People v. Jones

NOTICE 2023 IL App (4th) 220721-U

This Order was filed under Su-

FILED

NO. 4-22-0721 August 22, 2023

preme Court Rule 23 and is not

Carla Bender

precedent except in the limited 4th District Appellate

circumstances allowed under IN THE APPELLATE COURT

Court, IL

Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

Plaintiff-Appellee, ) Circuit Court of

v. ) Sangamon County

DEMARCO M. JONES, ) No. 17CF1036

Defendant-Appellant. )

) Honorable

) John M. Madonia,

) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Justices Harris and Knecht concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed defendant’s convictions for first degree murder and

attempt (armed robbery) because (1) defense counsel acquiesced to the admission

of the allegedly improper evidence and (2) counsel’s decisions were part of a

sound trial strategy that did not prejudice defendant.

¶2 In October 2017, the State charged defendant, Demarco M. Jones, by indictment

with first degree murder (720 ILCS 5/9-1(a)(2) (West 2016)) and attempt (armed robbery) (id.

§§ 8-4, 18-2(a)(2)). The State alleged that on December 21, 2016, defendant, or one for whom he

was legally accountable, knowingly shot and killed Alaysia Bennett while attempting to commit

an armed robbery.

¶3 In June 2022, a jury convicted defendant on all counts, and the trial court later

sentenced him to 44 years in prison.

¶4 Defendant appeals, arguing that the trial court erred by (1) admitting excessive

other-crimes evidence, which the State then used for an improper purpose; (2) admitting certain

phone records that were not properly certified as self-authenticating business records; and

(3) permitting a detective to offer expert testimony about cell phone location data. Defendant

concedes that he did not raise these issues at trial but argues the errors constituted either plain error

or ineffective assistance of counsel. We disagree and affirm.

¶5 I. BACKGROUND

¶6 A. The Charges

¶7 In October 2017, the State charged defendant by indictment with first degree

murder (id. § 9-1(a)(2)) and attempt (armed robbery) (id. §§ 8-4, 18-2(a)(2)). The State alleged

that just after midnight on December 21, 2016, defendant helped plan and carry out an attempted

armed robbery of a car in an apartment parking lot. When the driver of the car tried to get away

from the robbers, Devante Taylor shot at the car several times, striking and killing Alaysia Bennett.

¶8 B. Relevant Procedural History

¶9 Because resolution of this case depends on matters of trial strategy, we highlight

certain pretrial proceedings that give context for and help explain defense counsel’s tactical

decisions. We also summarize the trial testimony for further factual context.

¶ 10 1. A Brief Summary of the Crime

¶ 11 At defendant’s June 2022 jury trial, witnesses testified to the following. On the

evening of December 20, 2016, defendant was riding around Springfield, Illinois, in a black

minivan, drinking and smoking marijuana with his friends, Roderick Gailes, Jonesy Blackmon,

Devante Taylor, and Shannon Robertson. Around midnight, the group pulled into a parking lot at

Georgetown Apartments with the intention of robbing Delvon Peoples, a marijuana dealer, who

was sitting in a car parked at the apartments. Taylor got out of the minivan with a gun and moved

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toward the car. The car began to back up, and Taylor fired several times at the car. The minivan,

driven by Gailes, began to pull away when Taylor started shooting. However, the minivan stopped

so Taylor could get back in before it drove off. Shannon and Blackmon claimed to be asleep prior

to the shooting as a result of the drugs they had taken.

¶ 12 2. Defendant’s Statements to the Police

¶ 13 In September 2019, the trial court conducted evidentiary hearings on defendant’s

pro se motion to dismiss the indictment and motion to suppress statements. The witnesses at these

hearings, including defendant, testified that in February 2017, defendant informed the police

during video-recorded interviews that he was at the scene of the homicide with Taylor, Gailes, and

Blackmon. Defendant denied being involved in the crime but admitted he had been riding in the

minivan, drinking and smoking. Defendant initially told the police that he fell asleep and did not

wake up until after the shooting. Defendant later told the police that he was awake during the

incident and that Taylor and Gailes were the ones who planned and executed the robbery.

Defendant claimed that after Taylor shot at the car, defendant asked to be dropped off and went

home. The trial court denied defendant’s motions.

¶ 14 3. The State’s Disclosure of Phone Records

¶ 15 In October 2019, the State filed a proof of service of additional discovery described

as “AT&T Certification of Authenticity; Letter from [Springfield Police Department] requesting

records; AT&T Tower Search Records Key—Column Definitions for Tower Search Report.” On

that same day, the State filed a notice of intent to use a certification of regularly conducted activity,

in which the State explained that it intended to use the geolocation data from phone numbers

associated with (1) defendant, (2) Gailes, and (3) Blackmon to show that they were in the area of

the homicide at the time of the offense. The State asserted that the “records custodians from service

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providers Verizon and AT&T have provided certifications laying the foundation necessary to

admit the phone records as records of regularly conducted activity.” The State further asserted that

the certifications complied with Illinois Rule of Evidence 902(11) (eff. Sept. 28, 2018) and copies

of the relevant phone records and certifications had been given to defendant in the ordinary course

of discovery. The proof of service shows that the State sent the discovery and notice directly to

defendant at the county jail because defendant was representing himself at the time.

¶ 16 4. Pretrial Proceedings Relating to the State’s Evidence

¶ 17 In July 2021, the trial court reappointed Sangamon County Public Defender Craig

Reiser to represent defendant. Reiser had previously represented defendant in 2020 before

defendant retained private counsel. However, private counsel withdrew in July 2021. The court

appointed Reiser as defense counsel because (1) he had previously represented defendant in this

case and (2) defendant informed the court that defendant believed he and Reiser communicated

well and could work together.

¶ 18 In December 2021, defense counsel asked for a continuance because the State had

recently produced thousands of pages of cell phone data and phone records obtained by the

Springfield Police Department for certain witnesses, but not for defendant, Gailes, or Shannon.

The State informed the trial court that it agreed with defense counsel and was doing its best to

obtain and disclose the missing phone records. The court granted the continuance and conducted

several hearings on the status of discovery relating to cell phone records over the next two months.

In January 2022, the State represented it had produced all of the requested discovery, including

phone records, to the defense.

¶ 19 That same month, the State filed a “Notice of Intent to Use a Certification of

Regularly Conducted Activity,” which stated the prosecution’s intention to present “[g]eolocation

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data from phone records associated with [defendant’s] phone number” and included a certification

that the State asserted met the requirements of Illinois Rule of Evidence 902(11) (eff. Sept. 28,

2018). (This was essentially the same notice the State had filed in 2019.) Subsequently, defense

counsel indicated his agreement that documentary discovery was completed.

¶ 20 In November 2021, defendant filed a motion in limine to exclude Shannon from

testifying about a different robbery that he heard the group committed after the shooting, when

Shannon was no longer with the group. In late December 2021, the trial court conducted a hearing

on defendant’s motion. The State argued that it intended to present “testimony that the individuals

in the van were generally riding around looking for someone to rob.” The State acknowledged that

Shannon had been dropped off after the murder and learned of the subsequent robbery from

someone else. However, the State maintained that the remaining people in the van who were

present for that later robbery could testify about it based on their personal knowledge. The State

indicated that the evidence was crucial to its theory of the case that defendant was an accomplice

because defendant’s statements to police indicated that he would claim at trial that he witnessed

the shooting but did not participate in its planning or agree to it. The trial court granted defendant’s

motion, concluding that Shannon’s proposed testimony would not be relevant unless it was

necessary to rebut defendant’s testimony.

¶ 21 In March 2022, the State filed a motion to reconsider the trial court’s ruling on

defendant’s motion in limine. In the motion, the State explained that (1) it had received new

statements from Blackmon and Gailes that the remaining members in the minivan did attempt a

robbery after the murder and (2) their statements were corroborated by cell phone location data.

The State also explained that it intended to introduce evidence at trial that (1) Shannon and Taylor

committed a burglary earlier in the day; (2) shortly before the murder, the group waited outside a

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certain individual’s house to rob him when he came home, but the man never came; (3) the group

believed all of the targets of their crimes that day to be drug dealers; and (4) defendant’s cell phone

location data showed that he was in the areas where these other attempted robberies took place.

The State also cited an unpublished decision from the Third District Appellate Court (People v.

Lomeli, 2015 IL App (3d) 130687-U) that held the trial court properly permitted evidence of a

subsequent crime because it was relevant to motive and intent. The State concluded that the post-

murder robbery was (1) relevant to establish defendant’s intent and (2) “necessary to give context

to the GPS records from the night in question which will corroborate the testimony of Gales,

Blackmon, Taylor, and [Shannon] Robertson.”

¶ 22 In April 2022, the trial court conducted a hearing on the State’s motion to

reconsider. When asked for a position, defense counsel stated, “We will not be contesting that

motion.” The court stated, “That motion to reconsider will be granted without objection. Evidence

previously sought to be admitted by the State will be admitted based upon positions taken by the

parties.”

¶ 23 C. The Trial

¶ 24 In June 2022, the trial court conducted defendant’s jury trial, which took five days

to complete.

¶ 25 1. The State’s Case

¶ 26 a. Preliminary Evidence

¶ 27 The State presented testimony from Peoples, the target of the armed robbery, and

Derrick McFall-Smith, a passenger in Peoples’s car, both of whom explained what they

remembered from before, during, and after the shooting. Peoples testified that earlier in the

evening, he had posted a photo to Snapchat of him holding a large amount of cash. Peoples and

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McFall-Smith remembered that just as they were about to leave Georgetown Apartments, a black

van pulled into the parking lot and stopped directly behind their car. A man wearing all black

exited the van, approached the car, and fired several shots before the van drove off. When they

realized Bennett had been shot, they rushed to the hospital while another passenger, Veronica

Peoples, called 911. A pathologist confirmed that Bennett died from a gunshot wound.

