People v. Woods

2024 IL App (1st) 220173-U

Opinion

2024 IL App (1st) 220173-U No. 1-22-0173 Order filed July 19, 2024 Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 13338 ) LARRY WOODS, ) Honorable ) Michele McDowell Pitman, Defendant-Appellant. ) Judge, Presiding.

PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court. Justices C.A. Walker and Tailor concurred in the judgment.

ORDER

¶1 Held: Trial court properly granted the State’s motion for reconsideration of the previously entered new trial order based on ineffective assistance of counsel where defendant failed to establish the prejudice prong of Strickland; trial court did not err in preventing defendant’s trial counsel from attempting to impeach a State witness with a misdemeanor case; the State did not improperly inflame the jury’s passions with statements during closing argument; and defendant is entitled to a new sentencing hearing where the trial court did not substantially comply with the requirements of Illinois Supreme Court Rule 401 (eff. July 1, 1984). No. 1-22-0173

¶2 Following a jury trial, defendant Larry Woods was convicted of the June 2012 first degree

murder of his 16-year-old daughter while armed with a firearm. After trial, defendant made pro se

allegations of ineffective assistance of counsel, and posttrial counsel was appointed after a

preliminary Krankel hearing. Posttrial counsel subsequently filed a motion for new trial alleging

ineffective assistance of counsel which the trial court granted. The State subsequently filed a

motion for reconsideration of the trial court’s order. This motion was also granted, resulting in a

vacatur of the order for new trial and reinstatement of the defendant’s conviction. Defendant was

subsequently sentenced to 62 years’ imprisonment.

¶3 On appeal, defendant contends that: (1) trial counsel was ineffective for failing to (a)

request an adverse inference jury instruction, (b) cross-examine Detective Weeden about more

than nine hours of missing video footage that he chose not to preserve, and (c) visit or consult with

defendant before trial about his case; (2) the trial court erred in (a) preventing defendant from

impeaching Rachel Canevello with her misdemeanor false report to 911 conviction, (b) allowing

the State to tell the jury that justice demanded a guilty verdict during closing argument which

improperly inflamed the jury’s passions, and (c) these errors were not harmless beyond a

reasonable doubt; and (3) defendant is entitled to a new sentencing hearing because the trial court

failed to re-admonish him pursuant to Supreme Court Rule 401 (eff. July 1, 1984) when he opted

to proceed pro se during sentencing. For the following reasons, we affirm defendant’s convictions

and remand for a new sentencing hearing.

¶4 BACKGROUND

¶5 Defendant was charged with the murder of his 16-year-old daughter, Gloria Woods.

Defendant and his daughter stayed at the Best Motel and Suites (motel) in Dolton, Illinois between

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June 19 and June 20, 2012. Her body was found by motel staff on the morning of June 20, 2012.

Defendant’s trial commenced on July 25, 2016.

¶6 The State’s evidence at trial consisted of testimony from Gloria’s mother, Danielle Allen;

defendant’s girlfriend Ieshia Clark; the mother of two of defendant’s children, Rachel; several of

the motel’s employees; several police officers; and stipulations related to Gloria’s autopsy and

DNA evidence. Defendant was represented at trial by Assistant Public Defender (APD) Tom

Justic.

¶7 Danielle testified that she last spoke to Gloria, whose nickname was “Poohda,” on June 18,

2012. Gloria was visiting defendant and his girlfriend, Ieshia, in Gurnee, where they lived with

their children; they were supposed to go to Great America the following day. On June 20, 2012,

Danielle got a voicemail from defendant asking if Gloria was with her; she responded that Gloria

was with him. Danielle spoke with Ieshia to see if Gloria was with her and later went to the motel

to look for Gloria. Danielle testified that she constantly called Gloria and defendant but received

no answer; the next time she saw Gloria was at the morgue.

¶8 Ieshia testified that she, defendant and their two children lived in Round Lake, Illinois in

June 2012. The family had plans to go to Great America on June 19, 2012, and Ieshia was driving

a white SUV that her mother rented for her. She testified that she let defendant drive the white

SUV and they were all in the south suburbs of Chicago on June 18, 2012; but not all together as

Ieshia and her children stayed at her mother’s home in Lansing, and defendant and Gloria stayed

at his father’s home in Dixmoor. Defendant told her that he was taking care of some things and

that Gloria wanted her hair braided. The following morning, June 19, 2012, Ieshia spoke with

Gloria and headed to Dixmoor to pick her up from defendant’s father’s home. When she arrived,

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Gloria was not there, and Ieshia learned that defendant had already picked her up in the white

SUV. Ieshia heard Gloria in the background while she was on the phone with defendant and Gloria

indicated that her phone was dead. After dropping her two children off with a sitter in Hazel Crest,

Ieshia went home and went ahead to Great America at approximately 9 a.m. or 10 a.m. Defendant

and Gloria were supposed to meet her at Great America, and she spoke with defendant several

times about when he would arrive. Defendant indicated that he would be on the way once he

finished working and Gloria got her hair done. She called him several times during the day, and

he indicated that Gloria could not get her hair braided. Ieshia eventually stopped calling him, and

she left Great America at approximately 7 p.m. or 8 p.m. She called defendant when she left Great

America, and he told her that he was still pretty busy and would take Gloria to Great America

another time. After speaking to defendant, Ieshia got a ride to Dixmoor where she met defendant.

Gloria was not with him, and he told her that Gloria had been picked up, although he did not say

by whom. Ieshia and defendant picked up their children from Hazel Crest and then returned home

to Round Lake. Ieshia tried to call Gloria several times but did not get an answer. The next

morning, Ieshia unsuccessfully attempted to reach Gloria, before calling Gloria’s sister, Diamond,

and her mother, Danielle. Danielle stated that she had not picked Gloria up from anywhere, and

defendant had left home, heading back to the south suburbs to try and find Gloria. Defendant went

to Dixmoor and then back to the motel in Dolton to see if Gloria was there. Ieshia stated that

defendant told her that Danielle was supposed to pick her up.

¶9 Motel staff also testified for the State: Brenda Lazard, Ladonna Sapp, Mariela Jackson and

Nathan Peoples. Peoples worked as the front desk clerk at the motel overnight from June 18 to

June 19, 2012. Around midnight on June 19, defendant arrived at the hotel in a white SUV.

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Defendant and his uncle completed a registration form for Room 111 and received a keycard at

approximately 12:13 a.m. At approximately 1:42 a.m., a woman completed a registration form for

Room 106 and received a keycard. Peoples viewed video clips showing the outside of the motel

and the night front desk area and confirmed that they were true and accurate recordings.

¶ 10 Lazard testified that she worked at the motel on June 19, 2012. Shortly after 11 a.m., a

young lady extended Rooms 106 and 111 for four hours. Later that afternoon but before the four

hours’ expired, defendant extended Room 111 overnight. She stated that defendant was “acting a

bit weird” and when he noticed Lazard looking at him, he stated that he had just smoked marijuana.

Another woman came into the office, and he told her that “baby girl was sleeping” and he “just

didn’t have the heart to wake her up.” Lazard viewed the video clip that showed defendant in the

office extending the room overnight and stated that it truly and accurately depicted what occurred

at 13:51 hours on June 19, 2012.

