People v. Brown

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Appellate Court Date: 2017.09.25

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People v. Brown, 2017 IL App (1st) 142197

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption DANIEL BROWN, Defendant-Appellant.

District & No. First District, Fifth Division

Docket No. 1-14-2197

Filed June 23, 2017

Rehearing denied July 28, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-7098; the

Review Hon. Maura Slattery-Boyle, Judge, presiding.

Judgment Affirmed; mittimus corrected.

Counsel on Michael J. Pelletier, Patricia Mysza, and Rachel M. Kindstrand, of

Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Eric Leafblad, and Janet C. Mahoney, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with

opinion.

Justice Reyes concurred in the judgment and opinion.

Justice Hall specially concurred, with opinion.

OPINION

¶1 Defendant Daniel Brown was found guilty by a jury of first degree murder, with a finding

that he personally discharged the firearm that caused the victim’s death. Defendant was

sentenced to prison terms of 45 years for murder and 45 years for personally discharging the

firearm that caused the death, to be served consecutively.

¶2 On appeal, he contends (1) the trial court committed reversible error during voir dire by

failing to inquire when a juror indicated a lack of understanding concerning a fundamental

principle about the burden of proof; (2) the trial court erred when it admitted a surveillance

recording without adequate foundation and permitted a detective to offer impermissible lay

opinion identification testimony concerning the recording and defense counsel was

ineffective by failing to object to this evidence; (3) the trial court erred by admitting

irrelevant and highly prejudicial DNA evidence, the State’s closing argument concerning the

DNA evidence was misleading, and defense counsel was ineffective for failing to object to

the DNA evidence; (4) the statutory firearm sentencing enhancement is unconstitutionally

vague and the trial court imposed an arbitrary and excessive sentence; and (5) the mittimus

should be corrected to reflect one murder conviction and a 90-year prison sentence.

¶3 We find that the trial court’s erroneous voir dire inquiry of one venire member

concerning a Zehr principle and admission of a law enforcement officer’s lay opinion

identification testimony were not so serious as to deny defendant a fair trial. We also find

that the trial court did not abuse its discretion by admitting the surveillance recording and

DNA evidence. Furthermore, the statutory firearm sentencing enhancement is not

unconstitutionally vague, and defendant’s sentence was not arbitrary or excessive.

¶4 For the reasons that follow, we affirm the judgment of the circuit court and order the

mittimus corrected to reflect one conviction of murder and a 90-year term of imprisonment.

¶5 I. BACKGROUND

¶6 This case arose from the fatal shooting of Eddie Coleman on East 79th Street in Chicago

at about 10:38 p.m. on March 6, 2012. Eyewitnesses identified defendant Daniel Brown as

the shooter, and he was charged by indictment with first degree murder. A jury trial was held

in April and May 2014.

¶7 The State’s evidence showed that on the date of the offense the victim was visiting his

aunts, Mayblelene and Kathleen Coleman, who both lived on the 3000 block of East 79th

Street. At about 10 p.m., the victim and his girlfriend, Taheerah Abdullah, walked half of a

block to a store. They went inside, and the victim spoke to some men from the neighborhood,

including defendant. Abdullah had known defendant for about a week and had seen him a

couple of times. Abdullah heard defendant repeatedly state, “[W]hatever is gonna happen,

man, is gonna happen.” The victim and defendant went outside into the parking lot.

Eventually, Abdullah followed them. Defendant and the victim talked and their demeanor

was “kind of hostile.” Abdullah stood apart from them and did not hear everything they said.

Abdullah was concerned and telephoned the home of the victim’s aunt, Mayblelene.

Abdullah spoke with Mayblelene’s daughter, Natasha Coleman, who then walked to the

store.

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¶8 Abdullah exchanged words with a woman who was with defendant, and the woman spat

on Abdullah. Natasha arrived at the scene and spoke with Abdullah. Eventually, the victim

joined them. They left the parking lot and headed toward Mayblelene’s house. They spoke to

police officers in the area about the parking lot incident, and the officers told them to go

home and telephone the police to report the matter. Natasha walked toward her mother’s

house, followed by Abdullah and then the victim. When Natasha and Abdullah arrived at the

house, the victim was no longer with them. Natasha and Abdullah went inside. Abdullah

called the police and reported the parking lot incident, and Natasha sat at the dining room

table.

¶9 Abdullah testified that when she returned to the porch to look for the victim, she heard a

gunshot and saw the victim running down the street with defendant running behind him.

Defendant’s arm was outstretched and pointed toward the victim. Abdullah heard another

gunshot followed by the victim yelling, “Ouch.” Abdullah ran inside the house because she

feared defendant would come after her. She heard about three more gunshots. When the

gunshots ceased, Abdullah went outside and saw the victim lying motionless on the ground.

His aunt, Kathleen Coleman, was with him.

¶ 10 An ambulance arrived and transported the victim to the hospital. He died from multiple

gunshot wounds. He had been shot three times, once in the left side of the back, once in the

upper right chest, and once in the left arm, with no evidence of close-range firing. At the time

of his death, he had alcohol, cocaine, and benzoylecgonine, a breakdown of cocaine, in his

system. He was 43 years old, 6 feet tall, and weighed 200 pounds.

¶ 11 Kathleen Coleman testified that she went outside around 10 p.m. to look for the victim

because she had agreed to give him a ride home. She drove her car around the block and

parked in front of her house. She exited her car and saw the victim running through a

gangway with defendant chasing him. Kathleen testified that the area was well lit, and she

could see defendant’s face even though he wore a purple hoodie over his head. Kathleen

testified she had known defendant for a couple of years due to his previous relationship with

a girl in the area. Kathleen observed defendant shoot the victim in the back. The victim

screamed, “Ouch,” ran a short distance, and collapsed in the middle of the street. Defendant

was running so close behind the victim that defendant had to jump over him. Defendant then

turned around and shot the victim in the shoulder area. Kathleen called out, “Who is that?” so

defendant would not suspect that she had recognized him. Defendant looked at her, pointed

the gun into the air, and shot the light pole. Defendant ran off through a gangway. Kathleen

found the victim between two cars. He was unresponsive, and Kathleen did not see a gun in

his possession.

¶ 12 Natasha testified that she heard the first gunshot while she was inside her mother’s house.

Natasha saw Abdullah come toward her, crying. Natasha ran to the front door and onto the

porch. She saw the victim being chased by defendant. She knew defendant because they had

gone to school together. The victim did not have anything in his hands, but defendant held a

gun in the hand of his extended arm. Natasha heard another gunshot and saw the victim fall

to the ground. Defendant jumped over him and fired another gunshot toward the ground

where the victim had fallen. Natasha heard Kathleen speak and then saw defendant fire a

gunshot into the air. Natasha heard the gunshot hit a light pole near defendant. Defendant

then ran away through a gangway.

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¶ 13 Mayblelene testified that she was in her home just before 10:38 p.m. when she heard

three gunshots. She heard another gunshot that sounded like it hit something iron. Abdullah

ran past her to the door to see what had happened. Then Abdullah ran back past Mayblelene.

Mayblelene went to the front door where Natasha was already standing and looking outside.

Mayblelene saw defendant, whom she had seen several times per week in the neighborhood,

run toward her house and then through a gangway with a gun in his hand. She did not see

anyone else on the street with a gun and did not see anyone else run from the scene.