¶ 28 Crime scene investigators testified that they recovered fired bullets from the car

and Bennett’s body and shell casings from the parking lot. Other officers testified that, based on

information obtained from Blackmon and Gailes, they recovered a disassembled gun from storm

drains located at two different intersections in Springfield. The gun, bullets, and casings were sent

for forensic testing, and the experts who conducted that testing testified that (1) fingerprint analysis

and DNA testing did not provide any helpful information and (2) the bullets and casings were fired

from the disassembled gun retrieved from the storm drains.

¶ 29 The parties stipulated that (1) Martishaa Bolden, defendant’s girlfriend at the time,

purchased a train ticket for defendant to travel from Texas to Springfield, Illinois, on February 3,

2017, and (2) in December 2016 and January 2017, defendant was not permitted to leave the state

(no reason for the restriction was given). The parties also entered a stipulation listing the phone

numbers of several witnesses, including Bolden, defendant, and the group members who were in

the minivan.

¶ 30 Natasha Whiteside, defendant’s sister, testified that defendant called her twice in

January or February 2017. In the first call, defendant informed Whiteside that he (1) was in Texas

and (2) got a new phone number, which Whiteside recognized as a Texas phone number.

Defendant called again a week later and asked if Whiteside was living with or hanging out with

any of Bennett’s family. Unprompted, defendant said, “[T]hat stuff with that girl was crazy.”

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According to Whiteside, defendant also told her “[h]e heard it was an accident.”

¶ 31 b. Timothy Zajicek

¶ 32 Timothy Zajicek testified that for the last 17 years he had been a police officer with

the Springfield Police Department and had been a detective since January 2015. Zajicek stated he

had “homicide investigator training” and had “received advanced training in cell phone analysis

and cell phone network analysis.” Zajicek stated he reviewed and analyzed cell phone records as

part of his regular duties as a detective in the “Crimes Against Persons Division” of the department.

¶ 33 Zajicek then testified extensively about how the police acquire and use cell phone

records in investigations. In particular, Zajicek explained that phone records contain “call data,”

which details when a cell phone interacted with a cell tower to send or receive communications or

other data. Call data provided dates and times of phone calls and text messages, whether the

communication was incoming or outgoing, the phone number contacted, the duration of the

communication, and, most importantly, which cell tower the subscriber’s phone used to make the

communication. Zajicek further explained what cell towers were, how they work, and that carriers

have many of them throughout Springfield. Cell phones typically use the nearest tower; however,

when multiple towers cover the same area, phones may be routed to a different tower with more

capacity (fewer phones using it) or a better signal (due to weather). Zajicek then detailed for the

jury how phone companies acquire, calculate, and use cell phone location data, which they use to

monitor and improve the efficacy of their networks.

¶ 34 Zajicek testified that he examined AT&T’s cell phone records for defendant’s

phone, including (1) a certification letter from AT&T “authenticating the records that they sent,”

(2) subscriber information, (3) call data records, and (4) “historic precision location information”

called “NELOS.” Zajicek explained that NELOS was a proprietary system used by AT&T for

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location data and “NELOS data can be more detailed and can be a better representation of where

a device is based on AT&T measurements than just the tower data alone.”

¶ 35 The State moved to admit and publish these phone records for defendant’s phone.

The trial court asked, “Any objection?” When defense counsel responded, “No, Judge,” the court

stated, “They will be so admitted without objection and subject to publish.” Zajicek then detailed

for the jury the call logs relating to defendant’s phone throughout the day and night of the murder,

listing the phone number called or calling defendant, the time of the call, and the call’s duration.

¶ 36 Regarding location data for defendant’s phone, Zajicek testified that the Springfield

Police Department uses “a company called ZedEx” to analyze location data. Zajicek explained that

the department uploads the phone records into the ZedEx program, which then analyzes the data

and plots AT&T’s location data on a map. Zajicek testified that he created maps using ZedEx and

Google Earth to help determine where defendant’s phone was located on December 20 and 21,

2016. The State moved to admit the maps, and defense counsel again responded, “No, Judge,”

when asked by the trial court if there was any objection.

¶ 37 At this point, Zajicek went through each of the maps, which showed a shaded area

or circle estimating that defendant’s phone was located somewhere in that area and the time the

phone made or received a call. The maps showed that defendant’s phone went to various houses,

including one on Edwards Street, an intersection containing a liquor store and a KFC, an

AutoZone, then to several more addresses and houses, including (1) Bolden’s home, (2) an area

near a middle school on Jackson Street, (3) Georgetown Apartments, (4) the state fairgrounds, and

(5) the area of the subsequent robbery referred to in the parties’ motions in limine. Zajicek also

testified that location data showed defendant’s phone traveling to East St. Louis and back to

Bolden’s home in Springfield the morning after the murder.

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¶ 38 Zajicek testified that all cell activity on defendant’s phone stopped on December

21, 2016. However, Zajicek obtained records for a new number associated with defendant, which

he acquired on December 22, 2016, and those records showed defendant’s phone traveling from

Springfield to Ft. Worth, Texas, on January 2 and 3, 2017. Like the previous records, defense

counsel informed the trial court the defense had no objection to the admission and publication of

the exhibits.

¶ 39 The State then asked Zajicek whether he analyzed phone records, also from AT&T,

relating to Gailes’s cell phone. Zajicek stated that he had and proceeded to testify about those

records in a similar manner as he had for defendant’s cell phone. When the State moved to admit

and publish the phone records, defense counsel again stated, “No objection,” and when the trial

court asked if the defense had any objection to admitting the two maps Zajicek created for Gailes’s

phone, counsel responded, “None.”

¶ 40 The State then repeated the process with respect to a Verizon phone number that,

according to the stipulation, belonged to Blackmon. The testimony followed the same pattern of

listing a few calls and reviewing a map showing location data at the time of the call. One of the

maps showed the locations of both Blackmon’s phone and defendant’s phone between 7 a.m. and

9 a.m. on December 21, 2016, which reflected that both phones tracked each other and traveled

from Springfield to East St. Louis.

¶ 41 Zajicek testified that both defendant and Gailes used AT&T for their cell service.

When asked if the phones “made use of the same sets of towers,” Zajicek answered, “More than

likely. If those devices were in close proximity to each other, it was likely they would use the same

tower.” Zajicek stated that he compared the “tower data” for the two phones and created a

document reflecting the towers used “[d]uring these time periods both phone numbers were using

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accounts or using towers that were consistent with one another.” The document was admitted after

defense counsel again indicated he had no objection. Zajicek testified that both phones used the

same towers starting around 2 p.m. on December 20, 2016, and ending at 3 a.m. on December 21,

2016.

¶ 42 The State asked Zajicek whether the data reflected what he would expect to see if

two individuals were together, namely, “two phones making use of the same tower.” Defense

counsel objected, arguing the question called for speculation. The trial court overruled the

objection, explaining, “No, I think [Zajicek’s] given enough expertise and enough background to

be able to answer that question; and it will go to weight, not admissibility.” Zajicek then answered

that “[i]f the cellular devices for each phone number were in close proximity to each other, it would

be likely they would use the same tower.”

¶ 43 c. Jonesy Blackmon

¶ 44 Jonesy Blackmon testified that he had known defendant for 10 years, was Taylor’s

familial cousin, and was a longtime friend of Gailes. Blackmon stated he was in the minivan when

Bennett was shot.

¶ 45 Blackmon admitted he had prior convictions in 2011 and 2014 for delivery and

possession of controlled substances. Blackmon further admitted that he was convicted of

delivering a controlled substance in 2017. After the 2017 conviction, while awaiting sentencing,

Blackmon agreed to speak with the police about the Bennett murder in exchange for immunity for

his statement. The State introduced a copy of the signed immunity agreement.

¶ 46 In December 2016, Blackmon was living in East St. Louis. On December 20,

Blackmon got dropped off at a KFC in Springfield, where he met up with defendant, Taylor,

Gailes, Shannon Robertson, and Shannon’s brother, Eric Robertson. Blackmon stated the group

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soon left and began riding around in a black Dodge minivan owned by Shannon. According to

Blackmon, everyone in the minivan was smoking marijuana and drinking “Lean,” which is a

mixture of prescription cough syrup (containing codeine and promethazine) and soda, which

makes the drinker sleepy.

¶ 47 Blackmon testified that he remembered driving around Springfield but only

remembered a few specific locations. Blackmon stated that they stopped at an AutoZone store and

later dropped off Eric on Edwards Street. At some point, people in the minivan began discussing

committing robberies. Blackmon initially testified that Shannon identified a man named Julius to

rob, but the State impeached him with a prior statement to the police in which Blackmon stated

defendant saw Julius leave his house and instructed the group to pull over so they could rob the

house. Blackmon explained that Julius was targeted because he sold marijuana. Shannon and

Taylor broke into the house but returned with something insignificant, like a cup of change.

¶ 48 The State then asked Blackmon if (1) “[a]t any point *** leading up to the shooting”

they stopped at Bolden’s house and (2) “at some point in the evening [wa]s there a gun in the

[minivan]?” Blackmon answered yes to both questions and testified that Taylor was holding the

gun “[b]ecause [defendant] didn’t want to hold it.” Blackmon stated that he fell asleep in the

minivan while they were parked on Capitol Avenue waiting “[f]or hours” to rob another marijuana

dealer, named “JB,” but he never appeared.