¶ 11 Jackson testified that she worked at the motel as a housekeeper on June 19, 2012, and was

responsible for Room 106. When she went to Room 106, she saw a man and a woman there who

said they were thinking of staying another day but were unsure. Jackson previously saw the woman

go to Room 111 and a teenaged girl opened the door. Jackson also worked on June 20, 2012, and

was responsible for Room 111. When she arrived at the room at approximately 10:44 a.m., she

saw the same teenager lying down and thought she was relaxing. But when Jackson opened the

door, she “noticed something different.” She went to her boss and told her that something was

wrong with the girl in Room 111. Jackson described the video clip as true and accurate video

footage of what she described.

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¶ 12 Sapp testified that she was a new manager at the motel in June 2012. At that time, the motel

had a video surveillance system, and she was trained in its operation. The morning of June 20,

2012, she was mopping when one of her employees came in and told her to “come now.” They

went to Room 111 and Sapp saw a body lying in the bed. She did not enter the room but called out

“ma’am” but there was no response. Sapp closed the door, told housekeeping not to enter and

called the police. Later, Sapp met with a detective about the surveillance system, along with the

owners of the motel. She testified that the system was working correctly during the period of June

18 through June 20, 2012. Sapp and the owners instructed the detectives on how to review the

video and make hard copies. She spent approximately four hours with police and one of the owners

stayed later than she did. Sapp testified that she reviewed video clips from June 19 through 20,

2012, prior to testifying at trial and they accurately reflected how the front desk appeared, how the

front of the motel appeared, and how the outside of Rooms 111, 106, other rooms and the area by

the vending machines appeared. She identified the types of keycards used at that time and the

registration forms created during check in, which included a copy of the guest’s identification.

¶ 13 On cross-examination, Sapp stated that the surveillance system was a series of cameras that

ran 24 hours a day. One of the videos that police copied was the hallway which included the outside

of Room 111. She stated that there were no cameras inside the rooms and the police requested

video for June 18 through June 20, 2012.

¶ 14 Rachel testified that defendant was her children’s father. She also stated that she was

convicted of retail theft in 2007 and 2013, delivery of a controlled substance in 2008; and

possession of a counterfeit credit card in 2013. Rachel testified that defendant picked her up on

June 18, 2012, and took her to the motel. When she went to get a room, defendant told her to get

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one near his daughter’s. Rachel did not know defendant’s daughter but knew that her name was

“Poohda” and that she was a teenager. Rachel got Room 106, which was a few doors down and on

the same side as Room 111. She and defendant went into Room 106, talked and smoked marijuana.

The next morning, Rachel went to get breakfast before returning to Room 106 and falling asleep.

When she woke up, she went to Room 111 to see if Gloria wanted something to eat and saw

defendant inside with his daughter. She and defendant left the room a minute later. Rachel testified

that Gloria appeared normal but also stated that she did not know her well. Rachel returned to

Room 111 to bring Gloria some snacks at approximately 10 am per the video. She returned to

Room 111 again around 11:01 a.m. and defendant was inside with Gloria. Rachel went to Room

111 again at approximately 11:32 a.m., and Gloria appeared okay. Rachel subsequently left the

motel in the white SUV to pick up her friend Deena. While in the car, defendant called her, but

she had trouble understanding him because he repeatedly yelled that something happened and

something was wrong. Defendant asked to come back to the motel; he said that something was

wrong with his daughter and that he had hit her, or they had gotten into a dispute, but she was

okay. Rachel told him to help his daughter and hung up. Defendant called her back and said that

everything was okay. When Rachel and Deena made it back to the motel, defendant was in the

lobby getting a new room key. Rachel, Deena and defendant left to go get food from a nearby

restaurant and they returned to Room 106. Defendant stated that Gloria needed to get her hair done

to go to Great America. Rachel asked defendant if Gloria wanted food and he indicated that Gloria

did not like jerk chicken. Rachel never returned to Room 111. She later saw a “blunt object” in the

back of defendant’s shirt that looked like a gun handle.

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¶ 15 On cross-examination, defense counsel attempted to question Rachel about a 2007

obstruction of justice/destroying evidence conviction, but the State’s objection was sustained.

Rachel confirmed that she was convicted of retail theft and received both probation and jail time.

Defense counsel then asked Rachel about a previous conviction for filing a false report to 911, and

the State objected. During a sidebar, the State indicated that Rachel received six months’

supervision on the 911 case, which the trial court stated was not a conviction, and sustained the

objection. Defense counsel again attempted to question Rachel about the obstruction charge,

arguing that it was a crime of dishonesty, but the trial court sustained the State’s objection on the

basis that it was a misdemeanor offense. The trial court indicated that the rest of Rachel’s

convictions, which included two delivery of a controlled substance convictions, two retail thefts

and a counterfeit credit card case, would be allowed. Rachel testified on cross-examination that

she first spoke with police on June 20, 2012, was kept at the station overnight, and she thought

that she was going to be charged with murder. She stated that she did not tell the police about the

phone call from defendant when she spoke with police on June 20, and acknowledged that while

at the motel, she smoked marijuana. Rachel also stated that she used marijuana daily.

¶ 16 Several police officers testified to various parts of the investigation into the murder. Officer

Kevin Rene arrived at the motel at 11:14 a.m. on June 20, 2012, met with Sapp and Jackson, and

entered Room 111 where he saw Gloria’s body in the bed and secured the scene. Illinois State

Police Sergeant Cary Morin arrived at the motel and was directed to Room 111 at approximately

1:25 p.m. on June 20, 2012. He saw that Gloria had head injuries, saw bloodstains on every wall

of the room, blood on the floor, a “defect” in the ceiling, and some holes in the wall. There was an

adjoining room (Room 110), but the lock to the connecting door was damaged and could not be

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opened. Morin recovered items from Room 111, including metal fragments, broken earrings, teeth,

and tooth fragments, a .50 caliber casing from the bed, an HTC cell phone battery and a bullet

fragment from the ceiling. Morin photographed the scene and several of the photos were published

to the jury. Later on, Morin also obtained fingerprint and DNA samples from defendant, including

a buccal swab. He was also responsible for processing the white SUV, from which he recovered a

rental agreement in Ieshia’s mother’s name; a hotel room keycard, earrings which appeared

substantially similar to those he recovered from the crime scene, a purse with ID cards for “Gloria

Woods,” a cell phone missing its back battery cover, and a white t-shirt with blood stains.

Additionally, police found blood soaked towels and sheets underneath the bed, on the floor and in

the bathroom sink.

¶ 17 Sergeant John Shefcik testified that at 4:45 p.m. on June 20, 2012, he was in the lobby of

the motel when the desk clerk indicated “there he is” and directed the officers to a white SUV.

Defendant was the passenger, appeared visibly upset, and said, “[w]here is my little girl? I need to

see my daughter. You better show me my daughter. I’m going to burn this mother f***er down.

She is only a virgin. Why would they do this to her? I demand that you show me my daughter.”

On cross-examination, Shefcik stated that defendant may have said, “[j]ust tell me she is okay.

You mother f***ers better tell me she is okay.”

¶ 18 Illinois State Police (ISP) Master Sergeant Rebecca Hooks was qualified as an expert in

bloodstain pattern analysis. She did a walkthrough of Room 111 with Morin on June 20, 2012.

Hooks stated that, by looking at the size, shape, distribution and appearance of bloodstains, she

could determine how they were deposited on the wall. She concluded that all of the patterns of the

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bloodstains were consistent with blunt force trauma. Hooks also found blood residue all over the

bathroom floor, as well as a bloody handprint and footprint.

