Illinois Official Reports

Appellate Court

People v. Boston, 2018 IL App (1st) 140369

Appellate Court 

Caption

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

SYLVESTER BOSTON, Defendant-Appellant.

District & No. First District, Fourth Division

Docket No. 1-14-0369

Filed

Rehearing denied

December 31, 2018

January 29, 2019

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 06-C6-60650; the 

Hon. Charles P. Burns, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Jonathan Yeasting, of State 

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

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

Eric Leafblad, Mary P. Needham, and Brian A. Levitsky, Assistant 

State’s Attorneys, of counsel), for the People.

Panel JUSTICE REYES delivered the judgment of the court, with opinion.

Justice Gordon specially concurred, with opinion.

Justice Lampkin dissented, with opinion.
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OPINION

¶ 1 Following a jury trial, defendant Sylvester Boston was convicted of first degree murder in 

connection with the fatal stabbing of Steven Moore Sr. (Moore) and sentenced to 50 years’ 

imprisonment. On appeal, defendant contends (1) the admission of preliminary hearing 

testimony of a key eyewitness violated the confrontation clause of the sixth amendment to the 

United States Constitution (U.S. Const., amend. VI) and the Illinois Rules of Evidence, (2) the 

trial court erred in allowing the State to introduce defendant’s prior conviction for possession 

of contraband in a penal institution, (3) the State’s improper comments on defendant’s 

postarrest silence warrant a new trial, (4) defendant was denied his right to a properly 

instructed jury where the court failed to clarify Illinois law on self-defense in response to a 

jury note, (5) defendant’s right to a unanimous jury verdict was violated where a juror 

expressly dissented during the polling of the jury, and (6) defendant’s trial counsel was 

ineffective for failing to preserve certain issues for appellate review. 

¶ 2 This court initially filed an opinion affirming defendant’s conviction. Thereafter, defendant 

filed a petition for rehearing, arguing that we misapprehended the law when considering the 

jury polling issue. This court granted the petition, vacated the previous opinion, and requested 

supplemental briefing from the parties not only in regard to the jury polling issue but also in 

regard to the alleged prosecutorial misconduct. The parties filed supplemental briefs 

addressing both issues. Upon review and consideration of those briefs, we continue to affirm 

the judgment of the circuit court in its entirety.

¶ 3 BACKGROUND

¶ 4 Pretrial Matters

¶ 5 During a preliminary hearing on June 29, 2006, the State called Grace Sharp, Moore’s 

mother, who testified as follows. On June 24, 2006, she was in her residence on the 14500 

block of University Avenue in Dolton with defendant and Moore. Defendant was a friend of 

Steven Moore Jr. (Steven), Sharp’s grandson and Moore’s son. Sharp had known defendant 

since he was a teenager. Defendant had asked to stay with Sharp for a “couple of days” prior 

to commencing Job Corps. He stayed in an upstairs bedroom in her raised ranch, and 51-yearold Moore lived in the basement. 

¶ 6 On the day of the incident, Sharp did not hear any “words of conflict” between Moore and 

defendant. According to Sharp, “[t]hey were just talking about the job corp [sic] and things 

like that.” In the early evening hours, she heard a “ruffling, scuffling noise” coming from the 

basement “as if kids were wrestling or playing or something.” As she headed downstairs 

toward the basement to direct them to “stop the noise,” she heard her son say, “Ma, call the 

police, call the police.” Moore was calling to her but was not screaming. 

¶ 7 Sharp initially did not contact the police. She instead went downstairs, where she observed 

defendant on top of Moore, stabbing him. She pulled defendant by the neck of his shirt but was 

unable to “pull him off.” After defendant made eye contact with Sharp, he continued stabbing 

Moore. Sharp attempted to strike him with a plastic milk crate. Defendant, however, knocked 

the crate out of her hand and continued stabbing Moore. She then went upstairs and dialed 911. 

¶ 8 On cross-examination, Sharp testified that she was not aware that either Moore or 

defendant had consumed alcohol. She indicated that her son had previously used drugs but 
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“didn’t anymore.” She did not notice any weapon near Moore, testifying, “I wasn’t looking 

around. I was getting [defendant] off of my son.” According to Sharp, defendant had 

reflexively swung at her to “get away or whatever,” but she did not recall seeing a knife in his 

hand. She was scratched but was not cut. Sharp testified that defendant did not attempt to 

prevent her from returning upstairs.

¶ 9 After Sharp’s testimony, the State called Detective Crudup from the Dolton Police 

Department, who had attended Moore’s autopsy. Following the preliminary hearing, defendant 

was charged by information with two counts of first degree murder.

¶ 10 In September 2013, defendant filed a motion in limine to bar the admission of the 

preliminary hearing testimony of Sharp, who died in 2008. Defendant argued that he would be 

deprived of his right to confront his accuser because “there was no meaningful crossexamination” of Sharp. Defendant also filed a motion in limine to introduce evidence of 

Moore’s violent nature, including his guilty pleas to charges of domestic battery and resisting 

a police officer. After a hearing, the circuit court denied the motion to bar Sharp’s preliminary 

hearing testimony but permitted the defense to present certified copies of Moore’s convictions.

¶ 11 The State filed a motion in limine seeking, among other things, to introduce evidence 

regarding defendant’s criminal history for impeachment purposes, i.e., his conviction for 

possession of contraband in a penal institution.1 After conducting a balancing test, the trial 

court concluded that “the probative value does, in fact, outweigh any prejudicial effect.” The 

trial court indicated its willingness to give a “limiting instruction immediately upon the 

introduction of the certified copy of conviction or if [defendant] is going to front it first if he 

testifies.” 

¶ 12 Trial Testimony

¶ 13 Steven testified that his childhood home was on University Avenue in Dolton, where he 

had lived with his brother, Sharp, and Moore. In June 2006, 22-year-old Steven attended school 

in De Kalb. When he periodically returned to Dolton, he would stay at the University Avenue 

residence. According to Steven, Moore stayed in the basement. 

¶ 14 Steven had known defendant since junior high school, and defendant spent significant 

amounts of time at Steven’s home during their teenage years. At one point, Steven and 

defendant had a dance group, and they frequently practiced in Steven’s basement. Steven 

characterized defendant’s interactions with Moore as “[r]espectful,” and he never observed any 

physical or verbal altercation between the two. 

¶ 15 On the weekend of June 17, 2006, Steven had returned to Dolton and observed defendant 

walking. Steven exited his vehicle and conversed with defendant. According to Steven, 

defendant “seemed as if he was having some issues.” Steven suggested that defendant stay 

with Sharp and Moore for a couple of days to “clear his head and figure out his next move.” 

The following weekend, Steven hosted a barbecue in De Kalb, where his father and defendant 

were expected but ultimately did not arrive. After receiving a telephone call from Sharp, who 

sounded “[v]ery frightened,” Steven rushed to Dolton, where he discovered police at Sharp’s 

residence. 

1

This court previously affirmed this conviction. See People v. Boston, 2016 IL App (1st) 133497.
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¶ 16 Steven testified that Moore had been using drugs, up to the time of his death. He described 

his father’s demeanor after drug use as “[t]ypically relaxed” and “[c]alm” and never violent. 

Prior to the weekend of June 17, 2006, Steven had not seen defendant in two or three years. 

When asked whether defendant had maintained contact with Sharp and Moore, Steven 

responded, “Not to my knowledge.” On cross-examination, Steven confirmed that defendant 

had a good relationship with Sharp and called her “Granny.” During Steven’s time in high 

school, his father would sporadically stay at the University Avenue residence. Steven testified 

that he did not know what type of drugs his father used. 

¶ 17 Officer Steven Curry of the Dolton Police Department testified that he was on duty with 

his partner, Officer Timothy McPherson, on the evening of June 24, 2006.2 Curry was in plain 

clothes but was wearing body armor with his star. After receiving a call regarding a stabbing, 

Curry and McPherson drove to the house on the 14500 block of University Avenue. The 

partners exited their vehicle and walked to an open door on the side of the residence. Upon 

arriving at the door, Curry observed an elderly woman standing on a landing with stairs leading 

up to the kitchen and down to the basement. The woman did not speak to Curry. 

¶ 18 The officers entered the home and heard “some commotion downstairs.” Curry walked in 

front of McPherson down the stairs. As he reached the bottom of the stairs, Curry observed an 

“entranceway to the basement but it was covered by a curtain or some kind of partition they 

had up against it or covering it.” Curry testified, “We stopped and we start listening and it 

sounded like to me somebody was getting stabbed.” He described the sound as “a squishing, a 

repeatedly [sic] like a chi, chi, chi, chi.” Curry did not hear anyone speaking. He drew his 

weapon and instructed McPherson to pull back the curtain.

¶ 19 Curry then observed defendant straddled over Moore. Moore was laying on his back and 

was not moving. Although defendant looked at Curry, he did not speak to the officers. Curry 

raised his firearm, and defendant “immediately jumped up and ran around an area of the 

basement where [Curry] couldn’t see.” Curry testified that “at that point, I told McPherson 

let’s go back upstairs and call him out and that’s what we did.” Curry and McPherson walked 

upstairs, returning to “the doorway, halfway in the door, halfway out in the driveway.” Another 

police officer who had arrived, Officer Bankhead, walked downstairs with his firearm drawn. 

Curry then viewed defendant, who he identified in court. 

¶ 20 Bankhead walked up the stairs backwards, with his firearm pointed at defendant. 

According to Curry, Bankhead “guided” defendant and “told him to come on.” Defendant’s 

hands were covered in blood. When Bankhead was able to move out of the way, Curry and 

McPherson grabbed defendant; Curry opined that defendant “looked like he might run or 

something.” Defendant “fell down inside of the house,” and the officers dragged him outside. 

After defendant “tussled” with the officers “a little bit,” they subdued and handcuffed him. 

Curry testified that he noticed a knife on the ground in the driveway, “[r]ight there” where 

defendant was placed under arrest. Curry also testified regarding various photographs, 

including one depicting defendant’s sole injury: a cut on his right arm. 

¶ 21 On cross-examination, Curry could not recall the number of stabs he heard. When he pulled 

back the curtain at the bottom of the stairs, Curry neither noticed a weapon in defendant’s hand 

nor directed him to drop any weapon. He also testified that Sharp had a portable oxygen tank 

but otherwise appeared uninjured. 

2

The trial transcript refers to “June 4, 2006.” Such reference appears inaccurate.
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¶ 22 Dr. Mitra Kalelkar, a retired medical examiner qualified as an expert in forensic pathology, 

testified that Moore was dead on arrival at the hospital. While performing his autopsy, Kalelkar 

observed that most of Moore’s injuries were “incised wounds,” i.e., “a superficial slashing, 

cutting type of wound that is inflicted with a sharp instrument, such as a knife or a razor blade.” 

She also observed a single stab wound to his chest, on his back, that fatally perforated his right 

lung and his heart. Moore’s other injuries included blunt trauma to his forehead, multiple 

wounds in and around his eyes and eyelids, human bite marks, and a suction hematoma, i.e.,

“somebody sucking the skin.” Kalelkar characterized certain injuries as possible defensive 

injuries that Moore may have sustained while attempting to ward off blows. 

¶ 23 The assistant state’s attorney (ASA) tendered to Kalelkar certain knives recovered from 

the crime scene. Kalelkar testified that specific knives could have caused particular wounds on 

Moore’s body. She opined that Moore died as a result of the stab wound to his chest and 

multiple incised wounds and that the manner of death was homicide. A toxicology examination 

revealed that Moore’s blood tested positive for cocaine and “very little” morphine. On crossexamination, Kalelkar testified that cocaine is an “intoxicating compound,” and the presence 

of metabolized cocaine in Moore’s system indicated that “he had been taking cocaine for 

awhile.” She also confirmed that it was possible that certain injuries sustained by Moore could 

have resulted from “getting scratched by a butter knife” while wrestling with another 

individual. Kalelkar acknowledged that she did not definitively know which knife caused 

Moore’s injuries, although one of the knives shown to her was consistent with his deep stab 

wound.

¶ 24 A sergeant from the Illinois State Police (ISP) who processed the crime scene testified, in 

part, regarding the recovery of three knives from the basement and one knife from the 

driveway. He confirmed that there appeared to be a “struggle” as there was a blood-like 

substance “on a lot of different places down in the basement.” 

¶ 25 Two ISP forensic scientists testified regarding the testing of various stains from the knives, 

the floor, and defendant’s clothing using Moore’s blood and defendant’s buccal sample. Jaime 

Bartolotta, one of the scientists, testified that he was unable to make comparisons with respect 

to stains on one of the knives. For a second knife, Moore could not be excluded from the partial 

human male DNA profile found on the knife blade, whereas defendant could not be excluded 

from the human male DNA profile found on the handle of the knife. Neither Moore nor 

defendant could be excluded from the mixture of DNA profiles found on the remaining two 

knives; Moore was identified as likely the “major profile,” or more significant contributor, 

with respect to one of those knives. 

¶ 26 When the bloodstains from defendant’s clothing were tested, Bartolotta found a “mixture 

of two people.” The major profile matched Moore. Bartolotta further testified that Moore’s 

profile matched swabs taken from three out of four locations in the residence. Defendant’s 

DNA did not match any of the swabs taken from the residence, although he could not be 

excluded from one minor type of one of the swabs.3

¶ 27 Officer Anthony Bankhead testified that he was in uniform on June 24, 2006, when he 

responded to a call. After speaking with McPherson and Curry, he entered the house and 

3

With respect to fingerprint analysis, the parties stipulated that “within a reasonable degree of 

forensic scientific certainty there were no latent impressions suitable for comparison on the four 

knives.”
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walked down the stairs to the basement. He observed defendant—who he identified in court—

and ordered him to put his hands up. Defendant complied and walked toward Bankhead. 

Backing up the stairs, Bankhead walked defendant up the stairs to the doorway. Bankhead 

testified that defendant “had blood on him” and “it looked like it was blood on his hands 

dripping.” 

¶ 28 At the landing, Bankhead stepped out of the house and encouraged defendant to “come 

further out the door.” According to Bankhead, defendant fell on the landing and “McPherson 

and Curry grabbed him by his hand and brought him out of the house and eventually cuffed 

him.” Bankhead recalled that it “wasn’t easy to cuff” defendant. Bankhead testified that there 

was no blood on the landing, stairs, or driveway when he first entered the residence. 

