People v. Williams

2020 IL App (3d) 170124-U

Opinion

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).

2020 IL App (3d) 170124-U

Order filed April 23, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-17-0124 v. ) Circuit No. 07-CF-111 ) JACKIE LEE WILLIAMS, ) Honorable ) John P. Vespa, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE WRIGHT delivered the judgment of the court. Presiding Justice Lytton and Justice McDade concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The trial court’s evidentiary rulings did not serve to violate defendant’s constitutional rights and the State’s evidence was sufficient to sustain defendant’s convictions. Further, the record is not sufficiently developed for a review of defendant’s constitutional sentencing claims.

¶2 Defendant, Jackie Lee Williams, appeals his convictions of first degree murder and attempt

armed robbery following his second jury trial. On appeal, defendant challenges the sufficiency of the State’s evidence, several evidentiary rulings made by the trial court, and the sentence imposed

by the trial court.

¶3 I. BACKGROUND

¶4 On February 20, 2007, the State charged defendant by way of indictment with three counts

of first degree murder and one count of attempt armed robbery. 1 On April 30, 2008, a jury found

defendant guilty of first degree murder and attempt armed robbery. In 2010, this court affirmed

defendant’s conviction on direct appeal in People v. Williams, No. 3-08-0537 (2010) (unpublished

order under Illinois Supreme Court Rule 23). On June 29, 2011, defendant filed a postconviction

petition, which the trial court summarily dismissed. This court reversed the trial court’s dismissal

in People v. Williams, 2013 IL App (3d) 110808-U and remanded defendant’s case for further

proceedings. On June 12, 2015, the trial court granted defendant’s petition for postconviction relief

and vacated defendant’s convictions. Defendant was remanded to the Peoria County Sheriff to

await trial.

¶5 Defendant’s second jury trial began on December 5, 2016. The State began their case in

chief by calling Frankie Ratliff. Ratliff testified that David McCreary (the victim), nicknamed

1 Count I alleged that defendant, Gabriel Shelton, and Demarco Spencer committed the offense of first degree murder in that “they, while attempting to commit a forcible felony bein [sic] armed robbery in violation of Chapter 720 Act 5 Section 18-2(A)2 of the Illinois compiled statutes shot [the victim] with a handgun, thereby causing the death of [the victim].” 720 ILCS 5/9-1(a)(3) (West 2006). The record indicates that the State dismissed count II in open court on April 28, 2007. Count III alleged that defendant, “while attempting to commit a forcible felony being armed robbery in violation of Chapter 720 Act 5 Section 18-2(A)2 of the Illinois compiled statutes personally discharged a handgun at [the victim] thereby causing the death of [the victim].” 720 ILCS 5/9-1(a)(3) (West 2006) Count IV alleged that defendant, Shelton, and Spencer, “with the intent to commit the offense of armed robbery in violation of Illinois compiled statutes, Chapter 720 Act 5 Section 18-2(A)2 performed an act which constitutes a substantial step toward the commission of that offense in that they knowingly and without lawful authority entered into the residence of [the victim] while armed with ahandgun [sic] and demanded property from [the victim] with the intent to take property from the person or presence of [the victim] by threatening the imminent use of [force] in violation of 720 ILCS 5/18-2(a)(2)[.]” 720 ILCS 5/18-2(a)(2) (West 2006).

2 Frosty, was Ratliff’s best friend. On January 25, 2007, Ratliff, the victim, Carolyn Crosswhite, and

two young children were at the victim’s home at 2509 West Marquette Street.

¶6 Around 8 p.m. that evening, Ratliff was in the front room and the victim was in the kitchen.

Ratliff heard a knock on the front door and heard a female’s voice. The victim answered the door

and exclaimed, “It’s a hit, man.” Ratliff saw two armed African American men come through the

front door with their faces covered such that Ratliff could only see their eyes. Ratliff saw a couple

of guns and heard two or three gunshots within three or four seconds after the front door opened.

Ratliff indicated that a third individual was standing to the side of the front door, but Ratliff could

not see if the individual was male or female. After carrying the children to a back room where

Crosswhite was located and handing Crosswhite his phone so that she could dial 911, Ratliff

returned to the front room and noticed the victim locking the front door. The victim had a hole in

his face and a lot of blood on his chest. On cross-examination, Ratliff admitted that he had smoked

marijuana around 7 or 7:30 p.m. that evening. Ratliff testified that he did not previously testify

that the victim stated, “It’s a hit, man,” because no one asked him that question. Ratliff was unsure

whether he had previously indicated that he saw more than one gun. Ratliff did not recall observing

an individual curled up on the ground during the incident.

¶7 Carolyn Crosswhite testified that on the evening of January 25, 2007, between 7:30 and

8 p.m., she was at the victim’s home with her then boyfriend, Ratliff, the victim, and two children.

Crosswhite braided one of the children’s hair in the dining room next to the kitchen while the

victim cooked dinner. The victim took a telephone call and Crosswhite heard what sounded like a

“girl’s voice.” Approximately 30 minutes later, there was a knock on the front door. Crosswhite

called for the visitor to come in several times before telling the victim someone was at the front

door. As soon as the victim reached the front door, a man with a black or blue bandana over his

3 face and a gun in his hand pushed through the door and began fighting the victim. Crosswhite,

who was sitting in a roll-away chair with one of the children, rolled back into a bedroom. Ratliff

brought the other child and a phone to Crosswhite. Crosswhite heard tussling through the wall and

three or four gunshots. Crosswhite testified that she only saw one person come into the home.

Crosswhite could not see anything but the intruder’s eyes.