¶ 19 Lansing Police Sergeant Chuck Weeden testified that on June 20, 2012, he responded to

the motel and was assigned to review surveillance video. Motel staff took him to the hotel laundry

room, where surveillance equipment was set up with a monitor. After being instructed on how to

use the equipment, Weeden viewed various aspects of the motel from the system and made digital

copies of the images. Weeden put the images on a flash drive that he downloaded to his computer

and then to individual DVDs. He identified People’s Group Exhibit 158A through G as the DVDs

he created.

¶ 20 Weeden testified that he specifically viewed the footage of the camera that covered the area

outside of Room 111 from check-in through when the maid discovered Gloria’s body. He also

viewed footage from the hallway, outside stairwell, vending machine, the hallway going into the

lobby, the lobby, behind the front desk and lobby counter. While viewing the video footage,

Weeden noticed a discrepancy in the timestamp on the screen. He identified People’s Group

Exhibit 5 as clips of various points of the same surveillance video that he watched and copied onto

the thumb drive. Multiple clips were published to the jury. Weeden also testified that he reviewed

the videos of the time periods that occurred in between the clips, particularly the camera that

showed the outside of Rooms 111 and 106. He stated that other than what was shown in the video,

he did not see anyone enter or leave Room 111. Altogether, Weeden spent just over two days

reviewing the surveillance footage and making copies. Defense counsel did not cross-examine

Weeden.

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¶ 21 ISP forensic scientist Lyle Boiken testified that he analyzed DNA evidence in this case. He

identified a portion of Gloria’s blood standard, a portion of defendant’s buccal swab, and all

portions of the bloody t-shirt (formerly Lab Exhibits 5(A)-(C)). 5(A) revealed a mixture of at least

three people, including a major DNA profile from which defendant could not be excluded. 5(B)

revealed Gloria’s DNA, and 5(C) also revealed a mix of profiles from at least three people,

including another major DNA profile from which defendant could not be excluded.

¶ 22 The parties stipulated to Gloria’s autopsy results which revealed that she had multiple

lacerations, bruises and a skull fracture on her head, face, nose and ear; Gloria’s upper two teeth

were torn away from their sockets; she had multiple fractures in the upper and lower jawbone;

multiple subgaleal and subarachnoid hemorrhages, brain contusions and multiple skull fractures.

Gloria’s cause of death was blunt head trauma due to an assault and the manner of death was

homicide.

¶ 23 The parties also stipulated that Crime Scene Investigator Peter Watson collected a DNA

blood card recovered from Gloria’s body at the autopsy, and William Anselme, a forensic scientist

with the ISP, an expert in forensic biology, collected a t-shirt from the SUV and detected the

presence of blood on the t-shirt.

¶ 24 At the close of the State’s evidence, defendant moved for acquittal, which was denied.

Defendant stated that he was not testifying and agreed that he was aware that the defense was not

presenting any evidence.

¶ 25 During jury deliberations, the jury requested transcripts of all testimony, the coroner’s

reports, and Gloria’s time of death. The jury also requested to have the cell phone in evidence

charged to see if there was “date or time information like the last call made.” Ultimately, the jury

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returned a guilty verdict of first degree murder with an additional finding that defendant was armed

with a firearm during the offense.

¶ 26 Posttrial Proceedings

¶ 27 1. Defendant’s Motion for New Trial

¶ 28 On August 24, 2016, APD Justic filed defendant’s motion for new trial. However, on

November 18, 2016, defendant indicated in court that he wanted to fire Justic because he had never

seen him and wanted to proceed pro se. On January 17, 2017, defendant again stated that he wished

to proceed pro se, and the trial court gave him Rule 401 (eff. July 1, 1984) admonishments. On

September 25, 2017, defendant asked for counsel. The trial court held a preliminary Krankel

inquiry and appointed posttrial counsel for defendant. On November 13, 2017, APD Duchatellier

filed a motion for new trial alleging ineffective assistance of counsel. Defendant’s motion

primarily focused on matters related to the surveillance videos, including trial counsel’s failure to

question or investigate the time discrepancies in the videos, “missing” footage, and the failure to

cross-examine Detective Weeden concerning his editing of the videos. There were no issues raised

regarding Rachel’s impeachment or improper closing argument.

¶ 29 The hearing was held on June 22, 2018, and defendant testified that trial counsel never met

with him or discussed discovery with him; he was unaware that Rachel claimed that he called her

and said he hit his daughter until she testified at trial; he wanted to have Rachel’s phone records

subpoenaed and to admit evidence showing her drug use; he was unaware that a bloody t-shirt was

found; he never reviewed the video surveillance footage; he had issues with the inconsistent time

stamp footage and alleged that there were chunks of footage missing; trial counsel never

investigated the camera system or looked at the video; and he wanted to testify but trial counsel

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told him not to. On cross-examination, defendant admitted that trial counsel discussed

continuances with him but not the actual “goings on” with discovery; he agreed that Rachel

admitted to her drug use and convictions when she testified at trial; acknowledged that other people

besides Detective Weeden were shown the video at trial and testified to its accuracy; and admitted

that the trial court asked if he wanted to testify, and he stated that he did not.

¶ 30 Defendant’s trial counsel (Justic) testified that he received the video in discovery and

reviewed the complete video. Justic saw no evidence of manipulation or “blips” or any indication

that the video was doctored. He admitted that he did not get an expert to review the video because

his trial strategy was to argue that the video, while damaging, only showed the outside of Room

111, not the inside and that the jury could not guess what happened inside of the room. Justic

sought to exclude the video based on a lack of foundation and he objected to its admission. He did

not feel that expert review of the video was warranted based on his trial strategy. Justic said that

he also reviewed the clipped edited version of the video and explained it to defendant but did not

show it to him. He questioned the State’s witnesses about the time discrepancies in the video and

stated that he was not present when Detective Weeden downloaded the video and was unaware if

any of the video was missing. Justic did not have anyone examine the hotel’s video recorder or

system. He agreed that the video evidence was important but stressed that he did not believe an

expert was necessary based on his viewing of the video. Justic denied that the video showed any

suspicious activity or four black men near Room 111 on the day of the murder. He did send an

investigator to look at the locked adjoining room door, but she was unable to “tinker with it,” and

he did not recall if he investigated whether someone was in Room 110.

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¶ 31 Justic further testified that he discussed the discovery and evidence with defendant multiple

times and discussed a guilty plea but did not recall a firm offer from the State. Justic also testified

that he discussed the bloody shirt with defendant and that his trial strategy was to argue that there

should have been a lot of blood and not just little specks. He did not secure an expert to review the

results of the blood testing because the results did not “come back to defendant” which fit with his

strategy that the hotel room had no evidence to implicate defendant. Regarding Rachel, Justic’s

strategy was to attack her credibility and he discussed her statement that defendant called her with

defendant. He did not find it necessary to subpoena Rachel’s phone records and did not recall

defendant denying that he called her.

¶ 32 At the close of the hearing, the trial court granted defendant’s motion for new trial noting

that the video evidence was “crucial” because there was no eyewitness or confession, and

concluded that trial counsel was ineffective.

¶ 33 The State filed a motion for reconsideration of the order granting a new trial arguing that

defendant failed to establish prejudice as required by Strickland and offered only speculation.