¶ 29 The State’s next witness was the ASA who had conducted the preliminary hearing. She 

testified that a preliminary hearing was conducted five days after Moore’s death because “it 

was the practice” to preserve the testimony of elderly or ill witnesses through a preliminary 

hearing. Sharp’s testimony from the preliminary hearing was published to the jury. On crossexamination during the trial, defense counsel asked, “So it’s fair to say that much discovery or 

anything that could have been developed from any investigation for you to decide hadn’t been 

developed yet, is that correct?’ The ASA responded, “I don’t know what reports were prepared 

within the five days.” A certified death certificate for Sharp was admitted into evidence. At the 

conclusion of the State’s case-in-chief, the trial court denied defendant’s motion for a directed 

verdict. 

¶ 30 Defendant testified that he did not complete 11th grade due to the death of his mother. He 

instead went to barber college and was working as a barber in June 2006. He considered 

Sharp—who he called “Granny”—to be “like a second mother.” Defendant periodically helped 

Sharp with chores; he testified she moved slowly because she was on an oxygen machine. 

¶ 31 On June 23, 2006, defendant went to Sharp’s residence. He was leaving for Job Corps in 

early July and wished to spend time with her and help around the house. He stayed over at her 

house in an upstairs guest room on the night of June 23. Moore—the father of defendant’s 

friend Steven—and Sharp’s grandson, Nicholas, were also in the home. Defendant testified 

that he had never “really talk[ed] to” Moore and “didn’t know him personally.” 

¶ 32 Defendant was awakened on the morning of June 24, 2006, by the noise Moore was making 

when he was “fumbling” and “messing with” his bags. Defendant’s bags contained clothing 

and his professional clippers. Defendant told Sharp what had transpired earlier and then 

proceeded to prepare breakfast for her. While he was cooking, Moore came upstairs behind 

defendant. Defendant testified, “He told me you going to do what I want to you do [sic], you’re 

going to give me what I want[.]” Defendant characterized Moore’s tone as “mildly aggressive,” 

and defendant “shielded” himself after Moore’s remarks. 

¶ 33 Sharp then asked defendant to inspect her vehicle and check the fluids. While defendant 

worked on the vehicle, Moore instructed defendant to move, pushed him, and stated, “I don’t 

need you to do anything.” Defendant testified that he felt “kind of shocked” and “rejected.” 

After defendant again spoke with Sharp, she and Moore “got into an altercation” regarding the 

keys of the vehicle. According to defendant, Moore took the keys from his mother’s hands and 

“told her to give it to him.” 

¶ 34 Defendant also observed Moore shoving Sharp. As defendant picked up the telephone to 

dial 911, Moore “snatched” the telephone and took it downstairs into the basement. Defendant 

decided to “leave out so to let the tension calm down rather than to get into what was going on 
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with [Moore] and [Sharp].” Defendant went to the basement to retrieve clothes from the 

washing machine. 

¶ 35 As defendant gathered his clothes, Moore ran upstairs to the kitchen. Upon returning to the 

basement, Moore swung a knife at defendant. Defendant raised his hands to “shield it and block 

it.” A photograph of a stab wound on defendant’s right arm under his lower wrist was published 

to the jury, and defendant displayed the mark on his wrist to the jury. Defendant testified that 

the two then “got into a tussle.” 

¶ 36 Defendant testified that he cut his own hand as he grabbed the knife from Moore’s hand. 

According to defendant, after he took one knife, Moore pulled out another knife. Defendant 

did not know from where Moore retrieved the second knife. Defendant grabbed the second 

knife from Moore. While defendant held him down and the two struggled, Moore grabbed 

defendant in his groin area. Defendant described his pain as “excruciating.” Defendant bit 

Moore two or three times to force him to release the pressure on defendant’s testicles. 

¶ 37 Defendant testified that Moore kept aggressively “charging” at him. Moore had a third 

knife, which defendant again wrestled away from him. Defendant then used the knife to 

“protect” and “defend” himself. Defendant was unable to stop Moore from coming at him. 

According to defendant, Moore continued to hold a knife.

¶ 38 Sharp came downstairs and stated “stop it” and “break it up.” Defendant testified that 

Moore continued to come after him, attempting to “hit” defendant with the knife. According 

to defendant, Moore did not acknowledge his mother’s presence. Defendant noticed that Sharp 

returned upstairs. He testified that when the police officers arrived, he complied with their 

direction to “come up with your hands up.” Defendant further testified that he was trying to 

defend himself, he feared for his life, and he did not intend to kill Moore.

¶ 39 On cross-examination, defendant testified that although he had spent a significant amount 

of time at Sharp’s residence during his years of friendship with her grandson, he had only 

“seen” Moore “once.” Before his stay on June 23 and 24, 2006, he had not been to Sharp’s 

home for approximately 11⁄2 to 2 years and had “seen” Steven once “a couple months ago.” 

Defendant denied speaking with Moore about Job Corps on June 24, 2006. At the time of the 

stabbing, defendant was 21 years old. 

¶ 40 Defendant testified that although his confrontation with Moore regarding the vehicle 

occurred between 10 a.m. and noon, defendant did not leave at that time. He acknowledged 

that there were other telephones in Sharp’s residence. After Moore took one telephone, 

defendant did not use another telephone to contact 911. Defendant also testified that Moore 

shoved his mother before defendant went out to check on Sharp’s vehicle. 

¶ 41 Defendant testified that between 3 p.m. and 4 p.m., he had decided to leave Sharp’s 

residence. He had planned to drive to Steven’s home in De Kalb. Defendant then testified that, 

at 1 p.m. or 2 p.m., Moore offered to “smoke something” with him in the basement. Defendant 

declined and started gathering his clothes. According to defendant, Moore “came at [him] with 

a knife” before 3:30 p.m. 

¶ 42 During cross-examination, defendant was questioned in detail regarding the physical 

altercation between him and Moore. On recross-examination, the ASA asked, “When you saw 

the police, you didn’t say to them, ‘I had to defend myself,’ did you?” Defendant responded, 

“Actually when I came up—yes, I said that yes.” 
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¶ 43 After defendant’s testimony, the defense presented certified copies of Moore’s 

misdemeanor convictions for resisting a police officer and for domestic battery. The State 

called Curry as a rebuttal witness. Curry testified that defendant was placed under arrest in the 

driveway area of the 14500 University Avenue residence. When defendant’s hands were 

cuffed, Curry observed that they “were so full of blood” that Curry was unable to determine 

whether he had sustained any knife wounds to his hands. When Curry observed a “cleaned up” 

defendant the day after the incident, he did not have any wounds on his palms or on the back 

of his hands. Curry also testified that defendant did not evidence any limping or other difficulty 

walking when he walked up the stairs from the basement.

¶ 44 Moore’s son Steven was also called as a rebuttal witness. Steven estimated that while he 

was a freshman in high school, his father and defendant interacted “[a]t least once or twice a 

week.” Steven testified that Moore and defendant “would joke around, hey, Mr. Moore, what’s 

going on, Sylvester, that would pretty much be it.” After Steven graduated from high school, 

he did not witness any interaction between his father and defendant. 

¶ 45 After Steven’s rebuttal testimony, the trial court read a jury instruction: “Evidence of 

defendant’s previous conviction of an offense may be considered by you only as it may affect 

his believability as a witness and must not be considered by you as any evidence of his guilt 

of the offense with which he is charged.” The ASA then presented a certified copy of 

defendant’s conviction for possession of contraband in a penal institution. 

¶ 46 During closing arguments, defendant’s counsel argued that he acted in self-defense and 

sought a finding of not guilty. During rebuttal closing argument, the ASA commented on 

defendant’s silence during his interactions with Sharp and the police. The ASA continued to 

comment on his silence after the trial court overruled a defense objection.

¶ 47 The jury retired at 6:24 p.m. for deliberations after receiving jury instructions. At 

approximately 8:13 p.m., the trial judge received a note from the jury stating, “Can self-defense 

be a mitigating factor? (Definition of mitigating factor is unclear on sheet).” After a colloquy 

between counsels and the court, the trial judge instructed, “you heard the evidence, you have 

the instructions of law. Please continue to deliberate.” 

¶ 48 The jury reached a verdict when they reconvened the following morning. The clerk 

published the verdict: defendant was found guilty of first degree murder. The 12 jurors, 

including Mr. Greco, signed the jury verdict finding defendant guilty of first degree murder. 

The trial court inquired whether the defense wished to have the jury polled, and defense counsel 

responded affirmatively. The trial court then informed the jury, “I’m going to ask the question 

and the question is: Was this then and is this now your verdict, and all of you will have to 

answer out loud.” According to the original version of the transcript,4 Greco—the fifth juror 

polled—responded, “No.” The other 11 jurors responded in the affirmative. The trial court then 

stated, “Okay. Has anyone not been asked that question? Okay. The jury has been polled. I’ll 

enter judgment on the verdict.” Neither counsel nor the trial judge questioned or commented 

upon Greco’s response, and the jury was discharged.

¶ 49 Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, a 

new trial. At the hearing, defense counsel argued, among other things, that the admission of 

the preliminary hearing transcript constituted reversible error. The trial court denied the 

4

As discussed herein, the transcript was subsequently corrected in accordance with Illinois Supreme 

Court Rule 329 (eff. Jan. 1, 2006).
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motion. Defendant was sentenced to 50 years’ imprisonment. The trial court denied his motion 

to reconsider sentence, and defendant filed this timely appeal. 

¶ 50 ANALYSIS

¶ 51 Defendant raises six primary challenges on appeal. We address each argument in turn. 

¶ 52 Admission of Preliminary Hearing Testimony

¶ 53 Defendant contends that the admission of Sharp’s testimony from the preliminary hearing 

violated the confrontation clause and Illinois law where the defense did not have a 

“meaningful” opportunity to cross-examine Sharp. As the Illinois Supreme Court has 

recognized, the requirement of a prior, adequate opportunity to cross-examine the absent 

witness “is at once both an evidentiary and constitutional requisite for admission of former 

testimony.” (Emphasis in original.) People v. Torres, 2012 IL 111302, ¶ 52; see U.S. Const., 

amend. VI; 725 ILCS 5/115-10.4(d) (West 2012) (providing that a prior statement of a 

deceased witness that is sought to be admitted pursuant to this section “must have been made 

by the declarant under oath at a trial, hearing, or other proceeding and been subject to crossexamination by the adverse party”).

¶ 54 “[T]he requirements for admission of former testimony are twofold: the witness from the 

prior hearing must be unavailable at trial and the defendant must have had an adequate 

opportunity to effectively cross-examine the witness at the prior hearing.” Torres, 2012 IL 

111302, ¶ 53. “[P]rior testimony from a preliminary hearing may be admissible at a subsequent 

trial so long as the two requirements for admission are met.” (Emphasis in original.) Id. In the 

instant case, there is no dispute that Sharp was unavailable at the time of trial. The parties’ 

disagreement centers on the second requirement for admission of her preliminary hearing 

testimony: whether defendant had an adequate opportunity to cross-examine Sharp. 

“Whether ample opportunity to cross-examine existed must be decided on a case-by-case 

basis.” People v. Sutherland, 223 Ill. 2d 187, 273 (2006). 

¶ 55 Citing People v. Barner, 2015 IL 116949, ¶ 39, defendant contends that claims of evidence 

admitted in violation of the confrontation clause are “properly reviewed de novo.” Defendant 

further asserts that “[w]hether the admission violates Illinois evidence law is reviewed for an 

abuse of discretion.” See People v. Starks, 2012 IL App (2d) 110273, ¶ 20 (noting that “[a]s a 

general rule, a trial court’s ruling on a motion in limine regarding the introduction or exclusion 

of evidence is reviewed under an abuse of discretion standard”). The State appears to argue 

that an abuse of discretion standard applies to both the constitutional and evidentiary 

challenges. We agree. See Torres, 2012 IL 111302, ¶ 47 (noting that “constitutional 

considerations are inextricably intertwined with the question of admissibility”); People v. Lard, 

2013 IL App (1st) 110836, ¶¶ 15-16 (applying abuse of discretion standard where defendant 

raised arguments regarding the confrontation clause and Illinois evidence law). “A trial court 

has abused its discretion only when its decision is arbitrary, fanciful, or unreasonable or when 

no reasonable person would take the court’s view.” Starks, 2012 IL App (2d) 110273, ¶ 20. 

Under either standard of review, however, we reach the same result. 

¶ 56 Rule 804 of the Illinois Rules of Evidence provides that testimony given by an unavailable 

witness is not excluded by the hearsay rule if, among other things, “the party against whom the 

testimony is now offered *** had an opportunity and similar motive to develop the testimony 

by direct, cross, or redirect examination.” Ill. R. Evid. 804(b)(1) (eff. Jan. 1, 2011); see also 
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People v. Rice, 166 Ill. 2d 35, 41 (1995) (noting that “[f]or an opportunity to cross-examine to 

be considered meaningful, and therefore adequate and effective, the motive and focus of the 

cross-examination at the time of the initial proceeding must be the same or similar to that which 

guides the cross-examination during the subsequent proceeding”). “As our supreme court 

stated in Torres, defense counsel at a preliminary hearing may not have all the information 

discovery may later disclose; what matters is that defense counsel had a ‘fair opportunity’ to 

inquire into a witness’s observation, interest, bias, prejudice, and motive.” Lard, 2013 IL App 

(1st) 110836, ¶ 21 (quoting Torres, 2012 IL 111302, ¶ 66). 

¶ 57 Defendant contends that, in his case, “the motive and focus differed because the central 

question at the preliminary hearing—was there enough evidence that [defendant] killed Moore 

to bind him over for trial?—was far removed from the questions ultimately before the jury—

did [defendant] act in self-defense, whether reasonable or not, when he killed Moore?” Under 

the circumstances of this case, however, we do not view the motive and focus of the 

preliminary hearing as “far removed” from defendant’s theories at trial. “The purpose of a 

preliminary hearing is to determine probable cause that a crime has been committed by the 

defendant so as to warrant further proceedings.” Id. ¶ 18. “However, the questioning of 

witnesses in a preliminary hearing and at trial focus on the same issue, namely, ‘whether the 

evidence supports a finding that the defendant committed the charged crime.’ ” Id. (quoting 

Torres, 2012 IL 111302, ¶ 59); cf. People v. Brown, 374 Ill. App. 3d 726, 734 (2007) (holding 

that defense counsel did not have a similar motive for cross-examining the victim at the 

defendant’s bond hearing as he would have had for cross-examination at trial). 

¶ 58 Defendant argues on appeal that there was “no incentive to develop the facts that might 

ultimately lead the jury to a verdict of second-degree murder” and that “futilely press[ing] the 

self-defense theory” would have provided the State a “dry run” at the case. In the instant case, 

defense counsel cross-examined Sharp regarding a variety of issues aligned with the selfdefense theory ultimately asserted by defendant at trial. For example, defense counsel 

questioned Sharp regarding, among other things, whether defendant and Moore consumed 

alcohol, whether Moore used drugs, Sharp’s ability to hear a conversation between defendant 

and Moore prior to their physical confrontation, and her understanding of defendant’s 

whereabouts prior to the altercation. 

