Opinion
1-18-1904
03-31-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIANTOINE MCGEE, 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 1066 Honorable Allen F. Murphy, Judge Presiding.
JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Gordon and Justice McBride concurred in the judgment.
ORDER
ELLIS JUSTICE
¶ 1 Held: Affirmed. Given strength of evidence against defendant, neither (1) State's improperly detailed presentation of otherwise admissible other-crimes evidence, nor (2) trial court's failure to comply with Rule 431(b) warrants relief under theories of first-prong plain error or ineffective assistance of counsel.
¶ 2 A jury convicted defendant Diantoine McGee of first-degree murder and aggravated vehicular hijacking. (His cousin, codefendant Jerome Williams, was tried separately and is not a party to this appeal.) Defendant raises two issues. First, he claims he was denied a fair trial by the State's use of unnecessarily detailed, gruesome, and prejudicial other-crimes evidence, and that the error, if unpreserved, warrants relief under theories of first-prong plain error or ineffective assistance of counsel. Second, he argues that the trial court's failure to comply with Rule 431 (b), an error the State concedes, warrants relief as first-prong plain error. We agree with both allegations of error but with neither allegation of prejudice, and we affirm on that basis.
¶ 3 BACKGROUND
¶ 4 I. Eyewitness testimony and identifications
¶ 5 Erica Pittman was murdered during a carjacking on October 12, 2011. She was parked in the driveway of her boyfriend's mother's house in Harvey, during a family gathering, listening to music on an upscale sound system in her white Lincoln Continental. Her boyfriend, Brian Marr, was in the car with her. Among the relatives and friends "kicking it" on the front porch were Brian's cousin, Kionte Marr, and Kionte's boyfriend, Montell Tate-Bedell. Kionte said they were drinking; Tate-Bedell denied it.
¶ 6 Shortly after midnight, while Kionte, Tate-Bedell, and others were out on the porch, two men walked by: a dark-complected Black man wearing a black hoodie, and a light-complected Black man wearing a blue hoodie. Bandanas covered their faces from their mouths down; from their noses up to their foreheads, their faces were visible. They both had guns. They were about five feet away, and a porch light was on. Tate-Bedell estimated that they got a look at these men for about 45 seconds. Kionte testified that she saw the men earlier that night, in a nearby alley, when some of the guests went to a restaurant and gas station.
¶ 7 Kionte and Tate-Bedell both identified defendant as the light-complected man in the blue hoodie when they viewed a lineup nine days later. Kionte testified that defendant's eyes had a "memorable" shape. He also had a distinctive tattoo on the right side of his neck, although Kionte acknowledged on cross-examination that she did not mention it to the officers who took her initial description of the men. She was more concerned with Pittman than with giving exact details, she explained, and so she kept her descriptions "simple." (Defendant's neck tattoo is visible in a photo that was shown to Kionte and published to the jury. Kionte was shown that same photo when she gave a statement to the assistant state's attorney (ASA), and she identified it as a photo of the person she had picked out of the lineup.)
¶ 8 As the men approached the porch, either defendant alone (according to Tate-Bedell) or both men (according to Kionte) raised a gun. One of them-defendant, as Tate-Bedell recalled- said, "Don't move." Kionte testified that she thought it was a joke and so went inside; it was not unusual, she explained, for people in that neighborhood to play with guns. Tate-Bedell testified that everyone stayed put, talking on the porch, as the men walked toward the driveway and out of view. In short order, both witnesses heard, but did not see, one or two gunshots.
¶ 9 The parties stipulated that when Officer Escalante responded to the scene, Kionte told him that she saw two Black males emerge from the driveway and approach the vehicle. One of them (described to the jury as "subject number one") fired two shots at the driver of the parked car. Officer Escalante's report contained conflicting descriptions of the shooter's clothing: Either he wore a red hoodie and black jeans, or a red and blue hoodie with blue jeans.
¶ 10 Meanwhile, Brian had fallen asleep in the passenger's seat of Pittman's car. He had been "drinking a little" at the gathering. Pittman was in the driver's seat. Brian awoke to the sound of two gunshots that seemed to come from the driver's side of the car.