There was a new attorney present for defendant at the hearing on the State’s motion as Duchatellier

had since retired; defendant informed the court that he had issues with Duchatellier also. On April

4, 2019, the trial court granted the State’s motion to reconsider, finding that defendant failed to

show actual prejudice.

¶ 34 2. Subsequent Posttrial Proceedings

¶ 35 The supervising public defender subsequently assigned defendant’s case to herself;

however, on July 17, 2019, defendant told the trial court that he wanted to represent himself and

made allegations that Duchatellier was ineffective. The trial court admonished him again under

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Rule 401 (eff. July 1, 1984). On October 10, 2019, defendant filed a Krankel motion, and a

preliminary inquiry was held on December 6, 2019, at which time the trial court found that

defendant’s allegations had no merit.

¶ 36 On January 16, 2020, defendant requested an attorney for sentencing; the trial court

indicated that it was reappointing the public defender for the last time as defendant had fired or

complained about every attorney that had been appointed for him. Defendant’s case was assigned

to supervising APD Jack Verges on February 10, 2020. However, due to the COVID-19 pandemic,

there were several continuances. APD Verges also used that time to investigate mitigation

evidence. On August 12, 2021, the date of the sentencing hearing, defendant told the trial court

that he wanted to put mitigating facts in a motion, but that APD Verges told him it would have to

be done pro se. APD Verges clarified to the trial court that defendant wanted to present Krankel

evidence that was irrelevant to sentencing and further that defendant refused to speak to him.

Defendant informed the court that he wished to proceed pro se. The trial court found that defendant

was delaying sentencing and that sentencing had been pending for four years. Defendant again

stated that he wished to proceed pro se, and the trial court held the sentencing hearing. Defendant

was not re-admonished under Rule 401 (eff. July 1, 1984). The trial court subsequently sentenced

defendant to 62 years’ imprisonment.

¶ 37 Defendant’s petition for leave to appeal was filed in this court on February 7, 2022, and

granted on February 16, 2022.

¶ 38 ANALYSIS

¶ 39 As stated above, defendant contends on appeal that: (1) trial counsel was ineffective for

failing to (a) request an adverse inference jury instruction, (b) cross-examine Detective Weeden

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about more than nine hours of missing video footage that he chose not to preserve, and (c) visit or

consult with defendant before trial about his case; (2) the trial court erred in (a) preventing

defendant from impeaching Rachel with her misdemeanor false report to 911 conviction, (b)

allowing the State to tell the jury that justice demanded a guilty verdict during closing argument

which improperly inflamed the jury’s passions, and (c) these errors were not harmless beyond a

reasonable doubt; and (3) defendant is entitled to a new sentencing hearing because the trial court

failed to re-admonish him pursuant to Supreme Court Rule 401 when he opted to proceed pro se

at his sentencing hearing. We will examine each of defendant’s issues in turn.

¶ 40 A. Ineffective Assistance of Counsel

¶ 41 Defendant first contends that his trial counsel was ineffective for various reasons, namely

that counsel failed to: request an adverse inference jury instruction, cross-examine Detective

Weeden about more than nine hours of missing video footage that he “chose” not to preserve, and

visit or consult with defendant about his case before trial. Defendant’s allegations of trial counsel’s

ineffectiveness were the subject of his posttrial motion for new trial and the State’s motion to

reconsider. As stated above, after the jury verdict, the trial court initially granted defendant’s

posttrial motion for a new trial based on ineffective assistance of counsel. The State filed a motion

to reconsider, arguing that defendant failed to establish prejudice and offered only speculation.

The trial court granted the State’s motion, finding that defendant had not established prejudice and

reinstated the jury’s verdict.

¶ 42 As a preliminary matter, we note that a court in a criminal case has inherent power to

reconsider and correct its own rulings, even in the absence of a statute or rule granting it such

authority. People v. Mink, 141 Ill. 2d 163, 171 (1990). A court’s power to reconsider and correct

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its decisions extends to interlocutory as well as final judgments. Id. In the case at bar, the trial court

granted defendant’s motion for a new trial after a jury returned guilty verdicts, which was not a

final judgment of acquittal. Such order was interlocutory in nature. See id. The court set the matter

for a new trial and retained jurisdiction of defendant and the indictment. See id. The State

subsequently filed a motion to reconsider the grant of defendant’s motion for a new trial, which

the trial court granted and reinstated defendant’s convictions. As long as the case was pending

before it, the trial court had jurisdiction to reconsider any order which had previously been entered.

Id.

¶ 43 Nor does the double jeopardy clause preclude the trial court from reconsidering and

vacating the order granting defendant a new trial. Id. at 178. As stated, the jury returned verdicts

finding defendant guilty of the charged offenses. The trial court entered a post-verdict ruling

granting defendant a new trial. Although reconsideration of that ruling likely subjected defendant

to continuing anxiety, it did not expose him to the possibility of a second trial on the merits. Rather,

when the trial court determined that the new trial order was improper, it simply vacated that order

and reinstated the jury’s verdict.

¶ 44 Turning to defendant’s argument on appeal, he is essentially arguing that the trial court

erred in granting the State’s motion to reconsider the new trial order based on his allegations of

trial counsel’s ineffectiveness. The purpose of a motion to reconsider is to bring to the trial court’s

attention changes in the law, errors in the court’s previous application of the existing law, and

newly discovered evidence not available at the time of the hearing. People v. Arze, 2016 IL App

(1st) 131959, ¶ 85. Public policy favors correcting errors at the trial level, and a timely motion to

reconsider is an appropriate method to direct the trial court’s attention to a claim of error. Id. When

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reviewing a motion to reconsider that was based only on the trial court's application (or purported

misapplication) of existing law, as opposed to one based on new facts or legal theories not

presented in the prior proceedings, our standard of review is de novo. Id.

¶ 45 In this case, the trial court granted the motion to reconsider based on its ruling that

defendant’s trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel,

the defendant must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668

(1984) as adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 525 (1984). A

defendant must establish both that trial counsel’s performance was objectively unreasonable under

prevailing professional norms and a reasonable probability that, but for the unprofessional

performance, the outcome would have been different. People v. Boyd, 2021 IL App (1st) 182584,

¶ 55. To establish deficient representation, defendant must overcome the strong presumption that

the challenged inaction might have been the result of sound trial strategy. Id. To establish

prejudice, defendant must show that counsel’s deficient performance rendered the result of the trial

unreliable or the proceeding fundamentally unfair. Id. If a claim can be disposed of based on

prejudice, the trial court need not consider whether counsel’s performance was deficient. Id. We

review claims of ineffective assistance of counsel de novo. People v. Johnson, 2021 IL 126291, ¶

52.

¶ 46 Here, the trial court determined on the motion to reconsider that defendant failed to meet

the prejudice prong of Strickland. Under that prong, an error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment. Strickland, 466 U.S. at 691; Johson, 2021 IL 126291, ¶ 54. The question

is not whether a court can be certain that counsel’s performance had no effect on the outcome or

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whether it is possible a reasonable doubt might have been established if counsel acted differently.

Johnson, 2021 IL 126291, ¶ 54. Instead, Strickland asks whether it’s reasonably likely the result

would have been different. Id. A reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different is a probability sufficient to undermine confidence in

the outcome. Id. Moreover, Strickland requires a defendant to affirmatively prove that prejudice

resulted from counsel’s errors. Id. ¶ 55. It is not enough for the defendant to show that the errors

had some conceivable effect on the outcome of the proceeding. Id. Satisfying the prejudice prong

necessitates a showing of actual prejudice, not simply speculation that defendant may have been

prejudiced. Id.; People v. Patterson, 2014 IL 115102, ¶ 81; People v. Palmer, 162 Ill. 2d 465, 481

(1994).

