Law enforcement interviewed Waters. Defendant advised Waters that he was going to “hit
a lick” on the victim. Waters advised law enforcement that they went to the residence and
defendant fired a handgun, striking the victim. Waters advised law enforcement that he and Hart
helped defendant dispose of evidence from the crime scene.
¶9 Autumn Billings, defendant’s wife, advised law enforcement that she assisted in concealing
evidence from the crime scene by driving it to Lake Decatur, where defendant disposed of items.
¶ 10 The circuit court determined that probable cause existed. The matter proceeded to a jury
trial.
¶ 11 B. The Trial
¶ 12 1. Opening Statements
¶ 13 During opening statements, the State argued that the victim, Hubbart, made money by
selling cannabis. Hubbart’s supplier was out of town, so Hubbart contacted Alex McDaniel to
procure cannabis to sell. Hubbart was ultimately referred to defendant as a supplier. Defendant
asked Hubbart to meet him in Decatur, Illinois, in an abandoned house defendant previously
3 rented, in the early morning hours on August 27, 2017. According to the State, Hubbart left his
home with approximately $5000.
¶ 14 In the following days, a neighbor, Ray Allen, saw an unfamiliar vehicle parked near the
abandoned home. Allen entered the home and observed the victim lying face against a couch, with
his body on the floor. Allen observed several gunshot wounds. Allen alerted a friend, Andrew
Eubanks, who called police.
¶ 15 Law enforcement investigated the case, which resulted in an interview of Ryan Waters,
who went to the home with defendant on the night of the shooting. Bryanta Hart and Matthew
Brandt also went to the home with Waters and defendant.
¶ 16 The State argued that Waters and defendant entered the home while Hart and Brandt stayed
outside in a vehicle. Waters ran from the home while gunshots continued firing. Then, defendant
exited the home. The parties initially left after the shooting, but they went back to the home to pick
up shell casings and clean the crime scene. Defendant and Waters disposed of the firearm and other
items in Ivy Hill Park by throwing them into a lake.
¶ 17 In defendant’s opening statement, defense counsel responded by arguing that the jury
would hear from the witnesses themselves and determine that they “may not be all that credible in
this case.” Defense counsel contended that the evidence would demonstrate that Waters intended
to rob Hubbart and that Waters was the one who “pulls the trigger.”
¶ 18 2. The State’s Evidence
¶ 19 The State called Linda Hubbart, the victim’s mother. On August 26, 2017, the victim
advised his mother that he was going on a date. He asked Linda’s permission to drive her silver
2012 Camry. Linda was aware that her son dealt cannabis.
4 ¶ 20 Ray Allen testified for the State. On August 27, 2017, he and a friend sat at a picnic table
near the crime scene. Allen was aware that the nearby home was damaged by fire. He observed a
vehicle he had never seen at the home. Allen also noticed that a door to the home remained open
“for a day or so.” Allen walked over to the home, entered the open door, walked inside, and
observed a man “on his knees laying face first on the couch.” Allen summoned the friend he was
sitting with on the picnic table, Andrew Eubanks. The men called the police.
¶ 21 Officer Todd Cline, a police patrol officer for the City of Decatur, testified for the State.
Officer Cline was on call on August 27, 2017. Officer Cline responded to the crime scene following
a call from Andrew Eubanks. Officer Cline entered the home and made his way to the living room,
where he observed a deceased person. Officer Cline observed what he believed to be gunshot
wounds on the victim’s body.
¶ 22 Officer Larry Brooks, from the Decatur Police Department, next testified. On August 27,
2017, Officer Brooks responded as a backup officer to Todd Cline at the crime scene. Officer
Brooks entered the home and observed a deceased person lying face down on the couch. Officer
Brooks transported Allen to the police department for an interview.
¶ 23 Sergeant Christopher Copeland with the Decatur Police Department testified. Sergeant
Copeland worked with the public building commissioner to review surveillance footage from a
nearby building. Sergeant Copeland obtained surveillance footage which had a view of the home
that demonstrated vehicles coming and going from the area of the crime scene.
¶ 24 Sergeant Copeland investigated the Facebook accounts of individuals who may have been
involved in the case. Specifically, he identified the victim, Hubbart’s, Facebook account. He also
identified McDaniel’s account. Finally, he identified defendant’s account, listed as “Alex
Montana.” Sergeant Copeland contacted Facebook to preserve the accounts.
5 ¶ 25 Dr. Scott Denton, a forensic pathologist, testified. Dr. Denton performed the autopsy of
Hubbart. The parties stipulated that Dr. Denton was an expert witness. Dr. Denton testified that
Hubbart had six total gunshot wounds on his body, including on the upper back, the right back,
and the lower right back. Dr. Denton removed one bullet from Hubbart’s body. Dr. Denton also
observed a gunshot wound on the left side of Hubbart’s head above and behind the ear. The gunshot
caused a basal skull fracture. Dr. Denton observed six total gunshot wounds in the autopsy. Dr.