¶ 49 Blackmon testified that when he woke up, they were at Georgetown Apartments.

Blackmon remembered waking up and hearing (1) defendant tell Taylor to “go, go, go, like go to

the car” and (2) Shannon telling Taylor to “stand down.” Taylor, who was wearing all black

clothes, was already out of the minivan and approaching the passenger side of a car. Blackmon

saw the car’s brake lights illuminate suddenly. Blackmon believed the car “tried to pull off,” but

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he could not tell because (1) the minivan, driven by Gailes, “pulled off” to exit the parking lot and

(2) Blackmon laid down when he heard gunshots. Shortly after the minivan left the parking lot,

the van stopped, and Taylor got back in.

¶ 50 Blackmon stated they made their way to the area around the state fairgrounds, at

which time a state trooper began following them. Blackmon said they let Taylor out of the minivan

on a side street because he had the gun and then drove the van a few blocks down the road to a

liquor store. After the “police officer, they turned around and drove back by,” they circled the area

for several minutes until they found Taylor, who rejoined them while still holding the gun.

¶ 51 Blackmon testified that the group then drove to Bolden’s house to switch cars. The

group dropped the minivan off at a house on Edwards Street and got into Bolden’s vehicle, a tan

Nissan.

¶ 52 The State then asked Blackmon whether the group attempted another robbery after

the shooting. Blackmon said the group went to a house near the corner of 19th Street and “Cedar”

or “Spruce.” Blackmon said Taylor, alone, attempted the robbery but was unsuccessful. Blackmon

saw Taylor go around to the backyard and then heard a couple of gunshots. Taylor ran back to the

minivan, unharmed.

¶ 53 Later on, the group dropped Gailes off at his home, and Blackmon went to a house

owned by a man named Julian. While there, Julian received a phone call and relayed to Blackmon

that Bennett had been shot and died.

¶ 54 The State then asked Blackmon if he knew what happened to the gun Taylor used.

Blackmon stated the gun “was broke down and thrown in the sewer.” Blackmon explained that he

was present at Gailes’s house when defendant had the idea to take the gun apart and dispose of it

in the sewer. Defendant disassembled the gun. Blackmon stated that Taylor and Gailes each took

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a piece of the gun and threw them in different sewers; Blackmon knew where Taylor threw away

his piece but not where Gailes threw the other piece. After the gun was thrown away, at around 6

or 7 a.m., defendant drove Blackmon and Taylor back to East St. Louis.

¶ 55 Blackmon testified that he told the police where a portion of the gun was hidden

and showed the jury the location on a map.

¶ 56 On cross-examination, Blackmon agreed the police were trying to talk to him about

the Bennett murder in early 2017, but he told them he would not do so without a lawyer. Further,

Blackmon acknowledged he was charged in 2017 for an unrelated drug offense that he had

committed months before the Bennett shooting. Shortly after Blackmon was convicted of that drug

offense in September 2017, while facing a prison sentence of 4 to 15 years, the police came to him

looking for information about the Bennett case. In less than 10 days, the State had entered into an

immunity agreement with Blackmon, and the police conducted a recorded interview with him.

Blackmon entered the immunity agreement so he would not be charged with murder. He also

acknowledged that after he gave his recorded statement, he reached an agreement with the State

to be sentenced to the statutory minimum of four years in prison.

¶ 57 Blackmon agreed that of all the people in the minivan, he was closest friends with

Gailes. Blackmon also agreed that (1) he never heard anything about a plan to rob someone prior

to waking up at Georgetown Apartments and (2) defendant never left the car. However, Blackmon

remembered hearing Peoples’s name at some point before he fell asleep.

¶ 58 On redirect, Blackmon stated that he heard “mostly” Gailes and defendant talking

about Peoples.

¶ 59 d. The Discussion of Other-Crimes Evidence

¶ 60 During a recess before the State called its next witness, the trial court discussed

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with the parties whether a limiting instruction should be given before any further other-crimes or

bad-acts evidence was presented. The court (1) identified “the potential purpose[s] of intent and

knowledge about what was taking place” as two potentially permissible bases to introduce other-

crimes evidence and (2) stated that it was inclined to give a limiting instruction to the jury before

such evidence was presented.

¶ 61 Defense counsel then addressed the trial court as follows:

“Judge, we would like to research that a little bit. I’m not sure I want that

brought *** to the jury’s attention, particularly with the Court reading it in the

middle of the trial. And we may ask for it. We may ask for it still in this trial. But

we also may ask for it during jury instruction conference, and that it be read with

the other jury instructions.”

¶ 62 After mentioning the IPI comments on the issue, the trial court stated the following:

“[C]learly I’m trying to protect this jury from considering things inappropriately.

But if you [(defense counsel)] believe it would cause more concern to this jury to

hear this instruction at that time either before or after the jury has heard the evidence

immediately, then I would consider then withholding that instruction and just

saving it for their deliberations.”

¶ 63 The State told the trial court that it had no objection to limiting the purpose of the

evidence to intent and knowledge. The court clarified that “what I don’t want is for this evidence

to be heard and then tomorrow buyer’s remorse and say, oh, Judge, I want the jury instructed, you

know. I mean, it’s kind of like now [or] never.” Defense counsel replied, “Well, Judge, I had

thought about this obviously beforehand. And I don’t want it to be brought to the jury’s attention

by the Court. It was my concern.” The court said it would “stand down because I don’t think it

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was overly involved in that last witness’s testimony” and the court had now “brought it to

everyone’s attention.”

¶ 64 e. Devante Taylor

¶ 65 Taylor testified that he was from East St. Louis and in 2016, he lived in Belleville,

Illinois. On December 20, 2016, Taylor drove to Springfield with Blackmon (whom Taylor

described as his “blood cousin”) and Blackmon’s girlfriend. Taylor and Blackmon met up with

defendant, Shannon, Eric, Gailes, and two other individuals at a KFC around 7:30 p.m. Taylor left

with everyone in a “grayish” Dodge Caravan, which Taylor thought Eric owned because Eric was

driving it. Taylor said the group drove around smoking marijuana and drinking Lean. Taylor stated

that he did not have his own phone at the time but he had Gailes’s phone on him that day and used

it to make calls.

¶ 66 Taylor said the group went from the KFC to an AutoZone and then “to a guy

name[d] Smokey Bones.” Taylor explained they waited in the minivan outside Smokey Bones’s

residence and planned to “rob him for I guess his weed and his money.” Smokey Bones never

came home, so the group left after waiting for about 40 minutes. This occurred about four hours

before the shooting.

¶ 67 Taylor testified that defendant, Gailes, and Blackmon had “discussions” about

robbing people. The State asked if, while driving around that night, “at any point is there a gun in

the car?” Taylor said yes, and the State asked, “How did the gun end up in the car?” Taylor

explained that “Gailes stopped at a house, got the gun, gave the gun to [defendant]. [Defendant]

gave the gun to me.” Taylor denied that defendant went inside to get the gun, insisting that “a guy

came outside.” The State asked if Taylor told the police during an interview that defendant got the

gun, and Taylor responded, “That’s a lie,” and insisted he told the police that someone came out

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and gave the gun to Gailes, who handed it to defendant.

¶ 68 Taylor testified that when the group arrived at Georgetown Apartments, Gailes was

driving, Shannon was the front passenger, Taylor was in the next row seated behind the driver,

with Eric and defendant next to him, and Blackmon was in the back row. Taylor denied telling the

police that Eric was not in the minivan and insisted Eric was present. Taylor testified that he knew

they were at the apartments to rob someone but did not know whom. When the minivan entered

the parking lot, it stopped behind a black Mazda. Defendant then handed Taylor a gun and told

him to “hit that car,” which Taylor understood to mean rob the black Mazda. Taylor stated a gray

car was parked on the opposite side of the lot and denied defendant said anything to him about the

gray car. The State impeached Taylor with statements from his police interview, statements he

could not recall if he made, that defendant (1) told Gailes to “block the black car in” and (2) told

Taylor, “no, don’t hit him, don’t hit him, get the black car.”

¶ 69 Taylor testified that he was wearing all black, exited the minivan, and headed for

the driver’s side of the Mazda. As Taylor approached, he saw an occupant “raise[ ] something up,”

so Taylor shot at the driver. The car backed up, trying to hit Taylor, who shot again. Taylor noticed

that the minivan was gone, presumably having driven off, and he was alone. The Mazda then drove

forward through some bushes and out of sight.

¶ 70 Taylor testified that he “took off running,” ran past some houses, and then heard

some people screaming his name. Taylor looked up to see the minivan, which he got in, rejoining

the group. After the shooting, the group dropped Gailes off at his home. Taylor stated that, next,

“[t]hey took me, [defendant,] and Blackmon to [defendant’s] girlfriend[’s] house” and the three of

them got into Bolden’s golden-brown Nissan sedan.

¶ 71 The State then asked what happened to the gun. Taylor replied, “We broke it down

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[into multiple pieces] at Gailes’[s] house and we disposed it.” Taylor estimated this occurred

around 4 or 5 a.m. Taylor stated Blackmon, defendant, and Gailes came up with the idea to

“dispose of th[e] gun.” He wanted to take it to back East St. Louis, but the other three said no,

deciding instead to throw the parts into a sewer. Taylor said Blackmon and Jones were present

when Taylor and Gailes threw the gun parts into the sewer. They then went back to Gailes’s home.

From there, Taylor drove to East St. Louis in the Nissan, accompanied by Blackmon and

defendant. Taylor dropped off Blackmon, then drove to his own home. Defendant drove off after

Taylor got out.

