ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Morris, 2013 IL App (1st) 111251

Appellate Court

Caption

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

HERBERT MORRIS, Defendant-Appellant. 

 District & No. First District, Fifth Division

Docket No. 1-11-1251

Filed

Rehearing denied

September 30, 2013

November 1, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s conviction for first-degree murder was affirmed where there

was a sufficient foundation for the admission of his bloodstained pants

and boots, his public defender was not ineffective in failing to introduce

evidence to challenge the chain of custody of clothing exhibits or in

failing to object to the State’s latent fingerprint analysis, the trial court

did not err in barring defendant from showing a still frame from a video

recording of him in an interrogation room in order to impeach the

testimony of a police officer, and the threats defendant made shortly

before the offense to two young men who were staying at the house where

it occurred were properly admitted to show defendant’s anger and

jealousy that led to the killing. 

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 07-CR-1512; the

Hon. Arthur F. Hill, Jr., Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Philip D. Payne, all of State

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

Anita M. Alvarez, State’sAttorney, of Chicago (Alan J. Spellberg, Yvette

Loizon, and Lori M. Rosen, Assistant State’s Attorneys, of counsel), for

the People.

Panel PRESIDING JUSTICE GORDON delivered the judgment of the court,

with opinion.

Justices McBride and Palmer concurred in the judgment and opinion.

OPINION

¶ 1 Following a jury trial, defendant Herbert Morris was convicted and sentenced to 55 years

in the Illinois Department of Corrections for the first-degree murder of Clinton Cavin, who

was found dead hours after engaging in an argument with defendant on the morning of

November 15, 2006. At trial, witnesses testified that defendant’s then-girlfriend, Sharon

Smith, left her home early that morning to drive to Iowa, and before she left, she asked

Cavin, who lived in the basement, to watch her house while she was gone. This request

angered defendant, who frequently spent time at Sharon’s house. Defendant then slapped

Sharon and demanded that Cavin leave, and defendant later threatened to cut the throats of

Sharon’s teenage son, Abel Smith, and his friend, Harold Jackson, who also lived in the

house.

¶ 2 Later that morning, Harold and his friend, William Alston, observed defendant leave the

house and return 15 minutes later with a knife. They locked the front door and left the house

through the side door to walk to a nearby gas station, and when they returned two minutes

later, they observed defendant down the street walking away from the house. Inside, they

observed a bloody shovel leaning against the wall, and then discovered Cavin dead in the

basement. William called the police, and defendant was arrested at his parents’ house.

¶ 3 Upon his arrest, the police observed bloodstains on defendant’s clothing and boots, and

forensic scientists later tested samples of the bloodstains and determined that they matched

Cavin’s DNA profile. The blood recovered from the shovel also matched Cavin’s DNA

profile, and a palm print recovered from the handle of the shovel matched defendant’s prints.

An expert in forensic pathology examined Cavin’s autopsy files and opined that Cavin’s

death was a homicide, having died as a result of blunt-force trauma to the head.

¶ 4 On this direct appeal, defendant claims, first, that his conviction should be reversed and

remanded for a new trial because defendant was deprived of his right to due process and a

fair trial by three related chain-of-custody errors: (1) the trial court admitted defendant’s

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bloodstained pants and boots into evidence despite the State’s failure to establish a chain of

custody; (2) that the assistant public defender provided ineffective assistance of counsel at

trial by not introducing defendant’s hospital belongings list into evidence to show that

defendant’s boots were not seized at that time; and (3) the trial court prohibited the defense

from presenting a still shot from a videotape of an unidentified officer seizing the boots in

an interrogation room at the police station. Second, defendant claims that the trial court

committed reversible error when it allowed the State to present testimony that defendant had

made threatening remarks to Abel and Harold the morning of the homicide. Third, defendant

claims that his trial counsel was ineffective for not objecting to the State’s fingerprint

analysis. Despite being represented by counsel on appeal, defendant has also filed a pro se

supplemental appellate brief raising numerous additional claims of ineffective assistance of

counsel and trial court errors at the suppression hearing and at trial. For the following

reasons, we affirm.

¶ 5 BACKGROUND

¶ 6 I. Pretrial Proceedings

¶ 7 Prior to trial, defendant was represented by the public defender. On October 7, 2008, the

defense filed a motion to quash arrest and suppress evidence due to a lack of probable cause.

