Opinion
1-16-3033
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR CHANEY, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 12 CR 2323 The Honorable Matthew E. Coghlan, Judge Presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court. Justices Harris and Mikva concurred in the judgment.
ORDER
PIERCE PRESIDING JUSTICE
¶ 1 Held: The judgment of the circuit court is affirmed. The circuit court did not err by admitting testimony from a detective regarding another's witness's statements identifying defendant as the shooter. Defendant forfeited review of the four improper comments made by the prosecutor during closing argument and defendant was not entitled to plain error relief. Defendant forfeited any foundational challenge to the circuit court's admission of jail phone recordings, and regardless, no error occurred.
¶ 2 A jury found defendant, Arthur Chaney, guilty of two counts of first degree murder and four counts of attempted murder, and he was sentenced to an aggregate sentence of natural life in prison plus a term of 120 years. On direct appeal, defendant argues he was denied a fair trial due to: (1) the erroneous admission of a testifying witness's purported prior consistent statement; (2) prosecutorial misconduct during closing arguments; and (3) the erroneous admission of audio recordings of two phone calls placed from jail attributed to defendant. We affirm.
¶ 3 I. BACKGROUND
¶ 4 The State charged defendant with two counts of first degree murder, four counts of attempted murder, and numerous counts of aggravated battery in connection with a December 27, 2011, shooting at a Church's Chicken located at West 66th Street and South Halsted Avenue in Chicago. The circuit court conducted a jury trial, which commenced in August 2016. The jury heard evidence that on December 27, 2011, at around 7 p.m., a gunman exited a vehicle and started firing toward the restaurant. The gunman moved toward the restaurant and held open a door as he fired the gun several more times into the restaurant before fleeing. Jawan Ross and Dantril Brown died from gunshot wounds, and Robert Givens, Linus Haywood, Demetrius Johnson, and Terry Rush all sustained gunshot wounds.
¶ 5 Police investigated and collected evidence from the scene of the crime and the surrounding area, and interviewed numerous witnesses, including Terry Rush and Kenny Lofton. Rush and Lofton both gave descriptions of the shooter to police and identified defendant as the shooter from a photo array and from an in-person lineup. Defendant was arrested December 28, 2011, at the apartment of a man named Dantrell Winford and police recovered a black North Face jacket from Winford's apartment. Police also seized a Chevrolet Uplander suspected of being the van used in the shooting.
Winford died before trial.
¶ 6 A. Video Footage
¶ 7 The State presented video footage from the restaurant and nearby businesses depicting the shooting and the surrounding area. Video footage showed Lofton walking out of the restaurant and standing outside for several seconds before he and Rush sprinted inside. As Lofton, Rush, and other customers tried to exit through the restaurant's south door, the gunman held open the north door and fired several shots into the restaurant before running away. Separate video footage showed a vehicle stopping on 66th Street just north of the restaurant for 10 seconds during the shooting before driving east toward Halsted and out of frame, and a few seconds later, a light-colored minivan driving south on Halsted.
¶ 8 Defendant was spotted on video footage before and after the time of the shooting at two locations on December 27, 2011. At around 6 p.m., video footage showed defendant and Winford near Winford's apartment at 208 West Washington Street. At around 8 p.m., footage from a car wash at 2042 South Halsted Street showed defendant, wearing a black jacket, exit a silver or gray Chevrolet Uplander driven by another man and have a conversation with the driver and Winford, who arrived separately.
¶ 9 B. Forensic Evidence
¶ 10 Three palm prints were recovered from the north door of the restaurant, only one of which was suitable for comparison, and it did not match defendant. Police recovered 15 .9-millimeter shell casings and several fired bullets and bullet fragments, all of which were fired from the same gun. Although the State tested the shell casings, bullets, and bullet fragments for DNA, the State did not introduce any DNA results from that testing at trial.
¶ 11 Police recovered prescription bottles with defendant's name from the Uplander, and a black jacket was recovered from Winford's apartment. Defendant could not be excluded as the source of a partial DNA profile on the jacket, and testing revealed gunshot residue (GSR) on the jacket's sleeves.
¶ 12 C. Witness Testimony
¶ 13 Kenny Lofton gave the following trial testimony. In 2011, he was a member of the Black Disciples (BD), a gang that controlled the area around West 66th Street and South Halsted Avenue. On December 27, 2011, Lofton, Rush-whom Lofton testified was a BD member-and other BD members were at the Church's Chicken. Rush stood outside while Lofton went inside. At about 7 p.m., Lofton exited the restaurant to make a phone call. Rush was about 20 feet away. A "silver greyish" van pulled out of a nearby alley, and Lofton saw defendant in the passenger seat of the van. He did not know defendant by his proper name, but had seen him before, knew where he hung out, and knew that he was a member of the Gangster Disciples (GD), a rival gang. Defendant exited the van with a gun in his hand and was about 10 feet behind Rush. Defendant moved toward Lofton, Rush, and the restaurant, and fired a total of 10 to 15 shots from either a .9-millimeter or .45 caliber gun. Lofton told Rush "come on" and "run" and Rush ran toward him and the restaurant. Lofton and Rush ran into the Church's Chicken, which was occupied by customers, attempting to exit through the south door. Lofton was not injured in the shooting and walked home.
¶ 14 Police arrived at Lofton's home around 8:30 p.m., took him to the station, and interviewed him. He was shown a photo array and identified defendant as the shooter. At some point, he told police the streets where he knew defendant hung out and what gang defendant was in. He made an in-court identification of defendant as the shooter.
¶ 15 At around 11:25 p.m. on December 28, 2011, Lofton viewed a physical lineup and identified defendant as the shooter. He did not recall speaking to a female assistant state's attorney (ASA) on December 29 at the police station. He identified the Uplander that he saw defendant get out of on the night of the shooting.
¶ 16 Four years later, in December 2015, he spoke to a defense investigator, Kimyona Taylor, while he was in court facing separate charges. He told her that the police gave him information about the identity of the shooter before he identified defendant as the shooter from the photo array. He testified at trial, however, that "Whatever I told her, I was taking care of my court, I got a case. So whatever I told her, I just told her something to get her out of my face." He acknowledged that, at the time of his trial testimony, he was facing drug charges, but testified the State had not made him any promises about his case.
¶ 17 On cross-examination, Lofton acknowledged that he had been convicted of felonies in 2010 and 2013. At the time of trial, he was facing charges for possession of a controlled substance with intent to deliver, which could result in a three- to seven-year prison sentence. He had recently missed a court date and the State had filed a rule to show cause against him. On December 27, 2011, he went to the Church's Chicken with Rush. He went inside the restaurant while Rush talked to someone in a car in the alley. There were several other BD members at the Church's Chicken. He did not recall speaking to Detective Velma Guerrero at the police station on December 27, 2011. At the time of the shooting, he knew defendant as "Little Art," and knew him from the area of South 66th Street and West Peoria Avenue. After the shooting, police came to his home, put him in handcuffs, and took him to the station with two other men whom he did not know. At the station, he was put in a room and recalled speaking to a male officer or detective. He did not recall speaking to a female officer or detective. He waited 30 minutes at the station before he was interviewed. At trial, the following questions and answers were asked and given.
"Q: And that's when you were taken to the police department. Now, when you were at the police station, did they put you in a room?
A: Yes.
Q: And were you interviewed by a police officer or a detective?
A: Yes
Q: And do you remember that she was a female?
A: I thought I was talking to a guy, a man.
Q: Okay. Do you remember speaking to a female at the police station that night?
A: I don't remember, no.
Q: And when you were speaking to the police officer, do you remember- were you-how long were you at the police station prior to being interviewed?
A: Like 30 minutes, tops.
Q: And you were alone in that room, right?
A: Yeah.
Q: They didn't have the other two guys who were brought to the station with you?
A: No.
Q: So then a police officer interviewed you; is that correct?
A: Yes
Q: About what happened at Church's Chicken?
A: Yes.
Q: And your memory was fresh, it had just happened, is that right?
A: Yes.
Q: Yes?
A: Yes.
Q: And the detective or the police officer interviewing, he or she was taking notes; is that correct?
A: Yes.
Q: And you told her during-you told the police officer during that first interview just about an hour-and-a-half or two hours after the shooting that the shooter was an unknown male black; is that correct?
A: Yes.
Q: You told the detective or the police officer on December 27th, 2011, in that first interview that the shooter approached with a gun with a long clip; is that correct?
A: Yes.
Q: And you told the police officer who interviewed you at that time that you didn't see the shooter; is that correct?
A: Yeah.
Q: You told the police officer who interviewed you at that time that you did not know who the shooter was, correct?
A: Correct.
Q: You told the police officer who interviewed you right after the shooting that the shooter hadn't said anything when he approached; is that correct?
A: Yes.
Q: So during that first interview with the police, unlike today's testimony, you didn't tell the police officer that the shooter was Little Art, correct?
A: Not correct.
Q: Okay. You told her the name of the shooter?
A: I don't remember me talking to no lady.
Q: Well, let's say you're talking to a man at the police station two hours afterwards.
A: I remember me just going in there and they just telling me-asking me what happened.
Q: Okay.
A: I'm telling them what happened, but I-
Q: Let me ask you this.
A: Yeah.
Q: During the interview, you never told them it was Little Art who shot you, correct?
A: I never got shot.
Q: I'm sorry.
A: Yeah.
Q: You never told the police officers that it was Little Art who was firing the shots during that first interview.
A: Yeah, I don't remember. Yeah.
Q: No you didn't tell her that or him that?
A: I don't remember. I don't remember.
Q: And you never told the detectives who interviewed you one-and-a-half to two years [sic] after the shooting that you knew the shooter from the neighborhood?
A: No.
Q: You never told the detective who interviewed you that you knew the shooter from 66th and Peoria?
A: No.
Q: And you never told the detective who interviewed you that you knew the shooter was a Gangster Disciple; is that right?
A: Yeah, I guess. Yeah.
Q: 'Yes,' you told him or her, or 'no,' you didn't?
A: I don't know. What did you say? What did you say?
Q: You never told the detective who interviewed you right after the shooting that you knew the shooter was a Gangster Disciple?
A: No, I never did.
Q: After you gave the detective the description of the male black-unknown male black shooter, at that point the detective started to ask you-let me ask you this. Was there more than one detective in the room with you?
A: I don't remember."
¶ 18 Lofton testified police then asked him about his most recent altercation. Lofton said he had exchanged gunfire with defendant two to three weeks prior to the Church's Chicken shooting. After being interviewed at the station, he viewed a photo array. The following questions and answers were asked and given:
[Defense Counsel]: At the point that you were interviewed shortly after the shooting at the police station, you were told by the detectives prior to viewing that photo array that Arthur Chaney or Little Art had been identified by six people; is that correct?
A: Yeah, they told me, yes.
Q: Was that a male or a female? A: It was a male.
Q: Do you remember whether the name was-does Lutzow ring a bell?