¶ 72 The State showed Taylor an affidavit that Taylor wrote in which Taylor claimed

defendant had nothing to do with Bennett’s death. Although the affidavit stated that Taylor was

not forced or coerced to write it, Taylor asserted at trial that nothing in the affidavit was true and

he wrote it because defendant promised to pay him, which he never did.

¶ 73 The State concluded its direct examination of Taylor by asking him to describe each

participant’s role in the crime. Taylor said Blackmon’s role was bringing Taylor to Springfield,

Gailes was the driver, and Shannon really did not have a role. When asked about defendant, Taylor

stated, “He was the gun man and the mastermind.”

¶ 74 On cross-examination, Taylor admitted that he had pleaded guilty but mentally ill

to the first degree murder of Bennett and was sentenced to 50 years in prison. Taylor explained

that when he entered his plea, he was under the impression that the “mentally ill” plea meant he

would serve half of his sentence in prison and the rest in a mental facility. Taylor agreed that as

soon as he found out that he had to serve all 50 years in a prison, he had “been trying to find a way

to get a better deal.” Taylor acknowledged sending letters to the state’s attorney’s office and the

trial court trying to reduce his sentence. Taylor even testified that he was in court that day in an

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effort to “get a better deal” and he was still trying, at that very moment, to get a better deal.

¶ 75 Taylor repeatedly acknowledged that he (1) initially denied having any

involvement in the shooting and (2) changed his story several times while talking to the police.

Taylor reiterated dozens of times during cross-examination that he lied to the police in his initial

interviews because he was trying not to get caught. However, Taylor stated he eventually decided

to tell the truth to alleviate his guilt. In response to dozens of questions about the police interviews,

Taylor denied having ever made certain statements to the police. Defendant played portions of the

recorded interviews to show Taylor’s trial testimony was inaccurate.

¶ 76 Taylor also insisted that Shannon, Eric, and two other individuals, whose names he

did not know, were in the minivan and part of the group the entire night.

¶ 77 f. Shannon Robertson

¶ 78 Shannon testified that he was staying in Springfield in 2016 and was involved in

the Bennett shooting. Shannon admitted he was convicted of the manufacturing and delivery of

cannabis in 2010 and of driving while his license was revoked in 2021. Shannon testified that he

did not have a great recollection of what happened on December 20, 2016. He could not remember

how he met up with defendant but did know that they were together in a dark blue van at some

point. Shannon was unsure if his brother, Eric, was with them but recalled that defendant and

Shannon picked up (1) Blackmon, (2) Gailes, and (3) someone he did not know. Shannon testified

that, including himself, five people were in the minivan. Shannon never learned any name—

“nickname or regular name”—of the fifth person, although he was sure he heard it from others that

night. However, a few days after the incident, Shannon learned that the fifth person was

Blackmon’s cousin and was from St. Louis.

¶ 79 Like the others, Shannon testified that the group of five men drove around

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Springfield smoking marijuana and drinking Lean. Shannon repeatedly expressed that he had a

hard time remembering the night and could not remember much of what occurred. The State asked

what Shannon’s next memory was after getting in the minivan, and Shannon responded, “I was

woken up to—I don’t know if [Blackmon] woke up and told me or [Gailes] or one of them woke

up and told me that, uhm, they just hit, like they trying to rob someone [from] out [of] your van.”

¶ 80 Upon hearing this statement, Shannon testified he said, “No,” but Blackmon’s

cousin, Taylor, was already jumping out of the minivan with a gun and “started shooting.” Before

that moment, Shannon was unaware that anyone in the minivan had a gun. Reacting to the gunfire,

the people in the minivan told the driver, Gailes, to “go.” Shannon testified that he was telling

Gailes to leave without Taylor. The minivan pulled off and went around the front of the building

when Taylor suddenly appeared, got in front of the van, and jumped back in. The group then drove

away.

¶ 81 Shannon stated they drove “up 9th Steet by the fair [grounds]. [A] state trooper got

behind us. We pulled over.” The group pulled into the driveway of a house, and Taylor, because

he still had the gun, got out of the minivan and pretended like he lived in that house. Shannon

stated that “troopers kept going passed [sic].” The group “sat there” until “the state trooper went

back passed [sic]” and presumably left the area. Taylor then reentered the minivan, and the group

drove off.

¶ 82 Shannon again testified that he could not remember what happened afterwards,

stating “that day was kind of blurry because I was drinking Lean.” Shannon believed all five people

were still in the minivan but could not remember any conversations other than Blackmon yelling

at Taylor. Shannon testified that he could not remember defendant making any statements.

¶ 83 The State impeached Shannon with his statement to the police that defendant said,

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“I hope you hit his ass,” which Shannon did not remember making. Shannon testified that he

remembered telling the police that defendant said “go, go, go” when Taylor jumped out of the car

but noted that everyone was shouting at Gailes to “go,” including defendant. Shannon conceded

he could not remember the precise timing of when defendant said “go, go, go” and did not

remember telling the police that defendant made that statement before Taylor exited the minivan.

¶ 84 Shannon further testified that after avoiding the state trooper, they went to a house

on the east side of Springfield and dropped off defendant, Blackmon, Taylor, and Gailes. Shannon

believed it was Gailes’s “baby mama[’s] house” but was not sure. Shannon then drove the minivan

to his friend’s house and slept on the couch. The next day, Gailes told Shannon that Taylor had

killed a woman when he shot the car and Shannon should leave town, which Shannon promptly

did.

¶ 85 g. Roderick Gailes

¶ 86 Gailes testified that on December 20, 2016, he was hanging out at an apartment

when defendant, his friend of several years, called him and asked if he wanted to “ride around and

smoke.” Gailes said yes. While waiting to be picked up, Gailes was joined by Blackmon, a lifelong

friend, and Taylor. Defendant arrived in a black minivan accompanied by Shannon, Eric, and

Walter Grant. Defendant asked Gailes to drive because Gailes had a valid driver’s license. The

entire group left in the minivan, drove around, smoked marijuana, and drank Lean.

¶ 87 The State then asked Gailes if the group discussed “activities moving forward in

the day.” Gailes answered that defendant initiated a discussion with Shannon about breaking into

an individual’s house. At this point, the trial court requested and conducted a sidebar with counsel.

The following exchange occurred:

“THE COURT: So, when we left off yesterday, you [(defense counsel)] said

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can I have some time to do some research on whether or not you thought it would

be appropriate for your client to have the jury instructed about other conduct

evidence. Now would be the time, if you’re going to continue to object, to me doing

that and state it for the record that you don’t want me to inform the jury about this

instruction. Otherwise, I’m going to instruct them that they should only consider it

as it should be considered and for the limited purposes of intent and knowledge.

[DEFENSE COUNSEL]: Judge, I understand. And we have come to the

decision that we are going to request that jury instruction to be read to the jury at

the conclusion of the case.

THE COURT: Not before the evidence is heard in the trial?

[DEFENSE COUNSEL]: That is correct, Judge.

THE COURT: Okay. All right. And that’s a trial strategy?

[DEFENSE COUNSEL]: That is a trial strategy, Judge.”

¶ 88 Gailes then testified that defendant told him to drive to a house owned by a man

named Julius, who sold marijuana, so they could break in and rob him. Blackmon and defendant

told Taylor to knock on the door to see if anyone was home. After Taylor returned to the minivan

and confirmed no one was home, Taylor and Shannon broke into the house but did not take

anything.

¶ 89 Thereafter, Gailes dropped Eric off at Eric’s house. Defendant then told Gailes to

take him to get defendant’s gun. Defendant directed Gailes where to turn and eventually led him

to a house on Jackson Street, from which defendant retrieved a gun. When defendant returned, he

told Gailes to “go out west” so they could rob a man named Fontaine, who also sold marijuana.

Defendant instructed Gailes to pull into an alley near Fontaine’s house and told Taylor to go rob

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Fontaine as soon as he came outside. However, despite waiting for such a long time that Gailes

fell asleep, Fontaine never came outside.

¶ 90 Gailes testified that when the group woke him up, they told him they had found a

“swerve,” someone who buys drugs, at Georgetown Apartments and Gailes drove to that location.

Upon arrival, defendant told Gailes to drive to the back of the apartment complex. As they passed

a particular parking lot, defendant said, “[W]e got one,” which Gailes understood to mean someone

to rob. Taylor asked who the target was, and defendant said, “Von [Peoples].” Gailes turned around

and headed back in the other direction. Defendant instructed Gailes to turn left into a parking lot

and then ordered him to stop.

¶ 91 Gailes testified that when he stopped, the minivan’s door slid open. Gailes looked

back and saw defendant hand the gun to Taylor, who grabbed it and started to get out of the

minivan. Gailes testified that he heard defendant say, “[G]o, go, go.” Gailes then testified, as

follows:

“That’s when I said no, no, no. Once I realized what was going on, I’m telling him

no, no, no. And that’s when [Shannon] say no. And [defendant] like, man, go, go,

go. And he, uhm, he push him out the van. And when he push him out the van, I

got scared and I pulled off. And once I pulled off, that’s when the—that’s when I

heard shots.”

¶ 92 Gailes sped up once he heard the shots, but defendant told him to stop. Gailes

hesitated, and defendant became aggressive, shouting, “stop [be]for[e] I knock your ass out.”

Gailes stated he saw how serious defendant was so he stopped out of fear “[a]nd that’s when

[Blackmon] woke up.” Gailes continued:

“And, uhm, he’s like what the fuck going on, where my cousin at. And that’s when

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[defendant] slide the door. [Taylor] run, jump back in the car or in the van.

[Blackmon] get to yelling what the fuck you make him do that, man. Everybody

yelling and arguing with each other, and I pull off.”