A suppression hearing was held on March 30, 2009, and the trial court heard testimony from

defendant’s mother, BeverlyMorris, and two arresting police officers, Daniel O’Connor and

Deronis Cooper. Beverly testified that, on November 15, 2006, one officer knocked on her

door and asked about her son, while another officer pushed past her and entered her house

without her consent and without a search or arrest warrant. The officers then went upstairs

and arrested defendant. Officers O’Connor and Cooper both testified that they had received

a flash message that described defendant as a murder suspect and that he lived at his parents’ 1

house, and that Beverly had given them permission to enter her home. After arguments, the

trial court denied defendant’s motion, finding: (1) that defendant’s mother consented to the

search of her house prior to defendant’s arrest; (2) that the arresting officers had probable

cause to arrest defendant based on the information they had at the time; and (3) that the

arresting officers were justified in searching the home without a warrant due to exigent

circumstances.

¶ 8 At the next hearing, on June 10, 2009, defendant informed the trial court that he wanted

to proceed pro se, and the trial court ordered a behavioral clinical examination, in which a

doctor opined that defendant was fit to represent himself. After a 30-day continuance, the

trial court found defendant fit to stand trial, admonished defendant of his rights to selfrepresentation, and allowed the assistant public defender to withdraw.

¶ 9 As a pro se litigant, defendant attempted to file a second motion to suppress evidence on

January 28, 2010. In his motion, defendant argued that, after he was arrested in his parents’

home, the police should have obtained a search warrant from a magistrate judge prior to

A flash message is a broadcast of updated information from the crime scene that is 1

transmitted to all responding officers.

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seizing two knives in the house along with defendant’s clothing. Defendant further argued

that the assistant public defender was ineffective for failing to make this argument at the

prior suppression hearing. The trial court advised defendant that he could not litigate the

issue a second time because the trial court already ruled on the merits of defendant’s motion

to quash arrest and suppress evidence. In response, defendant explained that the public

defender “provided ineffective assistance of counsel” because she “suppressed” evidence that

showed that she counseled the police officers to perjure themselves at defendant’s

suppression hearing. The trial court declined to consider defendant’s pro se motion,

explaining that his allegations were appellate issues and that defendant could raise those

issues on appeal.

¶ 10 Afterward, defendant requested counsel, and the assistant public defender was

reappointed on March 3, 2010. Despite being represented bycounsel, defendant filed a pro se

motion in limine concerning ineffective assistance of this same counsel at the suppression

hearing. The trial court advised defendant that he may not file a motion when he is

represented by an attorney, and defendant requested to proceed pro se a second time. The

trial court again admonished the defendant and again excused the same assistant public

defender. Defendant then argued a pro se motion in limine, claiming that the police did not

have probable cause to enter his parents’ home and arrest him, and that the assistant public

defender was ineffective because she “suppressed” the arrest report and did not call the

officer who issued the flash message to testify at the suppression hearing. Following

arguments, the trial court denied defendant’s pro se motion, finding that the trial court had

already ruled on the probable cause issue in defendant’s motion to quash arrest and suppress

evidence. Defendant noted for the record that he disagreed with the trial court’s ruling.

¶ 11 At the next court date, on May 27, 2010, defendant filed a pro se “Motion in Limine

Regarding Knowing Use of False or Perjured Testimony Constituting a Denial of Due

Process in Response to Court Order Whether Pro-Se Defendant is Ready for Trial.”

Defendant explained that he had uncovered new evidence that the assistant State’s attorney

violated defendant’s constitutional due process rights when she knowingly presented false

testimony from Officer Cooper at the suppression hearing. Also, defendant’s pro se motion

argues that the assistant public defender provided ineffective assistance of counsel because

she continued to ask Cooper misleading questions, despite knowing that he had testified

falsely. The case was continued so that defendant could file an answer to discovery, and at 2

the next court appearance, defendant requested counsel.

¶ 12 On June 30, 2010, the trial court reappointed the same assistant public defender a third

time. Defendant objected to the appointment and informed the trial court that he had a case

pending against this assistant public defender in federal court. The trial court asked defendant

about the nature of the federal case, and defendant explained that he had sued this assistant

public defender for “fabrication of statements in a sworn affidavit.” Specifically, defendant

alleged that, at the suppression hearing, his counsel fabricated the evidence in “the complaint

that was signed by the officer that made the 911 call” because the officer that wrote the

The appellate record is silent concerning the disposition of defendant’s pro se motion. 2

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complaint was not called to testify. The assistant public defender explained that defendant

may have confused the arrest report with the general offense case report, which were

prepared by different police officers. The arresting officer testified at the suppression hearing

that he was not aware of certain facts that were reported in the general offense case report,

which contained more detailed information about defendant’s arrest. The assistant public

defender explained that defendant’s May 27, 2010, pro se motion also pointed to the

arresting officer’s general progress report, which contained information that the officer had

learned only after defendant’s arrest. The trial court then asked the assistant public defender

if she had written the arrest report or any of the police reports in defendant’s case, and she

answered that she had not. Defendant then argued that, at the suppression hearing, the

assistant public defender claimed that evidence was in the arrest report that is not there, to

which his counsel responded that she merely impeached the officer by omission when she

elicited testimony from the officer that he did not state something in his police report. The

trial court stated that it had just “conducted what we’ll term a Krankel, which is usually

posttrial, but call this a ‘mini-Krankel’ hearing,” and it found that the assistant public

defender would remain on defendant’s case, despite his pending action against her in federal

court.