A: I don't remember a name.
Q: And you were told that prior to identifying Little Art in the photo array; is that correct?
A: No, they just showed me the photo, showed me the photo array, and I just picked, yeah.
Q: And before you did that, the detective told you that six people had already identified Little Art or Arthur Chaney as the shooter, correct?
A: No, they didn't tell me that.
Q: They didn't tell you that?
A: No."
¶ 19 In December 2015, he spoke to two of defendant's attorneys, but did not recall a defense investigator being there. He remembered telling them that the police told him defendant was the shooter but did not recall telling them he identified defendant as the shooter because of what the police told him. The State did not ask any questions on redirect examination.
¶ 20 The parties stipulated that Kimyona Taylor, a defense investigator, would testify that she, along with defendant's counsel, spoke to Lofton in December 2015. According to the stipulation, Lofton was interviewed by Detective Brian Lutzow on December 27, 2011, and before he was shown the photo array, he was told that six people had identified defendant as the shooter, and this was why he identified defendant in the photo array.
¶ 21 Rush gave the following testimony. At the time of trial, he was serving a sentence in the Illinois Department of Corrections for driving on a suspended license. On December 27, 2011, he was at the Church's Chicken. He knew Lofton but did not know him to be a gang member. Rush denied that he himself was a gang member. He walked toward the restaurant to meet Lofton when he heard shots behind him, and he ran toward the restaurant. Although Lofton was saying something, Rush could not hear him. They both ran inside the restaurant. He heard a total of 14 or 15 shots. After entering the restaurant, he noticed that his hand was bleeding from a bullet wound. He did not reach the exit because there was a pile of people on the ground. When the shooting stopped, he got into his car and drove to the hospital. He went into the hospital but left without getting treatment. Police pulled him over while he was driving home. He went to the police station and two male detectives interviewed him. He picked defendant from a photo array and signed it "because the police was [sic] pressing that picture on me to sign it, so that's the reason I signed it." When they showed him defendant's picture, "they kept pressing saying was it this picture, this picture, this picture." Both detectives were telling him which picture to pick.
¶ 22 In November 2015, Rush spoke to defendant's attorneys and Kimyona Taylor. He told Taylor that there was a circle on the photograph he was forced to sign. At trial, he was shown a photograph he signed, and he acknowledged there was no circle on the photograph. He viewed a physical lineup and identified defendant as the shooter. He then made an in-court identification of defendant as the person he previously identified in the photo array and physical lineup. He explained that his identification of defendant was based on the photo he was shown during the photo array, and he had never seen defendant in person and did not see him outside of the Church's Chicken.
¶ 23 On December 29, 2011, Rush spoke to Detective Frank Casale and ASA Mikka Miller at the police station and gave a statement, which ASA Miller transcribed and Rush signed. The State confronted Rush with the statement he signed. Nowhere in the written statement did Rush say that detectives made him pick defendant's photo from the photo array. He testified at trial that he complied with detectives because "they was [sic] helping me on that case," which referred to the fact that he was on probation at the time of the shooting. ASA Miller told him the State would help him. He did not recall telling ASA Miller that, as he was walking toward Lofton, Lofton said, "Look behind you" and he turned around a saw a van. He previously identified the van he saw defendant get out of before the shooting, and he told ASA Miller he recognized defendant as someone he had seen lots of times over the five years prior to the shooting. He did not recall telling ASA Miller that (1) defendant was 10 feet away when defendant got out of the van; (2) he had no trouble seeing defendant's face because of the streetlights and lights from the restaurant; (3) he turned around and saw defendant with a gun in his hand; and (4) defendant started shooting the gun in his direction and fired five times. He recalled telling ASA Miller that Lofton was in the doorway of the restaurant when the shooting started, that Rush was struck in the hand with a bullet, then ran into the restaurant and heard 15 more shots. He also recalled saying he was the last person to enter the restaurant. He testified he did not see the van drive away after the shooting but acknowledged the statement he gave had a handwritten entry with his initials next to it stating he did see the van drive away. He could not remember exactly who was present when he spoke to ASA Miller and did not remember what he had to eat before or while speaking to ASA Miller. He did not recall making the portion of his statement asserting that he and ASA Miller met alone, he had been treated well, and had previously eaten McDonald's and polish sausage.
¶ 24 The State asked Rush about his grand jury testimony. He testified at trial that an ASA told him "to make sure that I said everything that we talked about, to make sure everything-to make sure I said the right thing." He did not recall giving the following testimony before the grand jury. On December 27, 2011, when the shooting started, Lofton yelled to him to look behind him. Rush looked back and "saw [defendant] up the gun and he shot three times." Defendant was about seven to ten feet away, and he recognized defendant because he had seen him in the neighborhood before and knew that he was associated with the GDs.
¶ 25 On cross-examination, Rush acknowledged he was on probation on December 27, 2011, and he did not want to do anything that night that might result in a violation. He did not see who was shooting that night. After the police stopped him while he was driving home from the hospital, police took him to the scene of the shooting and then to the police station, and not to the hospital, even though police knew that he was injured. He was not able to tell police who shot him because he did not know, and he did not tell police that defendant was the shooter. He described the shooter to police as a black male in his 20s with dreadlocks. After giving that description, he did not feel free to go home and he was kept at the police station. The police showed him the photo array and pushed him to identify defendant as the shooter and recalled seeing a circle around defendant's photo. After identifying defendant from the photo array, he was allowed to leave. The police brought him back to the station the next day to view a physical lineup. He only selected defendant from the lineup because defendant matched the person he identified in the photo array. He gave his grand jury testimony to help himself avoid getting into more trouble. He knew about defendant prior to December 27 but had never seen him before.
¶ 26 ASA Mikki Miller testified that she interviewed Rush on December 29, 2011, along with Detective Frank Casale. Miller did not make Rush any promises about his pending case. Rush agreed that Miller could memorialize their conversation in a handwritten statement. Miller identified the statement she took from Rush in which he stated that, as he was walking toward Lofton, Lofton told him to look behind him. Rush saw the Uplander and defendant. Rush had seen defendant many times, usually around 66th and Peoria. He had no trouble seeing defendant's face, he saw a gun in defendant's hand, and saw defendant shoot the gun in his direction.
¶ 27 ASA Krystan Dilillo testified that she spoke to Rush on January 17, 2012. Rush was not offered anything in exchange for his testimony. Dilillo presented Rush to the grand jury where he testified that Lofton yelled to look behind him and when he looked up, he saw that defendant "up[ed] the gun, and he shot three times." Defendant was 7 to 10 feet away and Rush recognized defendant as someone he had seen in the neighborhood who was affiliated with the GDs. Rush signed the photo of the person he recognized as the shooter.
¶ 28 Chicago police detective Brian Lutzow testified that he and Officer James Breen interviewed Rush on December 27, 2011, at around 9:30 p.m., and showed him a photo array. Rush identified defendant as the shooter and signed the photo. Neither Lutzow, Breen, or any other officer directed Rush to pick defendant's photo. Lutzow also showed Lofton a photo array, and Lofton identified defendant. Lutzow did not tell Lofton that six other witnesses had already identified defendant as the shooter.
¶ 29 Sergeant Velma Guerrero testified that on December 27, 2011, she held the rank of detective. She and her partner, Detective Casale, were assigned to investigate the shooting. She visited the scene of the shooting and found shell casings. She viewed the video recordings from the Church's Chicken's store cameras. After returning to the station, she learned that Rush had been interviewed and police had a general description of the shooter. Around 9 p.m., she interviewed Lofton. Detective Lutzow then assembled a photo array. Rush viewed the photo array on December 27 at around 10:45 p.m., and Lofton viewed the photo array around on December 28 at around 1 a.m. After defendant was arrested, he was placed in a physical lineup on December 28 at around 11:25 p.m., and Lofton identified defendant as the shooter. Defendant was placed in a second lineup on December 29 at around 12:11 a.m., and Rush identified defendant as the shooter. The State did not ask whether Detective Casale participated in the Lofton interview or any other questions regarding the interview.
For the sake of simplicity, we will refer to her as Detective Guerrero.
¶ 30 Outside the presence of the jury, the parties and trial judge discussed the State's intention to call Detective Casale. In essence, the State wanted to elicit testimony from Detective Casale that Lofton, during his first interview with police, said the shooter was a GD from 67th Street and Peoria. The State's rationale was that, after defendant cross-examined Lofton, the jury might have been left with the impression that Lofton did not know who the shooter was during his first interview with police. Defendant objected. First, defendant argued that Lofton had already testified, and the State was seeking to impeach him-a week after he testified-with Detective Casale's testimony without confronting Lofton. Second, defendant argued that there was nothing in the discovery he was provided indicating that Detective Casale was present during Lofton's first interview. In response, the State asserted-erroneously-that Sergeant Guerrero testified that Detective Casale was present during the interview, and that a supplemental detective's report- which is not in the record-had been provided to defendant, which reflected that Lofton told detectives that he knew the shooter to be a BD from 67th and Peoria. Defendant argued Lofton's statements were made when he came to view the photo array, not during Lofton's first interview at the police station. The trial judge observed that the State was not trying to impeach Lofton but was instead trying to introduce a prior consistent statement. Defense counsel pushed back, asserting that "it is not because the prior consistent statement would have had to have taken place prior to what [the State is] claiming now is a flip, I guess, that the offender was unknown. That's the original statement, that the shooter was unknown."
¶ 31 The trial judge overruled defendant's objection to the State's effort to call Detective Casale, and explained "They are-if [Lofton] identifies the-or indicates that he knows who the shooter is in that prior interview with the detectives, that is, in the [c]ourt's mind, a prior consistent statement. I have reviewed [defense counsel's] cross-examination and you do several times indicate that he never told the detectives that he knew who the person was. There is, I think, then an inference of recent fabrication. His prior statement then would be admissible to rebut that inference. Certainly, I think it is admissible as the course of the investigation as well."
¶ 32 Detective Casale testified that he and Detective Guerrero, interviewed Lofton on December 27 around 9 p.m., and Lofton said he knew the shooter. Lofton did not give a name but stated that the shooter lived on the 6700 block of Peoria and was a GD member. On cross-examination, Detective Casale acknowledged that his name did not appear on Detective Guerrero's general progress report from the interview with Lofton, and he did not sign the report. He also acknowledged that the general progress notes did not reflect that Lofton told police he knew the shooter was a GD from 67th and Peoria. On redirect, he testified the information Lofton gave them about the shooter was contained in a subsequent supplemental report written under both his and Detective Guerrero's names. The circuit court did not instruct the jury that it could only consider Detective Casale's testimony for rehabilitative purposes and not for its truth.