¶ 93 Gailes testified defendant told him to drive to Bolden’s house, and that when they

arrived, Shannon got out and left and defendant went into the house. Defendant later returned and

told everyone to come with him and that they were getting out of there. Gailes, Taylor, Blackmon,

and defendant got into Bolden’s car, and defendant drove off.

¶ 94 Defendant drove around until he ended up at a stop sign at the intersection of 19th

Street and Spruce Street. Defendant said, “[T]hey got some money in there.” Defendant asked

Taylor to go in and “see what they got.” Taylor complied, and when he returned, Taylor said he

did not get anything. Taylor explained that when he got into the garage, he slipped, and “they shot

at me.” Defendant drove off. Gailes asked Taylor for his phone back, but Taylor said he dropped

it. Irritated, Gailes asked defendant to drop him off at home, which defendant did.

¶ 95 Gailes testified that he went to bed and woke up a few hours later to someone

knocking on his door. Gailes saw Taylor standing at the door, so he cracked it open and asked

what was going on. Gailes testified that defendant and Blackmon then came to the door and

everyone “look[ed] all crazy.” Blackmon said someone died, and Gailes let them in. As Blackmon

explained that Bennett was shot at Georgetown Apartments, Gailes saw defendant pull out the gun.

Defendant looked at Gailes and said they had to get rid of it.

¶ 96 According to Gailes, defendant borrowed someone’s phone and looked up how to

take the gun apart on YouTube. Gailes testified that everybody present helped take the gun apart.

Defendant repeated that they had to get rid of the gun. Gailes took the top portion of the gun,

known as the slide, and drove by himself to Milton Street, where he dropped the slide into a sewer.

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Gailes testified that the group did not discuss how or where to dispose of the gun, and defendant,

Taylor, and Blackmon left in Bolden’s car. Gailes acknowledged that he told the police during an

October 2017 interview that he knew where the others disposed of the rest of the gun and he

marked their locations on a map. Gailes maintained that when he was driving around looking for

a place to get rid of the slide, he saw Bolden’s car near a sewer on Sangamon Street and someone

standing outside of the car.

¶ 97 Gailes acknowledged that he was charged with the same offenses as defendant and

those charges were still pending.

¶ 98 On cross-examination, Gailes agreed that when he first met with the police, on

October 2, 2017, he denied knowing anything about the case. Defense counsel went into great

detail when asking Gailes questions about the interviews he gave to the police, the tactics the police

used to convince Gailes to talk, and the cooperation agreement with the State that Gailes signed,

which granted Gailes immunity for his testimony at trial against defendant.

¶ 99 2. Defendant’s Case

¶ 100 Defendant called Christopher Ettress, who testified that he was serving time in the

Sangamon County jail and had several conversations with Gailes. Ettress provided an affidavit

describing jailhouse conversations with Gailes. According to Ettress, Gailes told Ettress that he

felt bad “lying on” defendant because Gailes ended up charged with murder anyway. Ettress

testified that Gailes told him he lied about defendant’s obtaining the gun; that Gailes actually

provided the gun, broke it down, and later threw it in the sewer. Ettress testified that Gailes told

him that he lied about defendant’s telling Taylor to commit the offense and that Gailes and Taylor

were the ones who planned and committed it. Gailes lied so he could go home; he did not want to

tell on Blackmon, his “homey.”

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¶ 101 Defendant chose not to testify.

¶ 102 3. Closing Arguments

¶ 103 a. The State’s Closing Argument

¶ 104 During closing argument, the State used the cell phone location data, particularly

Zajicek’s maps, as a framework to demonstrate how the phone data corroborated the witness

testimony and illustrated the timeline of events. The State even quipped, “There’s a map for that.”

The State explained that (1) the maps confirmed that defendant, Gailes, and Blackmon were at the

locations described by the witnesses and (2) the events unfolded in the manner the witnesses

described. The State described how the group met at KFC, visited AutoZone, broke into Julius’s

house, picked up a gun on Jackson Street, and then waited at the address Gailes gave for Fontaine.

Then they went to Georgetown Apartments. The State described how the group thought the police

were following them while they were near the fairgrounds and defendant’s phone was in that area

just minutes after the murder. The phone location data also confirmed that the group was near 19th

Street and Spruce Street, at which location Blackmon and Gailes testified that they attempted a

robbery.

¶ 105 The State argued extensively that defendant was the person who planned the entire

operation and was in charge of the group’s movements that night. In particular, the State

emphasized the testimony from Gailes and Taylor that defendant gave Taylor the gun and told him

to rob Peoples. Defendant also forced Gailes to stop so they could pick up Taylor, told Taylor to

rob the black car and not the silver car, and said that he “hope you hit his ass” as they were leaving

the shooting. The State further emphasized that defendant came up with the idea of changing cars

and getting rid of the gun, and he drove Blackmon and Taylor back to East St. Louis. The State

noted that defendant went to Texas shortly after the murder even though he was prohibited from

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leaving the state. And while he was in Texas, defendant made sure to call his sister to discuss the

murder, suggesting it was an accident and telling her to stay away from the Bennett family.

¶ 106 The State told the jury that defendant would try to say that the jury should not

believe the State’s witnesses because they were criminals and liars trying to save their own skin.

The State agreed the witnesses participated in the events of that night and had criminal histories

but pointed out to the jury that the State did not get to pick its witnesses. The mere fact that they

were criminals did not mean they were lying about the events of that night.

¶ 107 The State argued in particular that Taylor had below average intelligence and was

clearly easily influenced, particularly by defendant, who convinced him to sign an affidavit in

exchange for money. The State also argued that the jury should remember Gailes’s tone and

demeanor while being cross-examined by defense counsel, who sarcastically accused him of lying

to save himself, which the State argued showed Gailes refused to get angry and take the bait,

instead resolutely expressing that the family deserved to know the truth.

¶ 108 The State further pointed out that Gailes and Taylor gave confessions or consistent

interviews before they entered into any cooperation agreements. The State acknowledged that

Blackmon blew the case wide open in exchange for immunity but stated the practice was common

and his testimony was corroborated by more reliable evidence, such as the location of the gun parts

and the phone location data.

¶ 109 b. Defendant’s Closing Argument

¶ 110 Defense counsel focused mainly on the credibility of the State’s witnesses. Counsel

stated, “I freely admit [defendant] was with them in the van. He was with that cast of characters,

but there is a big difference when you think about that.” Counsel then went on to emphasize the

credibility determination the jury needed to make about the eyewitnesses and how that factored

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into whether the State met its burden of proof.

¶ 111 Defense counsel argued that the State used criminal charges or the threat of charges

and immunity agreements to get the eyewitnesses to say what the State wanted them to say.

Defense counsel also argued that the inconsistencies in the eyewitnesses’ testimony made it so that

the jury could not find defendant guilty beyond a reasonable doubt. Defense counsel also argued

that the criminal records of the eyewitnesses made them not credible.

¶ 112 Defense counsel addressed the phone evidence and acknowledged that it showed

defendant was at the locations at issue in this case. However, defense counsel contended that the

records for Blackmon and Shannon showed the same things. Defense counsel argued, “Are they

charged with [m]urder? No. Just because [defendant] is at these places doesn’t mean that he should

be charged with murder.” Defense counsel argued that the records showed where people were but

“[t]hey don’t tell you what things were said in the van.” Defense counsel stated, “The most

important piece of phone evidence is what we didn’t hear from the State’s phone evidence,” and

counsel emphasized that the evidence showed that (1) only Gailes had the Snapchat video in which

the money was flashed and (2) there was no evidence defendant had knowledge of that video.

“That is crucial,” counsel argued. “You know that if the State had evidence that [defendant] had

that on his phone, you would have heard about it.”

¶ 113 Defense counsel went over the evidence that showed the involvement of Gailes and

Taylor. Defense counsel argued, “It’s believable and plausible that *** Gailes, sent [Taylor] out

to do this crime.” Counsel asserted that Taylor was trying to “save” Gailes. Defense counsel said,

“If you believe it’s any way possible that this was [Gailes’s] and [Taylor’s] armed robbery, you

cannot convict [defendant]. If it’s any possibility, you can’t convict him with proof beyond a

reasonable doubt. You just can’t.” Defense counsel argued, “In order to convict [defendant], you

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have to believe there was proof beyond a reasonable doubt that there is no way that *** Gailes

was the mastermind.” Defense counsel argued, “It is absolutely plausible that the, ‘Go, go, go’

being said was not [defendant], that it was [Shannon] saying, ‘Go. Let’s get out of here,’ or it was

Gailes saying, ‘Go, Crazy Cuz [(Taylor)]. You did the Julius thing. Do it. Do it again. We got big

money to come here.’ ” Defense counsel again argued, “We have shown you how it could be, and

that’s all that needs to be, it could be, [Gailes] telling [Taylor] to go out, not [defendant] telling

[Taylor] to go out.”

¶ 114 D. The Verdict and Sentencing

¶ 115 The jury found defendant guilty of first degree murder and attempt (armed robbery).

¶ 116 In August 2022, the trial court conducted defendant’s sentencing hearing. The court

merged the attempt (armed robbery) conviction into the first degree (felony) murder conviction.

After reviewing all of the facts, particularly that (1) defendant was convicted under an

accountability theory and (2) the actual shooter, Taylor, received a sentence of 50 years in prison,

the court sentenced defendant to 44 years in prison.

¶ 117 This appeal followed.

¶ 118 II. ANALYSIS

¶ 119 Defendant appeals, arguing that the trial court erred by (1) admitting excessive

other-crimes evidence, which the State then used for an improper purpose; (2) admitting certain

phone records that were not properly certified as self-authenticating business records; and

(3) permitting a detective to offer expert testimony about cell phone location data. Defendant

concedes that he did not raise these issues at trial but argues the errors constituted either plain error

or ineffective assistance of counsel. We disagree and affirm.