¶8 Katissue Warfield testified that on October 31, 2007, she plead guilty to the felony offense

of attempt armed robbery in connection with the instant case. Warfield explained that she agreed

to testify against defendant in the case in exchange for the dismissal of the first degree murder

charge against her and a twelve-year day-for-day sentence for attempt armed robbery. Warfield

had completed the 12-year sentence at the time of the instant trial. Warfield testified that in early

2007 she lived in Peoria with her three children, her sister Kimbula, Kimbula’s two children, and

defendant (nicknamed Black Jack). Defendant was Warfield’s boyfriend at the time.

¶9 For three years prior, Warfield had been buying marijuana from the victim, whom she knew

as Frost, for personal use. In January 2007, Warfield called the victim to discuss her and defendant

purchasing two pounds of marijuana from the victim. Warfield indicated this was not a typical

quantity of marijuana she would purchase from the victim. The victim agreed to sell Warfield and

defendant the marijuana. Warfield speculated that the marijuana would cost $2000 and stated that

defendant was going to pay for the marijuana. Defendant did not have the money to pay for the

marijuana at the time of the call.

¶ 10 Two or three days later, around 1 p.m. on January 25, 2007, Warfield used her cell phone

to call the victim and arranged to pick up the marijuana that evening. Defendant was with Warfield

when she placed the call to the victim. Warfield testified that she did not have the money to buy

the marijuana and had not seen defendant with the money to buy the marijuana. Over the course

4 of the next 15-30 minutes, defendant left the home and then called Warfield to come outside.

Warfield entered a tan vehicle driven by Gabriel Shelton. Defendant rode in the passenger seat.

The group drove and picked up Demarco Spencer at the Harrison Homes. Spencer brought a black

and brown gun into the vehicle and gave the gun to defendant. Warfield did not see defendant give

the gun to anyone else. Defendant wore all black and Spencer wore a black shirt and blue jeans.

¶ 11 Next, Warfield called the victim and told him she was on the way to pick up the marijuana.

After parking, Warfield, defendant, and Spencer exited the vehicle. Shelton remained in the vehicle

as the driver. Warfield described the front of the victim’s house as having a built-in front porch.

As Warfield walked up to the victim’s front door, she noted that defendant wore gloves and had a

black and white bandana tied around his face while Spencer had his shirt pulled over his face. Each

man’s face was covered from the nose down. Once all three individuals were on the porch,

Warfield knocked on the door. Warfield heard the victim say come in. Warfield could hear the

victim approaching so she opened the door. Suddenly, Spencer pushed Warfield to the floor.

Warfield felt people fighting as she laid on the ground. Warfield heard two gunshots and ran away

toward her home.

¶ 12 Before she reached her home, Shelton and defendant picked Warfield up in the car.

Warfield informed defendant that she lost her phone. The State presented Warfield with State’s

exhibit No. 11, which Warfield identified as her pink cell phone. Upon arrival at the home,

Warfield asked defendant what happened, and defendant stated, “He should have gave it up.”

Warfield and defendant discarded their clothing in a garbage can. The next day Warfield learned

the victim had been killed. If questioned by police, defendant told Warfield to say that when she

went to “get some weed two boys made [her] go to [the victim’s] house and pushed [her] in the

house and that’s how I lost my phone.”

5 ¶ 13 Two days later, Warfield went to the Peoria Police Department. Initially, Warfield

recounted the false story to the detectives in accordance with defendant’s instructions. However,

Warfield had a change of heart and told the detectives the truth about what happened. Warfield

smoked marijuana before going to the victim’s house that night.

¶ 14 Shawn Curry, a detective with the Peoria Police Department, testified that on the night in

question he was dispatched to the victim’s residence to investigate a report of a shooting. When

Curry arrived, he travelled through the screened-in porch and witnessed the victim trying to pull

himself up using a couch as leverage just inside the front door. The victim had sustained a gunshot

wound to the face. As Curry attempted to administer medical aid, he kept asking the victim what

happened, who shot him? Curry thought the victim stated, “Kadia,” but struggled to understand

the victim who had blood and foam running from his mouth. Curry also noticed a woman at the

scene and two young children crying.

¶ 15 Eric Ellis, an officer with the Peoria Police Department, testified that he was dispatched to

the victim’s home with Officer Scott Bowers. Ellis revealed that the standard procedure of the

Peoria Police Department was to conduct a thorough search of the crime scene, looking for items

of evidentiary value. Ellis photographed the scene and observed a pink cell phone on the floor.

Ellis photographed several projectile holes in the walls of the residence and observed a bullet

lodged in the wall, which Bowers removed and collected. Ellis did not find any latent evidence of

finger or palm prints in the home. Nothing found in the house indicated the presence of two pounds

of marijuana, though drug paraphernalia was located in the kitchen. At the time of the search, Ellis

did not know the shooting was drug related, so the officers’ search of the residence did not include

searching all the places in the home that marijuana could have been located.

6 ¶ 16 Scott Bowers testified that he worked in the crime scene unit of the Peoria Police

Department and was dispatched to the victim’s home on January 25, 2007, after receiving a report

of a shooting. Bowers located a fired bullet inside the west living room wall of the home, which

Ellis identified as State’s exhibit No. 10. Bowers also identified State’s exhibit No. 14 as a bullet

removed from the victim’s body.

¶ 17 Two days later, Bowers was dispatched to the 2400 block of Antionette, a few blocks from

the victim’s home, where a handgun had been located in an alley. Bowers located a purse inside

of a blue garbage can. Inside the purse was a .357 revolver. Bowers identified State’s exhibit No.

21 as the gun he located. There were no fingerprints on the gun. Bowers opened the cylinder of

the gun and found that three cartridges had been fired and three had not been fired. Bowers returned

to the victim’s home on February 21, 2007, and discovered another bullet lodged in the west wall,

which he identified as State’s exhibit No. 22.

¶ 18 On cross-examination, Bowers testified that the search of the victim’s residence

concentrated mainly in the front living room area, the porch, and just outside the residence.