¶ 47 In the case at bar, defendant’s pro se allegations of ineffective assistance resulted in a

preliminary Krankel hearing after which the trial court appointed APD Duchatellier to represent

defendant. APD Duchatellier filed defendant’s motion for new trial alleging ineffective assistance

of trial counsel. A review of defendant’s motion for new trial reveals that it only argued that trial

counsel’s failure to conduct a reasonable investigation could be considered ineffective because in

advocating for defendant, trial counsel had a duty to reasonably investigate the case. Additionally,

the motion argued that the failure to hire a forensic video surveillance expert and the failure to

present the time discrepancy evidence to the jury could not be considered strategic decisions.

Defendant’s motion made no argument or showing as to the prejudice prong of Strickland.

¶ 48 However, on appeal, for the first time, defendant argues that trial counsel was ineffective

for failing to request an adverse inference instruction, Illinois Pattern Jury Instruction, Civil, 5.01

(IPI Civil (2011) 5.01), based on the State’s failure to produce the full unedited video at trial, and

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argues in passing that Duchatellier was ineffective for not including this argument in the posttrial

motion. Defendant also argues on appeal that counsel’s failure to consult with him shows a

dereliction of “one of the core duties of an attorney.” With respect to prejudice, defendant contends

that because the evidence against him was not overwhelming, Strickland prejudice is “obvious.”

Defendant also speculates that because the “missing” portion of the video included the time when

Gloria’s body was discovered by the motel staff, it would have been “entirely appropriate” for the

jury to conclude that the missing portion of the video showed someone other than defendant

entering Room 111 and the prejudice is clear from trial counsel’s inaction. Further, defendant

argues that trial counsel’s failure to cross-examine Weeden was highly prejudicial; counsel’s

failure to question the deficiencies in the surveillance video “undercuts any confidence in the

outcome below.” Defendant also notes that Duchatellier was denied the opportunity to hire an

expert to examine the videos to determine whether they were altered before trial, which was unfair

as the State argued on its motion to reconsider that no witness was offered to testify about missing

footage or potential tampering. Defendant concludes that there is a reasonable probability that the

result of the proceeding would have been different if trial counsel was not deficient.

¶ 49 We disagree with defendant’s characterization of the evidence presented at trial. The record

makes clear that the State presented several types of evidence at trial: testimonial evidence from

the motel staff, police officers, Gloria’s mother, Ieshia (the mother of some of defendant’s children

with whom he lived at the time of the murder) and Rachel (the mother of others of defendant’s

children with whom he spent the weekend of the murder with). The State also presented DNA

evidence, and physical evidence recovered from Room 111 and the truck that defendant was

driving that weekend. Further, the State presented video surveillance footage which supported the

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testimony presented. Trial counsel testified at the Krankel hearing that he viewed the videos in

their entirety and found no evidence of tampering. Counsel also testified to his strategy, which was

to attack what the video footage did not show and to focus on the lack of direct evidence

implicating defendant. Counsel’s decision not to cross-examine Weedon about the edited video

clips were apparently a strategic decision based on counsel’s strategy for the defense. It is well-

settled that matters of trial strategy are generally immune from claims of ineffective assistance of

counsel. People v. Manning, 241 Ill. 2d 319, 327 (2011). Nor has defendant shown prejudice-

namely that there is a reasonable probability that the result of his trial would have been different

if trial counsel had met with him more or cross-examined Weeden. Although the State’s evidence

at trial was largely circumstantial, it is well recognized that a criminal conviction may be based

solely on circumstantial evidence. People v. Johnson, 2018 IL App (1st) 150209, ¶ 19.

Circumstantial evidence is proof of facts or circumstances that give rise to reasonable inferences

of other facts that tend to establish guilt or innocence of the defendant. Id. Circumstantial evidence

is sufficient to support a criminal conviction, provided that such evidence satisfies proof beyond a

reasonable doubt of the elements of the crime charged. Id. The jury need not be satisfied beyond a

reasonable doubt as to each link in the chain of circumstances. Id.

¶ 50 Here, a review of the evidence presented shows that it supported reasonable inferences of

other facts that tended to establish defendant’s guilt and it satisfied the elements of the crime

charged. Even if counsel provided deficient performance in not meeting with defendant often or

failing to cross-examine Weeden, the trial court properly concluded that defendant’s ineffective

assistance of counsel claim fails because defendant has not established prejudice.

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¶ 51 The same conclusion applies to defendant’s argument that trial counsel was ineffective for

failing to request IPI Civil 5.01 and that Krankel counsel was deficient for failing to raise this issue

in the posttrial motion. Specifically, counsel was not deficient, and defendant cannot establish

prejudice. Decisions concerning defense counsel’s choice of jury instructions are characterized as

tactical decisions with the judgment of defense counsel, and trial strategy cannot be the basis for

finding counsel ineffective. People v. Clarke, 391 Ill. App. 3d 596, 617 (2009).

¶ 52 Defendant argues however that IPI Civil 5.01 is appropriate in criminal cases and cites

several cases in support of his argument. We disagree that it is appropriate in this case.

¶ 53 IPI Civil 5.01 provides, in pertinent part, that if a party fails to offer evidence within its

power to produce, jurors may infer that the evidence would be adverse to the party if the jurors

believe (1) the evidence was under the control of the party and could have been produced by the

exercise of reasonable diligence, (2) the evidence was not equally available to an adverse party,

(3) a reasonably prudent person under the same or similar circumstances would have offered the

evidence if he believed the evidence to be favorable to him, and (4) no reasonable excuse for the

failure has been shown.

¶ 54 We note that there is no comparable missing evidence instruction in the criminal jury

instructions. This court has previously found that IPI Civil 5.01 was made for use in civil cases,

and its use in criminal cases could result in plain error since it clearly could be interpreted to

conflict with a defendant’s fifth amendment right to remain silent. People v. Blackwood, 2019 IL

App (3d) 160161, ¶ 21; People v. Hall, 235 Ill. App. 3d 418, 430 (1992). If IPI Civil 5.01 was

tendered in a criminal case, comments on missing evidence may violate defendant’s presumption

of innocence by the jury possibly imposing a burden of proof on the defendant to present evidence

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when a criminal defendant has no burden to produce any evidence. However, we also note that in

the limited instances where IPI Civil 5.01 has been given in a criminal case on defendant’s request,

it was given in the context of imposing discovery sanctions against the State. Blackwood, 2019 IL

App (3d) 160161, ¶ 22. That is not the case here. Weconclude therefore that defendant cannot

establish prejudice from trial counsel’s failure to request IPI Civil 5.01.

¶ 55 Accordingly, we find that the trial court properly granted the State’s motion to reconsider

as defendant has not established how he was prejudiced by trial counsel’s alleged errors.

¶ 56 B. Trial Court Errors

¶ 57 Defendant next contends that the trial court erred in preventing his trial counsel from

impeaching Rachel about a crime of dishonesty and erred in allowing the State to argue to the jury

that justice demanded a guilty verdict. He asserts that the trial court erred in denying his motion

for new trial based on these errors and he is entitled to a new trial because the State cannot

demonstrate that the errors are harmless beyond a reasonable doubt. We review a trial court’s

denial of a motion for new trial for abuse of discretion. People v. Carter, 2022 IL App (1st) 210261,

¶ 129.