¶ 120 A. Defendant Affirmatively Acquiesced to the Alleged Errors

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¶ 121 As an initial matter, defendant and the State disagree whether defendant’s failures

to object to the complained-of evidence were mere forfeiture or affirmative acquiescence. This is

a meaningful distinction because a defendant who forfeits an argument by failing to preserve it in

the trial court may still prevail on appeal if he can show plain error. People v. Bates, 2018 IL App

(4th) 160255, ¶¶ 69-70, 112 N.E.3d 657. However, plain-error review is not available to

defendants who acquiesce to the complained-of procedure or error (id. ¶ 74), and in this case,

defense counsel explicitly told the trial court he had “no objection” when the State sought to

introduce the other-crimes and the cell phone evidence.

¶ 122 1. The Law

¶ 123 In People v. Aquisto, 2022 IL App (4th) 200081, ¶¶ 53-54, 205 N.E.3d 812, this

court recently concluded that defense counsel waived any objection to the chain of custody “or on

any other ground” by responding “[n]o” when the trial court asked if he had any objection to the

admission of the bag containing the alleged controlled substance. Quoting a Utah Supreme Court

case, this court wrote the following: “ ‘Affirmative representations that a party has no objection to

the proceedings fall within the scope of the invited error doctrine because such representations

reassure the trial court and encourage it to proceed without further consideration of the issues.’

[Citation.]” Id. ¶ 54. See People v. Stewart, 2018 IL App (3d) 160205, ¶ 24, 119 N.E.3d 42; People

v. Cox, 2017 IL App (1st) 151536, ¶ 76, 89 N.E.3d 898; People v. Caffey, 205 Ill. 2d 52, 113-14,

792 N.E.2d 1163, 1202 (2001).

¶ 124 2. This Case

¶ 125 Here, defense counsel’s statements and conduct throughout the case, before and

during trial, unequivocally demonstrate that counsel affirmatively acquiesced to the admission of

the other-crimes evidence and the cell phone evidence.

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¶ 126 a. Counsel’s Acquiescence to the Other-Crimes Evidence

¶ 127 First, the State’s motion to reconsider the trial court’s granting of defendant’s

motion in limine clearly demonstrated its intention to introduce other-crimes evidence. The State

explained its belief that defendant would admit he was present during the attempted robbery but

was not a participant. The State detailed the other attempted robberies committed by the group

both before and after the murder and argued that these acts were admissible to prove defendant’s

knowledge and intent to assist in the attempted robbery and murder with which he was charged.

At the hearing on the State’s motion, defense counsel stated, “We will not be contesting that

motion.” The trial court ruled, “That motion to reconsider will be granted without objection.

Evidence previously sought to be admitted by the State will be admitted based upon the positions

taken by the parties.” (Emphasis added.) Defense counsel accepted this characterization and did

not object at trial.

¶ 128 Second, not only did defense counsel not object at trial, defense counsel also

specifically addressed the other-crimes evidence with the trial court when the court sua sponte

called for a sidebar after the conclusion of Blackmon’s testimony. The court expressed its belief

that the State was going to seek to introduce further evidence of other crimes and that such

evidence would be offered to show intent and knowledge. Defense counsel did not object to the

State’s evidence. When asked about the court’s giving a limiting instruction contemporaneously

with any testimony of other crimes, counsel first asked for more time to research the issue,

explaining that he was not sure if he wanted it brought to the jury’s attention. After further

discussion with the court about the committee comments to the pattern jury instruction, the court

said it was “now [or] never,” and defense counsel replied, “Well, Judge, I had thought about this

obviously beforehand. And I don’t want it to be brought to the jury’s attention by the Court.”

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¶ 129 The next day, during Gailes’s testimony, the trial court again called a sidebar and

asked counsel for his position. Defense counsel said that the defense had decided to request the

instruction to be read only at the end of trial. The court asked if this decision was a matter of trial

strategy, and counsel confirmed that it was. (We commend the trial court for (1) being aware of

this important issue and (2) addressing the issue directly with the parties on the record. Thanks to

the trial court’s cognizance and diligence, this court has been provided with a clear and thorough

record that unequivocally demonstrates that defense counsel made a conscious strategic decision

to acquiesce in admission of the other-crime evidence.)

¶ 130 b. Counsel’s Acquiescence to the Admission of the Cell Phone Records

¶ 131 On numerous occasions prior to trial, the State disclosed that it was seeking to

introduce cell phone records as self-authenticating business records and attached the relevant

certifications. In particular, the State disclosed that information in January 2022, six months before

trial. Each time the State offered phone records into evidence, the trial court directly asked defense

counsel if the defense objected. Each time, counsel told the court the defense had no objection.

This repeated course of conduct demonstrates that counsel did not forfeit this issue; instead,

counsel affirmatively acquiesced to the admission of the phone records by consistently declining

to object in response to a direct question by the court.

¶ 132 Defense counsel’s failure to object to the phone records was not mere oversight;

instead, it was deliberate trial strategy, as shown by his closing argument. Counsel repeatedly told

the jury that the location data from the cell phone records was unimportant because (1) the defense

readily conceded that defendant was in the minivan the entire time and (2) all of the eyewitnesses’

cell phones were also located next to each other throughout the day and night. In addition, counsel

stressed that the phone records that were critical for the jury to focus on were the ones from

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Gailes’s phone, which showed that Gailes was the only one who saw the Snapchat video of Peoples

flashing cash. Counsel argued that these phone records, combined with other testimony from the

group, showed that Gailes was the true mastermind because he selected the target at Georgetown

Apartments.

¶ 133 Because defense counsel’s conduct clearly demonstrates counsel’s intention that

the trial court admit the very evidence defendant now complains of on appeal, we conclude that

defendant has waived the issue of that evidence’s admissibility. Accordingly, plain-error review is

unavailable to defendant, and we address his claims solely under the rubric of ineffective assistance

of counsel.

¶ 134 B. Defendant’s Ineffective Assistance of Counsel Claims

¶ 135 “To demonstrate ineffective assistance of counsel, a defendant must show that

(1) the attorney’s performance fell below an objective standard of reasonableness and (2) the

attorney’s deficient performance prejudiced the defendant in that, absent counsel’s deficient

performance, there is a reasonable probability that the result of the proceeding would have been

different.” People v. Jackson, 2020 IL 124112, ¶ 90, 162 N.E.3d 223 (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). “A reasonable probability is a probability which

undermines the confidence in the outcome of the trial.” People v. Sturgeon, 2019 IL App (4th)

170035 ¶ 84, 126 N.E.3d 703. “Because the defendant must satisfy both prongs of this test, the

failure to establish either is fatal to the claim.” Jackson, 2020 IL 124112, ¶ 90 (citing Strickland,

466 U.S. at 697).

¶ 136 Judicial review of counsel’s performance is highly deferential. People v. McGath,

2017 IL App (4th) 150608, ¶ 38, 83 N.E.3d 671. We use this deferential standard because there

“are countless ways to provide effective assistance in any given case. Even the best criminal

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defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at

689. A defendant must overcome the strong presumption that the challenged action or inaction

may have been the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319, 327, 948

N.E.2d 542, 547 (2011). Counsel’s strategic choices are virtually unchallengeable on appeal. Id.

at 333. “ ‘The decision to rely on one theory of defense to the exclusion of other theories of defense

is a matter of trial strategy.’ ” People v. Hayes, 2022 IL App (4th) 210409, ¶ 52 (quoting People

v. Clark, 207 Ill. App. 3d 439, 450, 565 N.E.2d 1373, 1380 (1991)).

¶ 137 In Hayes, 2022 IL App (4th) 210409, ¶ 52, this court wrote the following:

“The Illinois Supreme Court wrote, ‘We have also made it clear that a reviewing

court will be highly deferential to trial counsel on matters of trial strategy, making

every effort to evaluate counsel’s performance from his perspective at the time,

rather than through the lens of hindsight.’ People v. Perry, 224 Ill. 2d 312, 344, 864

N.E.2d 196, 216 (2007). *** ‘ “Only if counsel’s trial strategy is so unsound that

he entirely fails to conduct meaningful adversarial testing of the State’s case will

ineffective assistance of counsel be found.” ’ People v. Peterson, 2017 IL 120331,

¶ 80, 106 N.E.3d 944 (quoting Perry, 224 Ill. 2d at 355-56).”

¶ 138 When a claim of ineffective assistance of counsel is raised for the first time on

direct appeal, this court’s review is de novo. Sturgeon, 2019 IL App (4th) 170035, ¶ 85.

¶ 139 C. The Other-Crimes Evidence Was Properly Admitted

¶ 140 Defendant argues defense counsel was ineffective for failing to object to the State’s

introduction and “excessive” use of other-crimes evidence about the string of attempted robberies

the group engaged in before and after the murder. Defendant asserts that if counsel acquiesced to

the other-crimes evidence by stating he had no objection to the State’s motion to reconsider the

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trial court’s exclusion of such evidence, then counsel’s choice was so deficient that he was no

longer functioning as counsel under the sixth amendment because he completely failed to submit

the other-crimes evidence to meaningful adversarial testing.

¶ 141 We strongly disagree with defendant’s argument and are persuaded by the State

that the other-crimes evidence was offered for a proper purpose. The State points out that because

defendant was tried on an accountability theory, the State was required to prove that defendant

knowingly provided assistance. Accordingly, evidence of other crimes was permissible to show

defendant’s knowledge and intent.