Mayblelene had a phone in her hand and telephoned 911.

¶ 14 Detective Donald Hill and Detective John Otto arrived at the scene around 11:30 p.m.

and learned that Natasha and Kathleen had witnessed the shooting. Detective Hill spoke to

both women separately and each stated that the shooter’s nickname was “Nu-Nu.” Natasha

and Kathleen were immediately transported to the police station in separate vehicles and

were kept separate while they were at the police station.

¶ 15 Meanwhile, Mayblelene’s niece Dominique Coleman had arrived at Mayblelene’s house.

Mayblelene told her that “Nu-Nu,” with whom Dominique had gone to school, had shot the

victim. Dominique told Officer Kevin Fry and Officer Robert Lobianco that “Nu-Nu” had

shot the victim. Dominique also showed the officers a photo of “Nu-Nu” on her cell phone.

The police obtained defendant’s photograph from a police department computer, and

Dominique identified that photograph as the person Mayblelene had said was the shooter.

Officer Fry relayed information about the identification to Detective Hill and Detective Otto.

¶ 16 Detective William Meister and Detective Patrick Ford interviewed Kathleen and Natasha

at the police station. Natasha was visibly upset, stated that the shooter was a person she knew

as “Nu-Nu,” and gave a physical description of him. Kathleen, also visibly upset, similarly

identified the shooter as someone she knew as “Nu-Nu.” When Detective Hill informed

Detective Meister that defendant had been identified as “Nu-Nu,” Detective Meister created a

photo array that included a photo of defendant. Natasha and Kathleen separately viewed the

photo array and identified the photo of defendant as “Nu-Nu,” the man who shot the victim.

¶ 17 Detective Hill testified that he spoke with Abdullah at the scene of the shooting and

learned about the verbal altercation that had occurred at the nearby store. Detective Hill and

Detective Otto went to the store in the early morning hours of March 7, 2012. They had a

photo of defendant, who had been identified as the shooter. Detective Hill spoke with the

store manager and viewed the store’s surveillance footage of the time frame shortly before

the 10:38 p.m. shooting. Detective Hill viewed footage of the parking lot area outside the

store and the area directly outside the store entrance. In the parking lot footage, Detective

Hill saw defendant and the victim talk to each other. The victim wore a black and gray

jacket, and defendant wore a black jacket over a purple hoodie. In the store entrance footage,

Detective Hill saw defendant exit the store. Defendant’s face, jacket, and hoodie were

visible. Detective Hill identified the State’s CD exhibit of the surveillance footage that a

police evidence technician had downloaded from the store’s surveillance equipment. The CD

was published to the jury without objection.

¶ 18 The jury viewed the parking lot footage first. The date and time displayed in a corner of

that footage indicated it was recorded on March 6, 2012, from about 10:17 p.m. to 10:21 p.m.

Several people appeared in the parking lot area, and Detective Hill identified the victim and

defendant when they initially appeared on the right side of the screen and described what

they wore. Detective Hill continued to narrate that the victim and defendant initially walked

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with and talked to only each other, but they were quickly joined by other people. The victim

and defendant walked toward the right side of the screen and out of the view of the camera

but eventually returned within the camera’s view, still engaged in conversation. They walked

across the parking lot, and the victim held his hands in an open manner. Then the victim and

defendant moved away from each other, and the victim stood among a group of people.

Defendant walked toward the group that included the victim but then walked toward the right

side of screen and out of the camera’s view. Eventually, the victim walked toward the left

side of the screen and off camera. Defendant reemerged on the right side of screen and

walked off camera in the direction taken by the victim. Then defendant reappeared on the left

side of the screen and walked back toward the store entrance.

¶ 19 The jury viewed the footage of the store entrance recorded at about 10:13 p.m. Detective

Hill identified defendant as he exited the store wearing a black hat and a black jacket over a

purple hoodie. Detective Hill also testified that Abdullah appeared in the parking lot footage

but Natasha did not. Furthermore, the recording did not show any fight between either the

victim and defendant or Abdullah and the woman who allegedly spat on her.

¶ 20 On March 21, 2012, Officer Ryan Sheahan observed defendant exit a residence. Sheahan

exited his car and walked up to defendant, who fled. Sheahan alerted other officers that he

was in pursuit. The officers found defendant under the back steps of a residence about

one-half of a mile from where Officer Sheahan had first encountered him. Defendant was

placed in custody.

¶ 21 Eyewitnesses Abdullah, Kathleen, Natasha, and Mayblelene separately viewed a physical

lineup. Abdullah, Kathleen, and Natasha identified defendant in the lineup as the person who

shot the victim. Mayblelene identified defendant as the person she saw running from the

scene with a gun.

¶ 22 Police recovered from the crime scene one fired bullet in the street, a second fired bullet

on the sidewalk, and two fired cartridge casings. The bullets were .40/10 millimeter bullets,

and both were fired from the same firearm. The fired cartridge casings were .40 caliber and

both were fired from the same firearm. The police firearms identification expert could not

determine if the fired bullets and fired cartridge casings were from the same gun. The police

also recovered a purple tag that read “Akoo” in gold writing, a watch and the back to the

watch, and a black clothes button.

¶ 23 Forensic DNA expert Ruben Ramos conducted polymerase chain reaction/short tandem

repeat analysis of the DNA on a buccal swab collected from defendant, a blood standard

from the victim, and the swabs collected from the watch, watch back, and button. Material

collected from the button was insufficient to test. The DNA collected from the watch and

watch back was a low-level sample. It was a mixture of human DNA profiles that were

incomplete but could be separated into one minor and one major profile.

¶ 24 Ramos stated that the victim could be excluded as a contributor to both the minor and

major profiles. Concerning the major profile, Ramos was able to attempt to identify only 9 of

the 13 loci on the DNA molecule that form the basis for comparison and obtained results at

only 6 loci plus the location that indicates the sex of the person. He explained that because he

could compare only the 6 loci test results from the major profile to defendant’s profile,

Ramos could not state whether defendant’s DNA matched the major profile found on the

watch and watch back. Ramos could state only whether defendant could be excluded as a

contributor to the major profile. Ramos determined that defendant could not be excluded as a

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contributor to the major profile, which meant defendant was included as a contributor.

Ramos calculated a frequency estimating the chance a random person would be included as a

contributor to that major profile as 1 in 670,000 blacks, 1 in 580,000 whites, or 1 in 6.1

million Hispanics.

¶ 25 After the state rested, the trial court denied defendant’s motion for a directed finding.

Defendant then rested, and the jury heard closing arguments. The jury found defendant guilty

of first degree murder, with a finding that he personally discharged a firearm that

proximately caused the victim’s death. The trial court denied defendant’s motion for a new

trial and sentenced him to 45 years in prison for the murder and an additional 45-year term

for the firearm enhancement. Thereafter, the trial court denied defendant’s motion to

reconsider the sentence.

¶ 26 II. ANALYSIS

¶ 27 On appeal, defendant argues (1) the trial court committed reversible error during voir dire

by failing to inquire when a venire member who became a juror indicated a lack of

understanding concerning a principle about the burden of proof; (2) the trial court erred when

it admitted the store surveillance recording without an adequate foundation and permitted

Detective Hill to testify about the content of the recording and identify the victim and

defendant, and defense counsel was ineffective by failing to object to this evidence; (3) the

trial court erred by admitting irrelevant and highly prejudicial DNA evidence, the State’s

closing argument concerning that evidence was misleading, and defense counsel was

ineffective for failing to object to the DNA evidence; (4) the statutory firearm sentencing

enhancement is unconstitutionally vague and the trial court imposed an arbitrary and

excessive sentence; and (5) the mittimus should be corrected to reflect one conviction for

murder and a sentence of 90 years’ imprisonment.