¶ 59 Defendant contends that, “[h]ad Sharp’s testimony come at trial,” she would have been 

questioned regarding “the escalating tension and disputes between [defendant] and Moore 

throughout the day.” Sharp testified during direct examination, however, that she did not hear 

any conflicts between defendant and her son throughout the day on June 24, 2006. She again 

answered during cross-examination that she heard “nothing” prior to hearing the two men 

wrestling in the basement. Although defense counsel had an opportunity and motive to inquire 

regarding possible conflict earlier in the day—as counsel would have presumably done at 

trial—Sharp’s responses suggest that she was unaware of “the escalating tension and disputes.” 

¶ 60 The Illinois Supreme Court in Torres, 2012 IL 111302, ¶ 60, held that, depending on the 

circumstances, “the motive-and-focus test cannot be our sole guide to a resolution.” (Emphasis 

in original.) Our supreme court also considered whether the defendant had the benefit of 

unlimited cross-examination at the prior proceeding. Id. ¶ 61. In the instant case, defense 

counsel asked Sharp 34 questions. There is no indication in the record that the court placed any 

time constraints or other limitations on counsel’s ability to cross-examine Sharp. We note that 

the court sustained the State’s sole objection to a question posed by defense counsel: “And as 
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far as you know, had Sylvester been washing his clothes in that area?” Given Sharp’s earlier 

testimony that she thought defendant was in her living room—and in the context of the 

remainder of the cross-examination—we do not view the sustained objection as having curbed 

defense counsel’s questioning in any significant manner.

¶ 61 The Torres court further observed that “what counsel knows while conducting the crossexamination may, in a given case, impact counsel’s ability and opportunity to effectively crossexamine the witness at the prior hearing.” (Emphasis in original.) Id. ¶ 62. Although defendant 

accurately observes that certain evidence was “undisclosed” at the time of the preliminary 

hearing, we do not share his view regarding the impact of such incomplete discovery. 

¶ 62 For example, defendant notes that the toxicology report that established Moore’s drug use 

shortly before his death was not available until the spring of 2007, months after Sharp’s 

testimony in June 2006. During cross-examination, Sharp acknowledged that her son 

previously used drugs but testified that “he didn’t anymore.” Although defense counsel 

presumably would have pressed Sharp on this response if counsel had then received the 

toxicology report, the fact remains that Sharp apparently believed—albeit incorrectly—that 

her son no longer used drugs. We further note that the jury heard the medical examiner’s trial 

testimony regarding the presence of cocaine and morphine in Moore’s blood, which concretely 

refuted Sharp’s mistaken, but presumably candid, response. 

¶ 63 Defendant also contends that Sharp’s description of defendant “stabbing and stabbing” 

Moore “did not match up with the medical evidence, where the medical examiner described a 

single fatal stab wound to Moore’s chest, but several other, ‘incised,’ slashing wounds.” 

Defense counsel had the opportunity during the preliminary hearing, however, to crossexamine Detective Crudup, who had attended the autopsy. During cross-examination of 

Crudup, defense counsel asked, in part: “And you said that the cause of death was a stab wound 

to the chest; is that correct?” Crudup answered affirmatively. Nothing in the record indicates 

that defense counsel’s cross-examination of Crudup regarding the autopsy was constrained in 

any respect. But cf. id. ¶ 64 (opining that “it is clear from the record that counsel would have 

done more with the witness at the preliminary hearing if he had felt free to do so”). 

¶ 64 Defendant cites Starks, 2012 IL App (2d) 110273, wherein the defendant was convicted of 

aggravated criminal sexual assault and other offenses. Approximately 20 years after the 

original trial, the appellate court reversed the trial court’s dismissal of the defendant’s 

postconviction petition and remanded the cause for a new trial. Id. ¶ 3. Prior to the 

commencement of the retrial, the complainant died. Id. ¶ 16. The trial court then granted the 

defendant’s motion in limine to preclude the admission of the complainant’s prior testimony. 

Id. ¶¶ 16-18. 

¶ 65 In affirming the judgment of the trial court, the Starks appellate court noted, in part, that 

the “defendant did not have an adequate opportunity or similar motive to cross-examine 

complainant” because the defendant had been “provided with incorrect serology test results, 

did not know about the exculpatory DNA tests, and, based on the ‘offensive use of the rape 

shield statute,’ was improperly barred from asking complainant about her prior sexual contact.” 

Id. ¶ 28 (quoting People v. Starks, 365 Ill. App. 3d 592, 600 (2006)). The court thus concluded 

that “the inability of defendant to cross-examine complainant regarding her prior sexual 

conduct or the exculpatory DNA and serology test results precluded defendant from exposing 

facts from which the fact finder could have drawn inferences about complainant’s reliability 

and credibility.” Id. Unlike in Starks, the record in this case does not suggest defense counsel’s 
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questioning of Sharp was limited by the court or that counsel was provided any incorrect or 

misleading information. As our supreme court has observed, “ ‘the Confrontation Clause 

guarantees an opportunity for effective cross-examination, not cross-examination that is 

effective in whatever way, and to whatever extent, the defense might wish.’ ” (Emphasis in 

original.) People v. Harris, 123 Ill. 2d 113, 144-45 (1988) (quoting Delaware v. Fensterer, 

474 U.S. 15, 20 (1985)); see also People v. Williams, 139 Ill. 2d 1, 19 (1990) (noting that 

“effective advocacy is not measured by the number of objections raised or the number of pages 

of cross-examination”).

¶ 66 Defendant further argues that the proper method for the State to preserve Sharp’s testimony 

was an evidence deposition in accordance with Rule 414 of the Illinois Supreme Court Rules. 

Rule 414(a) provides:

“If it appears to the court in which a criminal charge is pending that the deposition of 

any person other than the defendant is necessary for the preservation of relevant 

testimony because of the substantial possibility it would be unavailable at the time of 

hearing or trial, the court may, upon motion and notice to both parties and their counsel, 

order the taking of such person’s deposition under oral examination or written 

questions for use as evidence at a hearing or trial.” Ill. S. Ct. R. 414(a) (eff. Oct. 1, 

1971).

Defendant has not provided any support for the proposition that Rule 414(a) provides the sole

proper method for preserving Sharp’s testimony. Furthermore, based on defendant’s own 

testimony that “Granny” moved slowly because “she was on an oxygen machine,” her 

advanced age and poor health appears to have been readily apparent. We are unaware of any 

reason that the defense could not have sought an evidence deposition of Sharp prior to her 

passing in 2008. 

¶ 67 We also view defendant’s reliance on People v. Weinke, 2016 IL App (1st) 141196, as 

misplaced. In Weinke, the trial court granted the State’s request for a Rule 414 deposition of 

the 77-year-old alleged victim—who claimed her son pushed her over a railing—after the ASA 

represented that she might not survive an impending surgery. Id. ¶¶ 1, 2, 10. At the defendant’s 

bench trial, the State offered the evidence deposition as evidence, which was admitted by the 

trial court, and the defendant was convicted of first degree murder. Id. ¶¶ 25, 28. The Weinke 

appellate court found, in part, that the ASA had misrepresented the nature and extent of the 

deponent’s injuries. Id. ¶ 51. The appellate court opined, “In these circumstances—where the 

State is making an extraordinary request and [defense] counsel is at an extraordinary 

disadvantage—granting the deposition without proof was reversible error.” Id. ¶ 53. In the 

instant case, unlike in Weinke, defendant does not suggest that the ASA made any express 

misstatements or misrepresentations that influenced the existence or conduct of the preliminary 

hearing. Furthermore, the Weinke evidence deposition was taken within hours of the court 

hearing, leaving defense counsel with no time to review the documentation provided by the 

State or view the crime scene. Id. ¶¶ 61-63. While the preliminary hearing in this case occurred 

five days after Moore’s death, there is no indication that defense counsel lacked an opportunity 

to visit the crime scene or otherwise learn the key available facts. 

¶ 68 Finally, after reviewing the trial court’s comments during the hearing on defendant’s 

motion in limine to bar Sharp’s preliminary hearing testimony, the trial court appears to have 

thoroughly and thoughtfully reviewed the hearing transcript and considered defendant’s 

arguments. We neither view the trial court’s decision as “arbitrary, fanciful, or unreasonable” 
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nor find that “no reasonable person would take the court’s view.” Starks, 2012 IL App (2d) 

110273, ¶ 20. The trial court did not abuse its discretion in admitting Sharp’s testimony from 

the preliminary hearing. 

¶ 69 Introduction of Prior Conviction

¶ 70 Over defense objection, the State was permitted to introduce defendant’s conviction for 

possession of contraband in a penal institution. See 720 ILCS 5/31A-1.1(b) (West 2010). 

Defendant contends on appeal that, “[u]nlike most offenses in the Criminal Code, a conviction 

for possession of contraband in a penal institution informs the jury that the accused was 

incarcerated at the time of his conduct.” He thus asserts that “its admission carries a uniquely 

acute kind of unfair prejudice akin to telling jurors that the accused is currently jailed.”

¶ 71 The State initially responds that defendant forfeited this claim by failing to include it in his 

posttrial motion. See People v. Thompson, 238 Ill. 2d 598, 611-12 (2010) (noting that “[t]o 

preserve a claim for review, a defendant must both object at trial and include the alleged error 

in a written posttrial motion”). Rule 615(a) of the Illinois Supreme Court Rules provides, in 

part, that “[p]lain errors or defects affecting substantial rights may be noticed although they 

were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a). The “plain-error 

doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious 

error occurred and the evidence is so closely balanced that the error alone threatened to tip the 

scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear 

or obvious error occurred and that error is so serious that it affected the fairness of the 

defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness 

of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Defendant argues that 

“[b]ecause this was a closely balanced case where the accused’s credibility was at issue, this 

Court should not enforce any forfeiture,” i.e., defendant invokes the “first prong” of plain-error 

review. See Thompson, 238 Ill. 2d at 613.

¶ 72 We begin plain-error review by determining whether there was, in fact, an error. See id.

Pursuant to People v. Montgomery, 47 Ill. 2d 510, 516 (1971), evidence of a witness’s prior 

conviction is admissible to attack his credibility where: “(1) the prior crime was punishable by 

death or imprisonment in excess of one year, or involved dishonesty or false statement 

regardless of the punishment, (2) less than 10 years has elapsed since the date of conviction of 

the prior crime or release of the witness from confinement, whichever is later, and (3) the 

probative value of admitting the prior conviction outweighs the danger of unfair prejudice.” 

People v. Atkinson, 186 Ill. 2d 450, 456 (1999); see Ill. R. Evid. 609(a) (eff. Jan. 1, 2011) 

(noting that the court must determine “that the probative value of the evidence of the crime is 

substantially outweighed by the danger of unfair prejudice”). When reviewing a trial court’s 

decision to admit a defendant’s prior conviction for impeachment purposes, we apply an abuse 

of discretion standard. See Atkinson, 186 Ill. 2d at 463; People v. Williams, 173 Ill. 2d 48, 81 

(1996).

¶ 73 In the instant case, there is no dispute that the first two prongs of the Montgomery test were 

satisfied. See, e.g., People v. Mullins, 242 Ill. 2d 1, 17 n.2 (2011). The last prong “requires the 

trial judge to conduct a balancing test, weighing the prior conviction’s probative value against 

its potential prejudice.” Atkinson, 186 Ill. 2d at 456. “In conducting this balancing test, the trial 

judge should consider, inter alia, the nature of the prior conviction, its recency and similarity 

to the present charge, other circumstances surrounding the prior conviction, and the length of 
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the witness’ criminal record.” Id. The evidence of the prior conviction must be excluded if the 

trial judge determines that the prejudice outweighs the probative value of admitting the 

evidence. Id.

¶ 74 As noted in our earlier decision, the indictment in case number 10 CR 14728 alleged that 

defendant possessed a shank that was discovered in his waist band while in the Cook County 

Department of Corrections. Boston, 2016 IL App (1st) 133497, ¶ 1. Defendant was found 

guilty and sentenced to five years’ imprisonment. Id. During the hearing on the State’s motion 

in limine to introduce this conviction, the court and counsel engage in an extended colloquy 

regarding, among other things, the exact name of the offense. After determining that the charge 

was “possession of contraband in a penal institution,” the court stated, in part:

“Okay. Well, you know, that’s a lot different than possession of a shank, 

particularly when the defendant is charged with a stabbing here. I mean, because then 

I would agree [defense counsel] has a pretty strong argument that this could be 

considered by the jury for propensity purposes. 

Contraband is kind of a generic term. They could envision someone being caught 

with marijuana or some type of paraphernalia in the institution. Obviously, if you are 

seeking to introduce it as possession of a weapon—contraband; to wit, knife or weapon, 

then I believe the *** prejudicial effect would outweigh any probative value.”

Prior to granting the motion, the trial court observed:

“This is one conviction. This is not several convictions. This is not for a crime that’s 

similar, as I am told, to the charge against defendant. I do believe the probative value 

of allowing that outweighs any prejudicial effect.”

¶ 75 Based on our review of the record, the trial court engaged in a balancing test and properly 

considered the factors set forth by our supreme court. See, e.g., Atkinson, 186 Ill. 2d at 456. 

The trial court also issued a limiting instruction prior to the State’s presentation of defendant’s 

conviction. “Absent some indication to the contrary, we must presume that jurors follow the 

law as set forth in the instructions given them.” People v. Wilmington, 2013 IL 112938, ¶ 49. 

See, e.g., Mullins, 242 Ill. 2d at 16 (noting that the similarity to the charged crime did not 

mandate exclusion of a prior conviction, “especially *** when the jury is instructed to consider 

the evidence of the defendant’s prior convictions for the limited purpose of impeachment, 

which ensures that the jurors understood the narrow reason for which the convictions were 

admitted”).