¶ 142 We conclude that defense counsel did not render ineffective assistance by

acquiescing to the other-crimes evidence because that evidence was admissible under the

continuing narrative exception (an exception we discuss infra ¶¶ 145-148) to show defendant and

the group he was part of was engaged in a single course of criminal conduct, culminating in the

attempted robbery and murder. We also note that counsel’s decision not to object to the other-

crimes evidence was clearly shown to be a matter of strategy at trial when counsel repeatedly

emphasized the other group members’ participation in the string of robberies and argued that their

criminal conduct demonstrated their bias and lack of credibility.

¶ 143 1. The Applicable Law

¶ 144 “[A] defendant’s mental state is ordinarily proved circumstantially by inferences

reasonably drawn from the evidence. [Citation.] Intent may be inferred from the character of

defendant’s acts as well as the circumstances surrounding the commission of the offense.” (Internal

quotation marks omitted.) People v. Baker, 2022 IL App (4th) 210713, ¶ 50. “The term ‘other-

crimes evidence’ encompasses misconduct or criminal acts that occurred either before or after the

allegedly criminal conduct for which the defendant is standing trial.” People v. Spyres, 359 Ill.

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App. 3d 1108, 1112, 835 N.E.2d 974, 977 (2005). “Evidence of other crimes is generally

inadmissible to show a defendant’s propensity to commit the charged criminal conduct.” People

v. Watts, 2022 IL App (4th) 210590, ¶ 39. However, other-crimes evidence may be admissible to

show “ ‘motive, intent, identity, absence of mistake, modus operandi, or any other relevant fact

other than propensity.’ ” Id. (quoting People v. Smith, 2015 IL App (4th) 130205, ¶ 21, 29 N.E.3d

674).

¶ 145 “This court has recognized that other-crimes evidence is admissible if it is part of a

continuing narrative of the event that gave rise to the offense.” People v. Johnson, 368 Ill. App. 3d

1146, 1155, 859 N.E.2d 290, 299 (2006). Other-crimes evidence is also admissible under the

continuing narrative exception when offered to explain an aspect of the crime charged or some of

the conduct engaged in by the accused that would otherwise be implausible or perhaps even

inexplicable. People v. Carter, 362 Ill. App. 3d 1180, 1190, 841 N.E.2d 1052, 1060 (2005).

¶ 146 2. This Case

¶ 147 In this case, the other-crimes evidence was admissible under the continuing

narrative exception. The State had to provide context for the otherwise inexplicable act of

attempting to rob a particular car in the middle of the night. The jury could have been misled if the

State did not explain the events before and after the robbery attempt that resulted in a murder. See

id. (agreeing with the trial court’s finding that “[w]ithout this other-crimes evidence, the fact-

finding process would be shortchanged because the jury would be limited to considering ‘a sterile

environment of what happened within the few hours on the [date in question] when there was a

history here that is clearly relevant to a determination of the true facts of what took place’ ”).

“[W]hen facts concerning uncharged criminal conduct are all part of a continuing narrative which

concerns the circumstances attending the entire transaction, they do not concern separate, distinct,

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and unconnected crimes.” (Internal quotation marks omitted.) Johnson, 368 Ill. App. 3d at 1155-

56. The group’s course of conduct throughout the day demonstrated that the shooting was but one

aspect of a continuing scheme to rob drug dealers. The group’s course of conduct was also relevant

to defendant’s level of knowledge, participation, or planning in the attempted robbery that led to

the shooting.

¶ 148 Significantly, the State never claimed that defendant was the person who actually

killed Bennett. Instead, the State claimed that defendant was guilty of the first degree murder of

Bennett based upon his accountability for the criminal conduct of the group of which Taylor, the

actual shooter, was a participant. The group’s engaging in a series of attempted robberies before

and after the shooting of Bennett was relevant to establish a common design. Id. at 1156.

Accordingly, evidence of defendant’s actions throughout the day helped establish his knowledge

and intent, as well as undermining any notion that he was not involved.

¶ 149 We conclude that the admission of the other-crimes evidence was a matter of sound

trial strategy that did not prejudice defendant. Defense counsel chose not to object to the other-

crimes evidence because it was crucial to the defense’s theory that the State’s witnesses were

scapegoating defendant to avoid their own liability as accomplices. Throughout the trial and

closing argument, defendant maintained that the State had given “sweetheart” cooperation

agreements and plea deals to the crucial witnesses in the case. In particular, the State granted

immunity to Gailes and Blackmon, who were also participants in the string of armed robberies. By

allowing the jury to hear about the events leading up to and after the murder, defense counsel was

able to argue (1) Gailes was just as likely to be the mastermind behind the robberies and (2) the

State’s witnesses were nothing but self-interested criminals scapegoating defendant to save

themselves. Counsel could not have made such an argument in a persuasive manner without the

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jury’s learning of (1) the direness of the witnesses’ legal troubles and (2) just how involved Gailes

was in picking out the targets.

¶ 150 We agree with the State that the very nature of defense counsel’s strategy removed

any potential prejudice of the other-crimes evidence. As we explained, counsel provided the jury

with strong justification for disbelieving the witnesses, all of whom received favorable treatment

by the State, including immunity. Statements of codefendants and accomplices are viewed with

suspicion precisely because common sense suggests their testimony will be heavily biased by self-

interest. That presumption was arguably much stronger in this case because the State

acknowledged in both its opening statement and closing argument that it granted immunity to

Blackmon in order to break open a one-year-old murder investigation that was at a dead end.

¶ 151 In our judgment, defense counsel reasonably decided that the other-crimes evidence

was potentially defendant’s strongest asset even though it also carried potential risk. We conclude

that defendant did not suffer any prejudice because counsel’s arguments presented an entirely

rational explanation to the jury that the other-crimes evidence actually exculpated, rather than

incriminated, defendant.

¶ 152 Reviewing courts must be careful not to assess trial strategy through the distorting

lens of hindsight (People v. Ramirez, 2018 IL App (1st) 152125, ¶ 16, 127 N.E.3d 146) and “should

hesitate to second-guess counsel’s strategic decisions, even where those decisions seem

questionable” (Manning, 241 Ill. 2d at 335). The mere fact that a trial strategy is risky or

unconventional does not mean it was unsound or fell below professional norms. See People v.

Palmer, 162 Ill. 2d 465, 479-480, 643 N.E.2d 797, 803 (1994) (“Errors in judgment or trial strategy

do not establish incompetence [citation] ‘even if clearly wrong in retrospect.’ [Citation.]”).

Defense counsel’s strategy was potentially compelling, even though the jury ultimately did not

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find it convincing.

¶ 153 Accordingly, we conclude that (1) the other-crimes evidence was properly

admitted, (2) defense counsel’s strategy was reasonable, and (3) defendant was not prejudiced.

¶ 154 D. The Cell Phone Records

¶ 155 Defendant next argues that defense counsel was ineffective for failing to object to

the phone records from AT&T because the accompanying certification did not meet the

requirements for self-authentication under Rule 902(11). Defendant asserts that those phone

records provided the cell phone location data that the State used to corroborate the witnesses’

testimony. Defendant contends that the corroboration was crucial because the witnesses were

otherwise not credible, given that (1) they were very intoxicated the entire night, (2) they could

not agree on basic facts like who was in the minivan, and (3) the State granted them immunity.

¶ 156 In response, the State contends that defense counsel did not object to the cell phone

records and location evidence as a matter of trial strategy. Specifically, the State argues the

following:

“Defense counsel had to make a choice about strategy at trial. Counsel could

(1) contest defendant’s presence in the van, or (2) acknowledge defendant was in

the van but argue that he was largely uninvolved in the attempted robbery, or (3) try

to argue a hybrid of those arguments—that defendant was not there, but if he was

present, he was not involved in the attempted robbery. Defense counsel chose

option (2), which was a completely reasonable trial strategy.”

¶ 157 Alternatively, the State contends defendant was not prejudiced by the cell phone

evidence because the other evidence of defendant’s guilt was overwhelming. The State points out

that the eyewitnesses told remarkably consistent stories, both to the police in recorded interviews

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from 2017 and at trial. Any inconsistencies, the State insists, were minor and make up a tiny portion

of the five-day trial. The State further notes that defendant’s actions after the crime, such as hiding

the gun, changing his phone number, illegally fleeing to Texas, and calling his sister, unprompted,

to discuss the murder and make sure she was not with the victim’s family all provide convincing

evidence of defendant’s guilty conscience.

¶ 158 Defendant rebuts these arguments by asserting that merely because something is

trial strategy does not mean that (1) such a strategy is objectively reasonable or (2) defendant was

not prejudiced by the strategic decision. Defendant also points out that the State makes no

argument that the certifications come close to complying with Rule 902(11) or are otherwise

admissible based on information contained in the record. Defendant claims that the location data

and maps were crucial because they provided objective corroboration to otherwise inconsistent

and suspect testimony from intoxicated codefendants and accomplices. Defendant vehemently

disagrees that any discrepancies were minor, pointing out that the witnesses disagreed about

critical facts from before, during, and after the shooting such as (1) who was in the minivan,

(2) who they allegedly tried to rob, (3) where they went, (4) when they went there, and (5) the

order of events. In defendant’s view, the evidence was closely balanced.

¶ 159 We agree with the State that (1) defense counsel’s strategic choice was reasonable

and (2) that choice could not have prejudiced defendant because the evidence of his guilt was

overwhelming.

¶ 160 1. The Applicable Law

¶ 161 Counsel’s decision of “[w]hether to object to matters such as foundation for

evidence is, by and large, a matter of trial strategy.” People v. Probst, 344 Ill. App. 3d 378, 387,

800 N.E.2d 834, 843 (2003); see People v. Diaz, 377 Ill. App. 3d 339, 349-50 (2007) (holding

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counsel’s failure to object to the lack of foundation for the horizontal gaze nystagmus test was a

matter of trial strategy).