Officers did not go through the entire residence. Bowers did not recall seeing any large bags of

suspected marijuana. Bowers lastly testified that the examination of a tan-colored Dodge Intrepid,

which detectives suspected was utilized in connection with the crime, revealed nothing of

evidentiary value.

¶ 19 Linda Yborra, a retired firearm and tool mark examiner for the Illinois State Police,

testified as an expert witness. Yborra identified State’s exhibit No. 21 as a Smith and Wesson .357

Magnum caliber revolver and a set of test shots. Yborra further identified State’s exhibit Nos. 10

and 14, each containing a fired bullet. After examination and test-firing, Yborra determined that

7 the projectile recovered from the wall and the projectile recovered from the body of the victim

were fired from State’s exhibit No. 21, the .357 Magnum caliber revolver.

¶ 20 Next, the State called Demarco Spencer. Spencer testified that he was convicted of the first

degree murder of the victim and was currently serving a 44-year prison sentence. However,

Spencer attempted to “Plead the Fifth” to several questions. The trial court instructed the jury to

leave the courtroom and ordered Spencer to testify by answering the prosecutor’s questions.

Spencer, fearing for his own life, refused to cooperate. The trial court held Spencer in direct

criminal contempt and advised Spencer that he could receive an additional 10 years in prison for

refusing to testify. The State informed the court that it intended to continue its questioning of

Spencer in order to lay a foundation for impeachment. Defense counsel objected and argued that

Spencer’s refusal to answer questions would serve to deprive defendant of his right to

confrontation. 2 The trial court overruled defense counsel’s objection.

¶ 21 Once the jury returned to the courtroom, the State asked Spencer several questions related

to his prior sworn testimony from his own jury trial in February 2008. Again, Spencer asserted his

perceived fifth amendment privileges by responding with silence to prosecutor’s questions about

whether Spencer remembered testifying at his own trial on February 13, 2008, that: (1) Gabe

Shelton told Spencer that Shelton and a friend of his had been “shorted” one-half pound of

marijuana in a drug deal with the victim; (2) Shelton told Spencer he needed a gun; (3) Spencer

obtained a gun; (4) Spencer gave the gun to “Jackie;” 3 (5) Spencer was present at the victim’s

2 Defense counsel mounted a standing objection to the entirety of Spencer’s testimony. 3 At this point, Spencer was removed from the courtroom and placed in a holding cell in order to move the trial along. Following this recess, Spencer refused to return to the courtroom from the holding cell. Consequently, the court directed court staff to house Spencer in the county jail for the night. The record also shows that while housed in the jail, Spencer spoke with counsel the court appointed for Spencer. We note that the State called several witnesses in the interim. However, in the interest of clarity, we include all of Spencer’s testimony as though it was given continuously.

8 home with Jackie and a female on the night in question; (6) Jackie was wearing a bandana on his

face; (7) Jackie “rushed in the crib;” (8) when Spencer got through the doorway he covered his

face; (9) Jackie and the victim were “tussling” over the gun; (10) Spencer heard a shot; (11)

Spencer assisted the police in retrieving the gun; and (12) Spencer told the police he got the gun

from a woman named Breela.

¶ 22 During cross-examination by defense counsel, Spencer responded to defense counsel’s

inquiries about Spencer’s 2008 jury trial by explaining that his testimony during his own jury trial

was designed to protect himself and that the statements he made in his defense were not true. When

asked whether Spencer had “an actual memory of the events of what we’re talking about here[,]”

Spencer responded to defense counsel by stating, “No, actually I don’t.” Spencer told defense

counsel that “[they] [t]ried to show me all, all — um, um, the things, whatever the, um, statement

whatever yesterday, but I didn’t — I ain’t want to look at it because I didn’t come up here to

answer no questions in the first place.” Spencer explained to defense counsel that Spencer had an

argument with the victim “over some weed or whatever, about some finance” in the two or three

weeks leading up to the night in question. When asked whether he remembered telling the victim,

“That this is not the end of it,” Spencer became agitated, denied he made the statement, and

corrected his testimony from moments earlier by claiming the argument did not happen and that

he did not have a problem with the victim.

¶ 23 Next, the parties and the court approved a procedure for publication of the certified

transcript from Spencer’s 2008 jury trial. Defense counsel stipulated to the authenticity of the

transcripts and cited no need to call court reporters to establish their authenticity. Portions of

Spencer’s prior trial testimony were read into the record by having a prosecutor and a mock witness

read questions and answers from the transcript verbatim to the jurors.

9 ¶ 24 Shannon Walden, a former detective with the Peoria Police Department in 2007, testified

that she investigated the crime scene at the victim’s home and recovered a pink cell phone, State’s

exhibit No. 6. Walden also recovered State’s exhibit No. 11, the victim’s cell phone, whose phone

number was 712-4161. Walden initially traced the pink cell phone to Kimbula, Katissue Warfield’s

sister. Katissue Warfield arrived at the Peoria Police Department while Walden was interviewing

Kimbula and Walden had a conversation with Katissue.

¶ 25 On the evening of January 27, 2007, Walden had a video-recorded conversation with

Spencer at the Peoria Police Department. At some point during the conversation, Walden allowed

Spencer to make a cell phone call where Walden could hear a female voice on the other line. Then,

at Spencer’s direction, Walden, his partner, and Spencer traveled to an alley on the 2400 block of

Antoinette. Spencer directed law enforcement to a garbage can where officers located a purse with

a handgun inside. On re-direct examination, Bowers testified that the female voice she heard on

the telephone was not Katissue or Kimbula’s voice.

¶ 26 James Feehan, a digital forensics examiner, testified as an expert. Feehan conducted a

forensic analysis on the pink cell phone found at the scene and compiled call logs from the phone.

The calls logged on January 25, 2007, included an incoming call to the Warfield’s cell phone from

a contact bearing defendant’s name at 7:37 p.m., an outgoing call from the Warfield’s cell phone

to the victim at 7:52 p.m., and five missed incoming phone calls from a contact bearing defendant’s

name to Warfield’s cell phone from 8:04 p.m. to 9:36 p.m.