¶ 13 On September 14, 2010, defendant attempted to file a pro se motion pursuant to Illinois

Supreme Court Rule 415 (eff. Oct. 1, 1971). Defendant attached to his pro se motion a

written request to the clerk of the circuit court of Cook County, Illinois, requesting a copy

of his arrest report. The trial court struck defendant’s pro se filing, finding that only his

attorney may file documents. Defendant then requested a third time to proceed pro se, and

the trial court denied this third request.

¶ 14 At a later proceeding, on November 5, 2010, defendant attempted to file an additional

pro se motion for substitution of judge for cause and to again reconsider the denial of his

motion to quash arrest and suppress evidence. Defendant’s pro se motion repeated his

arguments that the arresting officers lacked probable cause and that the assistant public

defender provided ineffective assistance of counsel, though defendant did not address his

substitution of judge claim in the body of his motion. Defendant’s counsel informed the trial

court that she did not intend to file defendant’s motion on his behalf. The trial court

subsequently bifurcated the pro se motion and denied defendant’s request for substitution of

judge.

¶ 15 On November 29, 2010, defense counsel filed a motion in limine to bar evidence of other

crimes and bad acts, including evidence: (1) that defendant slapped his girlfriend the night

before the murder; and (2) that defendant threatened Harold Jackson and Abel Smith the next

morning that he would cut their throats. The trial court denied defendant’s motion, finding

that these incidents described a “continuing course of conduct, which the jury could see,

leads up to and includes the murder of Mr. Clinton Cavin.”

¶ 16 A jury was selected on February 28, 2011, and the trial began the next day.

¶ 17 II. Trial

¶ 18 At trial, the State argued in its opening statement that, on November 15, 2006, defendant

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beat Clinton Cavin to death with a shovel after Cavin refused defendant’s demand to leave

Sharon Smith’s home. The State presented 15 witnesses, including two arresting police

officers, forensic examiners that handled the evidence in the case, and defendant’s thengirlfriend, Sharon Smith, and her three sons. Defendant exercised his right not to call

witnesses or testify at trial.

¶ 19 A. Sharon Smith’s Testimony

¶ 20 Sharon Smith testified that, in November 2006, she lived in Chicago, Illinois, in a house

owned by Maurice Simmons, the father of one of her three sons. Sharon slept in the

downstairs bedroom, while her sons, Christopher Simmons, Abel Smith, and Dezell Smith,

occupied the bedrooms on the second floor. The victim, Clinton Cavin, lived in the

basement. The front door of the house opened into the living room, and a back door accessed

the basement. Sharon’s boyfriend of five years, defendant, lived in the house off and on, as

well as three of Abel’s friends, William Alston, Walter Alston, and Harold Jackson. At the

time, Abel was 17 years old and went to school, while his friends Harold and William were

19 and 20 years old, did not attend school, and were unemployed. Defendant occasionally

used various tools to do maintenance work around the house.

¶ 21 Sharon testified that, on November 14, 2006, she hosted a party at the house to celebrate

her birthday, in which her friend Renee Tate, Kenny Marshall, defendant, Maurice, and

Maurice’s friend NakitaMarshall attended. During the party, which continued past midnight,

Sharon and Renee smoked crack cocaine in her bedroom, while defendant, Cavin, Kenny,

Nakita, and Maurice drank alcohol and smoked crack cocaine in the basement. Sharon’s

three sons and their friends, William, Walter, and Harold, stayed upstairs in their bedrooms

during the party.

¶ 22 Sharon testified that, at 2 a.m., she prepared to leave the party with Kenny and Renee to

drive to Iowa to attend an 11:30 a.m. public housing appointment. Sharon went into the

basement and asked Cavin to watch the house while she was in Iowa. After her conversation

with Cavin, defendant, who had been drinking and smoking crack cocaine, slapped Sharon

across the face. Sharon cried, ran back upstairs, and told her son Abel that defendant slapped

her. She then went outside, and defendant acted upset that she was leaving for Iowa. Sharon

then asked defendant to accompany her to Iowa, and defendant went inside the house to get

his coat. Sharon waited for defendant but he never came back out, so she, Kenny, and Renee

left without him. Sharon did not return to her home until 7:30 p.m. the next day.