¶ 33 The State also presented recording of two phone calls made from jail in 2012 associated with Chaney's personal identification number (PIN). Kimberly Hofsteadter, an investigator with the Cook County Sheriff's Office who worked in telephone monitoring, testified that Cook County had a contract with Securus to monitor phones at the jail. All phone calls were recorded. Each person processed in the jail is given a PIN that remains associated with an inmate, even if they leave custody and return later. The system is designed to cut off unauthorized calls, but it was possible for an inmate to initiate a call and hand the receiver to another inmate. She received a subpoena for defendant's calls and downloaded from Securus's system all calls made from and associated with Chaney's PIN from January 15, 2012, and July 22, 2012.
¶ 34 Recordings of the calls were played for the jury. In one call, the caller speaks to someone named Tito and refers to Rush as the "foolie in my case," and says he found out where Rush was. Tito responds that they needed to get some paperwork. Tito tells the caller to have his lawyer contact "Nose"-Winford's nickname-for a "motion of discovery so we can drive on them n*** before it's too late." Tito then tells the caller "We out here pushing for you *** I'm definitely on their ass *** once I get the paperwork, I'm gonna get it signed." In the other recording, the caller refers to his arrest. The other man says, "they got the coat and shit up out of there." The caller asks, "Black?" The other man says yes, and the caller says it is "nothing. We ain't gonna talk" and then discusses visiting hours at the jail.
¶ 35 The jury heard other evidence and various stipulations between the parties. Defendant did not testify on his own behalf.
¶ 36 D. Closing Arguments
¶ 37 The State made the following arguments, among others, to the jury. Defendant intended to kill Rush and Lofton and stressed that Rush and Lofton were "reluctant witnesses." The law recognizes reluctant witnesses who might change their stories and allows the jury to consider a witness's prior sworn statements, such as Rush's grand jury testimony, as substantive evidence. The prosecutor stated, "The law recognizes that people are more likely to tell the truth when they are not in a courtroom situation, not confronted by someone, who they may be either angry at, or afraid of that [sic] this testimony is reliable, and for that reason you should be allowed to consider it as if the witness were testifying to it." The evidence at trial established defendant's guilt beyond a reasonable doubt.
¶ 38 Defense counsel responded that the State had not met its burden. After the shooting, Lofton went home rather than helping anyone but was later picked up by the police. During his initial interview with Detective Guerrero, Lofton admitted that he did not know who the shooter was, even though Lofton knew defendant as Little Art, a GD from 67th and Peoria. Detective Guerrero then changed the subject with Lofton, knowing that he was a BD member, and asked him about recent altercations, which is when defendant's name came up. Police then used a suggestive photo array to pin the shooting on defendant. Lofton told a defense investigator that police told him other witnesses had already picked defendant as the shooter. Lofton's criminal history, including charges pending at the time of trial, affected his credibility, and he knew a warrant for his arrest would be issued if he did not testify for the State. Rush did not know who the shooter was originally, and defense counsel urged the jury to believe Rush's trial testimony that police pushed him to identify defendant as the shooter. In one of defendant's phone call recordings, he did not want to talk about the jacket because he had previously exchanged gunfire with Lofton and there was going to be GSR.
¶ 39 In rebuttal, the State countered that Lofton was the one who testified about exchanging gunfire with defendant prior to the December 27 shooting. Detectives Guerrero and Casale testified they interviewed Lofton and told him they were going to show him a photo array. Lofton said he knew the shooter was a GD from 67th and Peoria. Rush did not know defendant and defense counsel "went to great lengths to try and stick [defendant's] name in Terry Rush's mouth" on cross-examination." The circuit court overruled defendant's objection that the State misstated the testimony. The State pushed back against the defense's claim that Detective Guerrero tried to pin the shooting on defendant, arguing she "has no bone to pick with [defendant]," and arguing "What in the world would possess [Detective Guerrero] *** to conjure up this conspiracy as the[d] efense would have you to believe and perpetrate it against [defendant]? She's going to risk it and get [defendant]. Then she must have sold in and bought in fast boy, right because within two hours plus Kenny Lofton and Terry Rush had ID'd [defendant]." The trial court again overruled defendant's objection that the State was misstating evidence and instructed the jury that "any arguments not based on the evidence should be disregarded."
¶ 40 The State further argued defendant knew the layout of the restaurant and "knows enough that if he gets in there even though it's kind of old equipment might [sic] get himself into some trouble so he stops at the doorway, and he keeps shooting ***." As for the gunshot residue, the State's expert "testified that within a reasonable degree of scientific certainty you can determine when someone has discharged a firearm *** or handled a discharged firearm ***." The State's expert had testified that gunshot residue degrades within six hours "to the point they don't even recommend you take it on someone's hand." Counsel then asserted, "As it applies to hands, she said six hours if you're generous and you take it to two weeks, two weeks you have a factor 56 times, 56 times what would be recommended for hands regarding the jacket. If you take it out to three weeks that's 84 times-" at which point defense counsel objected. The trial court overruled the objection, but once again instructed the jury that it should disregard any arguments not based on the evidence and that counsel's arguments were not evidence. The State argued that defendant was talking with Winford at the car wash and that the video showed defendant "pantomiming" and "filling Dantril Winford in on what happened at the Church's Chicken." The circuit court overruled defendant's objection. The State asserted the jacket police recovered was not cloth, "it's a repellant[, ] something to consider when you're talking about how it's going to retain particles." The State asserted their expert testified
"the base level for gunshot residue is three, three specific spots were all three of particulars. She stopped at 10 maybe 11-no 10[, ] more than three times.
She's thinking about lunch and the ham sandwich that she has in the refrigerator because she's tired of picking out spots where she's finding positive gunshot residue [, ] five spots on the other. The reason that jacket he wore is dripping in gunshot residue is because he fired 15 times."
¶ 41 The State continued, arguing that Rush's grand jury testimony could be treated as if it took place at trial because it was under oath and was "formal," but that principle could not be applied to the statements made to the defense investigator because "it is not to be applied to the kind of sideswipe interview that took place by the [d]efense ***." The prosecutor argued "those interviews, those statements cannot be considered by you as substantive evidence because they are no[t] reliable."
¶ 42 Finally, the State argued
"Let's be clear about something and take the blinders off. See it for what it is. He's a GD, he's on the phone with the with the other GD's [sic], and he is giving them the name of a witness in the case against him that he got from the courtroom.
And this guy they're going to ask about witnesses coming in just two, and the word is driving on them not like hey, can I get a signature here, we're drive in on him, and oh, by the way, it was a guy that who knows, we're on the wrong guy so you got to get the right names because the GDs' are out in the neighborhood putting the screws to people to protect Art.
MS. MORIARTY [(DEFENSE COUNSEL)]: Objection, Judge. THE COURT: Overruled.
MR. MAHER ([ASSISTANT STATE'S ATTORNEY]): Man, you got to get the paperwork GD's [sic] because man they be driving about somebody else. I feel sorry for that guy. They got to Terry Rush. Terry Rush flipped like a pancake. Innocent people don't sic the GD's [sic] on their witnesses. You can consider his actions in sending guys out to influence testimony in this case that's guilt."
¶ 43 E. Verdict and Posttrial Motions
¶ 44 After hearing closing arguments, the case was submitted to the jury, which found defendant guilty of two counts of first degree murder and four counts of attempted murder. Defendant's posttrial motion asserted various bases for a new trial, including that the circuit court erred by overruling defendant's objection to Lofton's alleged prior consistent statement elicited from Detective Casale, and overruling various objections to the State's closing and rebuttal arguments. The circuit court denied the motion for a new trial and sentenced defendant to two concurrent natural life sentences on the first degree murder convictions, consecutive to an aggregate term of 120 years' imprisonment on the attempted murder convictions. The circuit court denied defendant's motion to reconsider his sentence.
¶ 45 Defendant filed a timely notice of appeal.
¶ 46 II. ANALYSIS
¶ 47 On appeal, defendant does not challenge the sufficiency of the evidence or any aspect of his sentence. He raises three issues for review. First, he argues the trial court erred by permitting the State to introduce Detective Casale's testimony about Lofton's alleged prior consistent statement implicating defendant in the shooting. He argues the State failed to lay an adequate foundation for admitting a prior consistent statement, and Lofton's alleged statement was not otherwise admissible. Second, he argues he was denied a fair trial where the State's closing argument and rebuttal repeatedly misstated the evidence and the law and urged the jury to find defendant guilty on improper grounds. Finally, he argues the circuit court erred by admitting into evidence audio recordings of two phone calls placed from Cook County jail because the State failed to lay an adequate foundation for their admission. We address these arguments in turn.
¶ 48 A. Admissibility of Detective Casale's Testimony
¶ 49 Defendant argues the circuit court erred by allowing the State to elicit Detective Casale's testimony that Lofton purportedly said on December 27, 2011, that the shooter was a GD member from the 6700 block of South Peoria. He contends Detective Casale's testimony was inadmissible as a prior consistent statement because (1) the State never established that Lofton recently fabricated any aspect of his trial testimony; (2) any motive Lofton had for accusing defendant of the shooting stemmed from an existing gang rivalry that predated the shooting; (3) the State did not show that the alleged prior consistent statement preceded the statements with which Lofton impeached himself; and (4) defendant was unable to cross-examine Lofton about his alleged statement to Detective Casale. Defendant argues Lofton's alleged prior statement was not otherwise admissible as impeachment, identification, or substantive evidence, and the circuit court's erroneous admission of Detective Casale's testimony was not harmless.
¶ 50 For the reasons we explain, we agree with defendant that Detective Casale's testimony was not admissible as a prior consistent statement attributable to Lofton, but we find that the circuit court properly admitted Detective Casale's testimony as a statement of identification.
¶ 51 A trial judge's evidentiary rulings are committed to their sound discretion and will only be overturned on a showing of an abuse of that discretion. People v. Caffey, 205 Ill.2d 52, 89 (2001). "An abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court." Id. We may affirm the circuit court's ruling on the admissibility of evidence on any basis supported by the record, regardless of the circuit court's specific reasoning. People v. Johnson, 208 Ill.2d 118, 128-29 (2003).
¶ 52 The circuit court found the State could elicit Detective Casale's testimony that Lofton told police the shooter was a GD from 67th and Peoria as a prior consistent statement. The trial judge found that defendant raised an implied charge that Lofton's trial testimony was a recent fabrication, and the State could rebut that charge with Detective's Casale's testimony because defendant elicited testimony from Lofton that he did not tell police during his first interview that he knew who the shooter was. The trial judge also found Detective Casale's testimony would be admissible as to the course of the investigation.