¶ 27 Next, the parties stipulated to the admission of the autopsy findings and testimony of Dr.

Violette Hnilica. The recorded video deposition of Dr. Hnilica was published to the jury.

10 ¶ 28 The State called Gabe Shelton to testify.4 Shelton stated that he was being forced to testify

and informed the court of threats he had received. 5 Shelton testified that he was convicted of

attempt armed robbery in relation to the instant case. Shelton stated that he grew up with defendant

and had known him for 25 years. Shelton also knew Spencer.

¶ 29 Shelton stated that he remembered giving a videotaped statement to law enforcement on

January 28, 2007, but did not remember the content of the statement and declined to review the

videotaped statement. Shelton did not recall telling law enforcement during the interview that (1)

he, Spencer, and defendant met at Atlanta Wings and A Prayer, where the group discussed a

robbery; (2) defendant told Spencer “he got a lick for you, [the victim];” (3) defendant asked

Spencer to provide Shelton with a gun to commit the robbery; (4) Shelton drove defendant,

Spencer, and Warfield to the victim’s residence in Shelton’s grandmother’s gold Intrepid that

night; (5) and defendant told Warfield to call the victim and tell the victim they were on the way.

¶ 30 On cross-examination by defense counsel, Shelton reiterated that he was forced to testify.

Shelton stated that he did not remember making any statements to law enforcement about the

victim’s death, that the statements were untrue, and that he was doing a lot of heroin at the time.

¶ 31 The State recalled Shannon Walden to testify concerning Shelton’s audio and video-

recorded interview on January 28, 2007. Walden testified that he reviewed the recording of the

interview, and the video was admitted into evidence and published to the jury. Due to technical

difficulties, Walden testified to the contents of the video to confirm Shelton’s prior statements to

law enforcement. At this time, the State rested.

4 Defense counsel also raised a standing objection to Shelton’s testimony. 5 During the trial, both Shelton and Spencer consulted with attorneys concerning the implications of their decision not to testify.

11 ¶ 32 Defendant presented evidence in the form of a stipulation that if called to the stand,

Detective Keith McDaniel would testify that during his two January 2007 interviews of Ratliff,

Ratliff did not indicate that he heard anyone announce, “[i]t’s a hit.” Ratliff also told McDaniel

that he only saw one gun that night.

¶ 33 Defendant called Lillie Mae Griffin, the victim’s mother, to testify. Griffin testified that

two to three weeks before the shooting she witnessed a heated verbal argument between Spencer

and the victim outside of a store. When asked what Spencer said during the argument, the State

objected on hearsay grounds, whereupon the parties discussed the State’s objection outside the

presence of the jury. Defense counsel informed the court that Griffin would likely testify, based

on her previous statements in the coroner’s inquest, 6 that during the argument Spencer told the

victim, “This is not the end of it,” among other comments. Defense counsel purported to offer

Griffin’s testimony to show that Spencer was correctly convicted of murder as a result of Spencer’s

jury trial and Spencer’s conviction meant the jurors could conclude defendant was not involved in

the victim’s death. Defense counsel told the court that counsel was not offering the statement to

prove the truth of the matter asserted, but rather to establish that Spencer had a motive to harm the

victim. In addition, defense counsel argued this out-of-court statement would impeach Spencer’s

current denial, during defendant’s jury trial, that he had any verbal disagreement with the victim.

The court stated that it would not allow Griffin to testify that she heard Spencer tell the victim,

“This is not the end of it,” because defense counsel was offering the statement to ultimately prove

that Spencer shot the victim.

¶ 34 Following closing argument, the jury found defendant guilty of attempt armed robbery and

first degree murder. However, the jury did not find that defendant was armed with or personally

6 Defense counsel indicated that this statement was not a sworn statement.

12 discharged a firearm that proximately caused the death of another person during the commission

of the offense.

¶ 35 On February 10, 2017, defendant filed an amended motion for judgment notwithstanding

the verdict or, alternatively, for a new trial, which the trial court denied. The trial court sentenced

defendant to serve a term of 50 years in the Illinois Department of Corrections. Defendant’s motion

to reconsider his sentence was denied. Defendant appeals.

¶ 36 II. ANALYSIS

¶ 37 For purposes of this appeal, defendant raises multiple issues for our review. Defendant

asserts the State did not meet its burden to prove the underlying felony offense of attempt armed

robbery beyond a reasonable doubt. Since the State did not prove the underlying felony offense,

defendant argues the State did not prove the most serious charged offense of felony murder beyond

a reasonable doubt. On this basis, defendant requests our court to reverse his conviction. Defendant

also contends several of the trial court’s evidentiary rulings were erroneous and warrant a new

trial. Finally, if this court affirms defendant’s conviction for felony murder and denies defendant’s

request for a new trial, defendant contests the constitutionality of the sentence imposed by the trial

court. 7 We begin by addressing the trial court’s evidentiary rulings before addressing the

sufficiency of the evidence and the sentencing issues.

¶ 38 A. The Admission of Spencer’s Prior Sworn Testimony

¶ 39 The record reveals that Spencer testified in his own defense during his 2008 jury trial

pertaining to these events. At the conclusion of Spencer’s 2008 trial, the jury found Spencer guilty

of attempt armed robbery and first degree murder. In 2016, the State called Spencer to testify in

7 On July 18, 2018, this court entered an order striking defendant’s initial brief which contained a statement of facts in excess of 15 pages. On September 13, 2018, with leave of the court, defendant filed a new brief raising several additional issues. The State’s brief, filed May 24, 2019, addressed all issues raised in both briefs defendant submitted to this court.