¶ 23 On cross-examination, Sharon admitted that, when she returned home from Iowa, she

told detectives that she had left at 5 a.m., and not 2 a.m. as she had just testified.

¶ 24 B. Maurice Simmons’ Testimony

¶ 25 Maurice Simmons testified that, on November 14, 2006, he left work at 10:30 p.m. and

attended Sharon’s birthday party. Maurice smoked crack with the adults in the basement and

on the first floor, while the minors stayed in the upstairs bedrooms. Shortly before 2 a.m. the

next morning, Maurice and Nakita observed defendant arguing in the basement with Cavin

because defendant wanted Cavin to leave the house. The argument was a “small, little thing,”

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and Maurice thought it was “no big deal.” Sharon then left for Iowa at 2:30 a.m., and

Maurice and Nakita went to sleep in Sharon’s bedroom and awoke at 7 a.m. to send the kids

off to school. At that time, Maurice observed defendant in the house without blood on his

clothes. Maurice went back to sleep and was awakened at noon by Harold and William, who

told him that Cavin was dead in the basement. Maurice then went down into the basement

and observed Cavin’s body. Maurice then left the house and used a neighbor’s telephone to

call 911, and the dispatcher told him that someone had already called and the police were on

their way. Maurice identified defendant in court.

¶ 26 On cross-examination, Maurice testified that he did not remember if he left work at either

10:30 p.m. or 1 a.m. the next morning, and that it took him 30 minutes to drive from his job

to Sharon’s party. The defense asked Maurice whether he told the police that he observed

Sharon leave at 5 a.m., and he testified that he did not remember saying that to the police.

Maurice also testified that he did not speak with Abel at any point that morning.

¶ 27 C. Christopher Simmons’ Testimony

¶ 28 Christopher Simmons testified that, at the time of trial, he was 21 years old. On

November 14, 2006, he lived with his mother and he never left the house during her birthday

party. Christopher observed defendant at the party drinking and “having fun.” Christopher

went to sleep shortly after midnight, and he awoke at 1:30 a.m. to use the downstairs

bathroom. Christopher observed defendant downstairs but he did not speak to defendant

before he went back to bed because defendant “looked kind of mad.” Christopher then went

back upstairs to sleep, and he and Abel left for school the next morning. Christopher also

identified defendant in court.

¶ 29 D. Renee Tate’s Testimony

¶ 30 ReneeTate testified that she and Sharon celebrated their birthdays together on November

15, 2006, at Sharon’s residence. Renee planned on accompanying Sharon and Kenny on a

short trip to Iowa. Before they left, Sharon asked defendant to join them and he went inside

the house to retrieve his jacket, but he never came back outside, so they left without him.

Renee did not remember what time they left, and she did not learn of Cavin’s death until she

returned to Chicago. Renee also identified defendant in court.

¶ 31 On cross-examination Renee testified that, though she did not remember when they left

for Iowa, she arrived at the party at 12:30 a.m. and stayed for two hours. When asked if she

had told the police that they left the party at 4:30 a.m., she stated, “If that’s what I told him,

that’s what happened.” Renee also testified they arrived at Sharon’s appointment late.

¶ 32 E. Abel Smith’s Testimony

¶ 33 Abel Smith testified that, at the time of trial, he was 22 years old, and he lived with his

mother, Sharon Smith, in November 2006. On November 15, 2006, Abel was in the house

during his mother’s birthday party, and he fell asleep on the couch in the living room at 1

a.m. He was awakened later by the sound of Sharon arguing with defendant. Sharon then told

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Abel that defendant had slapped her, and Abel asked defendant not to hit his mother. Sharon

later left for Iowa, and Abel attempted to go back to sleep, but he could not sleep because

defendant was talking to himself and pacing in the kitchen. Abel asked defendant to leave

because he was disturbing the house, but defendant said that he refused to go unless Cavin

left first. Abel responded that Cavin was homeless and that he had nowhere to go, but

defendant replied that he would throw Cavin out of the house himself. Defendant then

threatened to cut Abel’s throat.

