People v. Nichols

2023 IL App (1st) 221391-U

SIXTH DIVISION

December 15, 2023

No. 1-22-1391

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

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

) of Cook County.

Plaintiff-Appellee, )

)

v. ) No. 20 CR 7786

)

MARQUIS NICHOLS, ) Honorable

) Michael J. Kane,

Defendant-Appellant. ) Judge, presiding.

JUSTICE C.A. WALKER delivered the judgment of the court.

Presiding Justice Oden Johnson and Justice Hyman concurred in the judgment.

ORDER

¶1 Held: We affirm defendant Marquis Nichols’s conviction for armed robbery because the

circuit court’s jury instruction error did not amount to plain error, and his trial

counsel was not ineffective for not objecting to the admission of the victim’s

hearsay prior consistent statements because the statements were admissible as

excited utterances.

No. 1-22-1391

¶2 After a jury trial, defendant Marquis Nichols was found guilty of armed robbery with a

dangerous weapon other than a firearm (720 ILCS 5/18-2(a)(1) (West 2018)) and sentenced to 11

years’ imprisonment. He appeals, arguing he should be granted a new trial because the circuit court

committed plain error by giving a nonpattern jury instruction, and his trial counsel was ineffective

for not objecting to the admission of hearsay prior consistent statements from the victim Nikao

Parque. We affirm.

¶3 BACKGROUND

¶4 Nichols was charged by indictment with three counts: count I for armed robbery with a

firearm, count II for armed robbery with a dangerous weapon other than a firearm, and count III

for aggravated unlawful restraint, all arising from an incident on March 6, 2020. The State nol-

prossed count III.

¶5 At trial on July 19, 2022, Parque testified that he met Nichols through the MeetMe phone

application. Parque was “looking for friends to hang out with in the area.” Nichols’s alias was

“Quintessential” on MeetMe. Parque met Nichols in person for the first time in December 2019 at

an apartment complex in Dolton, Illinois. They “talked” and “roughhouse[d],” and Parque paid

Nichols $25 on the Cash App phone application in return. The two saw each other a second time,

at which time the two engaged in “play fighting” and “roughhousing,” but “nothing sexual.”

Parque viewed Nichols as a brother.

¶6 Parque continued paying Nichols for a period to “help him out” with food and baby formula,

but Nichols instead spent the money on cannabis. Additionally, despite Nichols’s claim that he

needed money for formula, Parque never saw a child while in Nichols’s home. On occasion, Parque

would refuse one of Nichols’s requests, which angered Nichols and caused him to curse at Parque.

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No. 1-22-1391

Eventually, Parque stopped responding to Nichols’s requests, and blocked his number. Parque paid

Nichols $380 in 21 payments over a period of months.

¶7 On March 6, 2020, Nichols contacted Parque through a different phone number and

indicated he wanted to “make peace.” Parque agreed, and picked Nichols up near the intersection

of East 87th Street and South Escanaba Avenue in Chicago. Nichols told Parque he was “going

out of town” and asked for money, but Parque refused. He also requested Parque’s phone, which

Parque gave to him. Nichols instructed Parque to travel through an alley as a shortcut to Bessemer

Park, and as Parque did so, Nichols drew a firearm and hit Parque in the forehead with it. Parque

“was bleeding” and “trying to talk [Nichols] down,” but Nichols demanded that Parque drive to

an ATM and withdraw money for Nichols to use for a flight. Nichols threatened to shoot and kill

Parque if he did not comply. Parque, who was “sure” the firearm was loaded, unsuccessfully

attempted to take the firearm from Nichols, but eventually convinced Nichols to calm down and

place it on the floor. Parque was in the “worst pain [he] ever felt.” At some point, he saw Nichols

remove the firearm’s clip, but then put it back in.

¶8 Parque drove to the Royal Bank branch on the 9200 block of South Commercial Avenue in

Chicago, withdrew $260 across multiple transactions, and gave the money to Nichols. The ATM

was a drive-through, and was surveilled by a camera. While Parque used the ATM, Nichols

attempted to hide his face from the camera. Parque then drove towards the park, and asked Nichols

for his phone back, but Nichols exited the vehicle and ran. Parque attempted to chase Nichols on

foot, but Nichols jumped over a fence, and Parque ended the pursuit. He “hollered” for help, then

returned to his vehicle and drove towards his home. On the way, he saw police officers, stopped

his vehicle, and flagged the officers down. The officers took his report, and emergency medical

personnel arrived. Parque vomited during his interaction with the officers. Eventually, an

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ambulance took Parque to the hospital, where he received medical treatment. Days later, Parque

spoke to a Chicago police detective, and identified Nichols in a photo array.