Denton testified that the cause of death was from multiple gunshot wounds.
¶ 26 Alex McDaniel next testified. McDaniel was a friend of Hubbart. McDaniel and Hubbart
were at a party together on the night of the shooting. While at the party, McDaniel helped Hubbart
get in touch with Tanner McGlothlin in order to “locate marijuana.” McDaniel testified that
Hubbart ultimately contacted defendant, who wanted to meet in Decatur. McDaniel testified that
he offered to accompany Hubbart to Decatur, but ultimately Hubbart did not want McDaniel to
attend the meeting with defendant. McDaniel observed Hubbart leave the party in Hubbart’s
mother’s silver vehicle.
¶ 27 Tanner McGlothlin next testified. McGlothlin knew defendant and identified him in court.
On the night of the shooting, McGlothlin received a call from McDaniel to arrange a purchase of
cannabis. McGlothlin contacted defendant, who indicated that he “would look and he found some”
cannabis to sell to Hubbart. McGlothlin exchanged contact information with McDaniel and
defendant so they could arrange the transaction. McGlothlin and McDaniel intended to travel to
Decatur with Hubbart, but ultimately Hubbart did not want them to go.
¶ 28 Bryanta Hart next testified. Hart testified that she had a criminal history which included
two juvenile theft cases. At the time of her testimony, Hart had a pending case for aggravated
resisting a peace officer. Hart failed to appear in court in that matter and a warrant issued for her
6 arrest. In exchange for her testimony in the instant case, the State quashed the warrant. Hart
testified that she was not promised anything else in exchange for her testimony in this case.
¶ 29 Hart testified that Ryan Waters was her “son’s father.” The two lived together. Hart also
knew defendant and identified him in the courtroom. On the night of the shooting, Hart was at a
local bar with Waters and his friends. Hart received a phone call from defendant. Defendant
requested to speak to Waters, and Hart gave Waters her cell phone. Hart and Waters met defendant
at “his house on Conduit” with their friend, Matt. Upon getting to the house, Hart observed
defendant and the victim sitting in the front seat of a car. Waters and defendant “went around to
the back seat” of Hart’s van. They then proceeded inside the home with the victim. Hart recalled
“hearing a gunshot” then observing Waters running from the home. Hart described Waters as
“scared” and “crying.” Hart thought that she heard another gunshot as Waters ran from the home.
¶ 30 Hart testified that defendant exited the home and entered the vehicle (van). Waters drove
while Hart sat in the passenger seat. Defendant, Waters, Hart, and Matthew Brandt drove to
defendant’s home to pick up defendant’s wife, Autumn. Defendant got into a car with Autumn.
The parties went back to the crime scene where defendant and Waters wiped down Hubbart’s car.
Waters and defendant later “threw something out in the lake” and “started shoving things down in
the drain” at the zoo. Hart testified that Waters and defendant removed their shirts and put them in
the drain.
¶ 31 Hart testified that she advised law enforcement that Waters was given “half the money.”
Hart also testified that Waters received a text message from defendant telling Waters to “act like
he had some cannabis to sell.”
¶ 32 On cross-examination, Hart admitted that she initially lied to law enforcement in this case
by telling them that she and Waters were asleep in Boody, Illinois, at the time of these events. Hart
7 also admitted that she did not initially tell law enforcement that Matthew Brandt was present. Hart
testified that she, Waters, and Brandt were intoxicated on the night at dispute. Hart admitted that
she “smoke[d] weed” that night as well.
¶ 33 Next, Ryan Waters testified. Waters knew defendant for approximately two months prior
to the shooting. Waters testified that he had a criminal history including a conviction for aggravated
driving under the influence (DUI) and misdemeanor shoplifting. Waters was also charged with
first degree murder and armed robbery for the death of Hubbart. In exchange for Waters’
testimony, he would be allowed “to plead guilty to the armed robbery with a cap of 20 years in
prison.”
¶ 34 On August 26, 2017, Waters went to a bar with Hart, Brandt, and his friend Anthony.
Waters received a text message from defendant. Defendant subsequently called Waters and asked
Waters meet him. Defendant told Waters to “act like [he] had weed.” Waters went to the home
with Hart and Brandt. Waters observed defendant and a “white male” sitting in a silver car. When
Waters arrived, defendant exited the silver car and went to Waters’ car window. Defendant told
Waters to “act like [he] had weed in [his] hatch.” Waters exited his van and “acted like [he] grabbed
weed out of [his] hatch.” Waters, defendant, and Hubbart entered the home and went into the front
room. Defendant “pulled out a gun and told [Hubbart] to give him everything.” Waters testified
that he did not have a firearm.