¶ 34 Abel testified that he left the kitchen and went in the basement to check on Cavin, who

appeared to be fine. Abel next went upstairs to check on the other kids, and he told Maurice

that defendant was disturbing him. Maurice told Abel that he would check on it, so Abel

went to an upstairs bedroom and attempted to sleep, but he was kept awake by the sound of

someone punching the kitchen walls. Abel then heard defendant arguing in the basement

with Cavin, who told defendant that he was not going anywhere and “[i]f you hurt me, you’re

not doing nothing but hurting yourself.” Though he stated that he did not hearCavin mention

defendant’s name, he acknowledged that he had previously testified before a grand jury that

he had heard Cavin say, “Herb, what are you doing in the basement with me.”

¶ 35 Abel testified that he eventually fell back asleep and woke up again at 4 a.m. He checked

on Cavin again, and he observed defendant drinking vodka and pacing in the kitchen. Abel

went back upstairs and went to sleep again. Abel woke up again at 7:30 a.m. to prepare for

school. He went downstairs and observed defendant pacing in front of the basement door,

but he did not observe a shovel or any blood on defendant. Abel then washed up, ironed his

clothes, and left for school with his brothers. Abel also identified defendant in court.

¶ 36 On cross-examination, Abel testified that he was convicted of robbery in 2006.

¶ 37 F. William Alston’s Testimony

¶ 38 William Alston testified that he was 24 years old and that, in November 2006, he lived

at Sharon’s residence because he had problems with his father. After Sharon’s birthdayparty,

William went to sleep and was awakened in the morning by Maurice, who asked to use his

cellular telephone. That morning, William and Harold went downstairs to make some

breakfast. Defendant entered the kitchen and started breathing on Harold’s food. When

Harold asked him to stop, defendant threatened to cut Harold’s throat. Harold pushed

defendant away, and defendant left the home driving Maurice’s vehicle.

¶ 39 William testified that defendant returned 15 minutes later, and William observed him

standing by the vehicle in front of the house with a knife protruding from his jacket pocket.

Defendant attempted to conceal the knife as he approached the house, and William quickly

locked the front door before defendant reached it. Defendant then knocked on the door, while

William and Harold exited through a side door and walked to a nearby gas station to

purchase cigarettes. They did not lock the side door when they left, and Maurice and Nakita

were still in the house at the time.

¶ 40 William testified that, when he and Harold returned to the home two minutes later, he

observed defendant walking down the street seven houses away from them. Defendant was

wearing a leather coat, blue jeans, and construction boots. William did not observe any blood

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on defendant’s clothing, nor did he observe defendant holding a shovel. William identified

defendant in court, and he identified the leather coat, jeans, and boots in court as the same

clothes that he observed defendant wearing on November 15, 2006.

¶ 41 William testified that he and Harold reentered the home and William knocked over a

shovel and he picked it up and placed it back where it was leaning against the wall. The

shovel was usually kept in the basement, and William observed that it had blood on the back,

but the handle appeared to be dry. William identified the shovel in court. He then walked

down into the basement to check on Cavin, who lived in the basement with Sharon’s brother,

Joey. William observed bloody footprints on the basement stairs. In the basement he found 3

Cavin’s body, and he immediately returned upstairs and told Maurice and Harold what he

had observed. William then walked down the street to his father’s home to call the police.

After the police arrived, William rode in a police vehicle and directed the officers to where

defendant lived.

¶ 42 G. Sergeant Daniel O’Connor’s Testimony

¶ 43 Chicago Police Sergeant Daniel O’Connor testified that, on November 15, 2006, he and

his partner, Officer Costello, were dressed in plain clothes when they responded to a

4

homicide at Sharon’s home at 11:30 a.m. Upon arriving at Sharon’s residence, he received

a flash message that described the suspect as a 40- to 50-year-old black male named Herb,

who had been observed leaving the house wearing a black leather jacket, dark-colored jeans,

and boots, and armed with a wood-handled knife. After receiving the flash message,

O’Connor and his partner drove to defendant’s residence and knocked on the front door.

Defendant’s mother answered the door and had a conversation with O’Connor before

allowing him and his partner to enter the house. O’Connor and his partner walked upstairs

and observed defendant lying face-up on a bed. Defendant stood up and O’Connor observed

that he was wearing a denim shirt, black jeans, and tan boots, and that defendant’s jeans and

boots had reddish-brown stains on the front of them. O’Connor also observed a leatherjacket

in the room with a knife protruding from the pocket, as well as a second knife with a wooden

handle. O’Connor photographed the room and the photographs were admitted into evidence

at trial. O’Connor identified defendant in court. O’Connor also identified defendant’s denim

shirt, black jeans, and tan boots, and pointed to where he observed the bloodstains on the

clothing.