¶ 11 On the driver's side, he saw a tall, dark-complected Black male holding a gun and wearing a mask that covered his face below the nose. That man, whom Brian was not able to identify, said, "What you think this is, a game? Get out." On the passenger's side, a light-complected Black man, also holding a gun, grabbed Brian by the collar and pulled him out of the car. The two men got in the car and drove away. Brian took Pittman over to the porch, set her down, and called 911. He did not describe the assailants because he was focused on Pittman, who later died of multiple (more precisely, two) gunshot wounds.
¶ 12 According to Brian, the face of the armed, light-complected man who grabbed him was fully visible. It was defendant, and Brian picked him out of the lineup nine days later.
¶ 13 At the scene, Brian told the story a bit differently to Officer Escalante: He was sitting in the back seat when two Black males approached the driver's door. Brian also acknowledged that he had pending charges for identity theft, possession of a false ID, and selling cannabis. He was not offered any plea agreement in exchange for his testimony. He also had prior convictions for selling cannabis, drug possession, and unlawful possession of a weapon by a felon. Despite his status as a felon, Brian kept a .45 caliber gun-in Pittman's car, in fact, though he did not have to time to grab it in this instance. It was still in the car when the assailants drove off.
¶ 14 II. Circumstantial evidence
¶ 15 Shaun Ballentine owned a tow truck and bought "scrap" cars. Eight days after Pittman's car was stolen, on October 20, 2011, Ballentine's friend, Keith Lino, called and told him there was a car that "some guys were trying to get rid of." Ballentine went to an address on West 52nd Street in Chicago, where he met Lino, defendant, and one other man in the garage. There was a white Lincoln Continental that was missing three tires. Ballentine asked defendant for the title. Defendant went into the house-to get the title, Ballentine assumed. But when defendant came back a few minutes later, he took a gun out of his waistband and told Ballentine to get down. Defendant explained that the car was stolen and the police were outside. Defendant put the gun inside a speaker and hid behind the car with Ballentine.
¶ 16 The garage door eventually opened, and the police were outside, indeed. Codefendant Jerome Williams, who had absconded from parole, had agreed to meet Agent Tina Williams at that address. Agent James Garrett, an Illinois Department of Corrections (IDOC) parole agent, arrived to assist Agent Williams. Agent Garrett recognized the house; he was there three months earlier to speak with defendant. He called AMS (IDOC's automated parole service) and verified that defendant was on parole and that this was his registered address.
¶ 17 Defendant and codefendant came out the front door. Agent Garrett recognized defendant. Codefendant fled but was soon caught and arrested.
¶ 18 Defendant, on the other hand, ran back inside. Agents went inside and searched the first floor, which they were permitted to do without a warrant, as a condition of defendant's supervised-release agreement. During the search, Officer Goral found a .38 caliber Smith and Wesson tucked into an ottoman. Kurt Zielinski, an Illinois State Police (ISP) forensic scientist, would later examine the gun and the bullet recovered from Pittman during her autopsy. He testified that the bullet was fired from this gun.
¶ 19 The property owner gave the agents the garage-door opener and permission to search the garage. They found defendant, Ballentine, and another hiding behind Pittman's car. When one of the officers moved a speaker, a .45 Taurus semiautomatic handgun fell out. At trial, Brian identified the gun, from the serial number, as the gun he kept in Pittman's car.
¶ 20 Defendant was arrested. Ballentine was also detained and, after two days in custody, gave a written statement to an ASA. As Ballentine acknowledged on cross-examination, his written statement did not mention defendant's alleged admission that the car was stolen. He also told the ASA that defendant put the gun into a white bag, not a speaker.
¶ 21 III. Other-crimes evidence
¶ 22 About a week before Pittman was murdered, David Lattimer and his girlfriend, Brittany Nash, were victims of a carjacking and shooting, this time in Riverdale. The trial court allowed the State to offer, and instructed the jury that it may consider, this other-crimes evidence on the issue of "defendant's identification."
¶ 23 In sum, Lattimer and Nash gave the following account at trial. They were in Lattimer's car (which, like Pittman's, happened to be equipped with an upgraded sound-system and rims) when another car drove by. A few seconds later, as Lattimer started to get out, he saw a muzzle flash and fell backwards. He told Nash to get out of the car and then, as he recalled, went in and out of consciousness for a time.