13 defendant’s jury trial for the same charged offenses. At the time Spencer testified as a State’s

witness against defendant, Spencer was serving a 44-year sentence in the Illinois Department of

Corrections for his convictions.

¶ 40 Spencer was an uncooperative witness for the State during this defendant’s 2016 jury trial.

For example, Spencer initially invoked his fifth amendment right to remain silent in response to

many of the State’s questions on direct examination. Spencer also refused to answer the State’s

questions pertaining to Spencer’s own prior sworn testimony made during Spencer’s jury trial in

2008.

¶ 41 After Spencer failed to respond to the first series of questions by the prosecutor, the court

excused the jury. At this time, the court ordered Spencer to remain in a holding cell while the court

and counsel debated how to properly approach Spencer’s refusal to testify based on the fifth

amendment. After the discussion with the court and counsel, Spencer refused to return to the

courtroom from the holding cell. Consequently, the court directed the court staff to house Spencer

in the county jail for the night. The record also shows that while housed in the county jail, Spencer

spoke with court-appointed counsel. Spencer returned to the courtroom to testify the next day.

¶ 42 During the second day of Spencer’s 2016 testimony as a State’s witness against this

defendant, Spencer answered some of the prosecutor’s questions but invoked his fifth amendment

rights on others. Similarly, without invoking his fifth amendment rights, Spencer responded to

some but not all of defense counsel’s questions during cross-examination. In fact, during cross-

examination, Spencer explained to defense counsel that Spencer’s prior testimony in 2008 was

untrue. Spencer also told defense counsel that Spencer had no current recollection of his prior

testimony from his own 2008 jury trial that resulted in his conviction. Later in the trial, the parties

agreed the transcript of Spencer’s prior sworn testimony from his 2008 jury trial was accurate. The

14 parties also agreed on the best procedure to publish the transcript from 2008 for the jury’s

consideration in defendant’s jury trial.

¶ 43 With this background in mind, we turn to defendant’s argument that the trial court

committed reversible error due to the evidentiary ruling allowing the State to introduce portions of

Spencer’s prior 2008 sworn testimony as part of the State’s case against this defendant in 2016. In

short, defendant contends the transcript of Spencer’s prior 2008 testimony in his own defense

should not have been introduced either as substantive evidence or to impeach Spencer during this

defendant’s 2016 jury trial. Based on this alleged error pertaining to Spencer’s testimony,

defendant argues he is entitled to a new trial on four separate grounds, which we address

successively below.

¶ 44 Generally, a trial court’s evidentiary rulings are reviewed for an abuse of discretion. See

People v. Sutherland, 223 Ill. 2d 187, 272 (2006). A trial court abuses its discretion only where

the court’s ruling is arbitrary, fanciful, unreasonable, or where a reasonable person would not take

the view adopted by the trial court. Id. at 272-73.

¶ 45 1. Foundation

¶ 46 Defendant submits that the State failed to establish a proper foundation for the admission

of Spencer’s prior sworn testimony. The State argues defendant failed to preserve this alleged error

regarding a foundational deficiency. Defendant does not address the State’s forfeiture argument in

his briefs and does not request plain error review. It is well established that to preserve an issue

for appellate review, a party must object to the claimed error at trial. People v. Cohn, 2014 IL App

(3d) 120910, ¶ 25. Here, defendant failed to preserve this alleged foundational error for review by

failing to object on this basis during trial, thus limiting our review of this error to review according

to the plain error doctrine. Similarly, defendant has failed to address whether either of the two

15 prongs of plain error are satisfied and thereby forfeits plain error review for purposes of this appeal.

People v. Hillier, 237 Ill. 2d 539, 546-47 (2010).

¶ 47 However, even if we were to reach the merits of this alleged foundational error, there was

a stipulation and/or an express agreement between counsel for both parties that the foundational

requirements could easily be fulfilled by the State. In other words, defense counsel conceded the

authenticity of the transcripts from Spencer’s 2008 jury trial. We conclude defendant’s position on

appeal, regarding an insufficient foundation for the introduction of the transcript, is unsupported

by the record.

¶ 48 2. Identification

¶ 49 Next, we briefly address the argument that Spencer’s prior sworn testimony in 2008 did

not include Spencer’s in-court identification of the person Spencer referred to as “Jackie.” Again,

defense counsel did not raise an objection to the admission of the 2008 transcript based on the

failure of Spencer to identify “Jackie” during Spencer’s own jury trial. Consequently, defendant’s

arguments for a new trial on this basis are not persuasive.

¶ 50 3. Spencer’s Fifth Amendment Rights

¶ 51 Defendant further asserts that the trial court committed reversible error by compelling

Spencer to testify in violation of Spencer’s fifth amendment rights. The State contends defendant

lacks standing to raise this issue. We agree. The case law provides that this defendant lacks

standing to complain about the violation of another person’s constitutional rights. See People v.

McCarty, 223 Ill. 2d 109, 155 (2006); See Rakas v. Illinois, 439 U.S. 128 (1978); See People v.

Adams, 283 Ill. App 3d 520, 524 (1996).

¶ 52 Even if we ignore defendant’s lack of standing to assert a violation of Spencer’s fifth

amendment rights on appeal, defendant’s argument lacks merit. Here, Spencer’s fifth amendment

16 rights were carefully considered and protected by the trial court. Following Spencer’s invocation

of his fifth amendment rights during defendant’s jury trial in 2016, the trial court suspended

Spencer’s testimony until the next day. The court appointed counsel to assist Spencer. Further,

after returning to the witness stand the next day, Spencer did not assert his fifth amendment rights

before answering some, but not all, of the questions during defense counsel’s cross-examination.

For these reasons, we conclude this record does not contain a violation of Spencer’s fifth

amendment rights and defendant is not entitled to a new trial on this basis.

¶ 53 4. Defendant’s Sixth Amendment Rights

¶ 54 Finally, defendant claims a new trial is in order because Spencer’s refusal to testify violated

defendant’s sixth amendment right to confrontation. We will review this issue de novo. People v.