¶ 44 On cross-examination, O’Connor testified that, despite observing blood on defendant’s

clothes, O’Connor did not recover and seal defendant’s pants and boots prior to taking

defendant to the police station because he did not want to strip defendant naked of his

clothes. O’Connor noted that he did not observe bloodstains on the white bed sheets, on

defendant’s skin, or under defendant’s fingernails. O’Connor admitted that he did not write

in his report that the flash message informed him that defendant was armed with a knife.

This was the first and only mention of Joey during the trial. None of the other witnesses 3

mentioned that he lived in the basement with Cavin. William did not state Joey’s last name.

Officer Costello’s first name does not appear in the appellate record. 4

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¶ 45 H. Officer Deronis Cooper’s Testimony

¶ 46 Chicago Police Officer Deronis Cooper testified that, on November 15, 2006, he was

wearing civilian clothes and driving through the area near Sharon’s home. In the late

morning, he received a flash message that a black male suspect was observed in the vicinity,

wearing a black coat, black jeans, and work boots, and potentially covered in blood. Cooper

drove through the area but did not observe the suspect. He then drove to Sharon’s residence,

where he spoke with William and Nakita. After speaking with them, Cooper drove to

defendant’s residence, while Cooper’s supervisor drove William and Nakita there. Officers 5

O’Connor and Costello were already at defendant’s home when Cooper arrived. Cooper

entered the house and observed defendant lying on a bed in a second floor bedroom.

Defendant was wearing a blue denim shirt, black jeans, and tan work boots, and he had dried

red stains on his pants and boots. Cooper then arrested defendant and transported him to an

interrogation room at the Area 2 police station, and he remained with defendant the entire

time. Cooper identified defendant in court, and he identified defendant’s pants and boots and

noted that they were in the same or substantially the same condition as when he observed

defendant wearing them in the bedroom. 

¶ 47 On cross-examination, Cooper testified that he did not recall removing defendant’s boots

while defendant was in the interrogation room. After Cooper brought defendant to the

interrogation room, other officers later transported defendant to a hospital to treat an injury

unrelated to the instant case. Cooper testified that he knew that defendant’s clothes were

removed at the hospital, but he did not state who removed them.

¶ 48 I. Victor Rivera’s Testimony

¶ 49 Forensic investigator Victor Rivera testified that, at 1 p.m. on November 15, 2006, he

and his partner, forensic investigator Eddie Perez, processed the evidence at the crime scene

at Sharon’s home. In the basement, Rivera observed Cavin’s body slumped over in a chair

and a bloody shovel leaning against the wall. Cavin’s body was covered in blood, and there

were bloodstains on the walls. Rivera identified the shovel and several photographs of

Cavin’s body in court. Rivera then left Sharon’s home to process the evidence found at

defendant’s residence, which included a kitchen knife, a drywall knife, and a black leather

jacket in defendant’s bedroom. Rivera transported the evidence to the Area 2 police station

where he assigned a unique inventory number to each item. Rivera identified the knives and

jacket in court.

¶ 50 Rivera testified that, while he was at the Area 2 police station, he “recovered”

defendant’s clothing, but did not explain how he came into possession of defendant’s clothes.

Rivera identified defendant in court. The State presented Rivera with a pair of brown boots,

socks, black jean pants, and a shirt, and he identified each article of clothing as the same one

that he recovered from defendant on November 15, 2006, and that each item was in the same

Cooper did not state his supervisor’s name. 5

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or substantially the same condition as when he recovered them.

¶ 51 On cross-examination, Rivera testified that he did not observe any bloody footprints on

the basement stairs and that the shovel currently did not appear as bloody as it did when he

recovered it. He did not observe any blood on defendant’s leather jacket, and the knife

protruding from defendant’s jacket’s pocket appeared to have rust on it rather than

bloodstains. 

¶ 52 In the middle of Rivera’s cross-examination, the trial recessed an hour for lunch, and

when it resumed, the trial court stated outside the presence of the jury, “The defense has been

setting up audio/visual equipment as it relates to the cross-examination of Forensic

Investigator Rivera. Be sure that our motion to exclude is being adhered to.” The defense 6

then informed the trial court that it intended to present a still shot from a videotape that

showed an unidentified police officer removing defendant’s boots from his feet in an

interrogation room at the Area 2 police station. The defense would first ask Rivera if he did

in fact remove defendant’s clothes from his person, and if he said no, then the still shot

would not be shown. If he Rivera said yes, then the defense intended to show the still frame

from the video and ask Rivera if any of the four people depicted in the still frame was him,

with his anticipated answer being no. The trial court denied the defense’s request to show the

frame from the video, finding that “the still [shot] says nothing in terms of the entirety of the

time that [defendant] was at the [police] station.” The defense then informed the trial court

that it intended to show the video without sound at some later date. The trial court responded

that it would reserve its ruling until that issue presented itself, and the trial court again

advised the defense that there would be no reference to the video during Rivera’s crossexamination, even for the purposes of impeachment.