¶ 76 Defendant nevertheless contends that a “robust body of law condemns such evidence 

suggestive of past criminality or jailing.” We initially observe that any prior conviction is 

suggestive of past criminality. In any event, the cases defendant cites in support of this 

proposition are distinguishable from the instant case. For example, in People v. Nelson, 193 

Ill. 2d 216, 224 (2000), the jury was “informed in a not-so-subtle manner that defendant had 

had mug shots taken on three different occasions, with enough time in between to affect how 

he looked in the photos.” The trial testimony also “implied that the most recent photograph 

was taken at a time proximate to the commission of the underlying incident.” Id. In holding 

that the admission of the mug shot evidence was reversible error, our supreme court opined 

that “jury speculation as to what might have led to three separate arrests (including one near 

the time of the underlying crime) could have been the difference between conviction and 

acquittal.” Id. at 224-25. 
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¶ 77 Unlike in Nelson, the trial court in the instant case explicitly considered that defendant had 

a single prior conviction. Furthermore, we view the State’s presentation of a certified copy of 

defendant’s conviction—together with a limiting instruction—as substantially different from 

the potentially inflammatory mug shot evidence of the defendant provided to the jury in 

Nelson. We also reject defendant’s comparison of the court’s admission of defendant’s prior 

conviction as akin to forcing a defendant to wear shackles or prison attire in court. See, e.g., 

Deck v. Missouri, 544 U.S. 622, 624 (2005); Estelle v. Williams, 425 U.S. 501, 504 (1976); 

People v. Boose, 66 Ill. 2d 261, 268 (1977). Based on the foregoing, we conclude that the trial 

court did not abuse its discretion in permitting the State to introduce defendant’s conviction 

for possession of contraband in a penal institution.

¶ 78 Rebuttal Closing Argument 

¶ 79 Defendant next contends that his conviction should be reversed and the cause remanded 

for a new trial because the State improperly commented during rebuttal closing argument on 

his postarrest silence. Defendant acknowledges that he did not preserve this error for review, 

but maintains that under both prongs of the plain-error doctrine the matter warrants reversal. 

To that end, defendant maintains that the evidence was not closely balanced and that the 

prosecutor’s improper remarks deprived him of his substantial right to a fair trial. The State 

responds that no error occurred because the majority of the comments were directed at 

defendant’s silence prior to his arrest. The State further contends that the error, if any, did not 

rise to the level of plain error.

¶ 80 We again engage in plain-error review, as defendant failed to include this issue in his 

posttrial motion. See, e.g., Thompson, 238 Ill. 2d at 611-12. As previously observed, defendant 

has the burden of establishing either that “(1) a clear or obvious error occurred and the evidence 

is so closely balanced that the error alone threatened to tip the scales of justice against the 

defendant, regardless of the seriousness of the error, or (2) a clear and obvious error occurred 

and that error is so serious that it affected the fairness of the defendant’s trial and challenged 

the integrity of the judicial process, regardless of the closeness of the evidence.” Piatkowski, 

225 Ill. 2d at 565. As noted above, we must initially consider whether an error occurred. 

Thompson, 238 Ill. 2d at 613.

¶ 81 Generally, a prosecutor is given wide latitude in closing arguments, although his or her 

comments must be based on the facts in evidence or upon reasonable inferences drawn 

therefrom. People v. Page, 156 Ill. 2d 258, 276 (1993). “The prosecutor has the right to 

comment on the evidence and to draw all legitimate inferences deducible therefrom, even if 

they are unfavorable to the defendant.” People v. Simms, 192 Ill. 2d 348, 396 (2000). “Whether 

a prosecutor’s comments or arguments constitute prejudicial error is evaluated according to 

the language used, its relation to the evidence, and the effect of the argument on the defendant’s 

right to a fair and impartial trial.” Id. “In reviewing comments made at closing arguments, this 

court asks whether or not the comments engender substantial prejudice against a defendant 

such that it is impossible to say whether or not a verdict of guilt resulted from them.” People 

v. Wheeler, 226 Ill. 2d 92, 123 (2007). “Prosecutorial misconduct warrants reversal only if it 

‘caused substantial prejudice to the defendant, taking into account the content and context of 

the comment[s], its relationship to the evidence, and its effect on the defendant’s right to a fair 

and impartial trial.’ ” People v. Love, 377 Ill. App. 3d 306, 313 (2007) (quoting People v. 

Johnson, 208 Ill. 2d 53, 115 (2003)). “If the jury could have reached a contrary verdict had the 
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improper remarks not been made, or the reviewing court cannot say that the prosecutor’s 

improper remarks did not contribute to the defendant’s conviction, a new trial should be 

granted.” Wheeler, 226 Ill. 2d at 123. 

¶ 82 Although defendant contends “improper commentary on an accused’s silence is to be 

reviewed de novo” (e.g., People v. Dameron, 196 Ill. 2d 156, 162 (2001)), this court has “noted 

confusion regarding the appropriate standard of review regarding alleged errors occurring 

during closing arguments” (People v. Johnson, 2015 IL App (1st) 123249, ¶ 39). Such 

confusion “originates from our supreme court’s apparent conflicting holdings” in Wheeler

(applying de novo standard) and People v. Blue, 189 Ill. 2d 99, 128 (2000) (employing an abuse 

of discretion standard). Johnson, 2015 IL App (1st) 123249, ¶ 39. We need not resolve the 

issue, however, because we reach the same conclusion under either standard.

¶ 83 We begin our consideration of the claimed error with a historical overview of the law in 

Illinois regarding the prohibition of the use of pre-Miranda silence, including the silence 

following a defendant’s arrest but before receiving Miranda warnings, as stated in this court’s 

opinion People v. Quinonez, 2011 IL App (1st) 092333:

“[T]he United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 617-20 

(1976), that it was a violation of the due process clause of the fourteenth amendment 

for the State to impeach a defendant using evidence that defendant was silent following 

his arrest, after he was advised of his Miranda rights. The Court reasoned that since the 

Miranda warnings carry the implicit assurance that his silence will carry no penalty, it 

would be fundamentally unfair to allow a defendant’s post-Miranda silence to impeach 

his trial testimony. Doyle, 426 U.S. at 612, 618. However, the Supreme Court later held 

that the prohibition applies only to a defendant’s silence after being advised of his 

Miranda rights. Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam). In doing so, 

it found that states were free to formulate their own rules with respect to [a] defendant’s 

silence before arrest [citation], as well as after arrest but before receiving Miranda

warnings [citation].” Quinonez, 2011 IL App (1st) 092333, ¶ 25 (citing Jenkins v. 

Anderson, 447 U.S. 231, 238 (1980), and Fletcher, 455 U.S. at 607).

See also Miranda v. Arizona, 384 U.S. 436 (1966).

¶ 84 In this case, defendant does not argue that the prosecutor’s rebuttal arguments referenced 

defendant’s silence after he received his Miranda warnings. Accordingly, federal 

constitutional law prohibiting the State from impeaching defendant by referring to his silence 

at that point in time is not invoked. See Quinonez, 2011 IL App (1st) 092333, ¶ 26. What is at 

issue are the comments made by the prosecutor prior to defendant receiving his Miranda

warnings. Illinois evidence law prohibits impeachment of a criminal defendant with his or her 

postarrest silence, regardless of whether the silence occurred before or after the defendant was 

given Miranda warnings. Id. (citing People v. Clark, 335 Ill. App. 3d 758, 762-63 (2002)). As 

set forth by our supreme court in People v. Lewerenz, “an accused is within his rights when he 

refuses to make a statement [at the time of his arrest], and the fact that he exercised such right 

has no tendency to prove or disprove the charge against him, thus making evidence of his 

refusal neither material or relevant to the issue being tried.” People v. Lewerenz, 24 Ill. 2d 295, 

299 (1962) (citing People v. Rothe, 358 Ill. 52, 57 (1934)). “The language of relevancy and 

materiality utilized by our supreme court in Lewerenz and Rothe indicates that the Illinois rule 

which prohibits impeachment with defendant’s postarrest silence is based on evidentiary 

principles, rather than constitutional law. [Citation.] Therefore, the rule is unaltered by federal 
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constitutional cases which found that the use of a defendant’s postarrest, pre-Miranda silence 

does not violate due process.” Quinonez, 2011 IL App (1st) 092333, ¶ 26. Accordingly, “the 

Illinois evidentiary rule generally prohibits impeachment of a criminal defendant with his 

postarrest silence, regardless of whether it occurred before or after he was given Miranda

warnings, because under those circumstances, that silence is not considered relevant or 

material.” Id. ¶ 27. Such references are improper because they are “intended to invite the jury 

to infer from the defendant’s silence that his *** defense is a recent fabrication.” People v. 

Ridley, 199 Ill. App. 3d 487, 492 (1990). A prosecutor’s comments on prearrest silence, 

however, are proper. See People v. Manley, 222 Ill. App. 3d 896, 909 (1991); People v. Graves, 

142 Ill. App. 3d 885, 890 (1986).

¶ 85 With this law in mind, we now turn to consider the statements made by the ASA during 

rebuttal closing argument:

“The defendant doesn’t say to her, I mean, you know, in his lie, but in reality, he never 

says I need help, and, in fact, the police told you that when Curry comes with 

McPherson, the defendant says nothing. If you’re killing someone in self-defense, 

aren’t you shouting it from the toppist [sic], highest mountain you can find. Wait a 

minute, thank God you’re here[.]”

After the court overruled a defense objection, the prosecutor stated:

“Drop the knife, police, I was attacked, it’s not what it looks like, I have blood on me, 

it’s not—I’m cut, I was defending myself, I was attacked, he attacked me. He said 

nothing to the police. He runs in the back, and then Lieutenant Bankhead comes, and 

he comes out, and he’s got his hands up, does he say then, listen, it’s a mistake, I am 

not the one, I am a victim, I was attacked, I had to do it, or to granny, call an ambulance, 

this is a horrible event. Yeah, if you were truly justified, if you were truly not guilty, 

that’s what you would do, and that’s not what he did, and that’s how you know.”

¶ 86 These comments can be broken down to reference three distinct periods in time: (1) when 

Sharp appeared in the basement; (2) when Curry and McPherson came in contact with 

defendant; and (3) when Bankhead was on the basement stairs. Therefore, in order to determine 

whether the prosecutor’s comments were improper, we must first determine at what point 

defendant was arrested. See Quinonez, 2011 IL App (1st) 092333, ¶ 30.

¶ 87 “An arrest occurs when a person’s freedom of movement is restrained by physical force or 

a show of authority.” People v. Surles, 2011 IL App (1st) 100068, ¶ 23. Factors that may be 

indicative of an arrest include “(1) the threatening presence of several officers; (2) the display 

of a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the 

use of language or tone of voice indicating that compliance with the officer’s request might be 

compelled.” People v. Luedemann, 222 Ill. 2d 530, 553 (2006). We determine whether a person 

is under arrest based on whether an objective reasonable person, innocent of any crime, would 

conclude that he is not free to leave under the circumstances. Id. The record here demonstrates 

that defendant was not arrested until Bankhead pointed his weapon at defendant, commanded 

defendant to ascend the staircase, and guided defendant up the staircase while continuing to 

point his weapon at defendant. Although Bankhead was the only officer on the stairs at that 

time, defendant was aware of the presence of at least three officers on the scene. In addition, 

Bankhead approached defendant with his weapon drawn, gave defendant an order to come with 

him up the stairs, and continued to point his weapon in defendant’s direction as they ascended 
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the stairs. Under the totality of these circumstances, we conclude that any interaction defendant 

had with police officers from that point forward is considered postarrest. 

¶ 88 Thus it follows that the prosecutor’s comments regarding the points in time prior to 

defendant’s arrest by Bankhead were proper. While Curry and McPherson did enter the 

basements with their weapons drawn, upon viewing them defendant retreated. See People v. 

Beall, 42 Ill. App. 3d 452, 454 (1976) (the defendant’s flight after he was confronted by police 

officers who informed him he was “under arrest” contradicted any claim of submission to 

arrest); People v. Tribett, 98 Ill. App. 3d 663, 672 (1981) (“the fact that the officers had their 

guns drawn does not necessarily indicate an arrest”). The officers’ intent not to arrest defendant 

at that time was evident when Curry and McPherson decided to exit the basement without 

confronting defendant further. See People v. Washington, 363 Ill. App. 3d 13, 24 (2006) (one 

factor to consider to determine whether a defendant is arrested includes the intention of the 

officers). At this point, the totality of the circumstances indicates that defendant was not 

arrested; in fact, there was no evidence presented there was an arrest affected at that time by 

Curry and McPherson. It also goes without saying that when Sharp descended the basement 

stairs defendant was not under arrest, as the police had not even been called at that time. Thus, 

the prosecutor’s comments regarding defendant’s silence during these two periods of time were 

proper.

¶ 89 Regarding the prosecutor’s comment on defendant’s silence after his arrest, the State 

maintains that the comment falls within one of the exceptions to the general rule that postarrest 

silence is considered irrelevant and immaterial and thus it was proper.

¶ 90 Illinois courts have held that there are two exceptions to the general rule, where postarrest 

silence will be considered relevant. See People v. McMullin, 138 Ill. App. 3d 872, 877 (1985). 

A defendant’s postarrest silence may be used to impeach his trial testimony when (1) the 

defendant testifies at trial that he made an exculpatory statement to the police at the time of his 

arrest or (2) the defendant makes a postarrest (pretrial) statement that is inconsistent with his 

exculpatory trial testimony. Quinonez, 2011 IL App (1st) 092333, ¶ 27.

¶ 91 Despite the State’s request, we decline to consider whether defendant’s postarrest silence 

falls within one of the exceptions to the general rule. First, the facts of this case are nuanced, 

and the State cites no case wherein it was allowed to impeach a defendant with his or her 

silence where the State itself elicited the testimony it purports to impeach. See Ill. S. Ct. R. 

341(h)(7), (i) (eff. May 25, 2018). Second, even if it did not fall within one of the exceptions, 

defendant cannot demonstrate plain error.

¶ 92 Regarding first-prong plain error, defendant asserts that the evidence was closely balanced 

where the jury had before it sufficient evidence that he acted in self-defense and thus could 

have found him guilty of second-degree murder. Defendant points to his testimony that he 

acted out of “fear[ ] for his life” and that he “slashed at” Moore to protect and defend himself. 

Defendant further notes that the State failed to offer any eyewitness testimony regarding how 

the fight ensued and thus his testimony that Moore attacked him first was unrebutted. This 

evidence, along with the evidence of Moore’s criminal record and the presence of cocaine in 

his system at the time of the fight, could lead a jury to conclude that he acted in self-defense.