¶ 28 A. Voir Dire

¶ 29 Defendant contends the trial court committed reversible error by failing to conduct an

adequate voir dire of venire member L.L., who indicated she did not understand a

fundamental principle of the right to a fair trial before an impartial jury but nevertheless was

deemed qualified to serve on the jury. Specifically, L.L. indicated during voir dire that she

did not understand the principle that the presumption of innocence stays with the defendant

throughout the trial and is not overcome unless the State proves the charges against the

defendant beyond a reasonable doubt. Defendant argues the judge failed to conduct any

further inquiry concerning L.L.’s understanding and acceptance of this fundamental

principle. Defendant also argues the judge conducted “a wholly inadequate voir dire of L.L.”

and then erroneously concluded that L.L. merely meant she had trouble understanding

English and her answers to general questions, which the judge had posed to all the venire

members, demonstrated that L.L. did not struggle to comprehend English. Defendant asserts

that the trial judge’s failure to inquire into L.L.’s understanding of the fundamental principle

and failure to adequately inquire into L.L.’s comprehension of English deprived defendant of

his right to a fair trial before an impartial jury.

¶ 30 Defendant has forfeited review of this issue by failing to both timely object and include

this issue in his motion for a new trial. People v. Denson, 2014 IL 116231, ¶ 11. However, he

asks us to review this issue under the plain error doctrine, arguing that the error was so

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serious that it affected the fairness of his trial and challenged the integrity of the judicial

process.

¶ 31 We may review claims of error under the plain error rule, which is a narrow and limited

exception to forfeiture. People v. Hiller, 237 Ill. 2d 539, 545 (2010); Ill. S. Ct. R. 615(a). To

obtain relief under this rule, a defendant must show that a clear or obvious error occurred. Id.

The defendant bears the burden of persuading the court that either (1) the evidence at the

hearing was so closely balanced (regardless of the seriousness of the error) as to severely

threaten to tip the scales of justice against the defendant or (2) the error was so serious

(regardless of the closeness of the evidence) as to deny the defendant a fair trial and

challenge the integrity of the judicial process. People v. Herron, 215 Ill. 2d 167, 187 (2005).

In order to determine whether the plain error doctrine should be applied, we must first

determine whether any error occurred. Id.

¶ 32 In People v. Rinehart, 2012 IL 111719, our supreme court discussed the right to an

impartial jury encompassed within the constitutional right to a jury trial.

“The trial court is primarily responsible for initiating and conducting voir dire ***.

Because there is no precise test for determining which questions will filter out partial

jurors [citation], the manner and scope of the examination rests within the discretion

of the trial court, and we review such decisions for an abuse of discretion. An abuse

of discretion occurs when the conduct of the trial court thwarts the purpose of voir

dire examination—namely, the selection of a jury free from bias or prejudice.

[Citation.]; People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993) (‘[t]he purpose of voir

dire is to ascertain sufficient information about prospective jurors’ beliefs and

opinions so as to allow removal of those members of the venire whose minds are so

closed by bias and prejudice that they cannot apply the law as instructed in

accordance with their oath’); see also People v. Clark, 278 Ill. App. 3d 996, 1003

(1996) (‘The purpose of voir dire is to enable the trial court to select an impartial jury

and to ensure that the attorneys have an informed and intelligent basis on which to

exercise peremptory challenges.’). Stated differently, a trial court does not abuse its

discretion during voir dire if the questions create ‘a reasonable assurance that any

prejudice or bias would be discovered.’ People v. Dow, 240 Ill. App. 3d 392, 397

(1992).” Rinehart, 2012 IL 111719, ¶ 16.

¶ 33 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires the trial court to ask

prospective jurors if they understand and accept that (1) a defendant is presumed innocent,

(2) the State must prove the defendant guilty beyond a reasonable doubt before he can be

convicted, (3) the defendant is not required to offer any evidence in his own behalf, and (4) if

a defendant does not testify on his own behalf, it cannot be held against him. “The court’s

method of inquiry shall provide each juror an opportunity to respond to specific questions

concerning the principles set out in [Rule 431(b)].” Id. The trial court’s questioning of the

venire concerning these four principles, which are commonly referred to as the Zehr

principles, is intended to ensure compliance with People v. Zehr, 103 Ill. 2d 472, 477 (1984),

which sought to end the practice where the judge made a broad statement of the applicable

law followed by a general question concerning the juror’s willingness to follow the law. Ill.

S. Ct. R. 431, Committee Comments.

¶ 34 According to the record, the trial court questioned the venire concerning the first Zehr

principle and no one raised a hand to indicate a lack of understanding or lack of agreement

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with the first principle. When the court asked if anyone in the venire did not understand and

accept the second principle that the presumption of innocence stays with the defendant

throughout the trial and is not overcome unless, from all the evidence, the juror believes the

State proved defendant’s guilt beyond a reasonable doubt, juror L.L. raised her hand. The

following occurred:

“THE COURT: Ms. [L.L.]?

[L.L.]: I don’t understand.

THE COURT: I’ll get to that in a second. Other than Ms. [L.L.], is there anyone

that does not understand and accept that principle? Please raise your hand at this time.

The second [Zehr] question has been asked; no one has raised their hand.”

¶ 35 The trial court continued to question the venire concerning the third and fourth Zehr

principles and no one raised a hand to indicate a lack of understanding or acceptance. Then

the judge questioned five venire members before questioning L.L.

¶ 36 The judge asked L.L. a series of questions about her age, employment, education,

residence, marital status, and whether she, a family member or close friend had been a victim

of a crime, involved in a criminal case, or a party to a lawsuit. The judge asked L.L. if she

knew any lawyers, judges, or police officers; whether she ever visited anyone who was

detained or incarcerated; and how she generally received her news information. L.L.’s

responses were in English, brief, and generally one-word answers. Furthermore, L.L.

responded affirmatively when the judge asked whether she would weigh the credibility of

witness testimony without regard to the witness’s occupation and would listen to all the

evidence and apply the law as instructed by the court in a fair and impartial manner.

¶ 37 Thereafter, the judge questioned eight more venire members. In chambers, the judge

granted the State’s request to strike a venire member for cause. Then the judge stated:

“One preliminary matter. Ms. [L.L.] While beginning questioning she raised her

hand indicating—she stated that she had trouble understanding English. The Court

placed the same questions to her as every other juror, she answered appropriately. She

did not indicate at any time struggling with anything, so the Court will not strike her

for cause.”

Defense counsel did not voice any concern or disagreement with the judge’s characterization

of why L.L. stated “I don’t understand” and did not suggest that the court follow up with any

questions to L.L. about her understanding of the Zehr principles or ask that she be excused

for cause. Defense counsel accepted L.L. as a juror despite having the opportunity to use a

peremptory challenge to strike her.

¶ 38 The State argues the trial court complied with Rule 431(b) by asking the venire members

if they understood and accepted the four Zehr principles, and the trial court had no reason to

question L.L. further because the record supports a conclusion that when L.L. said, “I don’t

understand,” she was referring to or claiming some difficulty in understanding English.