¶9 The State entered a photograph that Parque identified as accurately depicting his injury. The

photograph, included in the record on appeal, depicts Parque with a wound and bruising on the left

side of his forehead.

¶ 10 The State published the ATM surveillance video to the jury. The video, included in the

record on appeal, depicts a van approach a drive-through ATM. Parque is identifiable as the driver,

and someone is in the passenger seat. The passenger wears a hooded shirt and intermittently moves

their head, both of which obscure the passenger’s face. There appears to be conversation and

interaction between Parque and the passenger. Parque often rubs his head while withdrawing the

money. The time stamp at 8:40:54 shows Parque hand money to the passenger, and moments later,

Parque drives away.

¶ 11 Parque stated that at a moment when the ATM video depicts him point with his finger, he

was telling Nichols to put down the firearm. He believed the video “vaguely” depicted his injury,

and showed him rubbing his head because he “was in a lot of pain.”

¶ 12 The parties stipulated to the foundation of body camera video recording from Chicago police

officer Koranacki. The State then published the recording to the jury.

¶ 13 The video, included in the record on appeal, begins at 8:56. Parque initially interacts with

the officers while seated in the driver’s seat of a van. He is visibly upset, and has a red mark on

his forehead. Parque tells the officers that someone took his phone. Throughout the interaction,

Parque appears distressed, and coughs and vomits. The responding officers repeatedly attempt to

calm Parque down and tell him to breathe. The officers ask if Parque is intoxicated, which he

denies, saying he is just sick. Parque identifies his assailant as “Quintessential.” He tells the

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No. 1-22-1391

responding officers that Quintessential held him at gunpoint and threatened to kill him, then hit

him in the head with the firearm. Parque described the firearm as a black handgun, and told the

officers that after the attack, Nichols instructed Parque to drive to the ATM. At 9:03:50, Parque

exits the van and appears unsteady on his feet. He interacts with emergency medical personnel as

the video concludes.

¶ 14 Parque testified that he believed he vomited frequently because he “got hit in the head that

hard.” He denied that he had been “smoking” or “drinking” anything on March 6, 2020. During

the period where Nichols aimed the firearm at Parque, Nichols told Parque that his son died

because Parque refused Nichols’s requests for money.

¶ 15 On cross-examination, Parque agreed that he gave Nichols money because Nichols agreed

to “hang out.” Parque knew there was a camera at the ATM machine, but he did not mouth the

words “I’m being robbed” during the transactions. Parque agreed he was “hysterical” during his

interaction with the police officers.

¶ 16 On redirect, Parque testified that he flagged the officers down “a good 30 minutes or more”

after Nichols ran from the vehicle.

¶ 17 Chicago police detective Bryan Reidy testified that he was assigned to work on Nichols’s

case on approximately March 6 or 7, 2020. Reidy contacted Parque on March 7. Parque informed

Reidy that he knew Nichols before the incident, and provided Reidy with ATM receipts,

screenshots of payments he made to Nichols via the Cash App, and a social media screenshot of

Nichols. Reidy identified Nichols as a suspect based on the information Parque supplied, and

instructed Chicago police detective Gerald Neals to conduct a photo array with Parque that

included Nichols’s photo. Parque identified Nichols in the photo array. Reidy also retrieved

surveillance video from the ATM.

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No. 1-22-1391

¶ 18 Later, Reidy learned Nichols had been arrested on another matter. Reidy interviewed

Nichols while he was in custody, and filmed the interview. Before questioning him, Reidy

Mirandized Nichols, who agreed to speak with Reidy. Nichols admitted that he knew Parque, and

their relationship was based on Nichols giving Parque piggyback rides. Reidy asked Nichols about

an incident on March 6, 2020, and explained to Nichols that Reidy had viewed ATM surveillance

video. Nichols admitted he was with Parque and received money from him that day, then ran from

his vehicle. He denied injuring Parque, or possessing a weapon during the incident.

¶ 19 The State published video of the interview to the jury. The video, included in the record on

appeal, depicts Nichols’s and Reidy’s conversation. Reidy Mirandizes Nichols, then asks if

Nichols knows Parque. Nichols admits that he does, and that he gave Parque piggyback rides for

money. Nichols also admits that he “did play” Parque, and collected around $400 from him.