¶ 53 Generally, statements made before trial are inadmissible to corroborate trial testimony or to rehabilitate a witness because of the risk that a witness's credibility will be enhanced if their statements are repeated. People v. Randolph, 2014 IL App (1st) 113624, ¶ 14; People v. McWhite, 299 Ill.App.3d 637, 641 (2010). "A prior consistent statement is admissible to rebut an express or implied suggestion on cross-examination that the witness is motivated to testify falsely or his testimony is a recent fabrication." Randolph, 2014 IL App (1st) 113624, ¶ 15 (citing People v. Ruback, 2013 IL App (3d) 110256, ¶ 26). Consistent with the foregoing, Illinois Rule of Evidence 613(c), which was in effect at the time of defendant's trial, provides
"A prior statement that is consistent with the declarant-witness's testimony is admissible, for rehabilitation purposes only and not substantively as a hearsay exception or exclusion, when the declarant testifies at the trial or hearing and is available to the opposing party for examination concerning the statement, and the statement is offered to rebut an express or implied charge that:
(i) the witness acted from an improper influence or motive to testify falsely, if that influence or motive did not exist when the statement was made; or (ii) the witness's testimony was recently fabricated, if the statement was made before the alleged fabrication occurred." Ill. R. Evid. 613(c) (eff. Oct. 15, 2015).
The party seeking to introduce a witness's prior consistent statement must establish that the prior consistent statement predates any improper influence or motive to testify falsely or the alleged fabrication. Id.; Randolph, 2014 IL App (1st) 113624, ¶ 15; People v. Short, 2014 IL App (1st) 121262, ¶ 102; McWhite, 299 Ill.App.3d at 641.
¶ 54 Here, we find Casale's could not testify to Lofton's alleged prior consistent statement under Rule 613(c) because the State was not rebutting a charge that Lofton's trial testimony was recently fabricated, and the State did not establish that Lofton's alleged prior consistent statement predated any improper influence or motive to falsely testify.
¶ 55 The State was clearly not seeking to rebut a charge that Lofton's trial testimony was a recent fabrication. During argument on whether Detective Casale should be permitted to testify, the State expressly stated it was seeking to "impeach" Lofton, and to counter his cross-examination testimony that he did not tell the police that the shooter was a GD from 67th and Peoria. Lofton's trial testimony was, at times, either contradictory or equivocal (see supra ¶ 17), but it was indisputable that he identified defendant as the shooter in the hours and days after the shooting by picking defendant from the photo array and the lineup. At trial, in addition to acknowledging his previous identifications, Lofton testified on direct examination he saw defendant shoot the gun, he knew the shooter, and he told police information about where defendant was from and what gang he was in. The State did not elicit any testimony as to when in the hours following the shooting Lofton told police the shooter was a GD from 67th and Peoria. On cross-examination, Lofton testified he told police during his initial interview that he did not see or know the shooter, and he did not tell police that the shooter was a GD from 67th and Peoria. Taking all of Lofton's testimony at face value and reading it together, Lofton testified that he told police that the shooter was a GD from 67th and Peoria, just not during his initial interview with police. On cross-examination, the defense attempted to show that Lofton's identification of defendant as the shooter occurred after he mentioned defendant's nickname during his initial interview with police, which fit with the defense's larger theory that police pushed Lofton and Rush toward identifying defendant. But we fail to see how the defense's cross-examination raised any implied charge that Lofton's trial testimony was recently fabricated. If anything, the State believed Lofton's cross-examination testimony was incorrect. The State did not argue in the circuit court, and does not argue in this court, that the defense charged Lofton with recently fabricating his trial testimony.
¶ 56 Defendant did raise a charge that Lofton's identification of defendant was the product of improper police influence and that Lofton, a member of a rival gang, had a motive to falsely implicate defendant as the shooter. Defendant's theory-laid out during closing argument-was police knew Lofton was a BD member and focused on the rivalry between the BDs and GDs early in their investigation. At trial, Lofton acknowledged he was a BD member, he was with other BD members at the restaurant at the time of the shooting, and the BDs had a long-running rivalry with the GDs. He also testified that police asked him during his initial interview about his most recent altercation, and he told police he recently exchanged gunfire with "Little Art," a GD member. Lofton knew defendant as Little Art. In sum, defendant's theory was that the police knew this was a gang shooting and steered Lofton toward naming a rival gang member to quickly solve the case, and Lofton-a convicted felon fresh off a recent altercation with defendant-gave police what they wanted.
¶ 57 But that does not make Detective Casale's testimony admissible as a prior consistent statement. Any motive that Lofton had to falsely implicate defendant as the shooter because of a gang rivalry predated not only the alleged prior consistent statement but also the December 27 shooting. Lofton had exchanged gunfire with defendant several weeks before the Church's Chicken shooting. If Lofton had a motive to pin the December 27 shooting on defendant because of a recent exchange of gunfire or the gang rivalry, that motive predated his alleged statement to detectives, and his prior consistent statement to Casale-that the shooter was a GD from 67th and Peoria-would be inadmissible under Rule 613(c). And to the extent that defense counsel charged that police improperly influenced Lofton into making an identification in the hours and days after the shooting, which Lofton then repeated at trial, it was incumbent on the State to establish that Lofton's statement to detectives predated any alleged improper influence. The State failed to do so. Detective Casale's testified that Lofton told him during the initial interview that Lofton knew the shooter was a GD from 67th and Peoria. According to Lofton's cross-examination testimony, however, he gave only a general description of the shooter during his initial interview before police asked him about a recent altercation he had.
¶ 58 If Lofton was mistaken in his cross-examination testimony, the State could have asked him on redirect to clarify his testimony, but it did not. It is well-established that a prior consistent statement is not admissible simply because the witness has been discredited as mistaken or inaccurate. Randolph, 2014 IL App (1st) 113624, ¶ 14. The State therefore could not use Detective Casale's testimony to merely contradict Lofton and introduce substantive evidence. The State was not seeking to rehabilitate Lofton by using a prior consistent statement to qualify, explain, or modify Lofton's testimony (People v. West, 263 Ill.App.3d 1041, 1048 (1994)), but instead sought to have Detective Casale improve Lofton's testimony by directly contradicting it and adding details that Lofton never offered in his own testimony. Regardless, the State failed to establish that Lofton made a prior consistent statement before any alleged improper influence or motive to falsely implicate defendant as the shooter. As such, Detective Casale's testimony that Lofton told him the shooter was a GD from 67th and Peoria was not admissible as a prior consistent statement under Rule 613(c).
¶ 59 Furthermore, assuming arguendo the State could establish the prior consistent statement predated any improper influence or motive to falsely testify, Detective Casale's testimony could only be used to rehabilitate Lofton and needed to be "accompanied by a limiting instruction informing the jury that the evidence should not be considered for its truth ***." Id. ¶ 20 (citing People v. Lambert, 288 Ill.App.3d 450, 461 (1997)). That did not occur here. The circuit court did not give any limiting instruction, leaving the jury free to consider Detective Casale's testimony for its truth: that Lofton told police during his initial interview that the shooter was a GD from 67th and Peoria, details that were omitted from Lofton's direct testimony. The circuit court should not have admitted Detective Casale's testimony as a prior consistent statement and did not give a limiting instruction to the jury that Detective Casale's testimony could only be considered for rehabilitative purposes and not as substantive evidence.
¶ 60 But that is not the end of our inquiry as to whether Detective Casale's testimony was admissible. The State argues in the alternative that Detective Casale's testimony was admissible as a statement of identification pursuant to section 115-12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-12 (West 2016)), which provides "A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him." The State did not advance this argument in the circuit court, but we may affirm the circuit court's admission of evidence on any basis supported by the record. People v. Brannon, 2013 IL App (2d) 111084, ¶ 19.
¶ 61 We agree with the State that Detective Casale's testimony was admissible as a statement of identification under section 115-12 of the Code. Statements of identification include the entire identification process. People v. Tisdel, 201 Ill.2d 210, 219 (2002); People v. Newbill, 374 Ill. App.3d 847, 852 (2007); People v. Temple, 2014 IL App (1st) 111653, ¶ 40. Ordinarily, a witness may testify at trial that, on a previous occasion, they either identified the defendant as the offender or gave a description of what they perceived. People v. Shum, 117 Ill.2d 317, 341-42 (1987). Furthermore, "if a witness testifies that he previously identified an offender and the witness'[s] veracity has been tested by cross-examination, a third person may then testify that he heard or saw the witness identify the offender because both the witness and the third person would be subject to cross-examination." Id. at 342. Statements of identification admissible under section 115-12 of the Code are admissible as substantive evidence. 725 ILCS 5/115-12 (West 2016); People v. Lewis, 165 Ill.2d 305, 342 (1995).
¶ 62 Here, Detective Casale testified that Lofton made specific statements describing the shooter during the initial interview. Lofton testified on direct examination that he told police specific details about where the shooter hung out and what gang he was in but testified on cross-examination that he did not provide those details to police during his initial interview. Lofton's identification of defendant as the shooter was unequivocal and he was subject to cross examination concerning his identification of defendant. Lofton's identification of defendant as the shooter occurred after the shooting, which Lofton testified to in detail. Therefore, the State met all the criteria for admitting Detective Casale's testimony as a statement of identification under section 115-12 of the Code.
¶ 63 Defendant argues that the State's appellate argument is inconsistent with its position at trial. He argues the State expressly sought to introduce Detective Casale's testimony for the purposes of impeaching Lofton, and expressly stated that it was not attempting to use Detective Casale's testimony to establish that Lofton identified defendant by name. We find nothing inconsistent between the State's position in the trial court and its position on appeal.
¶ 64 At its core, the State sought admission of Detective Casale's testimony into evidence and argues on appeal that the evidence was properly admitted. The State may have sought to introduce Detective Casale's testimony under a different evidentiary principle-and at trial, the State seemed confused as to what evidentiary principle it could use-but the fact remains that the State sought to admit Detective Casale's testimony regarding Lofton's identification of the shooter into evidence. Detective Casale testified Lofton gave specific identifying information about the shooter early in the police investigation. There is nothing inconsistent about the State's positions at trial and on appeal.
¶ 65 Defendant also argues that Detective Casale's testimony was inadmissible as a statement of identification because it was not made immediately after Lofton saw the shooting but was made at least two hours after the shooting. He asserts Temple supports his argument. We find Temple supports the State's position that Detective Casale's testimony was admissible as a statement of identification.
¶ 66 In Temple, the defendant was charged with murder. 2014 IL App (1st) 111653, ¶ 1. Jesus Patino testified at trial that he saw a car slow down then speed up and he heard a gunshot. Id. ¶ 2. He saw a white arm hanging out of the driver's side window and recognized the shooter as the defendant. Id. He called 911 for an ambulance and gave a description of the vehicle he saw. Id. When police arrived, Patino told police the name of the shooter and two of his nicknames. Id. Police later showed Patino a vehicle, which he identified as the car used in the shooting, and Patino identified the defendant from a photograph. Id. ¶ 3. Another witness, Alejandra Gonzalez, testified at trial that she saw the shooting and the shooter's face. Id. ¶ 5. She identified the defendant as the shooter from a physical lineup. Id. ¶ 6. Maria Tellez testified that she was in her house when she heard the gunshots. She looked out of her door and saw a white man get into a vehicle but did not recall what he looked like or what he was wearing. Id. ¶¶ 11-12. Investigating officers testified at trial that after arriving on the scene of the shooting, Gonzalez provided officers with a description of the shooting and Patino provided the defendant's name and nicknames to detectives, and subsequently identified the defendant from photos and a physical lineup. Id. ¶ 13-14. A jury found the defendant guilty.