¶ 93 Where a defendant claims first-prong plain error, a reviewing court must decide whether 

the defendant has demonstrated that the evidence was so closely balanced the error alone 

severely threatened to tip the scales of justice. People v. Sebby, 2017 IL 119445, ¶ 51. If the 

defendant carries that burden, prejudice is not presumed; rather, “[t]he error is actually 
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prejudicial.” People v. Herron, 215 Ill. 2d 167, 193 (2005); accord Piatkowski, 225 Ill. 2d at 

566 (“defendant must meet his burden to show that the error was prejudicial—in other words, 

he must show that the quantum of evidence presented by the State against the defendant 

rendered the evidence ‘closely balanced’ ”). In determining whether the evidence adduced at 

trial was close, a reviewing court must evaluate the totality of the evidence and conduct a 

qualitative, commonsense assessment of it within the context of the case. People v. Belknap, 

2014 IL 117094, ¶¶ 52-53. A reviewing court’s inquiry thus “involves an assessment of the 

evidence on the elements of the charged offense or offenses, along with any evidence regarding 

the witnesses’ credibility.” Sebby, 2017 IL 119445, ¶ 53.

¶ 94 Here, defendant was found guilty of first degree murder under section 9-1(a)(1) of the 

Criminal Code of 1961 (720 ILCS 5/9-1(a)(1) (West 2006)). That section provides:

“(a) A person who kills an individual without lawful justification commits first 

degree murder if, in performing the acts which cause the death:

(1) he either intends to kill or do great bodily harm to that individual or another, 

or knows that such acts will cause death to that individual or another[.]” Id.

¶ 95 Defendant here also raised the affirmative defense of self-defense. Once the affirmative 

defense of self-defense is raised, the State has the burden of proving beyond a reasonable doubt 

that the defendant did not act in self-defense, in addition to proving the elements of the charged 

offense. People v. Lee, 213 Ill. 2d 218, 224 (2004). Self-defense includes the following 

elements: (1) unlawful force threatened against a person, (2) the person threatened was not the 

aggressor, (3) the danger of harm was imminent, (4) the use of force was necessary, (5) the 

person threatened actually and subjectively believed a danger existed that required the use of 

the force applied, and (6) the beliefs of the person threatened were objectively reasonable. See 

720 ILCS 5/7-1 (West 2006); accord Lee, 213 Ill. 2d at 225 (enumerating elements). If the 

State negates any one of these elements, the defendant’s claim of self-defense necessarily fails. 

Lee, 213 Ill. 2d at 225. Of course, the State does not have the burden to disprove an affirmative 

defense unless sufficient evidence is present on it. People v. Smith, 237 Ill. App. 3d 901, 907-

08 (1992).

¶ 96 Here, the evidence defendant committed first degree murder was overwhelming. Sharp’s 

testimony established that upon hearing a “scuffling noise” in the basement, she went towards 

the basement stairs and directed those in the basement to “stop the noise.” Sharp further 

testified her son, Moore, directed her to “call the police, call the police.” Instead of calling the 

police directly, Sharp went downstairs into the basement where she observed defendant on top 

of Moore, stabbing him. She attempted to pull defendant off of Moore, and at one point 

attempted to strike him with a milk crate, but she was unsuccessful in stopping the attack. 

Sharp then went upstairs and dialed 911. Some amount of time passed between when Sharp 

called 911 and the police arrived, and the evidence established that, when Curry and his partner 

arrived in the basement, defendant was not only still on top of Moore but was continuing to 

stab him. See People v. Kibayasi, 2013 IL App (1st) 112291, ¶ 42 (intent to kill may be inferred 

from the circumstances surrounding the incident, defendant’s conduct, and the nature and 

severity of the victim’s injuries).

¶ 97 The physical evidence corroborated the State’s theory of the case. When defendant was 

discovered in the basement, Curry and Bankhead testified that they did not recall him holding 

a weapon. When Bankhead ordered defendant to put his hands up, defendant still was not 

observed with a weapon. It was not until after defendant resisted being detained by “tussling” 
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with the officers that a knife was discovered on the driveway “[r]ight there” where defendant 

was placed under arrest. From this evidence the jury could infer that defendant had hidden at 

least one knife on his person. The DNA evidence also established that the blood on defendant’s 

clothing and certain of the recovered knives contained Moore’s DNA.

¶ 98 In addition, the medical examiner testified Moore suffered numerous incised wounds and 

one fatal wound as well as blunt trauma to his forehead, multiple wounds in and around his 

eyes, human bite marks, and a suction hematoma. The medical examiner also testified that 

some of these injuries were possible defensive injuries that Moore may have sustained while 

attempting to ward off blows. In contrast, defendant testified he received two knife wounds; 

one when he raised his arms to initially protect himself and another when he cut his own hand 

as he grabbed the knife from Moore’s hand. The evidence at trial, however, established that 

defendant only suffered from the one wound to his arm, as Curry testified that the day after 

defendant was arrested there were no wounds on the palms or on the tops of his hands. The 

photographs, autopsy results, and medical examiner’s testimony revealed Moore’s extensive 

injuries, whereas the photographs of defendant—coupled with Curry’s testimony—

demonstrated that defendant was almost completely unscathed. In further support that 

defendant was the aggressor, Bankhead testified that as defendant walked up the basement 

stairs he observed that defendant’s shirt, while blood-stained, was not ripped. Our review of 

the evidence indicates the evidence against defendant was overwhelming and was not closely 

balanced, so any alleged errors made by the prosecutor during closing arguments cannot be 

reviewed under the first prong of a plain error review. See Sebby, 2017 IL 119445, ¶ 48.

¶ 99 Defendant maintains, citing Sebby, that where a defendant’s testimonial account was 

“plausible,” the evidence is closely balanced. In Sebby, the defendant was charged with 

resisting a police officer. Id. ¶ 54. On appeal before our supreme court, the defendant asserted 

the trial court committed an Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) violation 

and that the error rose to the level of plain error under the first prong of the plain-error doctrine. 

Id. ¶ 52. In considering whether the evidence in the case was closely balanced, our supreme 

court laid out the evidence presented and concluded that it involved a contest of credibility 

where both the testimony of the State’s witnesses and the testimony of defendant and his 

witnesses were plausible and neither were supported by corroborating evidence. Id. ¶¶ 61-63 

(citing People v. Naylor, 229 Ill. 2d 584, 606-07 (2008) (“Given these opposing versions of 

events, and the fact that no extrinsic evidence was presented to corroborate or contradict either 

version, the trial court’s finding of guilt necessarily involved the court’s assessment of the 

credibility of the two officers against that of defendant.”)).

¶ 100 This case does not represent an instance where the evidence turned solely on the credibility 

of the testimony as it did in Sebby. Not only did Curry and McPherson come upon defendant 

while the act was being committed, there was also physical evidence that demonstrated 

defendant’s involvement in the crime. As discussed above, the State’s theory of the case was 

supported by not only the testimony of its witnesses but by the physical and DNA evidence. In 

addition, defendant’s testimony was inconsistent. Defendant could not accurately recall the 

timeline of events on June 24, 2006, and his testimony that Moore “came at [him] with a knife” 

before 3:30 p.m. appears to conflict with the testimony of Officers Curry and Bankhead that 

the incident was continuing at approximately 6:20 p.m. Furthermore, defendant’s repeated 

denial or minimization of his prior interactions with Moore was contradicted by Steven’s 
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testimony. Accordingly, we conclude that defendant has not carried his burden under the 

closely balanced prong of the plain-error doctrine. See id. ¶ 50.

¶ 101 As to second-prong plain error, defendant sets forth five reasons why “the unfairness of his 

case rose to the level of a substantial violation” of defendant’s due process rights: (1) the 

State’s injection of the issue of silence into trial; (2) its “thin foundation in the evidence 

actually elicited”; (3) the prosecutor’s “repeated and hyperbolic exploitation of silence in 

rebuttal closing argument imploring jurors to treat Boston’s silence as substantive proof of 

guilt”; (4) the lack of “meaningful corrective action by the court”; and (5) the record’s 

“suggestion that the references to Boston’s silence in closing were part of an ambush strategy 

pursued by the State.”

¶ 102 We initially observe that we have not found that all of the reasons put forth by defendant 

constitute error. Defendant did not frame his argument on appeal as an attack on the 

impropriety of the State’s questioning of him during recross-examination. See Ill. S. Ct. R. 

341(h)(7) (eff. May 25, 2018) (forfeiture). Nor did defendant challenge the admissibility of 

this testimony. See id. Furthermore, as explained previously, not all of the prosecutor’s 

comments regarding defendant’s silence were improper. In fact, a majority of those comments 

went to defendant’s prearrest silence. See Manley, 222 Ill. App. 3d at 909 (a prosecutor’s 

comment on a defendant’s prearrest silence is not error). 

¶ 103 Additionally, defendant testified that he was not silent, yet the prosecutor argued otherwise 

in closing argument. Despite the trial court’s failure to sustain the objection by defense counsel 

that this line of argument was improper, the jury was still advised on multiple occasions that it 

was only to consider the evidence. “[I]mproper arguments can be corrected by proper jury 

instructions, which carry more weight than the arguments of counsel.” People v. Willis, 409 

Ill. App. 3d 804, 814 (2011). “Moreover, any possible prejudicial impact is greatly diminished 

by the court’s instructions that closing arguments are not evidence.” Id. A trial court’s 

instructions that closing arguments are not evidence protect defendant against any prejudice 

caused by improper comments made during closing arguments. People v. Quiroz, 257 Ill. App. 

3d 576, 585 (1993). It is presumed that jurors follow the instructions provided by the trial court. 

People v. Taylor, 166 Ill. 2d 414, 438 (1995). Here, prior to closing arguments, the trial court 

informed the jury that argument from counsel was not evidence. Subsequently, the trial court 

provided the jury with Illinois Pattern Jury Instruction No. 1.03, which states:

“Opening statements are made by the attorneys to acquaint you with the facts they 

expect to prove. Closing arguments are made by the attorneys to discuss the facts and 

circumstances in the case and should be confined to the evidence and to reasonable 

inferences to be drawn from the evidence. Neither opening statements nor closing 

arguments are evidence, and any statement or argument made by the attorneys which 

is not based on the evidence should be disregarded.” Illinois Pattern Jury Instructions, 

Criminal, No. 1.03 (approved July 18, 2014).

Accordingly, the jury was aware that the prosecutor’s statements were not evidence and that 

they were only to consider the evidence when deciding the verdict.

¶ 104 Defendant cites numerous cases in an attempt to support his position that improper 

comments by the prosecutor constitute second-prong plain error. See Blue, 189 Ill. 2d at 138; 

People v. Smith, 2017 IL App (1st) 143728, ¶ 45; People v. Jackson, 2017 IL App (1st) 151779, 

¶ 20; People v. Green, 74 Ill. 2d 444, 450 (1979); Dameron, 196 Ill. 2d at 164. These cases, 

however, do not support that position. Blue, Green, and Dameron involved the court engaging 
- 22 -

in a harmless error analysis while Smith and Jackson set forth the general proposition that 

forfeiture is a limitation on the parties and not the reviewing court. Instead, the relevant 

question here is whether the alleged error was “so serious that it affected the fairness of the 

defendant’s trial and challenged the integrity of the judicial process.” (Internal quotation marks 

omitted.) People v. Clark, 2016 IL 118845, ¶ 42.

¶ 105 We further observe that while defendant states that his substantial right to a fair trial was 

violated for these five reasons and thus constituted second-prong plain error, defendant fails to 

offer any argument as to how the complained of error, namely the improper comment of the 

prosecutor during rebuttal closing argument, was so serious that it challenged the integrity of 

the judicial process. See id.

¶ 106 We do not believe that any alleged error was “so serious that it affected the fairness of the 

defendant’s trial and challenged the integrity of the judicial process.” (Internal quotation marks 

omitted.) Id. Second-prong plain error is not restricted to the six types of structural error that 

have been recognized by the United States Supreme Court. See id. ¶ 46 (holding that secondprong plain error is not limited to structural error); Thompson, 238 Ill. 2d at 609 (stating that 

the United States Supreme Court has recognized structural error to include “a complete denial 

of counsel, trial before a biased judge, racial discrimination in the selection of a grand jury, 

denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt 

instruction”). But to rise to the level of second-prong plain error, “the error nevertheless must 

be of a similar kind: an error affecting the framework within which the trial proceeds, rather 

than simply an error in the trial process itself.” (Internal quotation marks omitted.) People v. 

Johnson, 2017 IL App (2d) 141241, ¶ 51 (quoting Neder v. United States, 527 U.S. 1, 8 (1999), 

quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). The claimed error here did not 

affect the framework within which defendant’s trial proceeded, and it did not challenge the 

integrity of the judicial process. Instead, it merely resulted in inaccurate commentary not based 

on the evidence. The record discloses that the jury had before it defendant’s testimony that he 

was not silent; indeed in response to the prosecutor’s question on recross-examination, “When 

you saw the police, you didn’t say to them, ‘I had to defend myself,’ did you?” defendant 

responded, “Actually, when I came up—yes, I said that yes.” It is well established that a 

prosecutor’s statements during closing argument are not evidence, and the jury was so advised 

of this point by the trial court. See People v. Nicholas, 218 Ill. 2d 104, 122-23 (2005). 

Moreover, the comments were limited to rebuttal closing argument, and they “did not add their 

weight” to any “cloud of prejudice formed by a wider array of prosecutorial misconduct.” Id.

at 123. We conclude defendant has not met his burden to demonstrate the error was so serious 

it affected the fairness of the trial and challenged the integrity of the judicial process. See 

Sebby, 2017 IL 119445, ¶ 50.

¶ 107 Jury Note

¶ 108 During deliberations, the jury sent a note to the judge stating, “Can self-defense be a 

mitigating factor? (Definition of mitigating factor is unclear on sheet).” After a discussion with 

counsel, the trial court replied, “[Y]ou heard the evidence, you have the instructions of law. 

Please continue to deliberate.” Defendant contends on appeal that “[b]ecause how the jury 

would consider self-defense in relation to first- and second-degree murder was the decisive 

issue in the case, the failure to clarify the issue for the jury was reversible, plain error.”
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¶ 109 Plain-error review is forfeited, however, when the defendant invites the error. See People 

v. Patrick, 233 Ill. 2d 62, 77 (2009) (declining to address the defendant’s plain-error claim 

because he invited any error by submitting the challenged jury instruction); People v. 

Villarreal, 198 Ill. 2d 209, 228 (2001). The State invokes the invited-error doctrine, arguing 

that defendant “acquiesced” to the trial court’s response “because it substantially conveyed the 

response he proposed.” 

¶ 110 After reading the jury note to the parties, the following exchange occurred:

“[ASA]: You have the evidence, continue to deliberate.

[DEFENSE COUNSEL]: Or you can instruct them on the law, please continue your 

deliberations. You have all the evidence and the instructions under the law.