¶ 24 Lattimer was shot in the face, lost four teeth, and required two surgeries during the week he was hospitalized. Both Nash and Lattimer testified in some detail about the "blood and teeth" that gushed out of Lattimer's mouth.
¶ 25 Beyond offering this brief account of the incident, and supplementing it, twice over, with the specific details of Lattimer's injuries, Lattimer and Nash were not particularly cooperative on the witness stand. They said, in no uncertain terms, that they did not want to testify in this case and were only doing so because they were subpoenaed by the State. Nash, for one, claimed that she could not recall identifying defendant, or for that matter anyone, as the assailant-even though she had, when interviewed by the police. And Lattimer claimed that he had previously identified defendant to the police-even though he had not.
¶ 26 To elaborate: The trial court had granted a defense motion in limine barring the State from eliciting an identification of defendant from Lattimer, for the first time, at trial. There is no dispute that the State complied with the court's ruling. But defense counsel's cross-examination of Lattimer took an unexpected turn. When Lattimer claimed that he did not see the shooter, counsel asked if he remembered identifying someone at a lineup in 2011. As we will explain more fully below, counsel expected Lattimer to say that he identified codefendant. Lattimer acknowledged that he identified someone, but he claimed, at first, that he was "not sure" whether that person was defendant. He then claimed that he did, in fact, see the man he previously identified in the courtroom. The clear implication was that he had identified defendant to the police. (Recall that codefendant was tried separately; only defendant was in the courtroom.)
¶ 27 At that point, the defense moved for a mistrial. The court denied the motion but ruled that the State could remedy any prejudice caused by Lattimer's surprise identification of defendant by impeaching his testimony. To this end, and more generally to fill in the gaps left by its recalcitrant witnesses, the State called several law-enforcement officers, leading to what the trial court fairly described as a "mini trial" on the other-crimes evidence. For the most part, the particulars of the Riverdale carjacking, as detailed in the witnesses' statements to the police, do not concern us here. So we will limit our discussion to what matters-their prior statements of identification.
¶ 28 Officer Forgue, the first responder on the scene, interviewed Nash and Lattimer. Nash said that a man jumped out of a car, came up to Lattimer, and fired one shot at him. He was a black male, around 5'5, with a light complexion. Nash did not mention a second assailant. Nor did Lattimer, whose interview was understandably limited, since he had just been shot in the face. For this reason, perhaps, Lattimer did not describe the assailant at that time. ¶ 29 Nash and Lattimer viewed a lineup later in October 2011. Nash acknowledged the lineup, but she claimed that she did not remember identifying anyone. She did, however, identify her initials on a photo advisory form and her signature on a photo array, which was next to a circled photo of defendant. Over defense objection, Detective Tony Padron testified that Nash identified defendant at the lineup. Detective Padron and Officer Glenn Williams both testified that Lattimer, on the other hand, identified codefendant.
¶ 30 Officer Williams also testified that he and another officer interviewed defendant after he was taken into custody. At first, defendant admitted that he was present for the carjacking in Riverdale, but he steadfastly denied any involvement, claiming that it was entirely codefendant's idea. After 15 minutes or so, Officer Williams decided to end the interview, since it was not bearing fruit and he had another pressing case to tend to. As the officers were about to leave the room, Williams asked defendant if anyone would be able to identify him at the scene. Defendant answered, "no, she won't be able to identify me."
¶ 31 Officer Williams had not revealed the gender of anyone at the scene to defendant. And defendant, it would seem, realized as much. He "sunk" down in his chair and put his head in his shirt. Upon further questioning, defendant admitted that he was with codefendant (who was also his cousin) when they noticed a black Monte Carlo with rims and decided to steal it. Someone was shot in the process.
¶ 32 Officer Williams acknowledged that the interview was not recorded. Williams prepared a summary report the next day, based on his notes. Defendant was not given a chance to review the notes or the summary and confirm that his alleged statements were accurately reported. Williams sought to interview defendant a second time, with an ASA, but defendant declined.
¶ 33 A bullet was removed from Lattimer during one of his surgeries. ISP forensic scientist Zielinski examined the bullet and testified that it was fired from the same gun as the bullet recovered from Pittman-that is, the gun found in the ottoman during the search of defendant's registered address.