¶ 67 On appeal, the defendant argued in part that the circuit court erred by admitting the witnesses' and officers' prior consistent statements made after the shooting. Id. ¶ 30. We rejected the defendant's arguments and found that Gonzalez's, Patino's, and Tellez's "statements regarding [the] defendant's description are statements about steps in the identification process and, accordingly, are statements of identification" (id. ¶ 41), and the witnesses' descriptions of the car were also statements of identification (id.). Furthermore, the officers' testimony about what the witnesses told them about the shooter and the vehicle was properly admitted because the witnesses had all been cross-examined. Id. ¶ 42.
¶ 68 Temple does not require a witness's identifying statement be made immediately after perceiving the suspect, nor does it stand for the proposition that the witness must identify the suspect in the first statement they make to police. Instead, the Temple court applied settled principles to the facts before it to conclude that the witnesses' trial testimony about statements they made after perceiving the shooting and the suspect were statements of identification and not inadmissible hearsay. Here, defendant's argument that Lofton's statements were made too long after perceiving the shooting to qualify as an admissible statement of identification finds no support in Temple or in section 115-12 of the Code. Detective Casale testified Lofton made identifying statements about defendant roughly two hours after seeing defendant commit the shooting. We find the circuit court did not err by admitting Detective Casale's testimony that Lofton gave identifying information to police shortly after seeing the shooting.
¶ 69 Finally, defendant argues Lofton was never confronted with or cross-examined on Detective Casale's testimony, and therefore Detective Casale's testimony was inadmissible because the State did not satisfy section 115-12(b) of the Code. Further, he argues the State's position on appeal that Detective Casale's testimony was admissible as a statement of identification is inconsistent with its position at trial, where the State argued against calling Lofton during defendant's argument on his objection to Detective Casale's testifying.
¶ 70 We do not agree with defendant that the State is taking an inconsistent position on appeal. Defendant asserted at trial that the State intended to call Detective Casale "to prove up impeachment of *** Kenny Lofton. He was never confronted with such impeachment." As the argument progressed, the State argued "there is no further need to present Mr. Lofton with any foundational questions because they couldn't be more clear. Did you tell the police that you knew who shot you and did you know the shooter." Defendant did not make any further argument regarding the need to recall Lofton, and at no point during the remainder of trial did defendant seek to have Lofton recalled. The trial judge, who heard all of Lofton's trial testimony-including his denial that he told police specific information about the shooter during his first interview with police-never expressed any view on whether Lofton should or would be recalled. If defendant wanted to cross-examine Lofton regarding any of Detective Casale's testimony, he could have made that request.
¶ 71 But even assuming, without deciding, it was error for the circuit court to admit Detective Casale's testimony without Lofton being cross-examined on those statements, any error-which was purely evidentiary-was harmless. There is no reasonable probability the jury would have acquitted defendant absent the evidentiary error (In re E.H., 224 Ill.2d 172, 180 (2006)), where the jury heard all of Lofton's identification testimony-including his testimony on direct examination that he told police where the shooter was from and what gang he was in, and his testimony on cross-examination that he did not give police that information during the initial interview (see supra ¶ 55). Detective Casale's testimony that Lofton made identification statements to police during the initial interview was consistent with Lofton's testimony on direct examination and raised questions regarding Lofton's credibility because he denied doing so on cross-examination. The jury heard everything Lofton had to offer, and it was the jury's function to assess his credibility. Lofton's testimony, along with the substantive evidence from Rush's pretrial statements that he saw defendant commit the shooting, proved Chaney guilty beyond a reasonable doubt. There is no reasonable probability that the jury would have acquitted defendant absent Detective Casale's testimony.
¶ 72 In sum, we find no error in the circuit court's admission of Detective Casale's identification testimony as substantive evidence under section 115-12 of the Code.
¶ 73 B. Closing Argument
¶ 74 Next, defendant argues he was denied a fair trial where the State repeatedly misstated the facts and the law during closing argument. He identifies numerous statements he believes were improper but acknowledges he forfeited appellate review of most of the comments because his trial counsel failed to object at trial. For the statements he forfeited, he asserts he is entitled to plain error relief, or alternatively, that his trial counsel provided ineffective assistance.
¶ 75 We will first address defendant's arguments relative to the prosecutor's comments that are properly preserved. We then turn to whether any of the unpreserved claims of error amount to plain error.
¶ 76 A prosecutor is allowed wide latitude during closing arguments and may comment on the evidence presented at trial, including any fair and reasonable inferences therefrom. People v. Nichols, 218 Ill.2d 103, 121 (2006). It is improper for a prosecutor to argue assumptions or facts that are not based on the trial evidence. People v. Adams, 2012 IL 111168, ¶ 17. A closing argument must be viewed in its entirety and any challenged statements must be viewed in context. People v. Buss, 187 Ill.2d 144, 244 (1999). As for our standard of review, we have observed that "Whereas a reviewing court applies an abuse of discretion analysis to determinations about the propriety of a prosecutor's remarks during argument [citations], a court reviews de novo the legal issue of whether a prosecutor's misconduct, like improper remarks during argument, was so egregious that it warrants a new trial [citation]." People v. Cook, 2018 IL App (1st) 142134, ¶ 64.
¶ 77 Under this approach, we first examine whether the prosecutor made improper remarks during closing argument, and if so, whether those remarks warrant a new trial.
¶ 78 1. Preserved Claims
¶ 79 Defendant argues the prosecutor improperly argued in rebuttal that the defense was trying to "stick" defendant's name in Rush's "mouth" on cross-examination. The prosecutor argued "Now, Terry Rush didn't know [defendant] at all. If you recall [the defense] went to great lengths to try to stick that name in Terry Rush's mouth when he was on the stand on [c]ross, and you knew Arthur Chaney, no, I didn't." We find that the prosecutor's comment was appropriate.
¶ 80 Rush's handwritten pretrial statement reflected that he told an ASA he recognized defendant as the shooter and had seen him once a month for the past five years. On cross-examination, he gave the following testimony
"Q: Now, one of the things I guess you knew Kenny [Lofton] for a while; is that right?
A Yes.
Q And you knew where Kenny lived; is that right?
A Yes.
Q And in that area, you knew [defendant] or seen [defendant] around; is that right?
A No, I never-I knew about him, but I never seen him.
Q You had seen him before-I'm not saying you guys were friends, but you had seen each other before; is that right?
A I probably did. I think I did-I don't know.
Q You knew about him; is that right?
A Yes."
¶ 81 Defense counsel argued in closing that while Lofton and Rush knew who defendant was prior to the shooting, they did not identify defendant as the shooter when initially interviewed by police. The defense theory was that the police steered Lofton and Rush toward identifying defendant as the shooter, even though neither of them saw defendant commit the shooting, and defense counsel sought to bolster that theory by establishing Lofton and Rush knew who defendant was prior to the shooting. In other words, if the witnesses knew defendant and saw him commit shooting, they would have identified him as the shooter from the beginning.
¶ 82 In rebuttal, the prosecutor highlighted that Rush was equivocal in his response to questions about whether he knew defendant; Rush testified that he knew about defendant but was far less certain about having seen him before, despite having previously told police that he had seen defendant once a month for the five years before the shooting. Given Rush's trial testimony, we find the State did not misstate the evidence because it was true that defense counsel pressed Rush to acknowledge that he knew defendant even though he testified that, while he knew of defendant, he did not know him prior to the shooting.
¶ 83 Next, defendant argues the prosecutor mischaracterized video evidence from the car wash taken after the shooting. The video depicted defendant speaking to Winford outside of the van. The prosecutor argued, "And while they're talking, [defendant's] pantomiming, and I'll tell you what he's doing he's-an hour after the murder filling Dantril Winford in on what happened at the Church's Chicken." Defendant argues the prosecutor was implying that defendant was pantomiming firing a gun, while the video only showed defendant pointing with his left hand while moving around. The State responds that "In the video, when defendant was talking to Winford, he raised his hand in a manner that that [sic] was consistent with how one would hold one's arm when firing a weapon and was consistent with how the shooter's arm appeared on the video." Having viewed both videos, we cannot say that the prosecutor's comment was improper. The video has no audio but depicts defendant speaking with Winford and another man. Defendant can be seen raising his left arm and moving it in a manner not inconsistent with how someone might fire a weapon. The prosecutor's comment that defendant was "pantomiming" while "filling Dantril Winford in on what happened at the Church's Chicken" was a fair inference that could be drawn from the evidence.
¶ 84 In sum, the circuit court did not err by overruling defendant's objections to the prosecutor's remarks that defense counsel tried to "stick" defendant's name in Rush's "mouth" during cross-examination or that the car wash video depicted defendant pantomiming while describing what happened at the Church's Chicken.
¶ 85 2. Forfeited Claims
¶ 86 Defendant acknowledges that he forfeited his remaining arguments because his trial counsel failed to make contemporaneous objections at trial. People v. Enoch, 122 Ill.2d 176, 186 (1988). Defendant asks us to review the prosecutor's unpreserved comments for plain error, or alternatively, find his trial counsel provided ineffective assistance for failing to object to the prosecutor's statements. Under the plain error doctrine, we may grant defendant relief based on an unpreserved claim of error where a clear and obvious error has occurred (People v. Hillier, 237 Ill.2d 539, 545 (2010)), and either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence (People v. Herron, 215 Ill.2d 167, 186-87 (2005)). The first step in plain error review is to determine whether an error occurred. We find four of the prosecutor's remarks were improper.
¶ 87 First, the prosecutor improperly argued that the jury could not consider Lofton's statements to defense investigator Taylor as substantive evidence. At trial, Lofton acknowledged telling Taylor that, before he viewed the photo array, police told him others had identified defendant as the shooter. During rebuttal argument, the prosecutor made the following argument:
"And when my partner was explaining to you about [Illinois Pattern Jury Instruction (IPI) (Criminal) No.] 3.11 and told you that the testimony of Terry Rush in front of the grand jury, and in the handwritten can be treated as it took place in this courtroom in this trial it's because of the circumstances under which that testimony and the statement[s] are made. It's formal.
People recognize the consequence. It is not to be applied to the kind of sideswipe interview that took place by the Defense where you're walking up to people who are in the lobby of the Criminal Courts Building where they're [sic]
other people with cases in the Criminal Courts Building, and kind of walk up and talk with them. Hey, he's Kenny, you know, you said some stuff, is it true?
Do you want to change any of that so I can write it down? Those interviews, those statements cannot be considered by you as substantive evidence because they are no[t] reliable." (Emphasis added.)