Nichols relays that on March 6, 2020, he was with Parque and the two were supposed to go to the

park, but Nichols instead ran from the vehicle after he obtained $260 from Parque. Nichols denied

he had a firearm or physically injured Parque during this interaction. As the interview concludes,

Nichols asks Reidy if he could be charged with something besides armed robbery.

¶ 20 On cross-examination, Reidy testified that he did not see anyone with a firearm on the ATM

surveillance video. He agreed Nichols claimed he took Parque’s money by deception. Specifically,

Nichols received money for promises of piggyback rides in the future, but never actually gave

Parque those piggyback rides.

¶ 21 Neals testified that he showed Parque a photo array on March 8, 2020, in which Parque

identified his assailant. The State published the array to the jury. On cross-examination, Neals

testified that Parque wrote on the form that Nichols hit him with a “revolver.”

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No. 1-22-1391

¶ 22 The parties stipulated that, if called, Nicole Pantera, an emergency medical technician,

would testify that she responded to the incident at 9:08 p.m. on March 6, 2020, at which time

Parque told her, in summary and not verbatim, that “his best friend brandished a weapon from the

passenger seat and hit Nikao with the weapon on the left side of his forehead.” Parque was

transported to Advocate Trinity Hospital.

¶ 23 The parties also stipulated that, if called, Ruth Nackers, a physician’s assistant at Advocate

Trinity Hospital, would testify that she treated Parque on March 6, 2020. She observed “an

abrasion surrounded by a contusion to the left side of his forehead.” Parque told her someone hit

him with the back of a firearm.

¶ 24 During the jury instruction conference, the parties discussed Illinois Criminal Pattern Jury

Instructions (IPI) 14.05 and 14.06 in the context of count II for armed robbery with a dangerous

weapon other than a firearm. The State’s attorney proposed adding the phrase “a bludgeon” in

parentheses to both instructions after the phrase, “otherwise armed with a dangerous weapon,” and

to also include phrase “a bludgeon” in the corresponding verdict form. Defense counsel objected

to the modification, suggesting the only language should be “dangerous weapon other than a

firearm.” Counsel argued that, “to start talking about bludgeons, now we are going off in a whole

[other] direction.” The circuit court asked if the State would agree to the language, “dangerous

weapon other than a firearm.” The State refused, contending the jury would be confused by the

“other than a firearm” phrase because the State contended that in this case “the firearm is both a

firearm and a bludgeon at the same time.” The court agreed with the State, but noted defense

counsel’s objection.

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No. 1-22-1391

¶ 25 The next day, before closing arguments, defense counsel reiterated the objection to the

modified instructions, labeled People’s Instructions 13 and 14. 1 The circuit court maintained its

ruling in favor of the State, explaining, “I believe this is the proper way to modify the instruction

under the facts of this case, because the State is alleging both the gun and that the gun could be

used as a blunt object or it could be another blunt object that would be used. So I’m going to let

those two instructions go as modified.”

¶ 26 During closing arguments, the State’s attorney stated his focus at closing would be on the

armed robbery jury instructions. Counsel then explained that Nichols faced two counts of armed

robbery: “The first involves armed robbery with use of a firearm; and the second involves armed

robbery with the use of a dangerous weapon, in this case a bludgeon.” He emphasized, “The main

difference between those two instructions is of course the description of the weapon, a firearm and

a bludgeon.” The State’s attorney also highlighted the body camera recording, saying, “You heard

what [Parque’s] words were very shortly after the defendant took these items. He told the police

right away, he took my money. He took my cell phone.” Counsel contended that Parque testified

Nichols “pulled a gun from somewhere around his body and struck [Parque] in the head with such

force that” he blacked out. Regarding the alleged weapon Nichols used, counsel further argued,

“we know the weapon used is a bludgeon for a number of reasons. We know that the defendant

used that weapon to strike the victim, causing the injury that you’ve seen.”

¶ 27 In his closing argument, defense counsel argued “the whole case” came down to what

Parque said, and claimed the jury “can’t believe [Parque].” Defense counsel emphasized there was

no evidence of a firearm besides Parque’s own testimony. Counsel summarized that, “The case

1

The record on appeal contains jury instructions that are not labeled, and appear to omit the

modified 14.06 instruction at issue, but the report of proceedings contains the full language of both

complained-of instructions.