¶ 35 Waters testified that defendant fired the gun, and Waters observed blood on the victim’s
shirt. Waters ran from the house to his van. While running, Waters heard multiple gunshots. Waters
entered the driver’s door of the vehicle. Defendant ran out next and entered the van with a black
gun. Waters drove from the scene.
8 ¶ 36 Waters drove to Autumn’s house, where defendant placed the gun and bullets in a bag.
Waters drove to Ivy Hill Park on Lost Bridge Road. Defendant and Waters threw the gun and the
bullets into the lake. Waters drove to purchase alcohol and rags. He and defendant removed their
shirts and put them down a drainage pipe at the zoo. Waters drove back to the crime scene, where
he and defendant wiped down the back door and wiped down the victim’s car. The parties left the
scene, and defendant gave Waters $1000. Waters went home.
¶ 37 Defendant called Waters and asked him to return to the crime scene to pick up shell casings.
Defendant and Waters returned to Autumn’s house to put the shell casings in a black trash bag.
Defendant asked Waters to throw the bag in the dumpster at the East Side Market, and Waters
complied.
¶ 38 On cross-examination, Waters admitted to lying to law enforcement during his initial
interview. Waters originally advised law enforcement that he was asleep on the night in question.
Waters later contacted police and advised them that he received a message from defendant about
“doing a $5,000 cannabis deal.”
¶ 39 Next, Matthew Brandt testified. Brandt responded to all of the State’s questions by simply
responding, “no” or “I don’t remember.”
¶ 40 Detective Timothy Wittmer from the Decatur Police Department street crimes team
testified. Detective Wittmer conducted an interview with Matthew Brandt on November 21, 2017.
The video was played for the jury without objection from defense counsel. 2 The video
demonstrated that Brandt told Wittmer that he went with Waters and Hart to defendant’s house on
Conduit Street, and when they arrived, defendant was sitting in the passenger seat of a silver car.
2 The State asked the circuit court to admit the video recorded statement as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2020)) as a prior inconsistent statement. Over objection from defense counsel, the court admitted the evidence as substantive evidence, finding the State laid a proper foundation. 9 According to Brandt, Waters and defendant told the victim to go in the house to wait for them.
Five or ten minutes later, Brandt heard gunshots. Waters ran from the home and told Hart and
Brandt that defendant “shot him.” Defendant ran from the house as well and entered the vehicle,
saying that it “went bad.” Brandt indicated that Waters received $1000 from defendant. Brandt
advised Wittmer that Waters and defendant went back to the house to retrieve “shells” and “wipe[ ]
everything down.” Brandt indicated that he did not go into the house.
¶ 41 Detective Ronald Borowczyk from the Decatur Police Department next testified. Detective
Borowczyk specialized in digital evidence recovery from computers, mobile devices, and other
computer type items. Defense counsel stipulated that Detective Borowcyzk was an expert in the
area of digital data analysis. Detective Borowczyk examined communications between defendant,
Tanner McGlothlin, Alex McDaniel, and Hubbart. Detective Borowczyk discovered a message
from defendant to McGlothlin wherein defendant asked McGlothlin to “delete all their
communications.” Detective Borowczyk further testified that there were communications between
McGlothlin and his mother that McGlothlin “felt responsible for turning Mr. Hubbart onto
[defendant].”
¶ 42 Detective Scott Cline with the Decatur Police Department next testified. Detective Cline
utilized an FBI dive team to recover a firearm, cartridge, and magazine from a lake in Ivy Hill
Park.
¶ 43 Hali Carls-Miller, a forensic scientist for the Illinois State Police, testified. Carls-Miller
testified that the cartridge casing from the shell casing found at the scene was fired in the firearm
recovered from the lake.
¶ 44 Caleb Lassiter next testified. Lassiter testified that he and defendant were “celled together.”
Lassiter testified that defendant confided in him about the details of the “murder.” Lassiter testified
10 that in 2018 he was charged with unlawful possession of a weapon by a felon, which he pled guilty
to. He also had a pending felony case for theft, with a prior in 20-CF-201 in Montgomery County.
Lassiter pled guilty to the offense and was set for sentencing on December 6, 2021. Lassiter
testified that on July 17, 2018, he spoke with Detective Wittmer. Defendant advised Lassiter that
it was the night of a UFC fight, and defendant “called the victim over to an abandoned house.”
Defendant tried to rob the victim, but the victim would not “give it up” so defendant “shot him.”
Lassiter testified: “He said he shot him once, and he started to go down onto a couch, and then he
just kept shooting him.” Lassiter testified that he did not know Ryan Waters, Bryanta Hart, or
Matthew Brandt.