THE COURT: I just want to look at the instructions real quick. We’re told if we 

can answer a question, we should. Let me see if I could refer them to a particular 

instruction

***

THE COURT: I don’t know exactly how to answer this. I mean I could refer them 

to the definition of mitigating factor, but I think they know about it. I mean I don’t want 

to give them an answer that’s going to infer a verdict.

[ASA]: I mean you have all the evidence and instructions on the law, please keep 

deliberating.

THE COURT: I mean the only thing I would say, and I don’t know if this is

necessary, I understand the standard response, refer them to [Illinois Pattern Jury 

Instructions, Criminal, Nos. 7.03, 7.05 (4th ed. 2000) (hereinafter IPI Criminal 4th)], 

definition of murder and definition of mitigating factor.

[DEFENSE COUNSEL]: And what about self-defense?

[ASA]: Which would be [IPI Criminal 4th No. 7.06].

THE COURT: I could refer them to—you’re right, I mean I could refer them to [IPI 

Criminal 4th No. 24-25.06].

[ASA]: I think they’re saying they’re aware of the instructions, that they’re find 

[sic] it confusing.

THE COURT: Well, I find them confusing, and I’ve been doing this for you know, 

30 years I guess. Okay, I will—you heard the evidence, you have the instructions of 

law. Please continue to deliberate.”

¶ 111 Defendant contends, and we agree, that his trial counsel’s statements were “somewhat 

unclear.” For example, defense counsel appears to have both suggested additional instructions 

and accepted the State’s position that the jury had received the necessary instructions. In the 

absence of clear invited error, we apply plain-error review. See also Ill. S. Ct. R. 451(c) (eff. 

Apr. 8, 2013) (providing that substantial defects in jury instructions “are not waived by failure 

to make timely objections thereto if the interests of justice require”); People v. Cacini, 2015 

IL App (1st) 130135, ¶ 42 (noting that “Rule 451(c) is coextensive with the plain-error clause 

of Illinois Supreme Court Rule [615](a)”). Although we are aware that defendant’s posttrial 

motion stated that the trial court had “replied appropriately” to the jury note “and admonished 

the jury [to] resume deliberations,” we do not view such posttrial statements as having 

“invited” any alleged error that had previously occurred. 
- 24 -

¶ 112 Citing People v. Downs, 2015 IL 117934, ¶ 15, defendant contends that “[t]he propriety of 

a court’s response to a question of law from the jury is reviewed de novo.” We note that the 

Downs court cited People v. Pierce, 226 Ill. 2d 470, 475 (2007), wherein our supreme court 

stated: “Although the giving of jury instructions is generally reviewed for an abuse of 

discretion, when the question is whether the jury instructions accurately conveyed to the jury 

the law applicable to the case, our review is de novo.” See also People v. Reid, 136 Ill. 2d 27, 

38-39 (1990) (holding that the circuit court did not abuse its discretion in its response to the 

jury); People v. Gray, 346 Ill. App. 3d 989, 993-94 (2004) (stating the “court’s decision to 

answer or refrain from answering will not be disturbed absent an abuse of discretion” but 

“[w]hether the court misstated the law” in its response to a jury question “is naturally a question 

of law” subject to de novo review). Although we apply an abuse of discretion standard herein, 

our result would be the same under de novo review.

¶ 113 “Generally, a trial court must provide instruction when the jury has posed an explicit 

question or asked for clarification on a point of law arising from facts showing doubt or 

confusion.” People v. Averett, 237 Ill. 2d 1, 24 (2010). “This is true even though the jury was 

properly instructed originally.” People v. Childs, 159 Ill. 2d 217, 229 (1994); accord People v. 

Landwer, 279 Ill. App. 3d 306, 314 (1996). In the instant case, the jury was provided with 

Illinois Pattern Instructions (IPI) regarding, among other things, first degree murder, second 

degree murder, the definition of a mitigating factor, and the use of force in self-defense. 

¶ 114 “A trial court may, nevertheless, exercise its discretion to decline answering a question 

from the jury under appropriate circumstances.” Averett, 237 Ill. 2d at 24; accord People v. 

McSwain, 2012 IL App (4th) 100619, ¶ 26. “Appropriate circumstances include when the jury 

instructions are readily understandable and sufficiently explain the relevant law, when 

additional instructions would serve no useful purpose or may potentially mislead the jury, 

when the jury’s request involves a question of fact, or when giving an answer would cause the 

trial court to express an opinion likely directing a verdict one way or the other.” Averett, 237 

Ill. 2d at 24. 

¶ 115 Defendant contends that “where the court failed to clarify how self-defense can be a 

mitigating factor, the prejudice to [defendant] was the equivalent of leaving the jury without a 

second-degree instruction at all, when such an instruction was due.” He cites cases wherein the 

reviewing courts have held that a trial court’s refusal to provide a second degree murder 

instruction may constitute reversible error. E.g., People v. Washington, 2012 IL 110283, ¶¶ 58-

60; People v. Edmondson, 328 Ill. App. 3d 661, 665-66 (2002). Such error, however, did not 

occur herein. Furthermore, we do not consider the trial court’s answer to the jury’s note to be 

the “equivalent” of no second degree murder or self-defense instruction. 

¶ 116 Our supreme court has stated that an appropriate circumstance for declining to answer a 

jury question is when “giving an answer would cause the trial court to express an opinion likely 

directing a verdict one way or the other.” Averett, 237 Ill. 2d at 24. The trial court in the instant 

case expressed concern about this very issue. The trial court’s comments regarding the 

“confusing” instructions also suggest its concern that “additional instructions would serve no 

useful purpose or may potentially mislead the jury.” Id. “Illinois pattern instructions were 

‘painstakingly drafted with the use of simple, brief and unslanted language so as to clearly and 

concisely state the law,’ and for that reason, ‘the use of additional instructions on a subject 

already covered by IPI would defeat the goal that all instructions be simple, brief, impartial 

and free from argument.’ ” People v. Pollock, 202 Ill. 2d 189, 212 (2002) (quoting People v. 
- 25 -

Haywood, 82 Ill. 2d 540, 545 (1980)). In this instance—where the trial court had provided the 

relevant IPI—we cannot conclude that it abused its discretion by determining that any 

additional “clarification” could confuse or sway jurors, particularly where the court explicitly 

acknowledged its obligation to answer jury questions, if possible. 

¶ 117 Even assuming that the trial court committed clear or obvious error in its handling of the 

jury note, the evidence was not closely balanced under first-prong plain error, for the reasons 

discussed above. Furthermore, the cases defendant cites regarding second-prong plain error are 

inapposite. 

¶ 118 For example, in People v. Ogunsola, 87 Ill. 2d 216, 222-23 (1981), the Illinois Supreme 

Court concluded that the challenged jury instruction completely omitted a portion of the 

definition of the crime. In remanding the cause for a new trial, our supreme court observed that 

“[t]he failure to correctly inform the jury of the elements of the crime charged has been held 

to be error so grave and fundamental that the waiver rule should not apply.” Id. at 222. 

Similarly, in People v. Ulloa, 2015 IL App (1st) 131632, ¶ 25, the appellate court concluded 

that “[t]he misstatement of the applicable law here, including a misstatement of the elements 

of the offense of conspiracy, is a grave error, affecting the fundamental fairness of the trial and 

the integrity of the judicial process.” Unlike in Ogunsola and Ulloa, the jury instructions in the 

instant case did not omit a central issue or incorrectly define an offense or defense. But cf.

Cacini, 2015 IL App (1st) 130135, ¶ 55 (finding that “the trial court’s omission of the selfdefense instruction on the three offenses before the jury” was “second-prong plain error 

because the error was of such a magnitude as to have denied defendant a fair trial”). While 

“fundamental fairness requires that the jury be instructed on the elements of the offense 

charged” (People v. Hale, 2012 IL App (4th) 100949, ¶ 22), the instructions in the instant case 

satisfied such requirement. We also reject defendant’s contention that “the jury was especially 

likely to be confused where it received the instructions on self-defense in relation to first and 

second degree murder out of sequence.” See, e.g., People v. Anderson, 2012 IL App (1st) 

103288, ¶ 45 (concluding that “[a]lthough the instructions were not read to the jury in the 

precise order directed by the drafting committee, the trial court clearly conveyed the applicable 

law and the proper instructions to the jury”). 

¶ 119 We thus conclude that there was no plain error vis-à-vis the trial court’s answer to the jury 

note. Defendant contends, in the alternative, that his trial counsel was ineffective “for not 

ensuring the jury’s question was properly answered.” Under Strickland v. Washington, 466 

U.S. 668 (1984), “to prevail on a claim of ineffective assistance of counsel, a defendant must 

show both that counsel’s performance was deficient and that the deficient performance 

prejudiced the defendant.” People v. Cherry, 2016 IL 118728, ¶ 24. 

¶ 120 Defendant cites People v. Lowry, 354 Ill. App. 3d 760, 762 (2004), wherein the jury 

question involved the definition of “knowingly.” With the agreement of “[a]ll attorneys,” the 

court instructed the jurors: “You have heard the evidence and been instructed on the law. Please 

keep deliberating.” (Internal quotation marks omitted.) Id. The appellate court held that defense 

counsel provided deficient representation by failing to offer the IPI that expressly defines 

“knowingly” and related terms. Id. at 766-67. The appellate court further held that defense 

counsel’s failure “prejudiced defendant regarding an issue critical to the aggravated battery 

charge and rendered the proceeding fundamentally unfair.” Id. at 768. Unlike in Lowry, there 

was no additional IPI in the instant case to provide to the jury. Any attempt at elucidation by 

the trial court regarding whether “self-defense” could be a “mitigating factor” could have 
- 26 -

exacerbated any juror confusion. But cf. People v. Coots, 2012 IL App (2d) 100592, ¶¶ 53-54 

(concluding that defense counsel was ineffective where counsel failed to tender, and the trial 

court failed to give, two IPI that would have clarified the term “deliver”). Even assuming 

arguendo that defense counsel’s performance was deficient, there is no indication that 

defendant was prejudiced by such performance, i.e., that there was a reasonable likelihood that 

the result of his trial would be different. See People v. Hicks, 2015 IL App (1st) 120035, ¶ 59.

¶ 121 Jury Polling

¶ 122 In his appellate briefs, defendant contends that “[w]here a juror expressly dissented from 

the guilty verdict during polling and the court failed to question him, [defendant’s] right to a 

unanimous jury verdict was violated.” We initially observe that defendant has forfeited 

appellate review of this claim by failing to object during the trial or assert the claim in a 

posttrial motion. See Thompson, 238 Ill. 2d at 611 (noting that “[t]o preserve a claim for 

review, a defendant must both object at trial and include the alleged error in a written posttrial 

motion”). The plain-error rule, however, bypasses normal forfeiture principles and allows a 

reviewing court to consider unpreserved claims of error in specific circumstances. Id. at 613. 

The first step of plain-error review is determining whether any error occurred. Id. For the 

reasons discussed below, we find no error.

¶ 123 The purpose of a jury poll is to determine whether the verdict has been freely reached and 

is unanimous. People v. Wheat, 383 Ill. App. 3d 234, 237 (2008). “Through a jury poll, jurors 

may freely assent or dissent to the verdict without the fear, errors, or coercive influences that 

may have prevailed in the jury’s private collective deliberations.” Id.; see also United States v. 

Shepherd, 576 F.2d 719, 725 (7th Cir. 1978) (noting that “[t]he purpose of affording a right to 

have the jury polled is not to invite each juror to reconsider his decision, but to permit an 

inquiry as to whether the verdict is in truth unanimous”).

¶ 124 In Illinois, after a guilty verdict is returned but before it is accepted and recorded, a criminal 

defendant has an absolute right to poll the jury regarding whether each individual agreed with 

the pronounced verdict. Wheat, 383 Ill. App. 3d at 237. The opportunity for jurors to express 

their assent or dissent to a verdict is basic to our system, which requires unanimity among the 

jurors, and if any juror dissents from the verdict, it cannot be recorded. People v. Rehberger, 

73 Ill. App. 3d 964, 968 (1979); see also 725 ILCS 5/115-4(o) (West 2006) (requiring the 

“unanimous verdict of the jury”); Martin v. Morelock, 32 Ill. 485, 487-88 (1863) (stating that 

a “case is not at an end until the verdict is recorded and the jury discharged, and it would be 

unjust to record a verdict from which the jury, in the presence of the court, dissent”).

¶ 125 In the original version of the transcript of the jury polling, juror Greco answered “[n]o” 

when asked, “Was this then and is this now your verdict[?]” After oral arguments in this appeal, 

the State filed in the trial court a “Motion Pursuant to Supreme Court Rule 329 to Make the 

Record on Appeal Conform to the Truth.” The motion provided, in part, that the “transcript 

regarding Juror Greco’s answer to the jury poll is incorrect and must be corrected.” The State 

represented that after Ellen Dusza, the court reporter, reviewed her notes, “she found that the 

‘no’ answer incorrectly reflected Juror Greco’s answer which should have been transcribed as 

‘yes.’ ” Defendant responded, in part, that the State’s motion was facially insufficient because 

it failed to provide a copy of Dusza’s original stenographic notes. 

¶ 126 Rule 329 provides, in pertinent part:
- 27 -

“The record on appeal shall be taken as true and correct unless shown to be 

otherwise and corrected in a manner permitted by this rule. Material omissions or 

inaccuracies or improper authentication may be corrected by stipulation of the parties 

or by the trial court, either before or after the record is transmitted to the reviewing 

court, or by the reviewing court or a judge thereof. Any controversy as to whether the 

record accurately discloses what occurred in the trial court shall be submitted to and 

settled by that court and the record made to conform to the truth.” Ill. S. Ct. R. 329 (eff. 

Jan. 1, 2006). 

¶ 127 During proceedings before the trial court on February 16, 2017, Dusza testified that she 

used a steno machine to take notes in machine shorthand on the day of the verdict, but did not 

have an audio recording. Her notes reflected that juror Greco said “no.” After an ASA 

contacted Dusza regarding the jury polling issue on January 19, 2017, she reviewed her notes.

¶ 128 According to Dusza, a juror may respond “no” because he does not understand the 

question. In such case, the judge or counsel will ask the juror to repeat his answer and the judge 

will repeat the question. In the instant case, Dusza testified that her notes did not indicate any 

follow-up or reflect any unusual occurrences. She also testified that she would have written 

herself a note if “something out of the ordinary” had occurred, but she apparently did not write 

any note. Dusza believed juror Greco answered “yes,” because nothing transpired after his 

answer. She testified that the “no” answer was her mistake.