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No. 1-22-1391

comes down to do you believe beyond a reasonable doubt that [Parque] was hit in the head with a

gun to get the money.” Counsel contrasted the ATM video with the body camera recording, and

stated “Why does [Parque] cry when he’s in front of the police? Why does he cry when he’s here

in front of you, the jury? Why doesn’t he cry at the ATM right after got slammed in the head? Why

is that not upsetting? Why can he turn this on and off?” After positing that Parque could have hit

his head while in the street after unsuccessfully chasing Nichols, defense counsel then showed

portions of the body camera recording of Parque vomiting, and said, “Also, why is he throwing

up? *** [I]s it he’s been sick? That’s what he told the police. Is it because he got hit in the head

that he’s puking? *** There’s too much inconsistency.”

¶ 28 On rebuttal, the prosecutor denied that Parque’s demeanor in the body camera recording

was “disjunctive” with the ATM video, and summarized, “You can see the victim’s injury was

clearly caused by a firearm that was used as a bludgeon.”

¶ 29 Following the arguments, the circuit court instructed the jury, in relevant part, that “A person

commits the offense of armed robbery with a dangerous weapon when he, while carrying on or

about his person or is otherwise armed with a dangerous weapon, a bludgeon, knowingly takes

property from the person or presence of another by the use of force or by threatening the imminent

use of force.” The court continued, “To sustain the charge of armed robbery with a dangerous

weapon, the State must prove the following propositions *** third proposition, that the defendant

carried on or about his person or was otherwise armed with a dangerous weapon, a bludgeon, at

the time of the taking.”

¶ 30 On July 20, 2022, the jury found Nichols not guilty of armed robbery with a firearm but

guilty of armed robbery with a dangerous weapon. The jury used the verdict form that read, “We,

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No. 1-22-1391

the jury, find the defendant, Marquis Nichols, guilty of armed robbery while armed with a

dangerous weapon (a bludgeon).”

¶ 31 Nichols filed a motion for a new trial, in which he did not raise the jury instruction issue

regarding the “bludgeon” language. The circuit court denied Nichols’s motion for a new trial, and

following a hearing, sentenced him to 11 years’ imprisonment. Nichols requested that his counsel

not file a motion to reconsider sentence. This appeal followed.

¶ 32 JURISDICTION

¶ 33 This court has jurisdiction pursuant to Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013)

and 606 (eff. Sept. 18, 2023), as the circuit court sentenced Nichols on September 6, 2022, and he

filed his notice of appeal that same day.

¶ 34 ANALYSIS

¶ 35 On appeal, Nichols claims that the circuit court erred by giving a nonpattern jury instruction

that included the term “a bludgeon” in the instructions and verdict form regarding armed robbery

with a dangerous weapon other than a firearm. He also claims his trial counsel was ineffective for

not making a hearsay objection to the State’s introduction of statements by Parque contained in

the body camera recording that were consistent with his testimony at trial.

¶ 36 We begin with the jury instruction issue. Both parties concede that Nichols forfeited this

issue because he did not raise the claim in his posttrial motion, despite the detailed discussion and

objection at trial. To preserve a claim for appeal, a party must make both a timely objection at trial

and include the claim in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48.

¶ 37 Nichols advances multiple theories for why this court can still address the claim despite his

forfeiture. Initially, he argues that the forfeiture rule should not apply here because constitutional

issues are not forfeited by a party’s failure to raise the claim in a posttrial motion. However, the

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No. 1-22-1391

State argues, and we agree, that this theory is improper here. Not only does Nichols not explain

what constitutional at issue could be at stake, but supreme court precedent is clear that jury

instruction claims must be preserved through both a timely objection and inclusion in a posttrial

motion. See People v. Herron, 215 Ill. 2d 167, 175 (2005) (“Generally, a defendant forfeits review

of any putative jury instruction error if the defendant does not object to the instruction or offer an

alternative instruction at trial and does not raise the instruction issue in a posttrial motion.”); see

also People v. O’Neal, 2016 IL App (1st) 132284, ¶ 77 (“Because our supreme court has applied

the posttrial-motion requirement to the very type of challenge defendant raises here—a jury

instruction error—we must follow that rule.”).

¶ 38 We may, however, still reach an unpreserved error if it constitutes plain error. 2 Sebby, 2017

IL 119445, ¶ 48. Plain error review is appropriate where a clear or obvious error occurred at trial

and either (1) the evidence was closely balanced such that the error “severely threatened to tip the

scales of justice against” the defendant, or (2) the error was so serious that “it affected the fairness

of the defendant’s trial and challenged the integrity of the judicial process.” People v. Piatkowski,

225 Ill. 2d 551, 565 (2007). A jury instruction error will not constitute second prong plain error

unless the error created a serious risk that the jury incorrectly convicted based on a

misunderstanding of the applicable law. Herron, 215 Ill. 2d at 193 (citing People v. Hopp, 209 Ill.