¶ 58 1. Excluded Impeachment Evidence

¶ 59 Defendant first contends that the trial court erred in preventing him from impeaching

Rachel with her false report to 911 conviction. He argues that the evidentiary rules allow a witness’

credibility to be challenged by a conviction for false statement involving dishonesty, unless the

trial court finds the probative value is outweighed by the danger of undue prejudice. He also notes

that the State misinformed the trial court of the status of Rachel’s misdemeanor false report to 911

case as her supervision in that case was revoked on June 8, 2012, and she was resentenced to six

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days in jail. He contends that the revocation of Rachel’s supervision resulted in a conviction, and

she could be impeached by it since it occurred within 10 years of her testimony and was also a

crime of dishonesty and provided computer printouts of Rachel’s case information to support his

contention. Defendant acknowledges that this new information was not provided to the trial court

when it excluded the evidence for impeachment purposes and thus was not included in the motion

for new trial nor was the trial court’s ruling based on it. Additionally, he asks this court to take

judicial notice of the case information related to Rachel’s prior conviction that he provided in the

appendix to his brief.

¶ 60 Generally, in order to preserve an issue concerning the trial court’s preclusion of

impeaching evidence at trial, the defendant must set forth an offer of proof at trial to establish on

the record, for purposes of review, that the evidence he sought to introduce was positive and direct

on the issue of bias or motive to testify falsely. People v. Wallace, 331 Ill. App. 3d 822, 831 (2002).

Although formal offers of proof are generally required to preserve the issue of whether preclusion

of the evidence was proper, an informal offer of proof, where counsel merely summarizes what

the proposed evidence or testimony may show, may be sufficient to preserve the claim of error if

it is specific enough in nature and if it is not based merely on speculation or conjecture. Id. An

offer of proof is sufficiently specific, therefore, if it adequately shows the court what the evidence

would be, allowing a court of review to assess the prejudice allegedly stemming from the

exclusion. Id. The failure to make such an offer results in forfeiture of the issue. People v. Staake,

2017 IL 121755, ¶ 51.

¶ 61 Our review of the record reveals that there was a sidebar outside of the presence of the jury

after the State objected to defense counsel’s attempt to question Rachel about her previous

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convictions. Defense counsel mentioned Rachel’s previous cases to the trial court during the

sidebar but did not make any offer of proof, such as copies of the convictions, to support the

argument that they were admissible as impeachment evidence. This issue was however, included

in trial counsel’s motion for new trial. We find that this issue was not properly preserved as counsel

did not make an offer of proof, formal or informal, that would have shown the court what the

evidence would be: thus, it is forfeited. See People v. Lesley, 2018 IL 122100, ¶ 37 (forfeiture is

defined as the failure to make the timely assertion of the right and results in the loss of a right

regardless of the defendant’s knowledge thereof and irrespective of whether the defendant

intended to relinquish the right).

¶ 62 Appellate counsel attempts to correct the forfeiture by asking this court to take judicial

notice of Rachel’s prior conviction that counsel sought to use for impeachment purposes and find

that it was improperly excluded.1 A reviewing court may take judicial notice of matters not

previously presented to the trial court when the matters are capable of instant and unquestionable

demonstration. People v. Boykin, 2013 IL App (1st) 112696, ¶ 9. Courts frequently take judicial

notice of public documents, including records from the Illinois Department of Corrections (IDOC).

People v. Castillo, 2022 IL 127894, ¶ 40.

¶ 63 The case search information appellate counsel has included in the index to defendant’s

brief is not an official copy of Rachel’s convictions from the IDOC nor the trial court’s half sheet;

rather, it appears to be a computer-generated document from the trial court’s website as a result of

a public document search. Counsel offers no explanation as to why he did not secure a copy of

1 It is unclear whether counsel is attempting to invoke application of the plain error doctrine as such request is not explicitly stated in defendant’s brief.

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Rachel’s IDOC records. Nevertheless, we will take judicial notice of the information provided as

it meets the qualifications for information that is “capable of instant and unquestionable

demonstration.” Boykin, 2013 IL App (1st) 112696, ¶ 9.

¶ 64 We next determine whether Rachel’s prior conviction qualified as proper impeachment

evidence of a crime of dishonesty. Under Illinois Rules of Evidence 609(a) (eff. Jan. 1, 2011),

which governs the impeachment of a witness with a prior criminal conviction:

“[E]vidence that a witness has been convicted of a crime, except on a plea of nolo

contendere, is admissible but only if the crime, (1) was punishable by death or

imprisonment in excess of one year under the law under which the witness was convicted,

or (2) involved dishonesty or false statement regardless of the punishment unless (3), in

either case, the court determines that the probative value of the evidence of the crime is

substantially outweighed by the danger of unfair prejudice.”

¶ 65 The terms dishonesty and false statement refer to crimes such as perjury, persuading one

to commit perjury, false statement, criminal fraud, embezzlement, false pretenses, other offenses

of “crimen falsi,” and theft. People v. Atkinson, 186 Ill. 2d 450, 465 (1999). Our supreme court

has held that any misdemeanor which has as its basis lying, cheating, deceiving or stealing bears

a reasonable relation to testimonial deceit and should be admissible for impeachment purposes.

People v. Spates, 77 Ill. 2d 193, 204 (1979). In making this determination, the facts surrounding

the prior conviction are not to be looked at and only the crime as defined by statute should be

considered. People v. Mullins, 242 Ill. 2d 1, 15-16 (2011).

¶ 66 Here, according to the documentation included in defendant’s brief that this court is asked

to take judicial notice of, the prior conviction at issue from 2011 indicates a false report to 911,

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and the statute cited is 720 ILCS 5/26-1(A)(12) (West 2010), which is defined as disorderly

conduct. The 2011 version of subsection 1(A)(12) states that a person is guilty of disorderly

conduct when he or she knowingly:

“[c]alls the number ‘911’ for the purpose of making or transmitting a false alarm or

complaint and reporting information when at the time the call or transmission is made, the

person knows there is no reasonable ground for making the call or transmission and further

knows that the call or transmission could result in the emergency response of any public

safety agency.” 720 ILCS 5/26-1(A)(12) (West 2010). 2

¶ 67 We therefore find that Rachel’s prior conviction was a crime involving a false statement

and could have served as impeachment evidence. However, as previously noted, this information

was not provided to the trial court when it made its ruling, thus we cannot say that the trial court

erred in excluding this evidence based on the information it had at the time. Moreover, because

trial counsel failed to make an offer of proof of this evidence to the trial court, we find that

counsel’s performance was deficient as it relates to this issue.

¶ 68 Irrespective of that finding, we conclude however that defendant was not prejudiced by the

exclusion of this evidence because it was merely cumulative of the evidence of Rachel’s prior

convictions that was already provided to the jury at trial. As previously noted, at trial, Rachel

admitted to her previous convictions for retail theft in 2007 and 2013; delivery of a controlled

substance in 2008; and possession of a counterfeit credit card in 2013. Three of those convictions

were crimes of theft or false statement for purposes of impeachment, so the admission of the

2 The version of the disorderly conduct statute that Rachel was convicted under was in effect between January 1, 2011, and June 27, 2011.