¶ 39 We find that an error occurred because the trial court failed to comply with Rule 431(b).

However, we find no abuse of discretion in the trial court’s conclusion that the voir dire of

L.L. demonstrated she did not struggle to understand English and thus was competent to

serve as a juror. After L.L. indicated a failure to understand when questioned about the

second Zehr principle, the trial judge said she “would get to that in a second,” but never

asked L.L. any further questions about her understanding of the question or the second Zehr

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principle. Furthermore, the trial judge may have created confusion when she exempted L.L.

from the question about the second Zehr principle. Specifically, the judge continued

questioning the venire by stating, “Other than Ms. [L.L.], is there anyone that does not

understand and accept [the second Zehr] principle?” It would have been possible for L.L. to

construe her exemption from answering that question as also applying to the questions

concerning the third and fourth Zehr principles.

¶ 40 Despite the trial court’s error in failing to ascertain whether L.L. understood and agreed

with the second Zehr principle and possibly the third and fourth Zehr principles, we disagree

with defendant’s assertion that the trial court’s voir dire of L.L. was “wholly inadequate.”

L.L.’s answers to the judge’s questions were appropriate, albeit brief, and demonstrated

L.L.’s comprehension of the English language. L.L. even asked for clarification when she did

not understand the judge’s question concerning the source of L.L.’s news information.

Further, the judge’s questions concerning any involvement by L.L. or her family in litigation,

or whether she knew any lawyers, judges, or police officers created a reasonable assurance

that any prejudice or bias of L.L. would have been discovered. In addition, L.L. responded

that she would weigh witness credibility equally regardless of the witness’s occupation, listen

to all the evidence, and apply the law as instructed by the court and in a fair and impartial

manner. We find no abuse of discretion concerning the trial judge’s conclusion that the voir

dire of L.L. demonstrated she did not struggle with English comprehension.

¶ 41 Defendant, who has raised only the second prong of plain error, fails to cite relevant

authority to support his assertion that L.L.’s “I don’t understand” statement meant she

admitted a “lack of understanding of one of the essential qualifications of a juror” and thus

was unqualified to serve as a juror in this case. We conclude that the trial court’s error in

failing to comply with Rule 431(b) concerning the questioning of L.L. was not so serious as

to deny defendant a fair trial. In the absence of any evidence of juror L.L.’s bias offered by

defendant, who carries the burden of proving plain error, we will not presume that L.L. was

biased against him. People v. Thompson, 238 Ill. 2d 598, 614-15 (2010) (noting that violation

of Rule 431(b) does not implicate a fundamental right or constitutional protection but

involves only the failure to comply with a court rule). As discussed above, the trial court’s

voir dire of L.L. created a reasonable assurance that any bias or prejudice held by L.L. would

have been discovered. Furthermore, L.L.’s “I don’t understand” statement indicated that she

did not understand the question posed concerning the second Zehr principle and was not the

equivalent of a rejection of the second Zehr principle itself. Accordingly, we reject

defendant’s attempt to invoke the second prong of plain error.

¶ 42 The special concurrence misconstrues the analysis of the majority and the issue raised by

defendant concerning the trial court’s voir dire of L.L. The special concurrence erroneously

states the trial court concluded L.L.’s voir dire “demonstrated that she did not understand

English.” Infra ¶ 91. Also, the special concurrence erroneously contends defendant asserts

that the trial court failed to comply with Rule 431(b) by failing to inquire into L.L.’s

understanding and agreement with the second Zehr principle. Defendant, however,

repeatedly contested such a characterization of his argument on this issue in both his initial

and reply briefs before this court.

¶ 43 Specifically, defendant expressly argued that the abuse of discretion standard of review

applied to his issue of “[w]hether the trial judge properly conducted voir dire in order to

‘filter out’ unqualified jurors.” Furthermore, in his reply brief, defendant criticized the State

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for attempting to analogize his argument to cases that considered whether the trial court’s

failure to comply with Rule 431(b) was reversible error. Defendant emphasized that “[i]t is

not the trial court’s recitation of the Zehr principles that is at issue; it is whether L.L.’s

admitted lack of understanding of one of the essential qualifications of a juror, and the trial

court’s failure to properly question her about that lack of understanding, resulted in the

seating of an unqualified juror in [defendant’s] case.” Thereafter, defendant argued the State

is “wrongly recasting [defendant’s] argument as one based on whether the trial court’s

recitation of the Zehr principles complied with Rule 431(b),” and again insisted that “the

issue is not whether the trial court recited the Zehr principles correctly, but whether the

court’s failure to properly investigate L.L.’s lack of understanding of an essential juror

qualification, and the seating of an unqualified juror, constitutes reversible error.” Defendant

clearly is aware that a trial court’s failure to comply with Rule 431(b) does not constitute

second prong plain error and, thus, expends much effort to dispel any notion that he is raising

such a claim.

¶ 44 Defendant’s issue that the voir dire of juror L.L. was “wholly inadequate” is intertwined

with the issue of whether the trial court complied with Rule 431(b) and is raised in the

context of second-prong plain error review. Accordingly, the majority reviewed de novo the

trial court’s compliance with Rule 431(b) and reviewed the trial court’s voir dire of L.L. for

an abuse of discretion.

¶ 45 Alternatively, defendant argues he was denied effective assistance of counsel because

counsel failed to preserve this error for review. Defendant argues counsel should have either

requested that the trial judge examine L.L. based on her “I don’t understand” statement or

otherwise objected to her being seated on the jury.

¶ 46 In order to prove a claim of ineffective assistance of counsel, a defendant must satisfy

both prongs of the test discussed in Strickland v. Washington, 466 U.S. 668, 687 (1984),

which requires a showing that counsel’s performance was deficient and that the deficient

performance prejudiced the defendant. People v. White, 2011 IL 109689, ¶ 132. To satisfy the

first prong, the defendant must show that counsel’s representation fell below an objective

standard of reasonableness. Strickland, 466 U.S. at 688. The second prong requires the

defendant to “show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

Failure to establish either counsel’s deficient performance or prejudice resulting to defendant

precludes a finding of ineffective assistance of counsel. Id. at 697. If a defendant cannot

establish prejudice, the reviewing court need not determine whether counsel’s performance

fell below the objective standard of reasonableness. Id.

¶ 47 In reviewing a claim of ineffective assistance of counsel, this court reviews counsel’s

actions under the totality of the circumstances of the individual case. People v. Shatner, 174

Ill. 2d 133, 147 (1996). Judicial scrutiny of counsel’s performance is highly deferential, and

counsel’s trial strategy is given a strong presumption of reasonable professional assistance.

Strickland, 466 U.S. at 689. To establish deficient performance, defendant must identify

counsel’s acts or omissions that allegedly are not the result of reasonable professional

judgment and overcome the strong presumption that counsel’s action or inaction was the

result of sound trial strategy. People v. Perry, 224 Ill. 2d 312, 341-42 (2007); Strickland, 466

U.S. at 690. “A fair assessment of attorney performance requires that every effort be made to

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eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689. Defendant must show that counsel’s errors were so serious and

his performance was so deficient that he did not function as the counsel guaranteed by the

sixth amendment. Perry, 224 Ill. 2d at 342.