2d 1, 8 (2004)). A reviewing court must first determine if a clear or obvious error occurred. Sebby,

2017 IL 119445, ¶ 49.

¶ 39 Here, Nichols claims that the circuit court erred by modifying IPI 14.05 and 14.06, and the

corresponding verdict form, for armed robbery with a dangerous weapon other than a firearm by

2

We note that while Nichols did not address plain error until his reply brief, this does not constitute

forfeiture of the argument. See People v. Ramsey, 239 Ill. 2d 342, 412 (2010).

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No. 1-22-1391

including the phrase “a bludgeon.” The pattern instructions do not contain any additional language

besides “dangerous weapon.” Illinois Pattern Jury Instructions, Criminal, Nos. 14.05 and 14.06

(approved Jan. 24, 2014). Nichols contends that including the term “a bludgeon” could have

confused the jury because it may not have understood that it was their responsibility to separately

determine both (1) whether Nichols possessed an object, and (2) if he did, whether that object

constituted a “dangerous weapon.” Specifically, Nichols argues the phrase “a bludgeon”

improperly impugned on the jury’s responsibility to make an independent finding on the

dangerousness element.

¶ 40 Generally, “[i]f an appropriate IPI instruction exists, it must be used.” People v. Simms, 192

Ill. 2d 348, 412 (2000). The circuit court has discretion to give a nonpattern instruction, but the

instruction must be an “accurate, simple, brief, impartial, and nonargumentative statement of the

law.” People Bannister, 232 Ill. 2d 52, 81 (2008). A defendant has the right to have the jury find

him guilty beyond a reasonable doubt of each element of a charge. See People v. Murray, 2019 IL

123289, ¶ 28. “Whether the jury instruction accurately conveyed to the jury the applicable law is

reviewed de novo.” People v. Hartfield, 2022 IL 126729, ¶ 51.

¶ 41 The jury here found Nichols guilty of armed robbery with a dangerous weapon other than a

firearm. 720 ILCS 5/18-2(a)(1) (West 2018). Whether an object qualifies as a “dangerous weapon”

per the statute is a question of fact for the factfinder to determine. See People v. Ligon, 2016 IL

118023, ¶ 21.

¶ 42 We hold that the circuit court erred by including the phrase “a bludgeon” to modify the term

“dangerous weapon” in the instructions and verdict form at issue. The pattern instructions

sufficiently advised the jury that it had to determine whether Nichols possessed a dangerous

weapon during the course of the robbery. By modifying the instruction, the court created the

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No. 1-22-1391

potential for the jury to believe that it need only determine whether Nichols had an object, because,

per the instruction, that object (if possessed) would automatically qualify as dangerous (by virtue

of being “a bludgeon”). This is improper because under the law, it was the jury’s province to find

both elements—possession and dangerousness—beyond a reasonable doubt. It follows that the

court here gave nonpattern instructions when sufficient pattern instructions existed, and those

nonpattern instructions created a risk that the jury did not make an independent determination on

an element of the claim. This constitutes error. See Murray, 2019 IL 123289, ¶ 28.

¶ 43 We next turn to whether this error constituted plain error. Nichols argues that both prongs

apply. First, we must determine whether the evidence was closely balanced such that the error

would qualify under the first prong. To determine if evidence is closely balanced, a reviewing

court must conduct a “qualitative, commonsense assessment” of the evidence at trial. Sebby, 2017

IL 119445, ¶ 53. This requires the reviewing court to assess the evidence on each element of the

charge, along with the evidence on witness credibility. Id. “Evidence may be closely balanced

when a case tuns on a credibility determination between conflicting testimony,” a circumstance

often referred to as a “credibility contest.” See People v. Scott, 2020 IL App (1st) 180200, ¶ 51.

There is not a credibility contest, however, where one party does not present evidence, or where a

party’s account is “unrefuted, implausible, or corroborated by other evidence.” Id. (quoting People

v. Montgomery, 2018 IL App (2d) 160541, ¶ 31).

¶ 44 We find that the evidence here was not closely balanced, and thus the jury instruction error

did not constitute first prong plain error. Parque testified that Nichols hit him in the head with a

firearm, then forced Parque to drive to an ATM and withdraw money. Following that, according

to Parque’s testimony, Nichols ran from the vehicle, at which point Parque drove until he flagged

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No. 1-22-1391

down police officers. He told the officers about his interaction with Nichols, then went to the

hospital, where he received treatment for his injuries.