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misdemeanor false 911 report would have merely been cumulative of the evidence that was

admitted. Nor has defendant shown that there is a reasonable probability that the admission of the

false 911 report would have changed the result of his trial. See Strickland, 466 U.S. at 694; People

v. Mitchell, 238 Ill. App. 3d 1055, 1065 (1992). We therefore conclude that trial counsel was not

ineffective for failing to make an offer of proof of Rachel’s false 911 report conviction because

defendant was not prejudiced by counsel’s failure to have the information admitted.

¶ 69 2. Improper Closing Argument by the State

¶ 70 We next examine defendant’s claim that the trial court erred in allowing the State to make

an improper closing argument. Specifically, he contends that the State’s argument that justice

demanded a guilty verdict was solely meant to inflame the jury’s passions. Defense counsel’s

objection to the statements was overruled and it was included in trial counsel’s original motion for

new trial, thus it was properly preserved for review.

¶ 71 The purpose of closing arguments is to give parties a final opportunity to review with the

jury the admitted evidence, discuss what it means, apply the applicable law to that evidence, and

argue why the evidence and law compel a favorable verdict. People v. Green, 2017 IL App (1st)

152513, ¶ 77. A defendant faces a substantial burden in attempting to achieve reversal of his

conviction based on improper remarks made during closing argument. Id. Prosecutors are afforded

wide latitude in closing argument; on appeal the reviewing court determines whether or not the

comments made at closing argument substantially prejudiced the defendant such that it is

impossible to say whether or not a guilty verdict resulted from them. People v. Scott, 2015 IL App

(1st) 131503, ¶ 44. The State is entitled to argue all reasonable inferences from the evidence, it

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may discuss the witnesses and their testimony, and it may assume the truth of the State’s evidence.

Green, 2017 IL App (1st) 152513, ¶ 77.

¶ 72 It is improper for the State to do or say anything in argument where the only effect of which

will be to inflame the passion or arouse the prejudice of the jury against the defendant, without

throwing any light on the question for decision. Id. It is also improper when the remarks misstate

the evidence or argue facts not in evidence. Id. Improper comments during closing argument can

constitute reversible error only when they “engender substantial prejudice against defendant such

that it is impossible to say whether or not a verdict of guilty resulted from those comments.” Id.

(citing People v. Moore, 358 Ill. App. 3d 683, 693 (2005). We view the closing arguments of both

the State and defense counsel as a whole for context rather than focus on particular phrases or

remarks. Scott, 2015 IL App (1st) 131503, ¶ 44. To warrant reversal and a new trial, the improper

remarks in closing argument must constitute a material factor in defendant’s conviction. Id.

¶ 73 There remains a split of authority on whether the appropriate standard of review is abuse

of discretion or de novo. Green, 2017 IL App (1st) 152513, ¶¶ 78-80. However, as several courts

before us have found, we need not resolve the issue of the appropriate standard of review at this

time because our decision in this case would be the same under either standard. See id. ¶ 81.

¶ 74 Here, defendant contends that the State’s comment during closing argument that “justice

demands a guilty verdict” was improper and only served to inflame the jury’s passion. We

disagree. The State may comment unfavorably on the evil effects of the crime and urge the jury to

administer the law without fear when such argument is based on competent and pertinent evidence.

People v. Woods, 2011 IL App (1st) 091959, ¶ 42. Moreover, although the State’s remarks may

sometimes exceed the bounds of proper comment, the verdict must not be disturbed unless it can

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be said that the remarks resulted in substantial prejudice to the defendant, and that absent such

remarks, the verdict would have been different. Id. In other words, the comments must have been

a material factor in convicting the defendant. Id. Additionally, a significant factor in reviewing the

impact of the State’s allegedly improper comments on a jury verdict is whether the comments were

isolated and brief within the context of a lengthy closing argument. Id.

¶ 75 Moreover, even if the State’s comments were improper and constituted error, the trial court

may correct the error through proper jury instructions. Green, 2017 IL App (1st) 152513, ¶ 98.

Improper arguments can be corrected by proper jury instructions, which carry more weight than

the arguments of counsel. Id. Any possible prejudicial impact is greatly diminished by the trial

court’s instruction that closing arguments are not evidence and such instruction protects the

defendant against any prejudice caused by improper comments made during closing arguments as

it is presumed that jurors follow the instructions provided by the trial court. Id.

¶ 76 Upon review of the State’s full closing argument, we cannot say that the State committed

clear or obvious error in its remarks during closing argument. We note that the State’s closing

argument spanned 15 pages of the transcript, and these are the only comments that defendant

complains of. Further, the complained-of comments were brief and isolated as they were the very

last two statements made by the State as it closed its argument. The majority of the State’s closing

argument focused on the evidence presented at trial, the severity of the crime, and justice for

Gloria. The State’s comments were not to inflame the jury’s passions but rather were comments

based on its inference from the evidence presented at the trial and to enter a jury verdict since that

is what the evidence and justice demanded. Such comments are not improper. See People v James,

2021 IL App (1st) 180509, ¶ 41. On review of the State’s and defense counsel’s closing arguments

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as well as rebuttal argument, we cannot say that these brief comments at the end of the State’s

closing argument materially affected the jury’s verdict and defendant makes no real argument that

the outcome of the trial would have been different if the State had not made the comments.

¶ 77 Additionally, prior to the beginning of closing arguments, the trial court admonished the

jury that “[w]hat the lawyers say is not evidence and should not be considered by you as evidence.

The lawyers will simply be discussing what they believe the evidence has shown.” Once closing

arguments were concluded, the trial court admonished the jury that it was their duty to determine

the facts and to determine them only from the evidence in the case. Further, the court admonished

the jury that it was to consider the evidence, which consisted only of the testimony of the witnesses

and the exhibits which the court received. The trial court then admonished the jury again that

closing arguments

“are made by the attorneys to discuss the facts and circumstances in the case and

should be confined to the evidence and to reasonable inferences to be drawn from the

evidence. Neither opening statements nor closing arguments are evidence, and any

statement or argument made by the attorneys which is not based [o]n the evidence should

be disregarded.”

¶ 78 As such, even if the State’s comments during closing were improper, the trial court

corrected any error by instructing the jury that the State’s comments were not evidence and to base

its verdict only on the evidence presented at trial. As a result, we find that the trial court did not

err in allowing the State’s comments to stand, and we affirm defendant’s conviction.

¶ 79 C. Compliance with Illinois Supreme Court Rule 401

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¶ 80 Lastly, defendant contends that he is entitled to a new sentencing hearing because the trial

court did not re-admonish him pursuant to Rule 401when he opted to proceed pro se at his original

sentencing hearing. He argues that his waiver of counsel was therefore invalid, and he is entitled

to a new sentencing hearing. Defendant acknowledges that he did not object to the lack of

admonishments at his sentencing hearing, nor was this issue raised in a post-sentencing motion.

He contends, however, that this court should review the issue under the second prong of the plain

error doctrine because it is a structural error that does not require a showing of prejudice

and the issue involves a fundamental right.

¶ 81 Because the right to counsel is fundamental, a reviewing court may review an alleged

violation of Rule 401 (eff. July 1, 1984) under the plain error doctrine. People v. Black, 2011 IL

App (5th) 080089, ¶ 24; People v. Vazquez, 2011 IL App (2d) 091155, ¶ 14; People v. Khan, 2021

IL App (1st) 190051, ¶ 40. The first step in determining whether plain error applies, however, is

determining whether a clear or obvious error occurred. People v. Sebby, 2017 IL 119445, ¶ 49.