¶ 48 The decision to exercise an available peremptory challenge is a strategic one and

generally not subject to scrutiny under Strickland. People v. Metcalfe, 202 Ill. 2d 544, 561-62

(2002). According to the record, defense counsel challenged potential jurors for cause and

exercised peremptory challenges. Defendant fails to show that counsel’s decision to accept

L.L. was not tactical and a matter of jury selection strategy. It is possible counsel considered

that L.L.’s voir dire responses indicated she would not favor the State in weighing the

credibility of its many police officer and forensic evidence witnesses. Furthermore, we have

rejected defendant’s contentions that the voir dire of L.L. was “wholly inadequate” and she

was not qualified to serve as a juror. Thus, counsel’s decision not to challenge L.L. for cause

was not objectively unreasonable. In addition, the evidence was more than sufficient to prove

defendant guilty beyond a reasonable doubt, and there was no evidence that L.L. rejected the

principle that the State does not overcome defendant’s presumption of innocence unless the

State proves his guilt beyond a reasonable doubt. We find no merit in defendant’s claim of

ineffective assistance of counsel.

¶ 49 B. Surveillance Recording

¶ 50 Defendant argues the State failed to lay an adequate foundation for introduction of the

surveillance recording of the store parking lot where defendant and the victim exchanged

words prior to the shooting on 79th Street. Further, defendant contends it was improper to

allow Detective Hill to recount or narrate the contents of the recording as it was played for

the jury because it constituted inadmissible lay witness identification testimony. Defendant,

however, did not object to the introduction of the recording or Detective Hill’s testimony

identifying defendant and the victim in that recording and describing their movements.

Defendant concedes he has forfeited review of these issues on appeal but asks us to review

these claims under the second prong of the plain error doctrine because the errors were so

serious as to deprive him of a fair trial. Alternatively, defendant argues trial counsel was

ineffective by failing to timely object and preserve these claims for review.

¶ 51 In order to determine whether the plain error doctrine should be applied, we must first

determine whether any error occurred. People v. Herron, 215 Ill. 2d 167, 187 (2005). We

review the trial court’s decisions to admit the surveillance recording and Detective Hill’s

testimony concerning the recording for an abuse of discretion, which occurs when the trial

court’s ruling is fanciful, unreasonable, or when no reasonable person would adopt the trial

court’s view. People v. Taylor, 2011 IL 110067, ¶ 27. The forfeiture rule is “particularly

appropriate” when a defendant claims the State failed to lay a proper foundation. People v.

Woods, 214 Ill. 2d 455, 470 (2005). In that circumstance, “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.” Id.; People v. Johnson, 2016 IL App (4th) 150004,

¶¶ 70-71. Had defendant objected, the State would have had the opportunity to elicit

additional foundational evidence or testimony.

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¶ 52 First, defendant argues the State failed to lay an adequate foundation for admission of the

surveillance recording because the State failed to present any evidence that the store’s

surveillance device was capable of recording and generally reliable, that the operator of the

device was competent, and that the device was operating properly.

¶ 53 Automatic surveillance recordings present the prototypical situation for application of the

silent witness theory. Taylor, 2011 IL 110067, ¶ 32. This theory allows the recordings to be

introduced as substantive evidence as long as a proper foundation is laid; “a witness need not

testify to the accuracy of the image depicted in the [recording] if the accuracy of the process

that produced the evidence is established with an adequate foundation.” Id. In determining

whether an adequate foundation has been laid for a surveillance recording, courts consider

(1) the device’s capability for recording and general reliability; (2) competency of the

operator; (3) proper operation of the device; (4) showing the manner in which the recording

was preserved (chain of custody); (5) identification of the persons, locale, or objects

depicted; and (6) explanation of any copying or duplication process. Id. ¶ 35. This list of

factors is not exclusive, and some factors may not be relevant depending on the facts of the

case. Id. “The dispositive issue in every case is the accuracy and reliability of the process that

produced the recording.” Id.

¶ 54 We find no error occurred regarding the admission of the surveillance recording.

Detective Hill testified that he learned from eyewitnesses at the scene of the shooting on 79th

Street about the encounter between the victim and defendant at the nearby store. Detective

Hill promptly went to that store with a photograph of defendant to investigate whether any

automatic surveillance devices recorded images of defendant and the victim. Detective Hill

spoke with the store manager, who operated the equipment and showed Detective Hill

surveillance footage of the front door and outside areas of the store taken on March 6, from

about 10:12 p.m. until 10:30 p.m. After Detective Hill viewed the footage, he called for a

police evidence technician, who came to the store and downloaded the footage viewed by

Detective Hill onto a CD. At the trial, Detective Hill testified that the recording played for

the jury was the same footage Detective Hill had viewed at the store. Furthermore, the parties

stipulated that the CD contained recorded footage that truly and accurately depicted the scene

on March 6, 2012, from approximately 10:12 p.m. to 10:30 p.m.; there had been no

tampering, editing, or deletion of the March 6 recorded footage; and a proper chain of

custody was maintained at all times.

¶ 55 The evidence showed that Detective Hill promptly sought the surveillance footage after

the shooting, the store manager retrieved from the store’s surveillance device the recorded

footage for the particular date and time frame requested by Detective Hill, the manager

showed Detective Hill the relevant footage, and the recording was downloaded to preserve

that evidence. Those facts were evidence that the store’s automatic surveillance recording

device was functional, able to record, and generally operating properly and that the store

manager knew how to operate the device. See Taylor, 2011 IL 110067, ¶ 39. Based on those

facts and the parties’ stipulation concerning the surveillance recording, the State provided

sufficient proof of the reliability of the process that produced the recording and thus laid a

sufficient foundation for its admission. Accordingly, we reject defendant’s claims of second

prong plain error and ineffective assistance of counsel concerning the admissibility of the

surveillance recording.

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¶ 56 Next, defendant argues that Detective Hill’s testimony regarding the contents of the

surveillance recording was inadmissible lay opinion identification testimony. Specifically,

defendant argues nothing in the record suggested Detective Hill had any familiarity with

defendant before or after the shooting, so there was no basis to conclude Detective Hill was

more likely to correctly identify defendant from the surveillance recording than the jury.

Defendant contends Detective Hill’s narration of the surveillance recording was not helpful

to either a clear understanding of his testimony or a determination of a fact in issue.

Defendant states that “the trial court did not engage in any precautionary procedures to

screen Detective Hill’s testimony before it was heard by the jury,” and thus a member of the

police improperly vouched for the State’s case by identifying defendant as being near the

scene of the shooting and interacting with the victim. Defendant contends this error likely

affected the way the jury viewed the recording and evaluated the eyewitnesses’ credibility

and, thus, denied him a fair trial.

¶ 57 The State responds that Detective Hill’s identification testimony was helpful to the jury

and thus admissible because defendant and the victim appeared in the recording briefly and

they were dressed in manner similar to numerous other men in the recording. Furthermore,

they were moving around, the recording was “somewhat grainy,” and the colors of people’s

clothing were “extremely muted.” The State contends Detective Hill was able to take his time

viewing the store surveillance footage and was able to identify the exact time frame in which

defendant and the victim were in that location and the directions they took after their

encounter. The State asserts Detective Hill’s prior viewings of the recording enabled him to

identify defendant and the victim in the recording in a more efficient manner than the jury

would have been able to do. The State contends it would have been an extremely inefficient

use of the jury’s and the court’s time to view the recording without Detective Hill’s helpful

identification testimony.