¶ 45 Every aspect of this account was corroborated by other evidence. The ATM video shows

Parque rubbing his head. The body camera recording shows Parque with an injury to his head, and

is time stamped approximately 16 to 17 minutes after the ATM video. Parque is visibly distressed,

and coughs and vomits, prompting the officers to express concern over how upset he is. Emergency

medical personnel arrives and administers aid to Parque, and the parties stipulated that he also

received treatment at a hospital.

¶ 46 Conversely, Nichols did not enter any evidence, and his account comes only through his

statement to Reidy, introduced by the State in its case-in-chief. In the statement, Nichols admits

he manipulated Parque and took his money on March 6, 2020, and only denies he had a firearm or

physically injured Parque. This part of Nichols’s version is refuted by the direct and objective

evidence that Parque had an injury to his head minutes after his interaction with Nichols.

¶ 47 On this record, Parque gave a credible and corroborated version of the events, while Nichols

presented no evidence, meaning the evidence was not closely balanced. See People v. Jackson,

2019 IL App (1st) 161745, ¶ 48. Moreover, even were we to entertain an argument that there is a

credibility contest between Parque’s trial testimony and Nichols’s statement to Reidy, despite

Nichols entering no evidence (a proposition for which Nichols does not provide any caselaw), the

argument fails because Nichols’s statement consists primarily of admissions to a crime against

Parque, and only conflicts in the form of an implausible denial that Parque suffered an injury. See

Id. (No credibility contest where “one party’s version is unrefuted, implausible, or corroborated

by other evidence.”). As such, Nichols’s argument that the evidence is closely balanced fails.

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No. 1-22-1391

¶ 48 Turning to the second prong, we reiterate that Nichols has to show that the error created a

serious risk that the jury convicted him based on a misunderstanding of the law. Herron, 215 Ill.

2d at 193.

¶ 49 While we believe that the jury instruction was erroneous, and thus there was some risk for

jury confusion, we find that the on the specific record here, that risk did not reach the necessary

“serious risk” threshold such that the jury erroneously convicted Nichols because it did not

understand the law. The claim fails because both the evidence at trial, and the attorneys’ closing

arguments, cured most potential for damage from the error. The State’s theory on armed robbery

with a dangerous weapon other than a firearm was clear and singular—Nichols struck Parque on

the forehead with a firearm. During closing arguments, the State’s attorney clarified the

instructions and its theory, explaining that if the jury believed Nichols used a firearm as a bludgeon

to cause the injury on Parque’s forehead, the “dangerous weapon other than a firearm” version of

armed robbery was the appropriate charge. Indeed, defense counsel argued at closing that the case

turned on whether or not the jury believed Nichols struck Parque in the head with a firearm—and

the jury found Nichols guilty of just that.

¶ 50 Based on the clarity of the State’s theory, the jury instruction clarifications from both sides

during closing arguments, and the implications from the jury’s verdict, we do not believe the

erroneous instruction created a serious risk that the jury’s verdict resulted from a misunderstanding

of the law. Instead, these factors suggest that the jury understood that if it believed Nichols caused

Parque’s injury by hitting him in the head with the firearm, he should be found guilty—which is

accurate under these circumstances. See People v. Ware, 2014 IL App (1st) 120485, ¶¶ 19-21

(citing People v. Watt, 2013 IL App (2d) 120183). The supreme court has held that the State can

prove a firearm is a “dangerous weapon” when used as a bludgeon based on proof it was capable

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of causing injury, or in fact did inflict injury. See People v. Ross, 229 Ill. 2d 255, 275-76 (2008).

Here, the evidence the jury accepted (based on its verdicts) proved just that—the firearm was

capable of causing harm as a bludgeon, and Nichols caused Parque harm by using it as a bludgeon.

While the jury may not have understood its responsibility to make an independent determination

of whether the object Nichols possessed was in fact dangerous, the way it fashioned its verdict

demonstrates there was not a serious risk it would have acquitted Nichols had it been properly

instructed.

¶ 51 We caution that an erroneous jury instruction which risks taking an element away from the

jury could in other cases create the type of serious risk that requires reversal, and find only that the

specific record here demonstrates such risk was sufficiently alleviated, making second prong plain

error inappropriate under these circumstances.

¶ 52 Nichols argues that because the jury found him not guilty of armed robbery with a firearm,

the verdict should be understood as the jury finding that he did not possess any object that caused

harm to Parque. This argument fails because the jury’s split verdict does not provide for the

inference Nichols suggests. As explained above, the State can prove a firearm qualifies as a

dangerous weapon if used as a bludgeon, even if the State cannot show the object can function as

an actual firearm, and the jury’s verdict here is consistent with this application of the law (which,

again, both sides clarified in their closing arguments). See Ross, 229 Ill. 2d at 275-76.