Defendant also argues that the State improperly accused the defense of pressuring Lofton into changing his statement. We address this argument below. Infra ¶ 122
¶ 88 Defendant argues the prosecutor misstated the law because Taylor's testimony could be considered as substantive evidence where Lofton acknowledged under oath his statements to Taylor but then disavowed them, and thus the statements were admissible as prior inconsistent statements under section 115-10.1 of the Code (725 ILCS 5/115-10.1 (West 2016)).
¶ 89 We agree with defendant. Lofton testified he told Taylor that, before viewing the photo array, police told him others had identified defendant as the shooter, but he disavowed those statements, claiming that he told her something just to get her out of his face. Section 115-10.1 of the Code provides
"In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement-
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording." (Emphases added.) 725 ILCS 5/115-10.1 (West 2016).
¶ 90 Once Lofton acknowledged his statements to Taylor and testified differently at trial, his prior inconsistent statement was admissible as substantive evidence. Id.; People v. Brothers, 2015 IL App (4th) 130644, ¶ 78, abrogated on other grounds by People v. Veach, 2017 IL 120649.
¶ 91 The State contends the prosecutor's statement, viewed in context, conveyed to the jury that, unlike prior sworn statements, prior unsworn statements are less reliable, and therefore the jury should not find Lofton's prior statement reliable. But that is not what the prosecutor said and is not a fair reading of the prosecutor's comments in context. After discussing how prior sworn statements can be considered for their truth, the prosecutor declared that statements like Lofton's statement to Taylor" cannot be considered by you as substantive evidence because they are no[t] reliable." (Emphasis added.) The fact that the prosecutor ended his statement by saying "because they are no[t] reliable" only reinforced his earlier statement that a witness's prior sworn statement is admissible as substantive evidence because of the circumstances under which the statement was made. The prosecutor misstated the law as to whether the jury could consider Lofton's prior statement for its truth.
¶ 92 Second, the prosecutor made improper arguments during rebuttal about how long GSR stays on clothing. Defendant argues the prosecutor baselessly asserted that GSR would not stay on the jacket for two or three weeks and that research suggests GSR stays on clothing for months.He contends the State's expert never testified about how long GSR remains on clothing; the expert testified GSR on a person's hands "has fallen off [after six hours] to the point that we don't recommend even giving an exam for it." The prosecutor argued the GSR found on the jacket was from the Church's Chicken shooting, implying that it was not from the exchange of gunfire with defendant three weeks prior, and that three weeks out from a shooting was 84 times longer than GSR typically remains on the hands. Defendant contends the prosecutor made further unfounded claims about the GSR by arguing that the jacket-which the jury saw and appeared to be shiny- was "not cloth, it's kind of a repellant[, ] something to consider when you're talking about how it's going to retain particles." Defendant points out that there was no evidence showing the jacket's material was in fact a repellant to GSR. The State responds that the prosecutor's comments about how long GSR remains on clothing were inferences drawn from the expert's testimony about how GSR can fall off hands.
Defendant's citations to academic works and scientific findings that were not presented to the jury to support an argument that was never made in the circuit court is improper and will not be considered.
¶ 93 We agree with defendant that these comments were improper. There was no evidence presented to the jury showing how long GSR remains on clothing, how long GSR remains on different types of materials, or that the material of the jacket acted as a repellent to GSR. While a prosecutor may make inferences from the evidence, they cannot argue assumptions or facts that are not based on the trial evidence. Adams, 2012 IL 111168, ¶ 17. That is exactly what the prosecutor did here. The prosecutor speculated that GSR would not stay on the jacket for very long because of its material and drew an unfounded equivalence between how long GSR remains on hands and how long it remains on clothing. These comments were based on assumptions and had no connection to any evidence at trial.
¶ 94 Having found that the prosecutor's made improper comments during closing argument, we next consider whether defendant is entitled to plain error relief. Defendant argues he is entitled to relief under both prongs of plain error. We do not agree.
¶ 95 We can quickly dispose of his second prong plain error argument because the prosecutor's four improper statements were not so serious that they affected the fairness of defendant's trial or challenged the integrity of the judicial process. See Herron, 215 Ill.2d at 187; People v. Clark, 2016 IL 118845, ¶ 42. The four improper comments were simply errors in the process of the trial and did not affect the overall framework of how the trial proceeded. Furthermore, the jury was instructed on the law regarding prior inconsistent statements and the circumstances under which a prior inconsistent statement may be considered as substantive evidence. The jury was admonished prior to, during, and after closing argument that any argument made by counsel was not evidence, that it should disregard any argument not based on the evidence, and that it should decide the case based on its recollection of the evidence at trial. We do not think the four errors identified here denied defendant a fair trial or threatened the integrity of the judicial process, and thus defendant is not entitled to relief under second prong plain error.
¶ 96 Under first prong plain error, we must determine whether the evidence of defendant's guilt was close, and we "must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of [the evidence] within the context of the case." People v. Sebby, 2017 IL 119445, ¶ 53. This includes assessing evidence regarding the witnesses' credibility. Id. To obtain relief under the first prong of plain error, defendant must show that the evidence was "so closely balanced that the jury's guilty verdict may have resulted from the error and not the evidence." Herron, 215 Ill.2d at 178. We find defendant is not entitled to first prong plain error relief because the evidence was not so closely balanced that four improper comments during rebuttal argument might have tipped the scales such that the jury found defendant guilty.
¶ 97 Here, defendant was charged with murder, attempted murder, and aggravated battery with a firearm. Two eyewitnesses to the shooting identified defendant as the shooter from a photo array and a physical lineup within hours after the shooting. Rush signed a written statement that he had no problem seeing defendant's face as defendant exited the van, and that he had seen defendant before. Rush saw defendant fire the gun before running toward the Church's Chicken and saw the van drive away. Both Lofton and Rush identified the van. Lofton testified he saw defendant in the van before it stopped and saw defendant get out of the van with a gun and that defendant was the shooter. The van Rush and Lofton identified was recovered from outside Winford's apartment, and police recovered prescription bottles from the van with defendant's name on them. Police recovered a black jacket from Winford's apartment with defendant's DNA on it, and GSR was found on both cuffs of the jacket. Defendant was seen on the car wash video wearing a black jacket roughly an hour after the shooting. While there was no physical evidence directly linking defendant to the shooting, there was enough circumstantial evidence from which the jury could determine that defendant was the shooter. We also note that, while defense counsel argued that the GSR residue on defendant's jacket could have been attributable to defendant exchanging gunfire with Lofton a few weeks prior, there was no evidence at trial suggesting that defendant was wearing that jacket during the previous encounter.
¶ 98 Lofton's and Rush's credibility were thoroughly tested in front of the jury, and both were shown to have made prior inconsistent statements. Rush was on probation at the time of the shooting and was driving on a suspended license at the time he was pulled over. Rush testified that he cooperated with police by identifying defendant because the State was going to help him with his case, but ASA Miller denied making Rush any promises about his pending case. Rush's trial testimony was inconsistent with his pretrial statements as to whether he saw defendant fire the gun, and he asserted that police pressured him to pick defendant's photo from the photo array. Lofton was facing criminal charges at the time of trial and made statements to a defense investigator that he was pressured into identifying defendant during the photo array, but then disavowed those statements. Lofton's trial testimony was largely consistent with Rush's grand jury testimony and written statement, and nothing in Lofton's trial testimony or Rush's pretrial statements was so improbable or unreliable as to be unworthy of belief.
¶ 99 We do not think the evidence was so closely balanced that the prosecutor's four improper remarks during rebuttal threatened to sway the jury toward finding defendant guilty. As we observed above, the circuit court instructed the jury about prior inconsistent statements, blunting the effect of the prosecutor's erroneous argument that the jury could not consider Lofton's statement to the defense investigator for its truth. We do not believe the jury would have relied on the prosecutor's argument when determining whether it could consider Lofton's statement to the defense investigator, but instead would have acted consistently with the trial judge's instruction that it could consider the statement as substantive evidence, and then set about making its credibility determinations. As for the prosecutor's improper remarks about the GSR, the jury was repeatedly instructed to disregard arguments not based on the evidence, and the jury presumably considered the State's expert testimony for what it was: there was GSR on the jacket, indicating that the jacket had been in the vicinity of a recently discharged firearm. The jury heard evidence that defendant and Lofton had recently exchanged gunfire, and we find it implausible the jury would decide to convict defendant based on the prosecutor's improper statements about how long GSR remains on clothing when the jury also heard evidence from two eyewitnesses that defendant was the shooter. Defendant is not entitled to relief under the first prong of plain error.
¶ 100 Defendant alternatively argues his trial counsel was ineffective for failing to object to the prosecutor's improper comments. His argument on this point is identical to the arguments he made in support of plain error relief. His ineffective assistance argument fails because, assuming arguendo that counsel's performance was unreasonable, defendant cannot establish prejudice. The analysis used in first prong plain error is like the analysis used in ineffective assistance of counsel claims in that defendant must demonstrate prejudice. Under first prong plain error, he must show that "the alleged error alone would tip the scales of justice against him" (People v. White, 2011 IL 109689, ¶ 133), while an effective assistance of counsel claim requires a showing that "there was a 'reasonable probability' of a different result had the evidence in question been excluded" (id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). As we have explained, defendant cannot establish that the errors threatened to tip the scales of justice against him, and for the same reason, he cannot show that if his counsel objected at trial-which would in all probability would have resulted in curative instructions from the circuit court similar to the ones that the circuit court repeatedly gave when denying other defense objections during rebuttal-there was a reasonable probability of a different result. Defendant's ineffective assistance of counsel argument fails.
¶ 101 Defendant identifies several other remarks made during the prosecutor's closing argument and rebuttal that he asserts were error. We disagree.
¶ 102 Defendant argues the prosecutor improperly argued there were unnamed witnesses who were afraid to testify against defendant and improperly accused defendant of intimidating Rush. The prosecutor stated in closing argument "reluctant witnesses happen, people change their minds, people have all sorts of reasons why they don't want to be involved, whey they don't want to testify, maybe they are angry, maybe their [sic] afraid, who knows why." In rebuttal, the prosecutor argued defendant gave other GD members Rush's name during a phone call from jail and "the GD's [sic] are out in the neighborhood putting the screws to people to protect [defendant]." In reference to Rush, the prosecutor stated "I feel sorry for that guy. They got to Terry Rush. Terry Rush flipped like a pancake. Innocent people don't sic the GD's [sic] on their witnesses. You can consider [defendant's] actions in sending guys out to influence testimony in this case that's guilt." The prosecutor then played a recording, after which he stated, "If they are looking out for each other don't let them get away with it."
¶ 103 Viewed in totality and against the trial evidence, we find the prosecutor's argument was appropriate. The prosecutor's remark that some witnesses may have been afraid to testify was part of a broader statement that there are numerous reasons why a witness might not cooperate with a police investigation or be reluctant to testify at trial. The prosecutor also commented that video footage from the Church's Chicken showed that numerous people who were present for the shooting never returned to offer any assistance to the victims or to talk to police. Furthermore, the State presented evidence that defendant told someone during a phone call from jail that Rush had identified him as the shooter. The other person on the call wanted more information about Rush "so we can drive on them n*** before it's too late." During another call, defendant told a friend information about who told police where to arrest defendant. Rush's statements to police and testimony to the grand jury preceded these phone calls. Based on the evidence, the prosecutor could reasonably argue to the jury that defendant and his friends intended to influence Rush.