¶ 58 A lay witness may only testify to events of which he has personal knowledge. Ill. R.

Evid. 602 (eff. Jan. 1, 2011). Such testimony must be “(a) rationally based on the perception

of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue, and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). Further,

Illinois Rule of Evidence 704 (eff. Jan. 1, 2011) provides, “[t]estimony in the form of an

opinion or inference otherwise admissible is not objectionable because it embraces an

ultimate issue to be decided by the trier of fact.”

¶ 59 Lay witness identification testimony is admissible if “(a) the testimony was rationally

based on the perception of the witness and (b) the testimony is helpful to a clear

understanding of the witness’s testimony or a determination of a fact in issue.” People v.

Thompson, 2016 IL 118667, ¶ 50. Such “testimony is helpful where there is some basis for

concluding the witness is more likely to correctly identify the defendant from the

surveillance recording than the jury. A showing of sustained contact, intimate familiarity, or

special knowledge of the defendant is not required. Rather, the witness must only have had

contact with the defendant that the jury would not possess to achieve a level of familiarity

that renders the opinion helpful.” Id.

¶ 60 To determine whether the testimony is helpful, courts view the totality of the

circumstances and consider “the witness’s general familiarity with the defendant; the

witnesses’ familiarity with the defendant at the time the recording was made or where the

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witness observed the defendant dressed in a manner similar to the individual depicted in the

recording; whether the defendant was disguised in the recording or changed his/her

appearance between the time of the recording and trial; and the clarity of the recording and

extent to which the individual is depicted. However, the absence of any particular factor does

not render the testimony inadmissible.” Id. ¶ 51. “[T]he extent of a witness’s opportunity to

observe the defendant goes to the weight of the testimony, not its admissibility.” Id. ¶ 53.

However, testimony admissible under the foregoing principles “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice.” (Internal

quotation marks omitted.) Id. ¶ 54.

¶ 61 Courts considering admitting the identification testimony of law enforcement officers

“should afford the defendant an opportunity to examine the officer outside the presence of

the jury” and “properly instruct the jury, before the testimony and in the final charge to the

jury, that it need not give any weight at all to such testimony and also that the jury is not to

draw any adverse inference from the fact the witness is a law enforcement officer if that fact

is disclosed.” Id. ¶ 59. These precautionary procedures will safeguard the defendant’s right to

cross-examine the officer concerning his familiarity with the defendant and any bias or

prejudice without revealing to the jury the defendant’s criminal record. Id. ¶¶ 57-59.

¶ 62 Here, although Detective Hill was not present at the store when the victim and Abdullah

encountered defendant and other people, Detective Hill’s testimony included narrating

portions of the recording in addition to identification testimony. Putting aside for the moment

Detective Hill’s identification testimony, we find that his perceptions did not need to be

based on the live event at the store because he was not providing an eyewitness account;

rather, his testimony was relevant to the scenes depicted in the recording. Consequently, he

needed to have perceived only the recording, and this testimony merely laid an evidentiary

foundation for admission of the surveillance recording. See id. ¶¶ 8, 61 (law enforcement

officer’s testimony describing the actions of “the subject” in the surveillance recording did

not identify the defendant as the individual depicted in the recording and thus was not lay

opinion identification testimony).

¶ 63 Detective Hill’s testimony concerning the interactions and movements of particular

subjects shown in the parking lot footage was helpful to the jury due to a certain lack of

clarity of the recording. Specifically, Detective Hill’s testimony helped the jury focus on the

relevant action because numerous people entered and exited the parking lot area, their faces

were too distant from the camera to be discernible, their outdoor winter clothing somewhat

concealed their identities, and the color of their clothing was muted. Compare United States

v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993) (law officer’s testimony identifying the

defendant as the individual pictured in the bank surveillance photographs was not helpful to

the jury because the officer had never seen the defendant in person and was familiar with his

appearance only through other photographs and witnesses’ descriptions), with United States

v. Begay, 42 F.3d 486, 502 (9th Cir. 1994) (law officer’s testimony narrating portions of a

video of a protest involving about 200 demonstrators and identifying the defendants’

movements helped the jury evaluate the recording where an array of events occurred

simultaneously and the officer spent over 100 hours viewing the recording).

¶ 64 The record, however, does not indicate that Detective Hill had any familiarity with

defendant beyond the eyewitness descriptions of what the shooter wore, eyewitness

statements that defendant was the shooter, and a photograph of defendant from police

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computer files. Nothing in the record indicates how long Detective Hill reviewed the

recording in order to discern defendant. The record also fails to show that Detective Hill had

any familiarity with the victim. Consequently, we find the record does not demonstrate a

basis that might lead one to conclude Detective Hill was more likely to correctly identify

defendant and the victim in the recording than the jury. Furthermore, Detective Hill provided

his identification testimony without the trial court first engaging in precautionary procedures

to safeguard defendant’s right to confrontation. Thompson, 2016 IL 118667, ¶¶ 62, 65 (the

trial court erred in admitting the identification testimony of law enforcement officers without

first engaging in precautionary measures). Thus, the admission of Detective Hill’s

identification testimony was error.

¶ 65 Nevertheless, we conclude that this error does not constitute plain error. Abdullah,

Kathleen, and Natasha saw defendant chase the victim on 79th Street and shoot him with the

gun defendant held in the hand of his extended arm, and Mayblelene heard gunshots and saw

defendant run toward her house and through a gangway holding a gun in his hand. All four

witnesses testified that they were familiar with defendant prior to the shooting. Detective

Hill’s identification testimony merely lent some support to Abdullah’s testimony about the

encounter between defendant and the victim at the store near the scene of the shooting

approximately 20 minutes before the shooting occurred. Moreover, Detective Hill’s

identification testimony went only to the identification of defendant at the nearby store; it did

not extend to the crime itself, which was outside the scope of the surveillance recording. Any

prejudice from the erroneous admission of Detective Hill’s identification testimony was not

so severe as to have denied defendant a fair trial.

¶ 66 Alternatively, defendant argues he was denied effective assistance of counsel because

counsel failed to preserve this error for review. As discussed in supra ¶¶ 46-47, in order to

establish a claim of ineffective assistance of counsel, defendant must show that counsel’s

failure to object to the admission of Detective Hill’s identification testimony was objectively

unreasonable and resulted in prejudice to defendant. The record indicates the admission of

Detective Hill’s identification testimony from the surveillance recording supported the

defense strategy to attack the eyewitnesses’ testimony because the recording did not show a

fight between the victim and defendant, or between Abdullah and the woman who allegedly

spat on her, and the recording did not show Natasha at the scene of the store. Furthermore,

defendant cannot establish prejudice resulting from counsel’s decision not to challenge

Detective Hill’s identification testimony because the State simply could have admitted the

store parking lot identification testimony through Abdullah, who observed the parking lot

encounter between defendant and the victim and is shown in the surveillance recording.

¶ 67 We conclude defendant fails to demonstrate a claim of ineffective assistance of counsel

concerning Detective Hill’s identification testimony.