¶ 53 Nichols also argues that, alternatively to plain error, his trial counsel provided ineffective

assistance by not including the jury instruction issue in his posttrial motion. To establish a claim

of ineffective assistance of counsel, a defendant must show that (1) his counsel’s conduct was

objectively unreasonable, and (2) the conduct prejudiced the defendant such that there was a

reasonable probability that but for the unreasonable conduct, the result at trial would have been

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different. People v. Pingleton, 2022 IL 127680, ¶ 53 (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). The defendant must establish both prongs, and if the reviewing court determines

that a defendant cannot establish prejudice, it need not analyze whether counsel’s conduct was

deficient. See People v. Givens, 237 Ill. 2d 311, 331 (2010).

¶ 54 We hold that Nichols cannot demonstrate prejudice for his ineffective assistance of counsel

claim. As explained above, even if counsel had properly preserved the error, Nichols’s claim would

have failed because the record suggests the jury reached the verdict it intended, and thus there is

not a reasonable probability the outcome would have been different had the circuit court given the

unmodified instructions. See Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663, ¶ 195

(citing Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 28)). We note that Nichols may seek

relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2022)) regarding

this ineffective assistance claim to the extent support for it may exist outside of the trial record.

¶ 55 Nichols’s final claim is that trial counsel provided ineffective assistance because he did not

object to the introduction of portions of Officer Koranacki’s body camera recording that contained

Parque’s account of the incident, theorizing that these portions contained improper hearsay prior

consistent statements under Illinois Rule of Evidence 613(c) (eff. Sept. 17, 2019). The State argues

that counsel was not ineffective because (1) the objection would have been futile because the

statements were admissible under the excited utterance exception to the hearsay rule (Illinois Rule

of Evidence 803(2) (eff. Jan. 25, 2023)), and (2) counsel’s failure to object was an intentional

strategic decision, and thus cannot form the basis for an ineffective assistance claim. 3

3

We note, as Nichols points out in his brief, that the report of proceedings indicates a sidebar was

held immediately before the body camera recording was published, and the circuit court remarks, “I am

going to sustain the objection at this point” when it, at some point, instructs the State to stop showing the

recording. What “objection” the court is referring to, and what was discussed at sidebar, is unclear from the

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¶ 56 As stated above, a defendant must demonstrate both objectively unreasonable conduct and

prejudice therefrom to establish an ineffective assistance of counsel claim. Pingleton, 2022 IL

127680, ¶ 53. “Generally, matters of trial strategy will not support a claim of ineffective assistance

of counsel unless counsel failed to conduct any meaningful adversarial testing.” People v.

Patterson, 217 Ill. 2d 407, 441 (2005). It will not constitute unreasonable conduct if counsel fails

to object to the admission of evidence where such an objection would be futile. People v. Lawton,

212 Ill. 2d 285, 304 (2004).

¶ 57 Here, Nichols claims his trial counsel was ineffective for failing to object to prior consistent

statements because the statements constituted inadmissible hearsay. Hearsay is an out of court

statement offered for the truth of the matter asserted, and is generally inadmissible. People v.

Williams, 2022 IL 126918, ¶ 52. A witness’ prior statement that is consistent with his testimony at

trial is a category of hearsay, and such statements are typically inadmissible absent certain

circumstances. One such circumstance is if the prior consistent statement qualifies under the

hearsay exception for excited utterances. See Watt, 2013 IL App (2d) 120183, ¶ 43 (citing People

v. Davis, 130 Ill. App. 3d 41, 54-56 (1984)). Hearsay statements are admissible under the excited

utterance exception if the statement is “relating to a startling event or condition” and was “made

while the declarant was under the stress of excitement caused by the event or condition.” Ill. R.

Evid. 803(2) (eff. Jan. 25, 2023). 4

record, but the State advances no theory that defense counsel actually did object to the statements at issue,

and as such, any argument to this effect would be forfeited. See Ill. S. Ct. R 341(h)(7), (i) (eff. Oct. 1, 2020).

4

We note that the State briefly argues that the body camera recording may be admissible because

the Law Enforcement Officer-Worn Body Camera Act (50 ILCS 706/10-30 (West 2018)) can be read to

require that body camera recordings always be admissible, but because the video here is admissible on a

hearsay exception, we need not reach the issue. See People v. Collins, 2020 IL App (1st) 181746, and

People v. Collins, 2022 IL 127584.