¶ 45 3. Defendant’s Case
¶ 46 Frankie Ludwig testified for the defense. Ludwig had an extensive criminal history
including multiple convictions for driving while license revoked and aggravated DUI. Ludwig
participated in “hybrid court” where he met Ryan Waters. Ludwig testified that Waters told him
that Waters “pretty much popped the motherfucker.” Waters told Ludwig that he was “going to
say [defendant] was the one who pulled the trigger and it wasn’t him.”
¶ 47 Austin Reid next testified. Reid had a criminal history, including convictions for
aggravated DUI, possession of a stolen vehicle, burglary, theft, possession of a weapon by a felon,
and multiple convictions for forgery. At the time of trial, Reid was incarcerated. Reid was in a
“physical relationship” with Hart. Reid testified that Hart spoke with him about her “baby daddy”
Waters. Hart told Reid that Waters “went to hit a lick”—meaning, to rob someone—but that
Waters “shot somebody and killed them.” Hart told Reid that she would “say whatever she had to
say to get [Waters] out of jail.” Reid testified that he was serving a sentence in the Illinois
Department of Corrections and did not receive any benefit from his testimony.
11 ¶ 48 Next, Tyler McPherson testified. McPherson was friends with defendant for “around a
decade.” McPherson was with defendant on August 26, 2017, where the two attended a party to
watch a UFC fight. McPherson testified that defendant wore baggy pants during the fight watch,
and the pants were weighed down by defendant’s phone. Therefore, McPherson testified that
defendant likely did not have a firearm in his pocket during the party, which would weigh down
his pants.
¶ 49 4. Jury Instructions
¶ 50 During the jury instruction conference, the State sought to admit People’s Instruction No.
14, on accountability. The State argued that their main position was that defendant fired the gun
that killed the victim. However, the State charged the offense under the theory of accountability.
Defendant objected to the instruction, noting: “I think the State needs to pick a theory and not go
on every potential theory.” The circuit court determined that there was “some evidence” to support
the instruction, offering it over objection. Therefore, the circuit court allowed People’s Instruction
No. 14, Criminal IPI 5.03, which stated:
“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of an offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of an offense. The word ‘conduct’ includes any criminal act done in furtherance of the planned and intended act.”
¶ 51 Next, the State sought to admit People’s Instruction No. 15. Defense counsel objected to
the instruction, where it might “confuse” the jury. Over objection, the circuit court also allowed
People’s Instruction No. 15, Criminal IPI 5.03A, which stated:
“To sustain the charge of first degree murder, it is not necessary for the State to show that it was or may have been the original intent of the defendant or one for whose conduct he is legally responsible to kill the deceased, Zachery Hubbart. It is sufficient if the jury believes from the evidence beyond a reasonable doubt that the defendant and one for whose conduct he is legally responsible combined to do an 12 unlawful act, such as to commit armed robbery, and that the deceased was killed by one of the parties committing that unlawful act.”
¶ 52 The State sought to offer People’s Instruction No. 25 regarding the defendant being armed.
Defense counsel objected to the use of the language in the instruction of “one for whose conduct
he was legally responsible,” noting that defendant “either personally discharged the firearm or he
did not.” The State responded that the instruction went “to the accountability issue.” The circuit
court noted that the instruction was appropriate where one can “still be convicted” “under the
accountability theory.” Defense counsel raised an ongoing objection to all instructions with
accountability language.
¶ 53 The circuit court instructed the jury related to first degree murder.
¶ 54 5. Closing Arguments
¶ 55 During closing arguments, the State noted that the law of this case was “complex.” The
State noted that it was the jurors’ job to assess the credibility of the witnesses and to determine
which pieces of evidence to believe. The State argued that “under the law” “there are different
ways you can be guilty of the same thing.” The State continued that with a charge of first degree
murder “there are four different theories that apply to whether or not someone might be guilty of
the offense of first degree murder.” The State continued: “If any one of them applies, then the
defendant is guilty of first degree murder.”
¶ 56 The State argued that it presented testimony which suggested that defendant was the
shooter in this case. However, the State acknowledged that Waters’ testimony could be viewed
with skepticism, given he was involved in the crime. While acknowledging that “it is our main
theory of the case that [defendant] was the one who shot the gun that killed Zach Hubbart,” the
State noted that even if the jurors believed that defendant did not shoot the gun, he was accountable
for the person that committed the murder.
13 ¶ 57 The State read the jury the accountability jury instruction and described accountability as
“a person is legally responsible for the conduct of another when either before or during the
commission of an offense and with the intent to promote or facilitate the admission of that offense,
he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the planning
of the commission of the offense.”