Lovejoy, 235 Ill. 2d 97, 142 (2009).

¶ 55 Generally, the sixth amendment’s confrontation clause is satisfied where the defendant is

given a full and fair opportunity to cross-examine the witness. United States v. Owens, 484 U.S.

554, 557-58 (1988). In some situations, a witness’s refusal to answer questions may create

reversible error where the refusal effectively adds critical weight to the State’s case. People v.

Crawford Distributing Co., Inc., 78 Ill. 2d 70, 75 (1979). In such cases, the inability to cross-

examine a State’s witness, who chooses to remain silent during direct and cross-examination, could

potentially inject reversible error into the record. Id. This is not the case here. On the second day

of his testimony as a State’s witness, Spencer chose to answer some critical questions posed by

defense counsel during cross-examination without refusing to answer based on fifth amendment

considerations.

¶ 56 Thus, Spencer did not remain silent and provided answers to selective questions posed by

defense counsel. In fact, Spencer’s responses were very helpful to the defense in this case. The

17 United States Supreme Court has held that a full and fair opportunity for cross-examination does

not mean an examination in whatever manner, and to whatever extent, that a defendant may wish.

Owens, 484 U.S. at 559. Instead, an effective cross-examination is had where matters such as

witness’s bias or lack of memory are elicited. Id.; People v. Flores, 128 Ill. 2d 66, 89-90 (1989).

¶ 57 An opportunity for effective cross-examination is well documented in this record. For

example, Spencer testified on cross-examination that he had an argument with the victim

concerning marijuana in the weeks leading up to the victim’s murder. As such, Spencer’s

testimony demonstrated Spencer’s bias and a possible vendetta against the victim before the jury.

Spencer also told defense counsel that Spencer’s prior testimony in his own defense was self-

serving and false. In addition, Spencer provided inconsistent statements during cross-examination

about his argument with defendant as well as claiming to have no memory of his testimony in

2008. Spencer’s responses during cross-examination contain the hallmarks of an effective cross-

examination including, but not limited to, Spencer’s admission of prior false testimony about

defendant’s involvement, Spencer’s prior dissatisfaction over a drug transaction with the victim,

and Spencer’s deficient memory of the details of the night in question. Id.; Owens, 484 U.S. at

559.

¶ 58 The law does not require that a witness’s testimony must fulfill all of defendant’s goals for

the cross-examination of a witness. Id. at 558. Here, defendant was able to effectively cross-

examine Spencer because the responses Spencer did provide to questioning by defense counsel

supported the defense’s theory that Spencer’s prior testimony incriminating defendant was less

than truthful and was not credible. Defendant had the opportunity to cross-examine Spencer here.

Thus, defendant’s sixth amendment right to confront the witnesses against him was not violated.

18 ¶ 59 B. Sufficiency of the Evidence

¶ 60 Defendant argues that the State’s evidence failed to establish his guilt for felony murder

beyond a reasonable doubt because the evidence did not prove the underlying felony offense of

attempt armed robbery as required for the felony murder conviction. By way of review, the State

charged defendant with felony murder in violation of 720 ILCS 5/9-1(a)(3) (West 2006) based on

the underlying felony offense of attempt armed robbery. 720 ILCS 5/18-2(a)(2) (West 2006).

Because defendant’s challenge to the sufficiency of the evidence on the underlying offense is the

sole basis for defendant’s insufficiency claim, we confine our analysis to this very narrow

challenge.

¶ 61 When faced with a challenge to the sufficiency of the evidence, it is not the function of the

reviewing court to retry the defendant. People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Rather,

viewing the evidence in the light most favorable to the prosecution, a reviewing court is tasked

with determining whether any rational trier of fact could have found the defendant guilty beyond

a reasonable doubt. People v. Young, 128 Ill. 2d 1, 49 (1989) (quoting Jackson v. Virginia, 443

U.S. 307, 318-19 (1979)). It is the responsibility of the trier of fact to determine the credibility of

the witnesses, to weigh the witness testimony, to resolve conflicts in the evidence, and to draw

reasonable inferences from the evidence. People v. Williams, 193 Ill. 2d 306, 338 (2000).

Reviewing courts must give due consideration to the reality that the trier of fact saw and heard the

witnesses and the evidence firsthand. People v. Smith, 185 Ill. 2d 532, 541 (1999). Ultimately,

“The testimony of a single witness, if it is positive and the witness credible, is sufficient to

convict.” Id. A defendant’s conviction will only be overturned based on insufficient evidence

where the proof is so improbable or unsatisfactory that a reasonable doubt as to the defendant’s

guilt remains. Williams, 193 Ill. 2d at 338.

19 ¶ 62 The State’s evidence regarding defendant’s specific intent to commit the underlying

offense of attempt armed robbery was entirely circumstantial. Yet, it is well established that

circumstantial evidence alone may be sufficient to establish specific criminal intent. The case law

recognizes that intent is rarely proven by direct evidence and must be inferred from circumstantial

evidence, such as the offender’s conduct and the surrounding circumstances. People v. Peterson,

2017 IL 120331, ¶ 43. A person commits armed robbery when he or she takes property from the

person or presence of another by the use of force or by threatening the imminent use of force and

that person carries on or about his or her person or is otherwise armed with a firearm. 720 ILCS

5/18-1(a) (West 2006); 720 ILCS 5/18-2(a)(2) (West 2006).

¶ 63 The crux of defendant’s sufficiency of the evidence argument, regarding defendant’s

criminal intent to commit attempt armed robbery, focuses on the credibility of Warfield’s

testimony. Defendant contends the State’s evidence was insufficient to establish guilt beyond a

reasonable doubt because defendant did not announce “it’s a robbery” upon entering the victim’s

residence.