¶ 129 During cross-examination, Dusza testified that the combination of keys used to create the 

word “yes” are on a different row of a steno machine than the key combination for the word 

“no.” She further testified that in her 28 years of court reporting that she had “never had a ‘no’ 

go unnoticed.” She agreed, however, that “[s]ometimes attorneys don’t object.” In response to 

questioning by the court, Dusza also testified that the defense attorney was present when the 

jury was polled.

¶ 130 An ASA who prosecuted the case against defendant testified that she and her partner were 

in the courtroom when the jury returned its verdict. Defense counsel objected to the ASA’s 

testimony, arguing that such testimony was not relevant without any kind of documentary 

evidence. The trial court permitted the ASA to continue to testify. She testified that juror Greco 

had “said the word ‘yes’ ” when asked “was this then and is this now your verdict.”

¶ 131 The judge observed that he was not “looking over somebody else’s verdict” but was instead 

“looking over a verdict that I took myself.” He specifically remembered defendant’s trial 

counsel and also recalled specific details of defendant’s various proceedings, which were on 

his call for several years. The judge noted that he was “very cognizant” of his procedure and 

protocol when conducting jury polling and that he listened clearly when he polled the jury. He 

also noted that neither he nor any of the attorneys present at the verdict responded to Greco’s 

answer. Finally, the judge found Dusza’s testimony to be credible and consistent with his own 

recollection and the recollection of the ASA. Stating that “common sense should rule,” the 

court concluded that it was clear that “at no time did Juror Greco ever answer no when he was 

polled.” The court granted the State’s Rule 329 motion. 

¶ 132 In accordance with the trial court’s ruling pursuant to Rule 329, the record has been 

corrected to reflect that Greco’s response was “yes.” 

¶ 133 Defendant has argued in both the trial court and this court that under Rule 329, any 

alteration that impeaches or contradicts the record must be based on contemporaneously

produced documentary evidence, such as the court reporter’s stenographic notes. According to 
- 28 -

defendant, the testimony of the participants or the recollection of the trial court alone is

insufficient. See, e.g., People v. Allen, 109 Ill. 2d 177, 184 (1985); People v. Vincent, 165 Ill. 

App. 3d 1023, 1030 (1988) (relying on Allen). 

¶ 134 We observe, however, that certain principles articulated by the Illinois Supreme Court in 

Allen were derived from cases with significantly different facts than those of Allen or the 

instant case. For example, in Hartgraves v. Don Cartage Co., 63 Ill. 2d 425, 427 (1976), an inchambers discussion was held after 1 of the 12 jurors was injured and could not continue to 

serve on the jury. After this off-the-record discussion, the defendant’s counsel moved for a 

mistrial in open court, which the trial court denied. Id. In his posttrial motion, the defendant 

challenged the denial of his motion for a mistrial. Id. Prior to the hearing on the defendant’s 

posttrial motion, the plaintiff’s counsel submitted an affidavit in opposition to the motion. Id.

The affidavit stated that during the in-chambers discussion, defense counsel had indicated that 

he would formally object to proceeding with less than 12 jurors but requested that the judge 

overrule his objection, and indicated he was willing to proceed with 11 jurors. Id. The 

defendant’s counsel submitted an affidavit denying that he had consented to proceeding with 

less than 12 jurors. Id. At the hearing on the posttrial motion six months after the trial, the trial 

judge stated that he had a clear recollection of the in-chambers discussion. Id. The trial judge 

stated that the defendant’s counsel had suggested he overrule the motion for mistrial and agreed 

that the trial court proceed. Id. The trial court denied the defendant’s posttrial motion. Id.

¶ 135 The Illinois Supreme Court in Hartgraves affirmed the judgment of the appellate court, 

which had reversed and remanded the matter for a new trial. Id. at 432. In so holding, our 

supreme court stated that “any corrections of or additions to the record which contradict the 

clear and unambiguous contents of the record must be supported by something other than the 

‘clear memory’ of the trial judge.” Id. Our supreme court noted that there was no disagreement 

regarding whether the record accurately disclosed what occurred in court. Id. at 429. 

¶ 136 In Allen, 109 Ill. 2d at 184, the Illinois Supreme Court—citing Hartgraves and another 

civil case—stated that “[i]t is well established that a party may not prove an inaccuracy in the 

record merely by presenting oral testimony.” Our supreme court in Allen concluded that the 

trial court’s correction of a transcript was proper where, among other things, the State 

presented the original stenographic notes which supported its contention that the transcript of 

proceedings was incorrect. Id. Although the stenographic notes in the instant case do not 

support the finding of an inaccuracy as was the case in Allen, we do not view Rule 329 as 

mandating that any alteration that contradicts the record must be based on contemporaneously 

produced physical evidence.

¶ 137 Approximately one year after the Hartgraves decision, the Illinois Supreme Court in 

People v. Chitwood, 67 Ill. 2d 443 (1977), approved a correction of the record based on an 

affidavit presented by the State and the trial judge’s verification of the accuracy of the affidavit. 

In the affidavit, the State averred that the defendant, through his counsel, waived the right to a 

jury trial in open court but that waiver was inadvertently omitted from the record. Id. at 446. 

Distinguishing Hartgraves, our supreme court held that the State’s motion to amend should 

have been allowed. Id. at 448. The Illinois Supreme Court in Chitwood stated that the “question 

in Hartgraves was *** not whether the record could be amended, but whether it could be 

impeached by showing that a party had made an off-the-record representation inconsistent with 

the position which he assumed in the courtroom as shown by the record.” Id. at 447-48. 
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¶ 138 We respectfully submit that the facts of the instant case are more akin to Chitwood than 

Hartgraves and that the evidence presented at the Rule 329 proceeding—including the 

testimony of the court reporter and the ASA and the detailed recollection of the trial judge—

was sufficient. Rule 329 is a “sweeping provision” that makes it “possible to supply omissions, 

correct inaccuracies or improper authentication, or settle any controversy as to whether the 

record on appeal accurately discloses what occurred at the trial by the procedure that will most 

appropriately solve the particular problem.” Ill. S. Ct. R. 329, Committee Comments (rev. May 

1982).

¶ 139 We also find useful guidance in People v. Rockman, 144 Ill. App. 3d 801, 811 (1986), 

wherein the State filed a motion to amend the transcript of a witness’s testimony to read “can” 

rather than “can’t” with respect to the witness’s ability to see the defendant at the shooting. 

The trial court granted the motion based upon the judge’s personal recollection that the witness 

had stated “can.” Id. On appeal, the defendant argued that a court may allow an amendment of 

the record of proceedings solely based on its own recollection provided that the amendment 

does not impeach or contradict the record. Id. Rejecting this “narrow perspective,” the 

appellate court stated that “the proper perspective is to view the amendment in the context of 

the entire record to determine if it contradicts the evidence as a whole.” Id. In affirming the 

judgment, the appellate court discussed other testimony from the witness that supported the 

conclusion that he could see the defendant. Id. at 811-12. The appellate court also noted the 

trial court’s observation that the witness spoke “ ‘in a broken tongue,’ easily misinterpreted by 

the court reporter.” Id. at 812. 

¶ 140 As in Rockman, the amendment of the record herein “resolves, rather than creates,” 

contradictions. Id. at 811. Absent the amendment, the record would reflect that juror Greco 

signed the verdict form finding defendant guilty, but then disagreed with the verdict during 

jury polling, yet no one in the courtroom—including the trial judge, the defense attorneys, the 

ASAs, and any court staff—noticed or reacted in any manner. We further note that the trial 

court inquired during voir dire whether Greco, an immigrant to the United States, “had any 

trouble with the English language.” Such inquiry suggests that Greco—like the Rockman

witness—may have a distinctive accent that could have been misinterpreted by the court 

reporter. We find that the correction of the record was not contradictory to the record and the 

trial court properly granted the motion to correct the record. 

¶ 141 For the foregoing reasons, we conclude that there was no error, and thus there was no plain 

error. See Thompson, 238 Ill. 2d at 615. “An appellate issue is moot when it is abstract or 

presents no controversy.” People v. Brown, 204 Ill. 2d 422, 425 (2002). The correction of the 

record to reflect that juror Greco answered “yes” during the jury polling has rendered the jury 

polling issue moot, and thus we need not consider the issue further. See id. (noting that “[a]n 

issue can become moot if circumstances change during the pendency of an appeal that prevent 

the reviewing court from being able to render effectual relief”). Finally, the parallel Rule 329 

motion filed with this court and taken with the case is hereby denied as moot. 

¶ 142 Ineffective Assistance of Counsel

¶ 143 Defendant contends that his trial counsel “unreasonably omitted three meritorious issues 

from his [posttrial] motion: the improper use of [his] post-arrest silence, the juror’s dissent 

[from] the verdict, and the improper admission of [his] prior conviction.” In determining 

whether a defendant was denied the effective assistance of counsel, we ordinarily “apply the 
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familiar two-prong test established in [Strickland, 466 U.S. 668].” Cherry, 2016 IL 118728, 

¶ 24. To prevail on a claim of ineffective assistance of counsel under Strickland, a defendant 

must show both that counsel’s performance was deficient and that the deficient performance 

prejudiced the defendant. Id.

¶ 144 We have rejected defendant’s contentions regarding the State’s use of his silence during 

rebuttal closing argument. We have further concluded that the trial court did not err in 

admitting defendant’s conviction for possession of contraband in a penal institution for 

impeachment purposes. Defendant’s trial counsel was not ineffective for failing to preserve 

these claims. “ ‘Defense counsel is not required to make futile motions or objections in order 

to provide effective assistance.’ ” People v. Smith, 2014 IL App (1st) 103436, ¶ 64 (quoting 

People v. Glass, 232 Ill. App. 3d 136, 152 (1992)); see also Anderson, 2012 IL App (1st) 

103288, ¶ 53 (stating that “[g]iven that the deviation from the drafting committee’s directives 

*** was not erroneous, it was not objectively unreasonable for defense counsel to fail to 

address this issue through objection or a posttrial motion”). Furthermore, as discussed above, 

juror Greco did not dissent from the verdict—as is now reflected in the corrected record—and 

thus defense counsel was not ineffective vis-à-vis jury polling.

¶ 145 CONCLUSION

¶ 146 For the reasons stated above, we affirm the judgment of the circuit court of Cook County. 

The State’s request for fees and costs is denied.

¶ 147 Affirmed.

¶ 148 JUSTICE GORDON, specially concurring:

¶ 149 I concur in the judgment and with the majority’s opinion. I write separately because I must 

respectfully disagree with the majority’s finding that the invited error doctrine does not apply 

to the jury-note issue.

¶ 150 At 6:24 p.m., the jurors began their deliberations. At 8:13 p.m., less than two hours later, 

the jurors sent out a note, stating: “Can self-defense be a mitigating factor? (Definition of 

mitigating factor is unclear on sheet).” After discussing the note with the attorneys from both 

sides, the trial court sent back a response stating, “you heard the evidence, you have the 

instructions of law. Please continue to deliberate.” The following morning, after the jurors had 

reconvened, they reached a verdict, finding defendant guilty of first degree murder. 

¶ 151 On appeal, defendant claims that the trial court committed plain error when it failed to 

clarify further the law of self-defense in response to the jury’s note. Defendant argues that 

“how the jury would consider self-defense in relation to first- and second-degree murder was 

the decisive issue in the case.” 

¶ 152 The jurors were properly instructed on the law of self-defense, and how it related to first 

and second degree murder, before they retired to deliberate, and defendant does not claim on 

appeal that the original instructions were improper. 

¶ 153 After receipt of the note, the ASA observed that “they’re aware of the instructions, that 

they’re find[ing] it confusing.” The trial court agreed, stating that it found the pattern 

instructions on this issue “confusing, and I’ve been doing this for you know, 30 years.” Thus, 

further explanation would have required the trial court to go outside of the pattern instructions, 
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and neither the State nor the defense sought or tendered a nonpattern instruction. The trial court 

observed that, while it “could refer them to the definition of mitigating factor,” they already 

“kn[e]w about it.” The jury note itself indicated that the jurors were well aware of the 

“[d]efinition of mitigating factor” that was “on [the] sheet” given to them. The trial court 

expressed the concern that giving them more than the pattern instructions was tantamount “to 

giv[ing] them an answer that’s going to infer a verdict.” 

¶ 154 Defense counsel suggested the following response: “you can instruct them on the law, 

please continue your deliberations. You have all the evidence and the instructions under the 

law.” When the trial court observed that “the standard response” would be to refer them to the 

pattern instructions defining murder and mitigating factor, defense counsel stated: “And what 

about self-defense?” That is when the ASA observed that the jurors were clearly aware of the 

pattern instructions that they had received and had found the pattern instructions confusing. 

The trial court then decided to give, in essence, the response that the defense had originally 

proposed: “you heard the evidence, you have the instructions of law. Please continue to 

deliberate.” Neither attorney objected.

¶ 155 On appeal, defendant does not argue that the pattern instructions on these issues were 

improper, and he did not ask to provide the jurors with the nonpattern explanation that they 

were seeking. The trial court’s response echoed, almost word-for-word, what defense counsel 

had proposed. 

¶ 156 A party cannot invite an error by the trial court and then use it as a basis for appeal. “Under 

the invited-error doctrine, a party cannot acquiesce to the manner in which the trial court 

proceeds and later claim on appeal that the trial court’s actions constituted error.” People v. 

Manning, 2017 IL App (2d) 140930, ¶ 16; see also People v. Cox, 2017 IL App (1st) 151536, 

¶ 73; People v. Hughes, 2015 IL 117242, ¶ 33 (“the invited error rule” states that “a party 

cannot complain of error that it brought about or participated in”); People v. Bush, 214 Ill. 2d 

318, 332 (2005) (when a party “procures, invites or acquiesces” to a trial court’s evidentiary 

ruling, even if the ruling is improper, he cannot contest the ruling on appeal). “Simply stated, 

a party cannot complain of error which that party induced the court to make or to which that 

party consented.” In re Detention of Swope, 213 Ill. 2d 210, 217 (2004).

¶ 157 Even if we were to find that the invited error doctrine did not apply and we considered the 

issue under the plain error doctrine, I agree with the majority, for the reasons stated in its 

opinion, that the alleged error did not rise to the level of plain error. As the majority already 

discussed in its opinion, the evidence at trial was overwhelming and therefore did not constitute 

first-prong plain error. Supra ¶¶ 96-98. The victim’s mother testified that she observed 

defendant repeatedly stabbing her son, and the police testified that, when they arrived, 

defendant was still stabbing him. Specifically, Officer Curry testified that, as he reached the 

bottom of the stairs, he observed that the entryway to the basement “was covered by a curtain 

or some kind of partition” and he heard what “sounded like to” him was someone “getting 

stabbed.” Curry described the sound as “a squishing, a repeatedly [sic] like a chi, chi, chi.” 