¶ 58 The State also commented on the video recorded interview of Brandt. Brandt did not
cooperate during his testimony. However, the State played a video recorded statement, wherein
Brandt indicated that defendant was the man who shot Hubbart. Brandt’s video recorded statement
also corroborated Waters’ testimony that defendant gave Waters $1000.
¶ 59 Next, during defendant’s closing argument, defense counsel argued that the State failed to
prove beyond a reasonable doubt that defendant knew that the robbery would result in a murder.
Defense counsel argued that Waters was not credible, where he had the highest motive to lie.
Defense counsel argued that Waters “came up with the idea of the robbery on his own.”
¶ 60 As to accountability, defense counsel argued that defendant “thought he was doing a
cannabis deal.” Defense counsel argued that defendant “was not trying to do a robbery.” Counsel
continued: “[Defendant] had no idea what [Waters] was planning ***.”
¶ 61 During rebuttal closing argument, the State argued that the jury could consider Brandt’s
video recorded statement as “substantive evidence.” Additionally, the State stated:
“[STATE’S ATTORNEY]: *** All right. Getting back then to the point I was originally trying to get to, and that is that if you talk about this idea of accountability *** Ryan Waters [codefendant] or Jason White [defendant] was the actual shooter. He is still accountable even under the best circumstance for what the defense is claiming. Because he assisted—did he aid or [abet] in the commission of the crime? He helped clean up afterwards.
[DEFENSE COUNSEL]: Objection.
THE COURT: What’s your objection?
14 [DEFENSE COUNSEL]: I would argue that the statement of the law on accountability [sic].
THE COURT: Overruled. Go ahead, Mr. Rueter [(State’s Attorney)].”
¶ 62 The State continued argument, explaining why cleaning up was part of the People’s theory
leading to defendant’s accountability for the murder of Hubbart, whether defendant or his
codefendant shot the gun:
“STATE’S ATTORNEY: *** Accountability, ladies and gentlemen, involves assisting someone until they are free of the crime scene, and helping clean up that crime scene is helping them get away with the crime. That’s aiding and abetting.”
¶ 63 The State continued to argue that defendant was “in full knowledge that there was a robbery
going on here.” The State noted that defendant may not have known “there was going to be a
murder” but that defendant was “certainly responsible in firing the gun.”
¶ 64 6. Verdict
¶ 65 Relevant to this appeal, during deliberations, the jury sent the following question: “Does
the phrase ‘promote or facilitate the commission of an offense’ include the act of cleaning and/or
covering up?” Defense counsel argued that the question indicated that the State ill-advised the jury
on the law of accountability during closing argument, where the law states that “you’re accountable
for the actions of either before or during the commission of an offense.” The State responded that
its understanding of the law indicated that “accountability exists until there is a successful
getaway” which the State interpreted as “until all the evidence is wiped away in this case.” The
court responded to the jury: “You have received the jury instructions which contain the legal
definitions of all issues pending in the case. Please continue with your deliberations.”
¶ 66 Following over six hours of deliberation, the jury returned a verdict of guilty of first degree
murder. The jury found that defendant, or one for whose conduct he is legally responsible, was
armed with a firearm was proven. The jury found defendant not guilty of armed robbery. The jury
15 found that the allegation that defendant personally discharged a firearm that proximately caused
death to another person was not proven beyond a reasonable doubt.
¶ 67 Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative,
for a new trial. Relevant to this appeal, defendant argued that the State misstated the law during
closing arguments, where the State argued that defendant’s actions in returning to the scene to
clean up and dispose of evidence made him responsible for the murder. Defendant argued that this
error was apparent where the jury sent a question asking the court to clarify whether cleaning up
was “during the commission” of the offense. Defendant also argued that the evidence was
insufficient for a finding of guilt beyond a reasonable doubt.
¶ 68 C. Sentencing
¶ 69 Following evidence and argument, the circuit court sentenced defendant on the offense of
first degree murder (720 ILCS 5/9-1(a)(1) (West 2016)) to 50 years in prison, served 100%, with
3 years of mandatory supervised release. Specifically, the court sentenced defendant to 35 years
for first degree murder plus a 15-year firearm enhancement.
¶ 70 On December 17, 2021, defendant filed a motion to reconsider sentence, which the circuit
court denied. This timely appeal followed.
¶ 71 II. Analysis
¶ 72 On appeal, defendant raises three contentions of error. First, defendant argues that the
prosecutor’s rebuttal closing argument confused the jury and deprived him of a fair trial. Second,
defendant argues that the circuit court committed reversible error where it failed to clarify the law
of accountability for the jury. Third, defendant argues that the circuit court erred by allowing the
State to publish to the jury portions of Matthew Brandt’s videotaped statement to police. For the
reasons that follow, we disagree.