¶ 64 However, Warfield testified that she asked defendant what happened after the shooting. In

response, defendant stated, “He should have gave it up.” On appeal, defendant claims Warfield’s

testimony was less than credible and unworthy of belief because Warfield was an accomplice, and

her testimony should have been completely rejected by the jury.

¶ 65 It is well established that the testimony of an accomplice is generally viewed with

suspicion, especially where an accomplice witness received leniency or struck a deal for immunity

from prosecution. People v. Zambrano, 2016 IL App (3d) 140178, ¶ 27. Nonetheless, even

uncorroborated accomplice testimony may be sufficient to sustain a conviction. Id., ¶ 26. If the

jury found Warfield’s testimony to be credible, then her testimony about defendant’s incriminating

20 statement that the victim “should have gave it up” constitutes compelling evidence of defendant’s

specific intent to attempt to forcefully remove property from the victim. It was the jury’s task to

determine Warfield’s credibility.

¶ 66 “A person commits an attempt when, with intent to commit a specific offense, he does any

act which constitutes a substantial step toward the commission of that offense.” 720 ILCS 5/8-4(a)

(West 2006). “Whether a defendant’s conduct constitutes a substantial step toward the commission

of a specific crime is a question of fact that must be determined on a case-by-case basis from all

of the unique facts and circumstances surrounding the events in question.” People v. Norris, 399

Ill. App. 3d 525, 530 (2010).

¶ 67 For purposes of this appeal, defendant alleges the State’s evidence did not establish

defendant took a substantial step toward the commission of armed robbery. In particular, defendant

claims the evidence does not show defendant made any attempt to remove property from the victim

before leaving the residence. However, our supreme court recognizes that “it is not necessary that

a defendant complete the last proximate act in order to be convicted of attempt.” People v. Terrell,

99 Ill. 2d 427, 433 (1984). In other words, the State was not required to prove that defendant

performed the last deed which would render the crime complete. People v. Brown, 75 Ill. App. 3d

503, 505 (1979).

¶ 68 According to Warfield, she followed defendant’s instructions, telephoned the victim, and

made arrangements to purchase and pick up a large quantity of marijuana from the victim, knowing

neither she nor defendant had access to $2000. Warfield’s cell phone was recovered by law

enforcement at the scene. The telephone call logs compiled by law enforcement corroborated

Warfield’s testimony about the telephone calls she made to the victim and received from defendant

that night.

21 ¶ 69 On the night of the murder, Warfield witnessed defendant take possession of a gun from

Spencer before defendant, Spencer, and Warfield exited the vehicle near the victim’s residence.

According to Warfield, at the time the trio approached the victim’s porch, defendant wore a black

and white bandana tied around his face such that his face was covered from the nose down.

Warfield also testified that defendant wore gloves. Once on the porch of the residence with

defendant and Spencer, Warfield opened the door, was knocked to the floor, and heard people

fighting. This testimony, if found credible by the jury, provided strong evidence that defendant

intentionally took a substantial step toward the commission of armed robbery.

¶ 70 Further, Ratliff and Crosswhite, guests in the victim’s home at the time of the murder,

corroborated portions of Warfield’s testimony. Ratliff testified that he saw two men, each armed

with separate guns, rush through the victim’s front door on the night of the murder. Ratliff did not

see a woman enter the residence. However, in addition to the two men, Ratcliff saw a third

individual just outside the door on the porch. Similarly, another guest in the victim’s home,

Crosswhite, observed two male assailants and described a black bandana covering one assailant’s

facial features such that she could only see the assailant’s eyes.

¶ 71 In addition to the eyewitness accounts from the occupants of the victim’s apartment, the

State offered Spencer and Shelton’s live testimony, trial transcripts from Spencer’s 2008 trial, and

an officer’s testimony concerning the contents of the videotaped statement Shelton made to law

enforcement in 2007. For purposes of this analysis of the sufficiency of the evidence, we are unable

to determine whether the jury found their testimony credible. Therefore, out of an abundance of

caution, since Spencer and Shelton had previously been convicted of first degree murder and

attempt armed robbery respectively, we elect not to consider the testimony of either Spencer or

Shelton when measuring the sufficiency of the State’s evidence.

22 ¶ 72 Ultimately, we conclude the State’s evidence was sufficient to prove the underlying felony

offense beyond a reasonable doubt.

¶ 73 C. The Testimony of Lillie Griffin

¶ 74 In the alternative, defendant urges this court to vacate his conviction and remand the matter

for a new trial based on the trial court’s finding that Griffin’s proposed testimony that she

overheard Spencer tell the victim, “This is not the end of it,” was hearsay. The trial court’s ruling

on the admissibility of evidence will not be overturned absent an abuse of discretion. People v.

Caffey, 205 Ill. 2d 52, 89 (2001).

¶ 75 Again, we focus our analysis on the narrow scope of defendant’s formulation of this issue.

Defendant argues Griffin’s testimony was offered for purposes other than to prove the truth of the

matter asserted, namely, as impeachment of Spencer, and to illustrate Spencer’s animus toward

the victim. Defendant argues, “The error is not harmless, as Spencer’s prior testimony was one

which directly placed the murder weapon in defendant’s hands and was highly prejudicial.”

¶ 76 Assuming only for purposes of swiftly resolving this issue that the trial court’s evidentiary

ruling was incorrect, it must be emphasized that Spencer admitted to this jury that he had given

prior false testimony about the victim’s death. Further, this jury was well aware that Spencer was

serving a 44-year sentence for murdering this victim. It is hard to imagine stronger evidence of

impeachment, based on a felony conviction, than a State’s witness who admits he is a recently

convicted murderer.

¶ 77 Furthermore, Griffin was allowed to testify that an argument between Spencer and the

victim occurred in the weeks leading up to the murder. This jury was well aware that Spencer may

have had an animus toward the victim. Based on this unique record, we conclude the excluded

23 evidence of impeachment offered during Griffin’s testimony would have been cumulative and the

error, if any, was harmless.