¶ 104 Defendant further contends there was no evidence presented at trial as to the identity of the people whom defendant purportedly called from jail, and thus the prosecutor engaged in unsupported speculation by suggesting defendant's phone calls were to other GD members. We find the prosecutor's remarks were a fair inference that could be drawn from all the evidence, which showed an existing feud between rival gangs-the GDs and BDs-and members of those gangs: defendant (a GD member) and Lofton and Rush (BD members). It was fair for the prosecutor to infer that, given the subject matter of the statements made during the call-defendant providing information about an identified witness to an individual who wanted more information "so we can drive on them n*** before it's too late"-defendant was communicating with a cohort. Evidence at trial showed defendant was a gang member, and thus a reasonable inference could be drawn that defendant spoke with other members of his gang about the witnesses in his case.
¶ 105 Defendant argues that the prosecutor "mocked the vernacular of a black speaker in the call, insinuating that a black person who talked that way must be talking about committing a crime" by arguing to the jury
"And this guy they're going to ask about witnesses coming in just two, and the word is driving on them not like hey, can I get a signature here, we're drive in [sic] on him, and oh, by the way, it was a guy that who knows, we're on the wrong guy so you got to get the right names because the GD's [sic] are out in the neighborhood putting the screws to people to protect Art.
* * *
Man, you got to get the paperwork GD s [sic] because man they be driving about somebody else. I feel sorry for that guy. They got to Terry Rush. Terry Rush flipped like a pancake. Innocent people don't sic the GD's [sic] on their witnesses. You can consider his actions in sending guys out to influence testimony in this case that's guilt. (Emphasis added.) Defendant further asserts that the prosecutor's comment served no other purpose than to inflame the jury's passions and prejudices.
¶ 106 Nothing in the record suggests a mocking tone or racial bias in the prosecutor's remark. A plain reading of the trial transcript shows the prosecutor was emphasizing the terms used by the speaker as part of his argument that defendant and the person to whom he was speaking intended to influence Rush. We see nothing improper in using the prosecutor's use of the slang terms used by defendant and the other speaker, particularly where the use of those slang terms is not accompanied by any derogatory comments directed at the speaker.
¶ 107 Defendant argues the prosecutor improperly argued "[t]he law recognizes that people are more likely to tell the truth when they are not in a courtroom situation, not confronted by someone ***." He asserts the law recognizes "precisely the opposite," and cites Maryland v. Craig, 497 U.S. 836 (1990) and United States v. Bordeaux, 400 F.3d 548 (2005) for the proposition that face-to-face confrontations reduce the risk of wrongly implicating an innocent person and the likelihood that a witness will lie.
¶ 108 Defendant reads the prosecutor's comment in isolation and strips the comment of important context. Here, the prosecutor was explaining the concept of prior inconsistent statements and made the following remarks:
"Evidence of this kind ordinarily may be considered by you only for the limited purpose of deciding the weight to be given to the testimony you heard from the witness in this courtroom. However, you may consider a witness's earlier inconsistent statement as evidence without this limitation when the statement was made under oath at a trial, hearing, or a proceeding, or the statement narrates, describes, or explains an event, or a condition that the witness had personal knowledge of, and that statement was written or signed by the witness, or that the witness had knowledge under oath that he made the statement so with that in mind you can consider Terry Rush's testimony.
The typed statement relating to the facts including his identification of the defendant, which he signed and admitted in court that he had signed. And through his grand jury testimony where he took the same oath that he took when he testified before all of you where he again identified that this defendant was the shooter, this defendant was the person that he saw.
What this instruction means is that you can consider that testimony as if you heard it from the witness stand. The law recognizes that people are more likely to tell the truth when they are not in a courtroom situation, not confronted by someone, who they may be either angry at, or afraid of that [sic] this testimony is reliable, and for that reason you should be allowed to consider it as if the witness were testifying to it."
¶ 109 The prosecutor explained that a prior sworn statement could be considered as substantive evidence, which defendant does not dispute. A fair reading of the prosecutor's statement is that the law governing the use of prior sworn statements recognizes the reliability of such statements because of how and where they are made, and we disagree with defendant that the prosecutor was asserting the existence of a free-standing law that prior sworn statements are more reliable than in-court testimony. We confronted a similar issue in People v. Davis, 2018 IL App (1st) 152413, in which the prosecutor stated
"Then you've got testimony of Ron Brown and Archie McKnight. Now, the law understands that despite what they testified to each of them identified them multiple times as the killer of Mark Cooper and the shooter of Rakyah Whittier and the law recognizes that sometimes it's not easy coming in here, in court, and looking at Donate and saying you're a killer. That's not easy. It's not easy looking at Andrew Davis and saying you're a killer. So it allows you to consider all those prior statements. And there's a couple scenarios. First, the believability of a witness may be challenged by evidence that on some former occasion he made a statement which was not consistent with his testimony in the case." Id. ¶ 73.
We found:
"Viewing the challenged comments in their proper context, it is clear the ASA did not misstate the law. When viewed in context, the ASA's argument cannot be reasonably construed as an assertion of a free-standing law that statements to law enforcement are more reliable than in-court testimony. The ASA was referencing back to his co-counsel's argument properly stating the law concerning prior inconsistent statements *** and applying that law to the facts of this case. In the context of the earlier argument, which the ASA on rebuttal directly invoked, the challenged argument reflected only the State's position that the witnesses' earlier
statements made 'in the safety of a police station or grand jury' were true, and their trial testimony was false." Id.
¶ 110 The same is true here. The prosecutor accurately stated that prior sworn statements may be considered as substantive evidence and urged the jury to consider Rush's prior inconsistent statements as more reliable than his trial testimony.
¶ 111 Defendant next contends the State improperly vouched for the detectives' credibility by arguing they would not "risk it" or "throw it all away" by conspiring to pin the shooting on defendant and pressuring Lofton and Rush to identify defendant. He argues our supreme court explained in Adams, 2012 IL 111168, ¶¶ 16-20 that the State may not argue without evidence that testifying officers would "risk" their careers if they lied under oath or manipulated evidence, and the State may not argue an officer is more credible because they are a police officer.
¶ 112 Again, the context of the prosecutor's remarks is critical. Defense counsel argued in closing "It's homicide Chicago police style, but it's not so important to conduct an actual investigation. It's not important to arrest the actual offender, but it is important to arrest someone. It is important to arrest someone so you can close the case and move on to the next, and that's exactly what happened in this case." Defense counsel argued both Lofton and Rush initially told detectives that they did not know the shooter despite knowing defendant, and then argued that Detective Guerrero
"has got her best eyewitnesses and only eyewitnesses telling her that they don't know who the shooter is so she decides to do the next best thing okay [sic] well what we do then because [sic] we need to solve this case so she decides let [sic] talk to Kenny Lofton, who she was interviewing about his gang membership, and what he's been up to lately so she does."Defense counsel argued:
"Arthur Chaney may not good [sic] for Church's, and [Detective Guerrero] knew that because both of her eyewitnesses said the shooter was unknown to them, but who really cares he's good for exchanging gunfire with Kennedy [sic] Lofton a few weeks before so let's just make him on the case, let's just arrest him on the case, and that's exactly what she did. Look at how Detective Guerrero suggestion [sic] to Kenny Lofton changes what they originally said to what he said on the stand."
¶ 113 In rebuttal, the prosecutor argued:
"the fact is there's no grand conspiracy started by [Detective] Guerrero. [Detective] Guerrero has no bone to pick with Arthur Chaney. What in the world would possess a Sergeant in the Chicago Police Department, whose [sic] a detective at the time, to conjure up this conspiracy as the Defense would have you to believe and perpetrate it against him?
She's going to risk it and get Arthur Chaney. Then she must have sold in and bought in fast boy, right because within two hours plus Kenny Lofton and Terry Rush had ID'd Arthur Chaney."
¶ 114 We do not agree with defendant that the prosecutor's comment was improper. The prosecutor did not argue Detective Guerrero's testimony was credible because she was a police officer, nor that she would be risking her job if she lied under oath or manipulated evidence. The prosecutor's comments-which reflect a degree of sarcasm and incredulity at the defense's theory-when viewed as a whole, were directed squarely at the defense theory that Detective Guerrero decided to pin the shooting on defendant, regardless of whether he was involved, and effectively urged the jury to view all the testimony to determine whether the defense theory had any merit. Evidence supported the State's position that Lofton's and Rush's identifications made in the hours after the shooting were voluntary and uncoerced; it was only in the years after the shooting that Lofton and Rush made statements suggesting they were pressured into choosing defendant's photo from the photo array.
¶ 115 The prosecutor's comments here were not improper and are different from the improper comments in Adams. There, our supreme court found that a prosecutor made improper comments when he argued
"What also doesn't make sense is that [Sergeant] Boers would plant these drugs on the defendant. We are talking about 0.8 grams of cocaine. If you believe what the defendant is saying, then you also have to believe that [Sergeant] Boers is risking his credibility, his job, and his freedom over 0.8 grams of cocaine.
And not only is [Sergeant] Boers doing that, but [Deputy] Schumacher is doing that as well. He's also risking his life-his job and his freedom and his reputation over 0.8 grams of cocaine." (Alterations in original.) Adams, 2012 IL 111168, ¶ 16.
The court found
"The prosecutor's comments in this case were impermissible speculation, as no evidence was introduced at trial from which it could be inferred that the testifying officers would risk their careers if they testified falsely. [Citations.] Further, by invoking unspecified, but assumed, punitive consequences or sanctions that might result if a police officer testifies falsely, a prosecutor's arguments imply that a police officer has a greater reason to testify truthfully than any other witness with a different type of job [citation] thus violating the principle that a prosecutor
may not argue that a witness is more credible because of his status as a police officer [citation]." (Internal quotation marks and alterations omitted.) Id. ¶ 20.
¶ 116 That is not what occurred here. The prosecutor's comments properly questioned the defense theory that there was a police conspiracy to arrest defendant without a sufficient basis for believing he was involved in the shooting. While it is true that the jury heard various conflicting statements from Lofton and Rush regarding their identifications, the prosecutor's remarks properly responded to the inferences defense counsel asked the jury to make.
¶ 117 Defendant also points to a second comment in the same vein. The prosecutor stated
"There's no conspiracy, there's no evidence or motive for the Chicago police to get Art Chaney, and just because they are improved, or developing procedures in place today it doesn't mean this was poor performance, or bad behavior by the detectives in this case.