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No. 1-22-1391

¶ 58 There is no dispute that the video shows Parque make statements consistent with his trial

testimony—specifically that Nichols hit him with a firearm, then made him withdraw money from

a drive-through ATM under threat of further violence. The video also shows that Parque was upset

and vomiting during the interaction, and the responding officers repeatedly told him to calm down.

Parque confirmed that he was upset by the incident during his trial testimony. The time stamps on

the ATM video and body camera recording demonstrate that less than 20 minutes elapsed from

the ATM stop until Parque flagged down the police officers.

¶ 59 Based on this record, we find that Parque’s statements were likely admissible as excited

utterances despite being hearsay prior consistent statements, and thus defense counsel’s decision

not to object to their admission did not constitute deficient conduct for the first prong of ineffective

assistance of counsel. The video shows that Parque, only minutes removed from the incident at the

ATM and Nichols running from his van, is upset, frantic, and physically ill. The officers express

concern at how agitated Parque is, and try to calm him down. Thus, while Parque’s statement that

he is vomiting because he is sick adds some nuance to the issue, there nonetheless remains strong

evidence in the record that Parque was still under the stress of the condition that caused him

excitement when he made the statements at issue, making the statements admissible as excited

utterances. See Watt, 2013 IL App (2d) 120183, ¶ 43. As such, it was reasonable for counsel to

decide an objection would be futile. See Lawton, 212 Ill. 2d at 304.

¶ 60 We further note that, as the State contends, the record suggests Nichols’s counsel intended

to attack Parque’s credibility by contrasting his agitated state with the officers with his ability to

execute the ATM transactions. There is support for this argument from the fact defense counsel

played the two videos in his closing, emphasizing alleged differences in Parque’s demeanor. While

this strategy failed, it was incumbent on counsel to attack Parque’s credibility, and his attempt to

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No. 1-22-1391

do so here was not so unreasonable that it could rise to the level of finding deficient conduct on a

matter of trial strategy. Id.

¶ 61 Nichols argues that the proffered statements were inadmissible pursuant to cases that

excluded body camera recordings because the recordings did not serve the nonhearsay purpose of

showing the police officers’ course of investigation. See Collins, 2020 IL App (1st) 181746, ¶¶ 30-

35; People v. Jura, 352 Ill. App. 3d 1080, 1085-89 (2004). These cases are inapposite here, though,

because admissibility would not have been based on the statements having a nonhearsay purpose;

instead, the statements here are hearsay prior consistent statements, but admissible nonetheless as

excited utterances. See Watt, 2013 IL App (2d) 120183, ¶ 43.

¶ 62 Nichols also argues that Parque’s statements cannot be excited utterances because they

occurred 30 minutes after the incident ended (we note the time stamps indicate 16 to 17 minutes,

as mentioned above), and were given in response to the officer’s questions, demonstrating that

Parque was thinking clearly and able to interact with the officers. Both arguments fail. First, there

is no set time limit for excited utterances, and the supreme court has found that a delay similar to

the one here did not disqualify a statement as an excited utterance. See People v. Sutton, 233 Ill.

2d 89, 109 (2009) (20-minute lapse). Second, the law is also clear that it is not inherently

disqualifying that the statements at issue were made in response to questioning. See People v.

Sullivan, 366 Ill. App. 3d 770, 779-80 (2006). Most glaring here, however, is that the record simply

belies Nichols’s argument—any contention that Parque was not still upset because of a time lapse,

or was only responding to questioning in a rational manner, is directly rebutted by the body camera

recording itself showing Parque’s evident agitation.

¶ 63 In sum, the record suggests a hearsay objection to the prior consistent statements would

have been futile, and thus defense counsel reasonably chose not to object. We note that because

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No. 1-22-1391

the claim here fails on the deficient conduct prong of an ineffective assistance claim, we need not

analyze the prejudice prong. See People v. Ramirez, 2018 IL App (1st) 152125, ¶ 15 (citing People

v. Coleman, 183 Ill. 2d 366, 397-98 (1998)).

¶ 64 CONCLUSION

¶ 65 The circuit court’s jury instruction error did not create a risk that the jury reached a verdict

it did not intend, and the evidence at trial was not closely balanced. Additionally, Nichols’s trial

counsel did not provide objectively unreasonable assistance for not objecting to the admission of

Parque’s prior consistent statements because the statements were likely admissible as excited

utterances. As such, Nichols’s claims fail, and we affirm his conviction.

¶ 66 Affirmed.

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