16 ¶ 73 A. Rebuttal Closing Argument
¶ 74 First, defendant argues that the prosecutor erred during closing argument when he
suggested that defendant was still accountable for Waters’ actions simply because he helped
Waters “clean up afterwards.” Defendant contends that this argument misstated the law of
accountability, confused the jury, and deprived defendant of a fair trial. The State responds that
the prosecutor did not misstate the law regarding accountability during closing argument.
Alternatively, the State argues that defendant is not entitled to a new trial as a result of any
perceived error. We disagree with defendant, where the prosecutor did not misstate the law and
the jury was properly instructed.
¶ 75 Generally, the prosecution has wide latitude in making its closing argument. People v.
Nicholas, 218 Ill. 2d 104, 121 (2005). The prosecutor may comment on the evidence and any fair,
reasonable inferences from it, even if those inferences reflect negatively on the defendant. Id.
However, a closing argument must serve a purpose beyond inflaming the emotions of the jury. Id.
“A closing argument must be viewed in its entirety, and the challenged remarks must be viewed
in their context.” Id. at 122. “A prosecutor’s comments in closing argument will result in reversible
error only when they engender ‘substantial prejudice’ against the defendant to the extent that it is
impossible to determine whether the verdict of the jury was caused by the comments or the
evidence.” People v. Macri, 185 Ill. 2d 1, 62 (1998). If the jury could have reached a contrary
verdict had the improper remarks not been made, or if this court cannot say that the State’s
improper remarks did not contribute to the defendant’s conviction, a new trial should be granted.
People v. Wheeler, 226 Ill. 2d 92, 123 (2007).
¶ 76 However, prosecutors are not permitted to misstate the law. See People v. Brooks, 345 Ill.
App. 3d 945, 950 (2004). A defendant arguing that reversal of his conviction is warranted on the
17 basis of improper closing argument faces a difficult burden. People v. Gutierrez, 402 Ill. App. 3d
866, 895 (2010). Even when a defendant objects at trial to all of the remarks he challenges on
appeal, reversal is warranted only if those remarks resulted in substantial prejudice to the
defendant. People v. Abadia, 328 Ill. App. 3d 669, 678 (2001).
¶ 77 Illinois courts have acknowledged an apparent conflict between two Illinois Supreme Court
decisions on the appropriate standard of review to apply in this case. Compare People v. Blue, 189
Ill. 2d 99, 128 (2000) (applying an abuse of discretion standard), with People v. Wheeler, 226 Ill.
2d 92 (2007) (applying a de novo standard). More recently, the First District held that no conflict
existed between Blue and Wheeler. See People v. Cook, 2018 IL App (1st) 142134, ¶¶ 61-62.
Defendant requests that this court review the issue de novo pursuant to Wheeler. Rather, the
holdings in both cases establish that we apply an abuse of discretion standard in reviewing the trial
court’s ruling on the propriety of the challenged remarks, and a de novo standard in reviewing
whether any misconduct was egregious enough to warrant a new trial. Cook, 2018 IL App (1st)
142134, ¶¶ 61-62. Taking these principles into consideration, we find the prosecutor’s comments
do not warrant a new trial.
¶ 78 Turning to the merits, to prove that a defendant had the intent to promote or facilitate the
crime, the State must present evidence that establishes, beyond a reasonable doubt, “that (1) the
defendant shared the criminal intent of the principal or (2) there was a common criminal design.”
People v. Willis, 2013 IL App (1st) 110233, ¶ 79. The common design rule holds that “where two
or more persons engage in a common criminal design or agreement, any acts in the furtherance of
that common design committed by one party are considered to be the acts of all parties to the
design or agreement and all are equally responsible for the consequences of the further acts.” In re
W.C., 167 Ill. 2d 307, 337 (1995). “Words of agreement are not required to prove a common design
18 or purpose between codefendants; a common design may be inferred from the circumstances
surrounding the crime.” Willis, 2013 IL App (1st) 110233, ¶ 79. “Evidence that a defendant
voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports
an inference that he shared the common purpose and will sustain his conviction for an offense
committed by another.” In re W.C., 167 Ill. 2d at 338. “A conviction under accountability does not
require proof of a preconceived plan if the evidence indicates involvement by the accused in the
spontaneous acts of the group.” People v. Cooper, 194 Ill. 2d 419, 435 (2000). “In determining a
defendant’s legal accountability, the trier of fact may consider the defendant’s presence during its
commission, the defendant’s continued close association with other offenders after its commission,
the defendant’s failure to report the crime, and the defendant’s flight from the scene.” Willis, 2013
IL App (1st) 110233, ¶ 79. “ ‘Absent other circumstances indicating a common design, presence
at the scene and flight therefrom do not constitute prima facie evidence of accountability; however,
they do constitute circumstantial evidence which may tend to prove and establish a defendant’s
guilt.’ ” Id. (quoting People v. Foster, 198 Ill. App. 3d 986, 993 (1990)). A defendant may be
found guilty under an accountability theory even though the identity of the principal is unknown.