¶ 68 C. DNA Evidence

¶ 69 Defendant argues the trial court erred in admitting irrelevant DNA evidence that was

based on an only six-loci analysis of the major DNA profile found on the low-level sample

obtained from the watch and watch back recovered from the scene. Defendant argues the

evidence that his DNA could not be excluded from the major DNA profile was irrelevant

because the six-loci analysis is far less than what is generally accepted in the scientific

community for a match or even a partial match and DNA evidence plays “an outsized role in

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the minds of a jury evaluating a defendant’s case.” Defendant also argues that Ramos’s

statistical analysis was irrelevant and highly prejudicial because his testimony established

that it was more likely that an unrelated white male would be a contributor to the major

profile than a black male such as defendant. Furthermore, defendant contends the State

erroneously argued to the jury that the DNA affirmatively linked defendant to the crime

scene when the prosecutor used an analogy to quantify Ramos’s statistical analysis.

¶ 70 Defendant concedes he forfeited review of this issue and asks this court to review it under

the second prong of the plain error doctrine. Defendant argues the error in this case was

serious because jurors tend to place undue weight on DNA evidence and the prosecutor’s

characterization of the DNA evidence was misleading and improperly implied a match to

defendant even though Ramos’s analysis did not support that argument. Alternatively,

defendant argues trial counsel was ineffective for failing to object to the admission of the

DNA evidence on relevancy grounds or meaningfully challenge the reliability of Ramos’s

testimony and statistical analysis.

¶ 71 In order to determine whether the plain error doctrine should be applied, we must first

determine whether any error occurred. Herron, 215 Ill. 2d at 187. The decision whether

evidence is relevant and admissible is within the trial court’s discretion and will not be

reversed absent a clear abuse of discretion. People v. Morgan, 197 Ill. 2d 404, 456 (2001).

Relevant evidence is “evidence having 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.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence may

be excluded as unduly prejudicial only where “its probative value is substantially outweighed

by the danger of unfair prejudice.” Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 72 DNA expert Ramos explained to the jury that 13 loci on the DNA molecule are used as a

basis of comparison between DNA samples and standards, but samples may be degraded due

to conditions like exposure to the elements and may not yield complete profiles when tested.

Ramos clearly testified that the major profile obtained from the low-level sample found on

the watch and watch back was not a complete profile. He also clearly testified that he could

not state whether defendant’s DNA matched the major profile because Ramos obtained

results at only 6 loci plus the location that indicates the sex of the person. Ramos testified

that based on the only 6-loci analysis, he could determine only that defendant could not be

excluded as a contributor to the major profile, which meant defendant was included in the

group of potential contributors. Ramos calculated the frequency which estimated the chance

a random person would be included as a contributor in that major DNA profile and found that

1 in 670,000 black, 1 in 580,000 white, or 1 in 6.1 million Hispanic unrelated individuals

could not be excluded as having contributed to that DNA profile.

¶ 73 We find no error when the trial court permitted Ramos to testify about the testing he

conducted and his conclusions. There is no Illinois authority to support the proposition that

DNA evidence is excludable as a matter of law based on the evidence being too inconclusive.

People v. Mitchell, 2011 IL App (1st) 083143, ¶ 35. This is true of DNA evidence

conclusions based upon only four or six loci. Id.; People v. Smith, 2012 IL App (1st) 102354,

¶ 75. Furthermore, DNA probability calculations have long been generally accepted and

admissible, and any challenge to their reliability usually goes only to the weight to be given

to the evidence. People v. Pike, 2016 IL App (1st) 122626, ¶ 48.

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¶ 74 The instant case involved a DNA sample containing a mixture interpreted as the DNA of

two people. The DNA Advisory Board has endorsed two methods for calculating statistical

ratios in cases of mixed DNA samples: (1) the combined probability of inclusion (or its

reverse, the combined probability of exclusion) or (2) the likelihood ratio calculation. Id.

¶ 55. Ramos’s testimony giving the probability of inclusion/exclusion regarding the mixture

of DNA profiles on the watch and watch back was relevant where it corroborated the

eyewitnesses’ identifications that defendant shot the victim. See id. ¶ 71. Natasha, Kathleen,

and Abdullah identified defendant as the individual who shot the victim, and Mayblelene

identified defendant as the person she observed run from the scene of the shooting with a gun

in his hand.

¶ 75 Defendant also asserts the State erroneously argued to the jury that the DNA

affirmatively linked defendant to the crime scene when the prosecutor attempted to quantify

Ramos’s statistics with an analogy to the amount of people that could fit in the United Center

and claimed that because only 1 in 670,000 black males could not be excluded as a

contributor of the DNA profile collected from the watch and watch back, it was unlikely that

anyone but defendant could be the shooter.

¶ 76 According to the record, the challenged argument of the prosecutor was as follows:

“The DNA. I want to put this in perspective. This is a chance of one in 670,000.

Not one in fourteen. Not one in ten. One in 670,000. So let’s put this in perspective.

The United Center can fit and hold about 20,000 people. That’s a big building for

basketball games, hockey games, it’s huge. Take the size of the United Center and

multiply that not by one, not by two, but by about 33 sizes of the United Center. Fill

that enormous space with 670,000 male blacks. You have a chance of picking one out

of there that cannot be excluded from having their DNA on the watch. One. And

what’s the chance that that one person is [defendant]? What’s the chance that that one

person is who Natasha and Kathleen say, ‘I saw him shoot [the victim] in cold

blood?’ What’s the chance that one person is the same person who [Abdulla] said had

a confrontation with [the victim]? What’s the chance that one person is the same

person who [Mayblelene] said, ‘I saw him running from the scene right after the shots

with what I believe to be [a] gun in his hand?’ What’s the chance that that DNA came

back that he cannot be excluded? And he had on a purple hoodie and a purple tag was

left right there on the crime scene.

You know [the victim] was out there because that’s where he died. And he

positively can be excluded. He can be excluded. It’s not his DNA on the watch

anywhere. Had he not been there, then no exclusion can happen. Had he [defendant]

not been there, he should have been excluded.”

At this point, the trial court sustained the defense’s objection and instructed the jurors to

disregard any misstatement of facts or law by the attorney and to use their own recollection

of the evidence presented. The prosecutor continued:

“The defendant’s DNA cannot be excluded and [the victim] can. What’s the

chance that it would go with everything the witnesses told you?”

¶ 77 Our review of the record establishes that the State’s argument concerning the DNA

evidence was neither inaccurate nor misleading. Contrary to defendant’s implied argument,

the State did not advance an argument that conflated the evidence concerning the probability

of defendant’s inclusion/exclusion with the probability that defendant was the source of the

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DNA sample. The prosecutor’s United Center analogy did not advance an argument about

the probability that defendant in a crowd of 670,000 black males would be the single source

of the DNA. See id. ¶¶ 61-63 (discussing the prosecutor’s fallacy). The State did not argue

that out of 670,000 black males, one individual would be a match to the DNA sample. The

State simply attempted to give the jury a visual image of what 670,000 people would look

like as they considered the evidence that 1 in 670,000 black males could be included as a

contributor to the profile found on the watch and watch back.

¶ 78 As defendant’s argument has no merit, we need not address the issue of whether his

counsel was ineffective for failing to object to Ramos’s testimony and the prosecutor’s

analogy during closing argument. Furthermore, the record refutes defendant’s assertion that

defense counsel failed to meaningfully challenge the reliability of the DNA evidence and

statistical analysis. Defense counsel’s extensive cross-examination of Ramos and closing

argument emphasized the implications of the 6-loci limitation of the DNA evidence.