And it's pretty close to the way things go the [sic] two lead detectives needed help and they asked for assistance. You had a chance to see Detective Lutzow. Do you really think that he's on board? He's going to throw it all away to engage in conspiracy and force this picture on Terry Rush, pick him out, pick him out, come on everybody is doing it, and why again at the behest of Casale and Guerrero?"
These comments related the procedure used by police during the photo arrays, which the department later changed. Defendant does not raise any argument on appeal about the procedure used during the photo arrays.
¶ 118 Again, we find the prosecutor's comments were proper because he was not vouching for the witnesses' credibility, but instead was expressing incredulity at the defense theory. Nowhere in the prosecutor's comments did he suggest that the police should be believed because they are police; instead, he was responding directly to the defense's accusations that the police engaged in a conspiracy, and highlighted the lack of support for that theory. His comments were also based the evidence, given that Rush made multiple pretrial statements that he saw defendant commit the shooting.
¶ 119 Next, defendant argues the prosecutor misstated the State's expert's GSR testimony by making the misleading argument that the State's expert could determine when someone has discharged a firearm, thereby implying that the expert concluded that defendant discharged a firearm. The prosecutor argued the expert "testified that within a reasonable scientific certainty you can determine when someone has discharged a firearm and the environment of a recently discharged, or handled a discharged firearm, science." The expert's actual testimony was, based on a reasonable degree of scientific certainty, the recovered jacket was "was in the environment or contact-in the environment of a discharged firearm or contacted gunshot residue."
¶ 120 We find the prosecutor's statement was proper, albeit confusing. The prosecutor was not saying the expert determined that someone discharged a firearm; he was saying that it could be determined from the presence of GSR that someone had discharged a firearm and the jacket was in vicinity of a discharged firearm. This was consistent with the expert's testimony that the GSR indicated the jacket was in the environment of a discharged firearm or came into contact with GSR from a discharged firearm.
¶ 121 Defendant argues the prosecutor improperly implied that there was more GSR on the jacket than what the expert discovered. The prosecutor argued the expert stopped looking for additional GSR because she was "tired" of finding GSR on the recovered jacket. Defendant argues there was no evidence showing that there was more GSR on the jacket than what was recovered. The State's expert testified she needed to "find at least three of those GSR particles on a little sample in order to call it positive." She confirmed ten tri-component particles on the right cuff and confirmed five GSR particles on the left cuff. In both instances, she voluntarily stopped confirming particles because she had exceeded the minimum threshold necessary to reach her conclusion. In other words, she confirmed the presence of 15 particles when 6 would have sufficed. Defendant is correct that the expert never testified that she stopped looking for GSR because she was "tired," but the prosecutor's comment was proper considering the expert's testimony that she voluntarily stopped looking for particles after finding twice the minimum total particles on one sleeve, and nearly twice the minimum total particles on the other.
¶ 122 As for defendant's argument that the prosecutor improperly accused the defense of trying to get Lofton to change his story (see supra ¶ 87), we disagree that the comment was improper. Instead, the prosecutor was mimicking how the conversation occurred, with defense counsel and the defense investigator approaching Lofton at the courthouse while he was appearing on his own criminal charges. The prosecutor was conveying to the jury that the interview that gave rise to Lofton's statement to the defense investigator occurred informally, unlike Rush's grand jury testimony or his pretrial written statement. Furthermore, it is indisputable that the purpose of the defense investigator's interview was to determine whether Lofton had any additional facts about the identification process that might aid the defense. Viewed in context, there was nothing improper about the prosecutor's argument.
¶ 123 In sum, we find that defendant has not identified any other improper remarks made by the prosecutor during closing argument.
¶ 124 C. Foundation for the Admission of Jail Phone Calls
¶ 125 Finally, after this appeal was briefed, defendant was granted leave to file a supplemental brief, which raised an issue he failed to raise in his opening brief. He argues the circuit court erred by admitting the audio recordings of the phone calls placed from jail attributed to defendant because the State failed to lay an adequate foundation for their admission. Specifically, he argues the State did not call any witness to or participant to the calls, and the State did not satisfy the foundational requirements under the "silent witness" theory. Alternatively, he contends his trial counsel was ineffective for failing to object to the admission of the recordings on foundational grounds.
¶ 126 In addition to addressing the merits of defendant's argument, the State's supplemental response contends defendant either "affirmatively waived" this issue because he "did not object to the introduction of the calls on any basis during trial," or forfeited the issue because he did not make a contemporaneous trial objection and did not include this issue in his posttrial motion. Defendant replies that he did not affirmatively waive this issue because his counsel did not stipulate to the admission of the calls, but he acknowledges he forfeited this issue because his trial counsel did not object to the admission of the calls on foundational grounds and did not include the issue in his posttrial motion. He argues the issue is reviewable under plain error.
¶ 127 We agree with the parties that defendant forfeited this issue. Defendant did not object at trial on the grounds that the State had not laid an adequate foundation for the admission of the calls, and he did include the issue in his posttrial motion. He thus failed to preserve this issue for appellate review. Enoch, 122 Ill.2d at 186. Furthermore, defendant's failure to raise this issue in his initial appellate also results in forfeiture. Ill. S.Ct. R. 341(h)(7) (eff. May 25, 2018) ("Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."). Although we allowed defendant leave to file a supplemental brief to address this issue, we do not condone the use of supplemental briefs to address issues that should have been raised during the initial briefing of an appeal but were omitted due to counsel's inattention.
The appellate defender's motion for leave to file the supplemental brief only offered one reason for the why issue was raised belatedly: the attorney originally assigned to brief defendant's appeal was no longer with the appellate defender's office, and it was only upon review of the record by the newly assigned attorney that counsel discovered the issue was meritorious and not addressed in the opening brief.
¶ 128 Based on this dual forfeiture, we are reluctant to engage in plain error analysis. Rule 615(a) provides that "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. S.Ct. R. 615(a) (eff. Jan. 1, 1967). "[R]emedial application of the plain error doctrine is discretionary." People v. Clark, 2016 IL 118845, ¶ 42. Furthermore, our supreme court has observed that a forfeiture finding "is particularly appropriate when a defendant argues that the State failed to lay the proper technical foundation for the admission of evidence, and a defendant's lack of a timely and specific objection deprives the State of the opportunity to correct any deficiency in the foundational proof at the trial level." People v. Woods, 214 Ill.2d 455, 470 (2005).
¶ 129 Regardless, we find no error to support plain error relief. The admissibility of evidence is committed to the sound discretion of the trial judge, and the trial judge's decision will not be reversed unless the trial judge abused their discretion. People v. Illgen, 145 Ill.2d 353, 364 (1991). "Relevant and material audio recordings are admissible 'if a proper foundation has been laid to assure the authenticity and reliability of the recordings.'" People v. Viramontes, 2017 IL App (1st) 142085, ¶ 68 (quoting People v. Aliwoli, 238 Ill.App.3d 602, 623 (1992)). Here, there is no dispute the State did not present a witness to or participant to the phone calls, so we look to whether the State laid an adequate foundation under the silent witness theory.
"Under [the silent witness] theory, a recording may be admitted without the testimony of a witness with personal knowledge of what the recording portrays as
long as there is sufficient proof of the reliability of the process that produced the recording. [Citation.] Generally, this is shown if the recording's proponent presents 'evidence as to (1) capability of the device for recording; (2) competency of the operator; (3) proper operation of the device; (4) preservation of the recording with no changes, additions, or deletions; and (5) identification of the speakers.' [Citations.]" Viramontes, 2017 IL App (1st) 142085, ¶ 69.
¶ 130 Here, Hofsteadter testified that all calls made by Cook County jail inmates are recorded, and the only way the jail phone system is activated is by an inmate entering their PIN. There were safeguards to prevent against inmates using another inmate's PIN, although it was possible for an inmate to hand the receiver to another inmate after initiating a call. To retrieve calls from the system, she would sign in, enter the inmate's PIN and the requested dates, and download the calls to her computer and then to a CD or DVD.
¶ 131 Defendant argues Hofsteadter did not testify that she was trained in accessing the system and there was no testimony from anyone "actually responsible for recording the call in the first place." He contends there was "no evidence regarding the capability of the device used to record the conversation, the competency of the individual who operated the device, or whether the recording device was operating correctly at the time of the call." We reject these contentions.
¶ 132 Hofsteadter testified that she worked in telephone monitoring for the Inspector General's Office fulfilling requests and subpoenas from the State's Attorney's Office, and she described the process for accessing and downloading the calls from the system, which recorded all calls from the jail. The steps taken to access the system and download the calls indicates Hofsteadter was sufficiently familiar with both the system and the processes employed in accessing the recordings. The fact that Hofsteadter described the processes involved and that the recordings were presented in court indicates Hofsteadter was competent, and defense counsel asked no questions on cross-examination suggesting otherwise. Furthermore, the State acknowledges Hofsteadter did not testify that the recording system was operating correctly but responds "the fact the audio recording exists at all demonstrates the system was working." We agree because "the fact the audio recording exists at all demonstrates the system was acting correctly." Id. ¶ 71 (citing People v. Taylor, 2011 IL 110067, ¶ 29).
¶ 133 Defendant argues the State introduced no evidence regarding whether the recordings were preserved without any changes, additions, or deletions. There was, however, no evidence before the trial court suggesting that the calls were anything but authentic. Id. Defendant does not identify anything about the recordings showing there is some genuine questions about their authenticity.
¶ 134 Defendant contends there was an inadequate foundation to establish that he was the caller because the caller never identified himself. This argument fails because, as Hofsteadter testified, an inmate needed to use their unique PIN to initiate a call, and all the calls introduced at the trial were associated with defendant's unique PIN. Defendant points to no evidence suggesting that his PIN was compromised such that there was a probability that another inmate used defendant's PIN. Furthermore, the circuit court could reasonably infer defendant was the caller in the recordings given his association with the PIN and the fact that the conversations referred to Terry Rush, Nose-which defendant does not dispute was Winford's nickname-and a jacket recovered by police. The circuit court could reasonably infer from all these circumstances that defendant was the caller in the recordings, and defendant presented nothing to suggest otherwise.
¶ 135 We find no abuse of the circuit court's discretion in admitting the recordings, and the State's foundation for the calls was sufficient to indicate that the recordings were authentic. Because the circuit court did not err in admitting the recordings, defendant is not entitled to any plain error relief, nor can he establish that his trial counsel's failure to make a foundational objection resulted in any prejudice to support a finding of ineffective assistance of counsel.
¶ 136 III. CONCLUSION
¶ 137 In sum, the circuit court properly admitted Detective Casale's testimony as evidence of a prior identification. Defendant is not entitled to plain error relief based on the prosecutor's four improper comments during rebuttal because the evidence of defendant's guilt was not so closely balanced that the improper comments threatened to tip the scales of justice against defendant. Finally, defendant is not entitled to plain error relief where the circuit court did not err in admitting recordings of defendant's phone calls made from jail.
¶ 138 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 139 Affirmed.