Cooper, 194 Ill. 2d at 435.
¶ 79 Defendant argues that the prosecutor’s statements regarding cleaning the crime scene were
error. The prosecution maintained its theory that defendant himself was the shooter. However, as
an alternate theory, the State charged defendant, and the circuit court instructed the jury, on an
accountability theory. Reading the prosecution’s rebuttal closing argument as a whole, the State
merely argued that the crime was not completed until the parties escaped from the scene. “In
determining a defendant’s legal accountability, the trier of fact may consider the defendant’s
presence during its commission, the defendant’s continued close association with other offenders
19 after its commission, the defendant’s failure to report the crime, and the defendant’s flight from
the scene.” Willis, 2013 IL App (1st) 110233, ¶ 79. In the instant case, defendant and Waters were
indisputably together during the commission of the offense, continued close association with one
another throughout the evening of August 26, 2017, and early morning hours of August 27, 2017,
failed to report the crime, fled from the scene, and went back to the scene to destroy evidence of
their involvement. The prosecutor’s arguments were based on reasonable inferences from the
evidence.
¶ 80 Although we maintain the comment was proper, we note that any prejudice flowing from
the comment is minimal. First, the comment was isolated to a few lines in a lengthy rebuttal
argument. Second, the circuit court correctly instructed the jurors regarding the law on
accountability pursuant to Illinois Pattern Jury Instructions, Criminal, No. 5.03. Not only did the
circuit court instruct the jury, but also the prosecutor read the instruction in its entirety to the jury.
Correct jury instructions are typically sufficient to cure any prejudice that might arise from an
isolated misstatement such as this remark. See Brooks, 345 Ill. App. 3d at 950. Therefore, where
the prosecutor’s statement was not in error, and where the jury was properly instructed, reversal is
not warranted. The prosecutor’s comments were not so prejudicial as to warrant a new trial.
¶ 81 B. Deliberations
¶ 82 Second, during deliberations, the jury sought clarification of the law of accountability by
sending a note asking whether the phrase “promote or facilitate the commission of an offense”
included the act of cleaning and/or covering up after the shooting. Defendant argues that in light
of the prosecutor’s misstatement of accountability during closing argument, the circuit court
committed reversible error by failing to clarify the law for the jury. The State responds that the
circuit court properly declined to give additional jury instructions regarding the issue of
20 accountability beyond the instructions contained in the Illinois Pattern Jury Instructions as to that
issue. We agree with the State.
¶ 83 A trial court has a duty to instruct a jury that shows confusion or doubt about the law, where
the jury has asked an explicit question or requests a clarification of the law arising from the facts.
People v. Childs, 159 Ill. 2d 217, 229 (1994). This duty exists even in circumstances where the
jury has been properly instructed. Id. However, under appropriate circumstances, a trial court may
exercise its discretion to refrain from answering a jury’s question. People v. Millsap, 189 Ill. 2d
155, 161 (2000). Appropriate circumstances would include situations where “the instructions are
readily understandable and sufficiently explain the relevant law,” “further instructions would serve
no useful purpose or would potentially mislead the jury,” the jury’s question is one of fact not law,
or giving an answer would cause the court to “express an opinion that would likely direct a verdict
one way or another.” Id.
¶ 84 Determining the propriety of a trial court’s answer to a jury question is a two-step analysis.
People v. Leach, 2011 IL App (1st) 090339, ¶ 16. First, the trial court’s decision on whether to
respond to a jury’s question is reviewed for an abuse of discretion. Id. Second, we must determine
whether the trial court’s response to the jury’s question was correct, and our review is de novo. Id.
¶ 85 In the instant cause, the jury asked: “Does the phrase ‘promote or facilitate the commission
of an offense’ include the act of cleaning and/or covering up?” Defense counsel argued that the
question indicated that the State ill-advised the jury on the law of accountability during closing
argument, where the law states that “you’re accountable for the actions of either before or during
the commission of an offense.” The State responded that its understanding of the law indicated
that “accountability exists until there is a successful getaway,” which the State interpreted as “until
all the evidence is wiped away in this case.” The court responded to the jury: “You have received
21 the jury instructions which contain the legal definitions of all issues pending in the case. Please
continue with your deliberations.”