¶ 79 D. Sentencing

¶ 80 First, defendant argues that the additional 45-year sentence imposed pursuant to the

statutory firearm sentencing enhancement should be vacated because the statute is

unconstitutionally vague where it provides no objective criteria upon which the trial court

could rely when imposing a sentence and instead encourages an arbitrary and discriminatory

enforcement of the law. This court has reviewed these very same arguments and determined

that the 25 years to natural life sentence enhancement is not unconstitutionally vague. People

v. Sharp, 2015 IL App (1st) 130438; People v. Butler, 2013 IL App (1st) 120923. We

continue to follow Sharp and Butler and hold that the statutory firearm sentencing

enhancement is not unconstitutionally vague.

¶ 81 Next, defendant argues the trial court abused its discretion by imposing an excessive

sentence of 45-years’ imprisonment for murder and an additional consecutive 45-year term

because he personally discharged the firearm that cause the victim’s death. A trial court

maintains broad discretion in determining the appropriate sentence for a particular defendant,

and its decision will not be reversed absent an abuse of discretion. People v. Patterson, 217

Ill. 2d 407, 448 (2005). If the sentence imposed is within the statutory range, it will not be

deemed excessive unless it is greatly at variance with the spirit and purpose of the law or is

manifestly disproportionate to the nature of the offense. People v. Fern, 189 Ill. 2d 48, 54

(1999).

¶ 82 At sentencing, two members of the victim’s family read victim impact statements, and

the State presented certified copies of defendant’s prior convictions for aggravated unlawful

use of a weapon and armed robbery. The prosecutor argued that defendant caused “terror”

and did not support his child, whose mother worked to pay the bills. The prosecutor asserted

that defendant could not be rehabilitated and asked for a life sentence. For the defense,

members of defendant’s family testified that defendant was attending nursing school and had

difficulty with the departure of his father, who had a drug problem and left when defendant

was young. Defendant asked for mercy but maintained his innocence.

¶ 83 The trial judge stated that defendant thought of no one but himself, did not consider the

devastation his actions would inflict on his family and the victim’s family, and had no

justification for his actions. The judge noted that defendant’s criminal history from juvenile

to the adult cases had “gotten progressively worse” from drugs, to gun use, to armed robbery,

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and now murder. When defendant verbally protested, the judge noted that defendant’s actions

in court showed his lack of accountability, responsibility and respectability, his selfish

nature, his lack of acknowledgment of his record, and his continued disregard for humanity.

¶ 84 The record clearly indicates the trial court properly considered the retributive and

rehabilitative factors, seriousness of the offense, likelihood of restoring the defendant to

useful citizenship, as well as mitigating evidence and testimony. The trial court’s 45-year

sentence for murder fell within the 20 to 60 year statutory sentencing range for which

defendant was eligible. 730 ILCS 5/5-4.5-20 (West 2012). Further, the trial court’s

consecutive 45-year sentence based upon defendant personally discharging the firearm that

killed the victim also fell within the 25 years to natural life statutory range for which he was

eligible. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012). We therefore conclude that the trial

court properly imposed a sentence proportionate to the nature of the offense and that the

factors considered did not render this sentence arbitrary.

¶ 85 Finally, defendant contends and the State agrees that the mittimus should be corrected to

reflect a single conviction of murder and a 90-year term of imprisonment. We order the

mittimus corrected to reflect one conviction of knowing and intentional first degree murder

pursuant to section 9-1(a)(1) of the Criminal Code of 2012 (720 ILCS 5/9-1(a)(1) (West

2012)). People v. Cardona, 158 Ill. 2d 403, 411 (1994) (the most serious murder charge is

upheld and sentence is imposed on that count).

¶ 86 III. CONCLUSION

¶ 87 For the foregoing reasons, we affirm the judgment of the trial court and direct the clerk of

the circuit court to correct the mittimus to reflect one conviction of murder and a 90-year

term of imprisonment.

¶ 88 Affirmed; mittimus corrected.

¶ 89 JUSTICE HALL specially concurring.

¶ 90 I agree with the majority’s conclusion that the defendant failed to meet his burden of

showing that the trial court’s noncompliance with Illinois Supreme Court Rule 431(b) (eff.

July 1, 2012) affected the fairness of his trial and challenged the integrity of the judicial

process. However, I write separately because I believe the majority both misapprehended the

relevant issue before our court and the applicable standard of review.

¶ 91 The majority determined that no abuse of discretion resulted from the trial court’s

conclusion that the voir dire of prospective juror L.L. demonstrated that she did not

understand English and thus was competent to serve as a juror. The defendant asserts that he

was denied his due process right to a fair and impartial jury when the trial court failed to

conduct a Rule 431(b) inquiry into juror L.L.’s lack of understanding of the second Zehr

principle. Since defendant’s claim of error concerns the interpretation of a supreme court

rule, the applicable standard of review is de novo, not abuse of discretion. See People v.

Suarez, 224 Ill. 2d 37, 41-42 (2007); People v. Wrencher, 2011 IL App (4th) 080619,

¶¶ 36-37. Moreover, in regard to Rule 431(b), the primary issue on appeal was not whether

prospective juror L.L. understood English or whether the trial court should have inquired into

her understanding of the English language. The primary issue was whether the trial court

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committed plain error under the second prong of plain error review by failing to inquire

further after L.L. indicated she did not understand the second principle of Rule 431(b), that

before a defendant can be convicted of a criminal offense, the prosecution must prove him or

her guilty beyond a reasonable doubt. The prosecution must prove every element of the

offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361 (1970).

¶ 92 The majority does not point to any exchange in the record between L.L. and the trial

court or defense counsel demonstrating that L.L.’s confusion about such a fundamental legal

concept as proving a defendant guilty beyond a reasonable doubt was ever resolved or settled

as required by Rule 431(b). The Rule “requires questioning on whether the potential jurors

both understand and accept each of the enumerated principles.” People v. Thompson, 238 Ill.

2d 598, 607 (2010).

¶ 93 The dissenting opinion in Thompson, authored by Justice Burke and joined by Justice

Freeman, pointed out that the rationale for imposing this duty on trial courts is that only by

asking these questions can any hidden biases that a potential juror might harbor be uncovered

and that in the absence of such questions the defendant would be deprived of “ ‘his right to a

fair and impartial jury.’ ” (Emphasis omitted.) Thompson, 238 Ill. 2d 598, 617 (Burke, J.

dissenting, joined by Freeman, J.) (quoting People v. Zehr, 103 Ill. 2d 472, 477 (1984)). Like

the supreme court in Zehr and the dissenting justices in Thompson, I believe it is vital to the

selection of a fair and impartial jury that a juror who finds that the State has failed to sustain

its burden of proof of guilt beyond a reasonable doubt have no prejudices against returning a

verdict of not guilty. Zehr, 103 Ill. 2d at 477. I also agree that it is equally important that a

juror who finds that the State has sustained its burden of proof have no prejudice against

returning a verdict of guilty. Id. Understanding and acceptance of the second principle in

Rule 431(b) helps ensure that both of these goals are accomplished.

¶ 94 Since the Thompson decision, the supreme court has rejected the conclusion that a failure

to ask questions which are not only mandated by this court but which are “vital to the

selection of a fair and impartial jury” necessarily amounts to plain error. (Internal quotation

marks omitted.) Thompson, 238 Ill. 2d at 619. While I believe Justice Burke’s dissenting

opinion in Thompson states the better rule, I am compelled to follow the majority opinion in

that case.

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