¶ 82 The state and federal constitutions grant defendants a right to counsel. U.S. Const., amend.

VI; Ill. Const. 1970, art. I, § 8. This right applies to all critical stages of prosecution, including

sentencing. People v. Allen, 220 Ill. App. 3d 772, 781 (1991). However, a defendant has a right to

waive representation by counsel and proceed pro se. People v. Haynes, 174 Ill. 2d 204, 235 (1996).

Accordingly, a defendant may waive his constitutional right to counsel as long as such waiver is

knowing and voluntary. Id.

¶ 83 A defendant’s waiver of the right to counsel must be clear and unequivocal. People v.

Khan, 2021 IL App (1st) 190051, ¶ 43. The purpose of requiring a clear and unequivocal waiver

is to (1) prevent the defendant from appealing either the denial of his right to self-representation

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or the denial of his right to counsel, and (2) prevent the defendant from manipulating and abusing

the system by going back and forth between his request for counsel and his wish to proceed pro

se. Id. To determine whether a defendant’s waiver was unequivocal, a reviewing court will look at

the overall context of the proceedings, including the defendant’s conduct following his request to

represent himself. Id.; People v. Khan, 407 Ill. App. 3d 315, 340 (2011).

¶ 84 Illinois Supreme Court Rule 401 requires the court to complete a specific procedure before

it can accept a defendant’s waiver of counsel as knowing and intelligent. Under Rule 401(a), the

court shall inform the defendant of and determine that the defendant understands:

“(1) the nature of the charge;

(2) the minimum and maximum sentences prescribed by law, including, when applicable,

the penalty to which the defendant may be subjected because of prior convictions or

consecutive sentences; and

(3) that he has a right to counsel, and, if he is indigent, to have counsel appointed for him

by the court.” Ill. S. Ct. R. 401(a) (eff. July 1, 1984).

¶ 85 Our supreme court has consistently held that strict, technical compliance with Rule 401(a)

is not always required. Haynes, 174 Ill. 2d at 236; People v. Johnson, 119 Ill. 2d 132 (1984).

Substantial compliance is sufficient if (1) the record indicates defendant’s waiver of the right to

counsel was knowing and voluntary and (2) the given admonishments did not prejudice

defendant’s rights. Johnson, 119 Ill. 2d at 132. This issue requires us to determine whether the trial

court has complied with a supreme court rule, which we review de novo. People v. Campbell, 224

Ill. 2d 80, 84 (2006); People v. Ware, 407 Ill. App. 3d 315, 341 (2011).

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¶ 86 Here, the record reveals that this was defendant’s third time electing to proceed pro se

during the proceedings, each instance occurring after defendant’s jury trial. Neither party claims

that the trial court strictly complied with Rule 401. Defendant admits that he was fully admonished

under Rule 401 the first two times but contends that he should have been re-admonished prior to

proceeding pro se at the sentencing hearing. He, first, elected to proceed pro se on his motion for

new trial and the trial court fully admonished defendant on January 10, 2017. Defendant

represented himself for almost nine months until the trial court appointed counsel to represent him

during the Krankel proceedings. After the State’s motion to reconsider was granted and his

conviction reinstated, defendant again elected to proceed pro se on July 17, 2019, and he was fully

admonished by the trial court. He represented himself until December 6, 2019, when the trial court

denied his request for new Krankel counsel. New counsel was appointed on January 27, 2020, for

sentencing but the case was subsequently delayed during the COVID-19 pandemic court closures

and counsel’s preparation time. On August 12, 2021, defendant requested to represent himself

during sentencing and the trial court did not re-admonish him under Rule 401 before allowing him

to proceed pro se. Thus, it is clear that the trial court failed to strictly comply with Rule 401(a).

¶ 87 However, a lapse in time between the trial court providing Rule 401(a) admonishments and

the defendant’s waiver does not per se invalidate defendant's waiver. Haynes, 174 Ill. 2d at 242.

Rather, each case must be assessed on its own facts. Id. Under the continuing waiver rule, a

defendant can waive the right to counsel and that waiver stays in place throughout the remaining

stages. People v. Martin, 2021 IL App (4th) 180267, ¶ 33. However, that rule is subject to two

exceptions: (1) when the defendant later requests counsel or (2) other circumstances suggest that

the waiver is limited to a particular stage in the proceedings. Id.

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¶ 88 Here, it is clear that defendant switched three times in posttrial proceedings between having

counsel and going pro se, thus requiring three sets of admonishments. The instance at issue

occurred just before the sentencing hearing, meaning that defendant received no admonishments

regarding the nature of the charge or the possible penalties and defendant’s right to have counsel

under Rule 401(a). Thus, there was never an admonishment at a separate, critical stage of the

proceedings. Martin, 2021 IL App (4th) 180267, ¶ 35; People v. Burton, 184 Ill. 2d 1, 22 (1998).

We cannot find that the trial court substantially complied with Rule 401(a) under these

circumstances and conclude that it was error not to admonish defendant before the sentencing

hearing.

¶ 89 We are sympathetic to the circumstances presented to the trial court in this case, where the

trial concluded four years prior to the sentencing, defendant vacillated between wanting counsel

and representing himself, and the trial court may have been genuinely frustrated by the lengthy

delays in the case, and the fact that defendant was fully admonished on two prior occasions during

different stages of the posttrial proceedings. Additionally, while it is doubtful that the repetition of

Rule 401(a) admonishments would have had a significant impact on defendant’s decision to waive

counsel, that is not the proper analysis where, as here, prejudice is presumed because of the

importance of the right involved. Martin, 2021 IL App (4th) 180267, ¶ 36; People v. Fort, 2017

IL 118966, ¶ 18. Rule 401(a) admonishments must be provided where a defendant waives counsel,

proceeds pro se, requests counsel for a different stage of the proceedings, receives counsel, and

then decides to waive counsel again. People v. Washington, 2016 IL App (1st) 131198, ¶ 60.

Because the trial court failed to do so, we are unable to conclude that defendant provided a knowing

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and voluntary waiver of counsel and therefore this cause must be remanded for a new sentencing

¶ 90 CONCLUSION

¶ 91 In conclusion, we find that the trial court properly granted the State’s motion to reconsider

because defendant failed to establish that he was prejudiced by his trial counsel’s alleged

ineffective representation. We also find that the trial court did not err in excluding evidence of

Rachel’s prior misdemeanor conviction for false 911 report where the case information was not

presented to the trial court at the time the decision was made, and that trial counsel was not

ineffective for failing to present the case information when it was cumulative to the evidence

presented to the jury about Rachel’s other prior convictions. Additionally, the trial court did not

err in overruling trial counsel’s objection to the State’s closing arguments where the complained-

of comments were not proper comments on the evidence and any error was harmless as defendant

has not shown how the result of the trial would have been different if the comments were excluded.

Accordingly, we affirm defendant’s convictions. However, we vacate defendant’s sentence and

remand for a new sentencing hearing because the trial court failed to substantially comply with

Rule 401(a) when it did not re-admonish defendant before allowing him to proceed pro se at the

sentencing hearing.

¶ 92 Affirmed in part; reversed in part.

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