¶ 86 The record is clear that the circuit court discussed the jury’s question with both parties. In
his brief, defendant even admits that the “parties agreed to respond by telling the jury it had
received instructions that contain the legal definitions of all the issues pending before them, and
to continue deliberating.” We cannot say that the court’s decision to answer the question by
directing the jury to review the jury instructions was an abuse of discretion under the circumstances
of this case. See People v. Averett, 381 Ill. App. 3d 1001, 1012 (2008) (the trial court has discretion
in determining how best to respond to a jury question). The court’s response was an accurate
answer to the jury’s question, as the circuit court was being asked a mixed question of facts and
law. As such, the circuit court did not err in its response to the jury’s question, where the
instructions were readily understandable and sufficiently explained the relevant law.
¶ 87 C. Evidentiary Issues
¶ 88 Third, defendant contends that the circuit court committed plain error when it instructed
the jury to consider Matthew Brandt’s videotaped statement to police as substantive evidence.
Specifically, defendant argues that the circuit court erred by allowing the State to publish to the
jury portions of Matthew Brandt’s videotaped statement to police, including that defendant shot
Zachary Hubbart, and that defendant and Waters wiped down the crime scene and disposed of
evidence. Defendant contends that, where Brandt was relaying statements from Waters and lacked
personal knowledge of the events, the court committed plain error when it instructed the jury to
consider the evidence substantively under section 115-10.1 of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/115-10.1 (West 2018)). The State responds that there was no error, let
22 alone plain error, caused by the admission of Matthew Brandt’s videotaped statement to police as
substantive evidence under section 115-10.1 of the Code.
¶ 89 Defendant concedes that this issue is forfeited but asks this court to review the alleged error
under the first prong of plain error. Where defendant acknowledges that he did not object to the
evidence or raise it in a post-trial motion, this issue is forfeited. People v. Herron, 215 Ill. 2d 167,
186-87 (2005). However, this court may consider the otherwise forfeited issue under the plain-
error doctrine. Id. That doctrine allows us to overlook forfeiture of issues “when either (1) the
evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless
of the closeness of the evidence.” Id. The first prong of the plain-error test is applicable in cases
where the evidence is so closely balanced that the claimed errors alone were sufficient to “tip the
scales of justice” against the defendant. People v. Sebby, 2017 IL 119445, ¶ 51. The second prong
is applicable if any of the claimed errors were serious enough to undermine the fairness of the
defendant’s trial or the integrity of the judicial process itself. People v. Piatkowski, 225 Ill. 2d 551,
565 (2007).
¶ 90 Even assuming error occurred here, in reviewing the claim under the first prong of plain
error, we cannot find that the evidence was closely balanced. The jury heard significant evidence
demonstrating that defendant contacted Waters to set up a robbery of Hubbart, wherein defendant
and Waters would pretend to engage in a cannabis exchange for money. It was undisputed that
defendant and Waters entered the home together without cannabis to exchange for the money,
someone fired a gun, and the victim died. Moreover, defendant and Waters destroyed evidence
and cleaned the crime scene together. Defendant also gave Waters $1000 following the murder.
The only question left unresolved was who the shooter was. Regardless, under accountability
theory, this evidence is more than sufficient for the jury to find defendant committed the offense
23 of first degree murder and that he, or one for whose conduct he was legally responsible, was armed
with a firearm.
¶ 91 Defendant also argues that trial counsel provided ineffective assistance for failing to
preserve this issue at trial. Plain-error review under the closely-balanced-evidence prong of plain
error is similar to an analysis for ineffective assistance of counsel based on evidentiary error insofar
as a defendant in either case must show he was prejudiced: that the evidence is so closely balanced
that the alleged error alone would tip the scales of justice against him, i.e., that the verdict “may
have resulted from the error and not the evidence” properly adduced at trial. See Herron, 215 Ill.2d
at 178 (plain error); see also Strickland v. Washington, 466 U.S. 668, 694 (1984) (there was a
“reasonable probability” of a different result had the evidence in question been excluded).
¶ 92 Upon a review of the record, it is clear that defendant cannot show prejudice. Both an
ineffective assistance analysis and a closely balanced prong of plain error analysis are “evidence-
dependent and result-oriented.” People v. White, 2011 IL 109689, ¶ 134. Even if we assumed,
arguendo, that there was error in the admission of Brandt’s video-recorded statement, the evidence
against defendant is such that he cannot show prejudice for purposes of either analysis.
Accordingly, we need not resolve whether there was error here because, under a closely balanced
analysis, above, defendant fails to establish prejudice.
¶ 93 For these reasons, we conclude that defendant failed to satisfy his burden to show that the
evidence was closely balanced and that plain error occurred. Therefore, we affirm defendant’s
conviction for first degree murder.
¶ 94 III. Conclusion
¶ 95 For the foregoing reasons, defendant’s Macon County conviction for first degree murder
is affirmed.
24 ¶ 96 Affirmed.