¶ 34 IV. Theories, arguments, and verdicts
¶ 35 Defendant did not testify or call any witnesses. He presented a defense of reasonable doubt, with counsel arguing that the eyewitness identifications were unreliable and emphasizing the alleged inconsistencies in the witnesses' various accounts of the events. The State argued both that defendant was the shooter and that he was accountable for any conduct attributed to codefendant. The jury was thus instructed on accountability and returned general verdicts of guilty on the charges of first-degree murder and aggravated vehicular hijacking. (A third guilty count, aggravated discharge of a firearm, merged into the latter.) The trial court ordered consecutive sentences of 40 years (25 years plus a 15-year firearm enhancement) on each count, for an aggregate sentence of 80 years.
¶ 36 ANALYSIS
¶ 37 I. Other-crimes evidence
¶ 38 The trial court admitted evidence of the Riverdale carjacking and shooting, as described in detail above, on the issue of identity. Defendant argues that this other-crimes evidence "went far beyond its stated purpose," invited the jury to punish him for uncharged crimes, and thus denied him a fair trial.
¶ 39 To begin, the Riverdale evidence was generally admissible for its stated purpose of proving defendant's identity as one of the participants in Pittman's murder and carjacking. See Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); People v. Pikes, 2013 IL 115171, ¶ 11. Other-crimes evidence may be admitted for this purpose when "evidentiary links between the two crimes" make it more likely that the person who committed the uncharged crime also committed the charged crime. People v. Richardson, 123 Ill.2d 322, 339 (1988).
¶ 40 One common example of identity evidence is when a witness (or other evidence) identifies the defendant as the perpetrator of an uncharged crime, and forensic analysis reveals that the charged and uncharged crimes were committed with the same weapon. See, e.g., id. at 339-40; People v. Coleman, 158 Ill.2d 319, 335 (1994); People v. Thompson, 2020 IL App (1st) 171265, ¶ 90; People v. Martin, 408 Ill.App.3d 44, 49 (2011). This combination of evidence supports an inference that the defendant also committed the charged crime and is thus relevant to the question of identity. See Ill. R. Evid. 401 (eff. Jan. 1, 2011) (evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
¶ 41 This case fits that pattern. Nash identified defendant at a lineup-to say nothing of defendant's own (alleged) admission to Officer Williams that he participated in the Riverdale carjacking. Forensic analysis showed that the same gun was used to shoot both Pittman and Lattimer. And that gun was found in the ottoman at defendant's home. Taken together, these facts make it more likely that defendant also committed, or participated in, Pittman's shooting and carjacking. The Riverdale evidence thus bolsters the eyewitness identifications of defendant as one of the two assailants in this case.
¶ 42 In short, the essential elements of the other-crimes evidence-the fact that Lattimer was shot during a carjacking about a week before Pittman; Nash's identification of defendant; defendant's admissions to Officer Williams; and the forensic evidence linking the gun to both crimes-were all admissible on the issue of identity.
¶ 43 The closest defendant comes to seriously disputing this conclusion is his assertion that the other-crimes evidence in general "was not particularly relevant" to the issue of identity, in part because Lattimer did not identify defendant before trial, and in part because Nash did not identify him at trial.
¶ 44 It is true that Lattimer did not identify defendant before trial. Even still, Nash did. The trial court could properly admit the Riverdale evidence, on the issue of identity, based on Nash's lineup identification of defendant, with or without a second, corroborating identification from Lattimer. Defendant cites no rule that requires more than one witness to implicate the defendant in the uncharged crime, and we are aware of none.
¶ 45 It is equally true that Nash refused to acknowledge her prior identification of defendant. But her prior identification afforded the State a good-faith basis for offering the Riverdale evidence. And when Nash proved recalcitrant on the stand-making amply clear that she did not want to testify in this case-the State proved up her prior identification through Detective Padron's testimony. So the Riverdale evidence was still relevant for its stated purpose. And not just marginally so; the evidence was highly relevant given that the common link between the offenses, the gun, also showed up in the furniture in defendant's home. The trial court did not err, either in terms of relevance or undue prejudice, in admitting the essential elements of the Riverdale evidence. Nash's refusal to cooperate on the stand does not change that conclusion.
¶ 46 That said, we are not unsympathetic to defendant's claim that the presentation of other-crimes evidence escalated, in the trial court's own words, into a "mini-trial" on the Riverdale carjacking. But there were several different forces at play here, and it is important to distinguish them. Not at all of them support a claim of error, much less a claim of prejudicial error.