¶ 78 D. Sentencing

¶ 79 1. The Trial Court’s Inquiry

¶ 80 Defendant argues that the trial court erred by inquiring about defendant’s previously

suppressed statements during defendant’s sentencing hearing in the instant case. The record reveals

that during defendant’s sentencing hearing, the State attempted to admit portions of defendant’s

videotaped interview from January 2007. Defense counsel objected on the grounds that this court

previously found defendant’s statements from the interview were inadmissible in Williams, 2013

IL App (3d) 110808-U. Based on the defense’s objection, the State withdrew the request for the

trial court to consider this evidence for purposes of sentencing. However, the prosecutor took time

to explain to the court that during defendant’s interview, defendant told detectives that he shot the

victim and additionally detailed the circumstances surrounding the murder. Defendant posits that

though the evidence was not actually viewed by the trial judge, the trial court was made aware of

the statements, rendering the court potentially unable to properly shield its mind from the

prejudicial effect of the evidence. Thus, defendant requests a new sentencing hearing.

¶ 81 Defendant forfeited review of this claimed error by failing to preserve it in a postsentencing

motion. Cohn, 2014 IL App (3d) 120910, ¶ 25. Defendant does not address forfeiture as pointed

out by the State and does not request plain error review of the issue. Accordingly, we agree with

the State that defendant has forfeited review of the issue.

¶ 82 2. Fundamental Fairness in Sentencing

¶ 83 Defendant argues the 50-year sentence he received was fundamentally unfair in that his

sentence was grossly disparate to that of his codefendants, Spencer and Shelton. Certainly,

24 fundamental fairness and respect for the law mandates that similarly situated codefendants should

not receive grossly disparate sentences. People v. Fern, 189 Ill. 2d 48, 58-59 (1999); People v.

Tate, 122 Ill. App. 3d 660, 668 (1984). For purposes of comparing the sentences of codefendants,

the term “similarly situated” has been defined as a particular defendant’s rehabilitation potential

or the nature and extent of the defendant’s participation in the crime. People v. Jackson, 145 Ill.

App. 3d 626, 646 (1986); See People v. Scott, 2012 IL App (4th) 100304, ¶ 24. Thus, a disparate

sentence may be warranted by differences in the codefendants’ criminal records, levels of

participation in the crime, or lack of character and potential for rehabilitation. People v. McCann,

348 Ill. App. 3d 328, 339 (2004); see People v. Cook, 112 Ill. App. 3d 621, 623 (1983). A “mere

disparity of sentences does not, by itself, establish a violation of fundamental fairness.” People v.

Caballero, 179 Ill. 2d 205, 216 (1997). Defendant’s sentence will not be disturbed absent an abuse

of discretion. People v. Illgen, 145 Ill. 2d 353, 379 (1991).

¶ 84 Spencer testified at trial that he received a 44-year sentence for his involvement. Unlike

defendant, Spencer did not initially target the victim or take an active role in the planning process

for the armed robbery. Further, the record does not reveal details about the codefendants’ prior

criminal histories, 8 presentence investigation reports, or other meaningful information from which

to distinguish defendant from Spencer or Shelton. Based on defendant’s active role in the initiation

of the plans to commit this offense, we conclude this record does not support the contention that

defendant’s sentence was disparate from the punishment received by other codefendants.

Accordingly, defendant’s argument is not persuasive.

8 The State asserts that neither codefendants’ criminal background is contained in the record. We note that defendant’s motion to reconsider sentence lists Spencer’s purported criminal history, though certified copies of Spencer’s convictions are not attached to the motion. Moreover, defendant neither advances an argument concerning Spencer’s prior criminal record in this appeal nor cites to any portion of the record containing such information.

25 ¶ 85 3. As-Applied Constitutional Challenge

¶ 86 Lastly, defendant argues the 50-year sentence handed down by the trial court was excessive

under the eighth and fourteenth amendments and was in violation of the proportionate penalties

and rehabilitation clauses under article I, section 11 of the Illinois Constitution as applied to

defendant. U.S. Const., amends. VIII and XIV; Ill. Const. 1970, art. I, § 11. Defendant argues that

a growing body of scientific evidence concerning the development of the young adult brain should

have required the court to take into consideration these new scientific developments before

imposing defendant’s sentence. Defendant requests this court to vacate his sentence and remand

for a new sentencing hearing based on these theories discussed in Miller v. Alabama, 567 U.S. 460

(2012).

¶ 87 Our supreme court has instructed that the record must be developed sufficiently to address

a defendant’s as-applied constitutional challenge. People v. Harris, 2018 IL 121932, ¶¶ 39-48; See

People v. Bingham, 2018 IL 122008, ¶ 22. Where the trial court has not conducted an evidentiary

hearing or made findings of fact, a reviewing court is not capable of making an as-applied

determination of unconstitutionality. Harris, 2018 IL 121932, ¶¶ 39-48. Simply stated, where the

record does not contain sufficient information about defendant’s history such that this court can

consider the evolving science of juvenile maturity and defendant’s own brain development,

reviewing courts must decline review. Id. The record in the instant matter is underdeveloped on

this specific topic. Thus, we decline to review defendant’s as-applied challenge.

¶ 88 However, even if defendant were to pose a facial challenge, Harris holds that claims for

extending Miller to offenders 18 years of age or older have repeatedly been rejected in this state

and held that “the age of 18 marks the present line between juveniles and adults.” Id., ¶ 61 In other

26 words, our supreme court explained that when an offender is over 18 years old at the time of his

offense, Miller does not directly apply. Id.

¶ 89 We affirm defendant’s convictions and sentence.

¶ 90 III. CONCLUSION

¶ 91 The judgment of the circuit court of Peoria County is affirmed.

¶ 92 Affirmed.