¶ 53 While the video was not played or admitted into evidence at trial, a DVD copy is

contained in the appellate record. The video shows that a white male officer in plain clothes

wearing a baseball cap led defendant into the interrogation room. Defendant was wearing a

button-down collared shirt, black jeans, and tan boots with visible marks on them. Shortly

afterward, a second dark-skinned male officer entered the room and emptied defendant’s

pockets, placing the contents on the table. This second officer was also not in uniform and

was instead wearing a blue shirt, blue jeans, and a white baseball cap. Defendant then sat

down on a bench and the second officer removed defendant’s boots. A third black male

officer wearing a gray shirt and pants, a black vest, and a flat cap entered the room holding

a clear plastic bag. The second officer, while holding defendant’s boots in his right hand,

placed the contents of defendant’s pockets into the bag and then left the room with the boots.

The second officer returned to the room five minutes later without the boots in hand, and the

boots do not appear on the rest of video. Defendant was then taken to the hospital, and the

video recording system was shut off. The video recording resumed when defendant returned

from the hospital, and the video shows that defendant reentered the interrogation room

wearing hospital scrubs without shoes rather than his previous clothing.

It is unclear which motion the trial court referred to because the appellate record does not 6

contain a motion to exclude that concerns the presentation of a videotape at trial.

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¶ 54 When the cross-examination resumed, Rivera testified that he could not recall if

defendant was still wearing his original clothes and boots or new hospital scrubs when

Rivera observed him in the interrogation room. Rivera also did not remember whether he

personally removed defendant’s clothing and boots, or if they were already removed from

defendant before Rivera arrived at the Area 2 police station.

¶ 55 J. Steven White’s Testimony

¶ 56 Dr. Steven White of the Cook County Medical Examiner’s Office testified as an expert

in forensic pathology concerning the autopsy performed on Cavin by Dr. Michelle Jordan,

who had since moved out of state. White testified that he reviewed Dr. Jordan’s case

protocol, photographs, and toxicologyresults to formulate his own opinion regardingCavin’s

death. White identified multiple lacerations on Cavin’s head and face, though he noted that

Cavin’s body lacked any signs of defensive wounds. Cavin had a comminuted fracture of the

skull, which was broken into many pieces. White opined that Cavin died from multiple

craniocerebral injuries resulting from blunt-force trauma to his head due to an assault. White

opined that Cavin’s death was a homicide, and that Cavin was alive and breathing when he

sustained the injuries because there was blood found in his lungs and stomach. White was

unable to determine a time of death.

¶ 57 K. Lynette Wilson’s Testimony

¶ 58 Lynette Wilson testified that she is a forensic biologist at the Illinois State Police Crime

Lab, and that she analyzed the stains found on the shovel, the wood-handled knife, and

defendant’s boots, jeans, and denim shirt. Her tests revealed that all of these items contained

blood on them. Wilson preserved each of the samples and sealed them in a vault for DNA

analysis.

¶ 59 On cross-examination, Wilson testified that there is a possibility of a false positive test

result. The jeans had many dirt-like stains on them, and the majority of the stains on the

boots were scuffmarks and paint stains. While the boots have several blood-like stains on

them, Wilson only tested one area.

¶ 60 After Wilson’s testimony, the defense again informed the trial court that it intended to

play the video without sound during its case-in-chief to show that someone other than

forensic investigatorRivera recovered defendant’s boots from the Area 2 interrogation room.

The State argued that the video was inadmissible because the defense could not lay a proper

foundation, and the trial court stated that, though the issue was not before the trial court at

that time, it “probably would not” allow the video to be shown later.

¶ 61 The next morning, the defense requested the trial court that it recall Rivera to clarify

whether he personally removed defendant’s clothes. The defense also intended to question

Rivera about the evidence inventory form that he completed, in which he left blank the

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portion of the form indicating where the items were recovered or seized. The trial court 7

denied the defense’s request to recall Rivera, finding that he testified that he was “not sure

about how the clothes got to his possession,” and that playing either a still or the entire

interrogation videowould not advance the defense’s case either way. Afterwards, the defense

did not request or attempt to play the video throughout the duration of the trial.