¶ 47 One was Nash's refusal to acknowledge her prior identification of defendant, as we just mentioned. The State was entitled to prove up that identification through Detective Padron. And then there was Lattimer's own brand of recalcitrance-basically the reverse of Nash's-which led him to identify defendant, or purport to identify defendant, for the first time at trial, during defense counsel's cross-examination. The State was left to impeach its own witness-just as defense counsel was trying to do-by eliciting evidence that, in fact, Lattimer identified codefendant, not defendant, in the 2011 lineup. This evidence may have been elicited by the State, but it worked to defendant's benefit.
¶ 48 What was not relevant to the issue of identity, or otherwise needed for a fair presentation of the Riverdale evidence, were the more specific details of Lattimer's injuries. Since other-crimes evidence carries a high risk of prejudice, it should be confined, as tightly as possible, to the details that directly bear on the issue for which it was admitted. People v. Thigpen, 306 Ill.App.3d 29, 37 (1999). Thus, when the issue is identity, the evidence "should be confined to the details needed to show opportunity for identification and thus exclude, where context permits, the details of the crime." Michael H. Graham, Graham's Handbook of Illinois Evidence, § 404.5 (2016 ed.). In Thigpen, 306 Ill.App.3d at 36-39, for example, cited here by defendant, evidence implicating the defendant in an uncharged double murder was relevant on the issue of identity, but the trial court erred in allowing the State to offer "extensive testimony and photographic evidence" regarding the uncharged crime that was not necessary for this purpose.
¶ 49 Here, as defendant points out, there was no need for Lattimer or Nash, never mind both of them, to testify about the blood and teeth that gushed out of Lattimer's mouth after he was shot in the face. In fact, there was no need for the jury to hear that Lattimer was shot in the face at all. It would have sufficed, for the purpose at hand, for the jury to hear that Lattimer was shot during a carjacking-and that Nash identified defendant, and that the same gun was used to shoot Pittman. Nor was there any good reason to admit (and send back to the jury room) photos of the Riverdale crime scene, replete with close-ups of Lattimer's spilled blood in the street. They may not have been as egregious as the pictures of the dead victims of the uncharged double murder in Thigpen, but they were unnecessary. See id. at 38. These details had no relevance to the issue of identity and could not possibly help the jury make a rational decision in this case.
¶ 50 Though we find error in the admission of those unnecessary details, that error was not preserved. As mentioned, defense counsel had vigorously contested the State's motion in limine to admit other-crimes evidence on the question of identity. But counsel did not object as the State repeatedly elicited these unnecessary and improper details at trial. A contemporaneous objection would have afforded the trial court an opportunity to short-circuit the State's overzealous presentation of this otherwise admissible evidence. As for the post-trial motion, the only allegation bearing at all on the other-crimes evidence is that the trial court should have granted a mistrial after Lattimer purported to identify defendant.
¶ 51 Our supreme court has consistently held that trial errors must be raised in a contemporaneous objection and a post-trial motion to be preserved. See, e.g., People v. Woods, 214 Ill.2d 455, 470 (2005). We are thus bound to consider the error forfeited.
¶ 52 To this end, defendant seeks relief on theories of ineffective assistance and first-prong plain error. To establish a claim of ineffectiveness, defendant must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 694 (1984). Prejudice for an ineffectiveness challenge requires a reasonable probability that the outcome of the trial would be different absent counsel's error. Id. On first-prong plain-error review, a forfeited error requires reversal if the error is "clear or obvious" and if the evidence was "so closely balanced that the error alone threatened to tip the scales of justice against the defendant." People v. Belknap, 2014 IL 117094, ¶ 48.
¶ 53 When a claim of error is based on the erroneous admission of evidence, the Strickland prejudice inquiry and the closely-balanced-evidence analysis are functionally equivalent. See People v. White, 2011 IL 109689, ¶ 133; People v. Tucker, 2022 IL App (1st) 172982, ¶ 64. The question, in a nutshell, is whether the error, considered in light of the evidence as a whole, likely affected the verdict. Our answer to that question here is a resounding no.