¶ 162 When addressing claims of ineffective assistance, courts of review consider “the

totality of counsel’s conduct.” (Internal quotation marks omitted.) Hayes, 2022 IL App (4th)

210409, ¶ 65. “We do not have to necessarily agree that it was the best or most persuasive trial

strategy as long as we can find it to be ‘reasonable trial strategy.’ ” People v. Logan, 2022 IL App

(4th) 210492, ¶ 141, 203 N.E.3d 418. “ ‘A defendant is entitled to competent, not perfect,

representation, and mistakes in trial strategy or judgment will not, of themselves, render the

representation ineffective.’ ” People v. Bell, 2021 IL App (1st) 190366, ¶ 63, 189 N.E.3d 531

(quoting People v. Tucker, 2017 IL App (5th) 130576, ¶ 26, 79 N.E.3d 782). “ ‘A weak or

insufficient defense does not indicate ineffectiveness of counsel in a case where a defendant has

no defense.’ ” Hayes, 2022 IL App (4th) 210409, ¶ 64 (quoting People v. Ganus, 148 Ill. 2d 466,

474, 594 N.E.2d 211, 215 (1992)). A defense counsel’s “thoroughly pursuing the only path

available to [a] defendant is not ineffective assistance of counsel.” Id.

¶ 163 2. This Case

¶ 164 a. Trial Strategy

¶ 165 In this case, the record demonstrates that by the time of the trial, defendant’s trial

strategy was largely in place. While representing himself, defendant moved to (1) suppress his

statements to the police and (2) dismiss the charges on grounds that investigating officers lied to

the grand jury. Both claims were based on his recorded interviews with the police in October 2017.

The evidence from those hearings shows that defendant had admitted to the police that he was

present in the minivan before, during, and after the shooting of Bennett. However, defendant

claimed that (1) he was asleep and not involved and (2) Gailes and Taylor were the ones who

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planned and executed the robbery that resulted in the shooting of Bennett. Accordingly, defendant

had to concede that he was present in the minivan or he risked being impeached with his own

statements.

¶ 166 Although the State did not seek to introduce defendant’s statements at trial, the

State certainly could have and would have if defendant’s strategy even hinted at claiming he was

not present. As long as defendant did not contest that he was in the minivan, the State had no

incentive to offer defendant’s interview, which would have essentially allowed defendant to

present his side of the story without being subject to cross-examination.

¶ 167 Defense counsel’s strategy was confirmed by his closing argument. Counsel

repeatedly told the jury that the location data from the cell phone records was unimportant because

(1) counsel readily conceded that defendant was in the minivan the entire time and (2) all of the

eyewitnesses’ cell phones were also located next to each other throughout the day and night. Not

only did counsel concede that defendant was with the group in the minivan the entire night, counsel

used the cell phone location data from the other group members to argue that they were just as

culpable as defendant but (1) had not been charged with murder or (2) were offered immunity in

exchange for their testimony.

¶ 168 In addition, counsel stressed that the phone records that were critical for the jury to

focus on were the ones from Gailes’s phone, which showed that Gailes was the only one who saw

the Snapchat video of Peoples flashing cash. Counsel argued that these phone records, combined

with other testimony from the group, showed that Gailes was the true mastermind because he

selected the target at Georgetown Apartments. Accordingly, objecting to the cell phone records

would have hurt defendant’s theory of the case.

¶ 169 b. Lack of Prejudice

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¶ 170 In People v. Aquisto, 2022 IL App (4th) 200081, ¶ 64, 205 N.E.3d 812, this court

wrote the following:

“Let us assume, for the sake of argument, that the omission of a chain-of-custody

objection was deficient performance. Even so, to find prejudice from the omission

of such an objection, we would have to find a reasonable probability that, if defense

counsel had made such a chain-of-custody objection, the State would have been

unable to cure the objection (and, consequently, the circuit court would have

refused to admit People's exhibit No. 1 and would have acquitted defendant of count

IV). In the record before us, we find no basis for asserting a reasonable probability

that the State would have been incapable of curing any chain-of-custody objection.”

¶ 171 In this case, we are similarly unable to find anything in the record that suggests that

if defense counsel had objected to the admission of the records on the basis that they were not

properly certified, the State would not have been able to lay the proper foundation, either by

obtaining new certifications or calling a witness who could authenticate the records.

¶ 172 Alternatively, defendant cannot demonstrate prejudice because the evidence of his

guilt was overwhelming even without considering the cell phone records. This court’s decision in

People v. Fox, 2022 IL App (4th) 210262, 213 N.E.3d 34 is instructive. In Fox, the defendant was

charged with shooting and killing Demesheo Lovelace. Id. ¶ 1. The defendant’s girlfriend gave

key testimony about the defendant’s movements before and after the shooting of Lovelace. Id.

¶¶ 36-43. Eyewitnesses identified the defendant as the shooter. Id. ¶¶ 22-29. The State

corroborated this testimony through extensive expert testimony and cell phone records establishing

the defendant’s movements matched the witness testimony. Id. ¶¶ 49-55.

¶ 173 On appeal, we agreed with the defendant that the trial court erred by admitting cell

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phone records into evidence as self-authenticating business records because the accompanying

certifications did not allege that they were made under oath. Nonetheless, we concluded that the

error was harmless because “[t]he remaining evidence of [the] defendant’s guilt [was]

overwhelming.” Id. ¶ 85. In particular, the cell phone evidence merely corroborated evidence the

jury already heard through eyewitness testimony. Id. ¶ 90.

¶ 174 We reach the same conclusion in this case. Defendant was tried on an accountability

theory. Accordingly, the most significant evidence in the case was not where defendant and his

accomplices were throughout the day and night; instead, the most significant evidence was the

consistency of the accomplices’ testimony that it was defendant who orchestrated the armed

robbery.

¶ 175 We also note that in the days and weeks after the shooting, defendant engaged in

behavior that indicated consciousness of guilt. Defendant traveled to Texas in early January despite

being legally prohibited from leaving Illinois. He called his sister to tell her about the move and

change in phone number. Unprompted, he then inquired about the shooting, claimed he heard it

was an accident, and asked Whiteside if she was staying with anyone in the Bennett family. A

month later, defendant returned to Springfield with a train ticket bought by Bolden.

¶ 176 The evidence shows, in Taylor’s words, that defendant was the “mastermind”

behind the events of the day and the attempted robbery at Georgetown Apartments in particular.

The course of conduct by defendant and the others in the group demonstrates that Bennett’s murder

was committed as one of multiple efforts to rob known drug dealers.

¶ 177 The two most critical witnesses, Taylor and Gailes, had told the police the same or

similar information in their 2017 interviews, consistent with their trial testimony. Taylor pleaded

guilty to the murder. And although Gailes was granted immunity for his testimony at trial, he

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conceded that the State had charged him with the same offenses as defendant and those charges

were still pending. Given this context, as well as the consistent witness testimony and

corroboration by forensic evidence of the gun, we conclude that the evidence of defendant’s guilt

was overwhelming and any potential error from the introduction of the cell phone records or

location data did not affect his right to a fair trial.

¶ 178 E. Expert Testimony

¶ 179 Last, defendant argues that defense counsel was ineffective for failing to object to

Zajicek’s testifying as an expert witness in cell phone location analysis. Defendant asserts that the

State failed to lay a foundation for Zajicek’s testimony and never “certified” him as an expert. As

an initial matter, we note that this court has held that the party offering the opinion testimony is

not required to ask the trial court to “certify” or rule that the witness is a qualified expert in the

relevant field. People v. Pingleton, 2021 IL App (4th) 180751, ¶¶ 46, 49-63, 177 N.E.3d 1169.

¶ 180 In addition, defendant offers nothing to suggest that either the State (1) did not lay

an appropriate foundation for Zajicek to testify as an expert or (2) could not have presented

additional testimony to support Zajicek’s expertise had defendant objected to his testimony as an

expert. Zajicek testified that (1) he had been a police officer for 17 years and a detective since

2015 and (2) he worked with cell phone records as part of his job. Zajicek also testified that he

received specialized training, including “advanced training in cell phone analysis and cell phone

network analysis.” During his testimony, Zajicek thoroughly explained how cell phones worked,

how cell phones communicated with towers, and how cell phone tower data was kept by the cell

phone service providers. Notably, when defendant raised a speculation objection to the State’s

asking Zajicek whether the cell phones of two people who were next to each other would use the

same tower, the trial court overruled defendant’s objection, explaining, “No, I think [Zajicek’s]

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given enough expertise and enough background to be able to answer that question.”

¶ 181 Further, defense counsel’s strategy behind acquiescing to the admission of the

phone records also applies to Zajicek’s testimony about the location data. Not only did counsel

concede during closing argument that defendant was with the group in the minivan the entire night,

counsel used the cell phone location data from the other group members to argue that they were

just as culpable but had not been charged with murder or were offered immunity in exchange for

their testimony.

¶ 182 Had defense counsel objected to Zajicek’s qualifications, particularly when the trial

court had already remarked that Zajicek had expertise in the area, that objection would not only

have been fruitless, but it would have drawn out or highlighted Zajicek’s testimony for the jury,

which defense counsel argued was essentially worthless. Accordingly, we conclude that defense

counsel’s strategy did not prejudice defendant.

¶ 183 III. CONCLUSION

¶ 184 For the reasons stated, we affirm the trial court’s judgment.

¶ 185 Affirmed.

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