After Curry drew his weapon and instructed another officer to pull back the curtain, he 

observed defendant straddled over the victim, who was not moving. Supra ¶¶ 18-19. It is hard 

to argue self-defense in the face of such evidence. Similarly, the alleged error does not rise to 

second-prong plain error, as the majority explains (supra ¶ 118), where the jury instructions 

were complete and proper. 
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¶ 158 In addition, I cannot find that defense counsel’s performance constituted ineffective 

assistance of counsel. First, “what instructions to tender” is generally a matter of trial strategy. 

People v. Lowry, 354 Ill. App. 3d 760, 766 (2004); People v. Mims, 403 Ill. App. 3d 884, 890 

(2010) (“ ‘Defense counsel’s choice of jury instruction is considered a tactical decision, within 

the discretion of defense counsel.’ ” (quoting People v. Bobo, 375 Ill. App. 3d 966, 977 

(2007))). Our supreme court has instructed its appellate courts to “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 (2007). “[A] mistake in trial strategy” will not, by itself, render 

representation constitutionally defective. People v. Peterson, 2017 IL 120331, ¶ 80. 

¶ 159 Second, even if we were to assume that counsel’s performance was deficient, defendant 

cannot establish the second prong of the Strickland test: that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. People v. Domagala, 2013 IL 

113688, ¶ 36 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). Since a defendant 

must satisfy both prongs of the Strickland test in order to prevail, a court may dismiss the claim 

on the prejudice prong alone. See People v. Peterson, 2017 IL 120331, ¶ 79; People v. Cherry, 

2016 IL 118728, ¶ 24; People v. Flores, 153 Ill. 2d 264, 283-84 (1992). In the case at bar, 

defendant cannot establish prejudice where the evidence was overwhelming that he stabbed 

the victim repeatedly, while remaining virtually unscathed. Supra ¶ 98.

¶ 160 In addition, I am not persuaded by the dissent concerning the State’s remarks in its rebuttal 

closing. As the majority opinion explains, the complained-of remarks primarily concerned 

defendant’s prearrest silence (supra ¶ 102), and to the extent that some remarks can be 

construed as referring to postarrest silence, they did not rise to the level of plain error, for the 

reasons already explained in the majority opinion. Supra ¶¶ 96-106. In addition, defendant 

testified that he told the police that he was acting in self-defense and counsel’s remarks may 

have been for impeachment purposes. 

¶ 161 For the foregoing reasons, I concur with the majority opinion. 

¶ 162 JUSTICE LAMPKIN, dissenting:

¶ 163 I respectfully dissent. I disagree with the majority’s summary of the evidence and plain 

error analysis regarding the issue of the prosecutor’s improper use of defendant’s postarrest 

silence for impeachment purposes. I disagree with the majority’s conclusion that defendant has 

not met his burden to show that the prosecutor’s use of defendant’s postarrest silence 

constituted a clear error that was so serious as to deny him a fair trial and challenge the integrity 

of the judicial process. Furthermore, I reject the State’s assertion on appeal that its challenged 

remarks fall within an exception to the general rule that questions and remarks by a prosecutor 

regarding a defendant’s postarrest silence are improper. I also disagree with the majority’s 

conclusion that a general jury instruction given here—i.e., that closing arguments are not 

evidence but merely summaries of how the attorneys think the evidence can be interpreted—

preempted the jury from considering the improper comments as evidence. I would find that the 

State’s improper recross-examination of defendant and extensive commentary during rebuttal 

closing argument about his postarrest silence and failure to tell the police that he acted in selfdefense were substantial errors that require reversal and a new trial.

¶ 164 Whether statements made by a prosecutor at closing argument were so egregious that they 

warrant a new trial is a legal issue subject to de novo review. People v. Wheeler, 226 Ill. 2d 92, 
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121 (2007). In reviewing a defendant’s claims of prosecutorial misconduct in closing 

argument, the court considers closing arguments in their entirety in order to place the 

challenged remarks in context (People v. Johnson, 385 Ill. App. 3d 585, 604 (2008)) and “asks 

whether or not the comments engender substantial prejudice against a defendant such that it is 

impossible to say whether or not a verdict of guilt resulted from them.” Wheeler, 226 Ill. 2d at 

123. “Misconduct in closing argument is substantial and warrants reversal and a new trial if 

the improper remarks constituted a material factor in a defendant’s conviction.” Id. “If the jury 

could have reached a contrary verdict had the improper remarks not been made, or the 

reviewing court cannot say that the prosecutor’s improper remarks did not contribute to the 

defendant’s conviction, a new trial should be granted.” Id.

¶ 165 I disagree with the majority’s belief that a conflict exists concerning whether a reviewing 

court should apply an abuse of discretion analysis or de novo review to allegations challenging 

a prosecutor’s remarks during closing argument. A careful review of supreme court precedent 

establishes that no such conflict exists, and the supreme court has applied the two standards of 

review separately to the appropriate issue addressed on appeal. Specifically, in People v. Blue, 

189 Ill. 2d 99, 128-34 (2000), the court held that the trial court abused its discretion by 

permitting the jury to hear the prosecutor’s arguments that the jury needed to tell the police it 

supported them and tell the victim’s family that he did not die in vain and would receive justice. 

In contrast, in Wheeler, 226 Ill. 2d at 121-31, the supreme court reviewed de novo whether a 

new trial was warranted based on the prosecutor’s repeated and intentional misconduct during 

closing argument, which involved vouching for police credibility, attacking defense counsel’s 

tactics and integrity, disparaging former defense counsel, and persistently stating that the 

prosecution was representing the victims. Whereas a reviewing court applies an abuse of 

discretion analysis to a trial court’s determinations about the propriety of a prosecutor’s 

remarks during argument (Blue, 189 Ill. 2d at 128), a court reviews de novo the legal issue of 

whether a prosecutor’s misconduct, like improper remarks during argument, was so egregious 

that it warrants a new trial (Wheeler, 226 Ill. 2d at 121). Our supreme court has not created any 

conflict about the appropriate standard of review to be applied to these two different issues.

¶ 166 According to the record, Officer Curry testified that his gun was drawn when Officer 

McPherson pulled the curtain open and Curry observed defendant straddled over a motionless 

Moore. Neither Moore nor defendant said anything to Curry. Curry did not see a weapon in 

defendant’s hand. When Curry raised his gun, defendant and Curry “kind of just looked at each 

other,” and then defendant jumped up and went around to a side of the basement outside of 

Curry’s view. The officers went back up the stairs. Curry’s testimony did not mention 

defendant’s silence after Curry raised his gun. Furthermore, Officer Bankhead’s testimony did 

not mention defendant’s silence when Bankhead, with his gun pointed at defendant, guided 

him up the basement stairs. 

¶ 167 Defendant testified that he acted in self-defense because Moore had attacked him. Also, 

defendant said he told Sharp, after she came down to the basement to break up the fight, that 

she should call the police. Defendant claimed that the police officers never came down the 

basement stairs and he immediately complied when they told him to come up the stairs. 

¶ 168 When the ASA began her recross-examination of defendant, she asked:

“Q. When you saw the police, you didn’t say to them, ‘I had to defend myself,’ did 

you? 

A. Actually when I came up—yes, I said that yes.
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THE COURT: I’m sorry?

A. Yes.

Q. [ASA MS. WARD] The first time you’re actually saying that is today in this 

court, isn’t that correct?

A. As far as I mean—

Q. That you had to defend yourself?

A. No.

MR. TYSON [DEFENDANT’S ATTORNEY]: Objection, Judge.

THE COURT: Objection will be sustained.”

¶ 169 During rebuttal closing argument, the ASA argued that only Moore asked Sharp for help, 

defendant’s testimony that he asked Sharp for help was a lie, and defendant said nothing when 

Officers Curry and McPherson came. The ASA argued that a person who killed an attacker in 

self-defense would shout it from the highest mountain and thank God when the police arrived. 

Although defense counsel objected, the trial court overruled the objection. The ASA continued, 

arguing that if the police told a person acting in self-defense to drop the knife, the person would 

explain to the police that he was defending himself from the attacker but, here, defendant “said 

nothing to the police” and ran toward the back of the basement. Even after Officer Bankhead 

arrived and defendant had exited the basement and had “his hands up,” defendant did not say 

“listen, it’s a mistake, I am not the one, I am a victim, I was attacked, I had to do it.” Nor did 

defendant tell Sharp to call an ambulance due to this horrible event. The ASA stated, “Yeah, 

if you were truly justified, if you were truly not guilty, that’s what you would do, and that’s 

not what [defendant] did, and that’s how you know.” 

¶ 170 Due process precludes a prosecutor from impeaching a defendant’s exculpatory testimony, 

offered for the first time at trial, by cross-examining the defendant regarding his failure to 

inform the police of his explanation after he was arrested and had received Miranda warnings. 

Greer v. Miller, 483 U.S. 756, 761-63 (1987); Doyle v. Ohio, 426 U.S. 610, 619 (1976). 

Although federal law permits impeachment of a defendant with evidence that he was silent 

anytime before receiving Miranda warnings (Fletcher v. Weir, 455 U.S. 603, 605-07 (1982) 

(per curiam)), Illinois evidence principles prohibit impeachment of the defendant with his 

postarrest silence either before or after receiving Miranda warnings (People v. Quinonez, 2011 

IL App (1st) 092333 ¶ 26). This Illinois rule is based on our supreme court’s pre-Miranda

decisions in People v. Lewerenz, 24 Ill. 2d 295, 299 (1962), and People v. Rothe, 358 Ill. 52, 

57 (1934), which held that an accused’s silence at the time of his arrest is neither relevant nor 

material because his exercise of his right to remain silent has no tendency to prove or disprove 

the charges against him. Because this Illinois rule is based on evidentiary principles rather than 

constitutional law, the rule is unaltered by the holdings in federal cases that the use of a 

defendant’s pre-Miranda silence is not a constitutional violation of the defendant’s due process 

rights. See Fletcher, 455 U.S. at 607; People v. Homes, 274 Ill. App. 3d 612, 619-20 (1995). 

¶ 171 There are limited situations where a defendant’s postarrest silence may be used for 

impeachment purposes. If the defendant testifies at trial to an exculpatory version of events 

and also claims to have told the police the same version upon arrest, then the State may impeach 

him with evidence that he did not do so. Doyle, 426 U.S. at 619 n.11; People v. Rehbein, 74 

Ill. 2d 435, 441-42 (1978). Similarly, if a defendant’s exculpatory testimony at trial is 

manifestly inconsistent with voluntary statements he made after his arrest, then comment or 
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evidence about his failure to give the same statement at that time does not violate the Doyle

rule. People v. Frieberg, 147 Ill. 2d 326, 353-54 (1992); People v. Beller, 74 Ill. 2d 514, 522-

23 (1979). 

¶ 172 Here, the prosecutor improperly questioned defendant regarding his postarrest silence, and 

her questions did not fall within an exception to the rule against using a defendant’s postarrest 

silence against him. Defendant did not testify on direct examination that he told the police he 

acted in self-defense, so the prosecutor was not attempting to elicit impeachment when she 

asked him on recross-examination, “When you saw the police, you didn’t say to them, ‘I had 

to defend myself,’ did you?” and “The first time you’re actually saying that [you had to defend 

yourself] is today in this court, isn’t that correct?” Furthermore, there was no evidence that 

defendant spoke to the authorities before trial, so the State possessed no statements manifestly 

inconsistent with his trial testimony that could properly be used for impeachment purposes. 

Arguably, the prosecutor’s first question does not fit neatly within the category of a Doyle

violation because it may refer to a time before defendant received the Miranda warnings. I 

believe, however, that the prosecutor’s follow-up question clearly constitutes a Doyle violation 

because it refers to a time period that includes defendant’s formal arrest, during which he would 

have received the Miranda warnings.

¶ 173 Although the trial court sustained defense counsel’s late objection to this questioning, the 

jury was never given a curative instruction. Furthermore, the improper recross-examination of 

defendant was later compounded by the prosecutor’s extensive comments during rebuttal 

closing argument about defendant’s postarrest silence. Although defense counsel timely 

objected to the prosecutor’s initial improper remark, the trial court overruled the objection and 

the prosecutor continued her line of argument by impersonating what a person who acted in 

self-defense would have said to the police at the scene. The prosecution is given wide latitude 

in closing arguments, but this latitude is not so wide as to encompass these improper comments 

regarding defendant’s postarrest silence. People v. Simmons, 293 Ill. App. 3d 806, 813 (1998). 

¶ 174 Defendant forfeited review of this issue by failing to both timely object and include the 

issue in his posttrial motion (see People v. Enoch, 122 Ill. 2d 176, 186 (1988)); however, he 

seeks review under both prongs of the plain error doctrine or, alternatively, as a claim of 

ineffective assistance of counsel. Although I would not find that the evidence in this case was 

closely balanced, I would find that a clear error occurred and defendant met his burden to show 

the error was so serious as to deny him a fair trial and challenge the integrity of the judicial 

process. See People v. Herron, 215 Ill. 2d 167, 187 (2005). In People v. Dameron, 196 Ill. 2d 

156, 163-66 (2001), the court, in the context of determining whether a Doyle violation was 

harmless error, considered (1) the party who elicited the testimony about the defendant’s 

silence, (2) the intensity and frequency of the references to the defendant’s silence, (3) the use 

that the prosecution made of the defendant’s silence, (4) the trial court’s opportunity to grant 

a mistrial motion or to give a curative jury instruction, and (5) the quantum of other evidence 

proving the defendant’s guilt. I believe these same factors are helpful in the context of plain 

error analysis.

¶ 175 Here, the prosecution elicited the testimony about defendant’s silence and made frequent 

and forceful references to his silence to damage his credibility and undermine his claim of selfdefense, factors which were critical to his defense. The issue of second degree murder, which 

is a lesser mitigated offense of first degree murder, was before the jury, so the jury had to 

decide whether defendant thought he was defending himself during the struggle with Moore 
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even if defendant’s belief was unreasonable. Furthermore, the jury never received any curative 

instruction about the improper use of defendant’s postarrest silence. Accordingly, the jury may 

have deemed it appropriate to consider defendant’s postarrest silence during the jury’s 

deliberations because the trial court overruled defense counsel’s objection to the prosecutor’s 

improper remarks during rebuttal closing argument about defendant’s postarrest silence. Under 

these circumstances, the State’s improper cross-examination and rebuttal argument about 

defendant’s postarrest silence impinged upon his substantial right to remain silent. 

Accordingly, defendant should not be held to his forfeiture of this issue.