¶ 54 For one, it bears emphasis that most of the Riverdale evidence was admissible and thus unaffected by the error. The jury should not have heard the details of Lattimer's injuries or seen photos of his spilled blood. But even in an error-free trial, the jury would have heard that Lattimer was shot in a carjacking only days before Pittman, that Nash identified defendant, and that the same gun was used in both shootings.
¶ 55 And that is on top of the eyewitness identifications and circumstantial evidence. Start with the eyewitnesses. No fewer than three of them-Brian, Kionte, and Tate-Bedell-identified defendant.
¶ 56 We grant that defendant makes several reasonable points about these identifications in the course of a vigorous and thorough application of the Biggers-Slim factors. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972); People v. Slim, 127 Ill.2d 302, 307-08 (1989). To summarize: the assailants were complete strangers, with hoodies pulled up and bandanas over their mouths and chins, whom the witnesses viewed for a matter of seconds, at night, perhaps after drinking, and, worst of all, at gunpoint. The initial descriptions were sparse and generic. As for Brian, the gunshots woke him up, so the conditions were even less favorable for him to reliably identify the armed stranger who was dragging him out of a car.
¶ 57 To be sure, the State has reasonable counters to at least some of these points. But we find it unnecessary to go through all of the Biggers-Slim factors, point by point, for each eyewitness. That exercise misses the larger point. While none of the eyewitness identifications, considered on its own merits, would make for an overwhelming case, the problem for defendant is decidedly not the strength of any identification standing alone. The problem is that there are three of them. Whatever a fair-minded application of the Biggers-Slim factors may reveal about the reliability of any particular identification, the force of the critique surely diminishes as the identifications rack up.
¶ 58 The State also presented three highly incriminating pieces of circumstantial evidence. First, as we have noted, the murder weapon-the same gun also used to shoot Lattimer-was found in an ottoman in defendant's home. Second, Pittman's stolen car was in the garage. And third, defendant was not merely present in the garage when the police found him hiding there, as if by happenstance; to the contrary, as Ballentine testified, defendant was actively trying to sell Pittman's car to a scrap dealer.
¶ 59 Defendant might land some glancing blows against the circumstantial evidence, as he does against the eyewitness identifications, but when the evidence is viewed as a whole, it is simply too much for defendant to claim that the error, rather than the evidence, might explain the jury's verdict. To recap: Three eyewitnesses identified defendant. A fourth eyewitness identified him in a different carjacking committed with the same gun, and what's more, defendant admitted his involvement in that crime to Officer Williams. The gun used in both offenses was found in defendant's home. Pittman's stolen car was in the garage, where defendant was trying to sell it when the police arrived.
¶ 60 Say what you will about the strength of any one identification, the credibility of any one witness, or a possible alternative explanation for any one piece of circumstantial evidence. When all is considered together, the odds that this many witnesses all misidentified defendant in these circumstances are vanishingly low.
¶ 61 The evidence in this case was not closely balanced, and there is no reasonable probability that the jury would have acquitted defendant had the details of Lattimer's shooting been excluded from the trial. Defendant cannot show Strickland prejudice or first-prong plain error.
¶ 62 II. Rule 431(b) violation
¶ 63 Defendant also argues that the trial court failed to comply with Illinois Supreme Court Rule 431(b) because it did not ask the prospective jurors whether they understood and accepted the principle that defendant's decision not to testify could not be held against him. Ill. S.Ct. R. 431(b) (West 2018). That principle can only be omitted if defense counsel objects to it (Ill. S.Ct. R. 431(b) (4)), but here, counsel explicitly asked the trial court to inquire on this point. The State concedes that this was error; we appreciate and accept the concession. See People v. Richardson, 2013 IL App (1st) 111788, ¶ 33 (error to omit this inquiry when defendant did not testify).
¶ 64 Because the error was unpreserved, as Rule 431(b) errors almost always are, defendant must demonstrate first-prong plain error-or perhaps ineffective assistance, though he does not pursue that route here. See People v. Sebby, 2017 IL 119445, ¶ 52 ("A Rule 431(b) violation is not cognizable under the second prong of the plain error doctrine, absent evidence that the violation produced a biased jury."). For the reasons we have already explained, the evidence was not closely balanced. Thus, the error does not warrant reversal.
¶ 65 CONCLUSION
¶ 66 The judgment of the circuit court is affirmed in all respects.
¶ 67 Affirmed.