¶ 62 L. Christopher Webb’s Testimony

¶ 63 Christopher Webb testified that he is a DNA scientist at the Joliet Science Laboratory of

the Illinois State Police, and that he tested the DNA samples found on the clothing, boots,

and the shovel, and compared them to the DNA profiles of defendant and Cavin. A blood

sample recovered from the cuff of defendant’s shirt matched defendant’s DNA profile, while

blood samples recovered from defendant’s jeans, boots, and the shovel matched Cavin’s

DNA profile.

¶ 64 M. William Kovacs’ Testimony

¶ 65 William Kovacs testified that he took defendant’s fingerprints and palm prints on May

22, 2007, and forwarded them to the Illinois State Police latent print unit for comparison.

¶ 66 N. Anastasia Petruncio’s Testimony

¶ 67 Anastasia Petruncio testified that she is a fingerprint examiner, and that she examined

the shovel and located four sets of prints on it: two on the plastic handle, and two on the

metal base. One of the prints on the handle was suitable for comparison, and she identified

the print as defendant’s to the exclusion of all other individuals in the world. Petruncio

demonstrated that the print on the handle corresponded to defendant gripping the shovel with

his left hand. Petruncio identified the shovel at trial. Petruncio also examined the brownhandled knife, but found no prints suitable for comparison.

¶ 68 On cross-examination, Petruncio testified that one of the prints found on the shovel’s

metal base excluded both defendant and Cavin as the source. She did not compare the other

two prints after she identified the palm print on the handle as defendant’s. Petruncio did not

receive print cards from any other individual for comparison. She acknowledged that it was

impossible to tell when the prints were left on the shovel and that they possibly could have

been left days, weeks, or months before the crime.

¶ 69 Defense counsel never requested a Frye hearing concerning the validity of latent palm

print analysis, which is an issue defendant’s counsel raises on appeal.

¶ 70 O. Jennifer Acosta’s Testimony

¶ 71 Jennifer Acosta testified that she is a forensic scientist at the Illinois State Police Forensic

While the inventory form was not admitted into evidence at trial, it appears in the appellate 7

record. The portion of form designated “recovered/seized from:” is left blank.

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Science Center, and that she tested the DNA recovered from the wood-handled knife. She

determined that the DNA sample contained a mixture of at least three profiles that she could

not sort out. She compared the mixed profile to the DNA profiles of defendant and Cavin and

determined that neither could be excluded as a possible match.

¶ 72 On cross-examination, Acosta testified that the DNA sample from the wood-handled

knife was a degraded sample and that she did not know whether it came from blood or skin

cells. Though defendant and Cavin cannot be excluded as a match, there are millions of

potential combinations of DNA profiles that could yield the mixture found on the knife.

¶ 73 After Acosta’s testimony, the State sought to admit defendant’s boots, jeans, and shirt

into evidence. The defense objected, arguing that the State failed to establish a sufficient

chain of custody because Officer Rivera’s testimony did not sufficiently explain how he

came into possession of the clothing. The trial court overruled the defense’s objection and

admitted the clothing into evidence. The State rested, and the trial court denied defendant’s

motion for a directed verdict.

¶ 74 Defendant exercised his right not to testify or call witnesses at trial. The defense

presented stipulated testimony from Chicago Police Detective Madden to impeach Abel 8

Smith. It was stipulated that, if called to the stand, Madden would testify that Abel told him

on November 15, 2006, that Cavin had asked Abel to close the basement door when Abel

checked up on him later that night. After speaking with Cavin, Abel went to go to sleep in

his bedroom and he turned the volume up on his stereo so that it was loud. Madden would

also testify that Abel did not mention that he observed defendant pacing in front of the

kitchen door in the morning. The defense then rested.

¶ 75 During closing arguments, the State argued that defendant threatened to kill Cavin

because he was jealous that Sharon, his girlfriend at the time, had asked Cavin to take care

of her house while she was away. In response, the defense criticized the State’s evidence and

argued that the State did not prove defendant guilty beyond a reasonable doubt. Over the

defense’s objection, the jurywas allowed to view the shovel and defendant’s clothing during

their deliberations. The jurylater found defendant guilty of the first-degreemurder of Clinton

Cavin.

¶ 76 III. Posttrial Proceedings

¶ 77 Prior to sentencing on April 7, 2011, defendant filed a pro se posttrial motion for a new

trial based on ineffective assistance of counsel. The trial court held a Krankel hearing, and

defendant argued that the boots admitted into evidence at trial did not belong to him.

Defendant claimed that the police returned his boots and he wore his boots to the hospital,

which the police would not have done had the boots been covered in blood. As proof,

defendant claimed that the video of his interrogation at the Area 2 police station showed an

officer taking defendant’s boots and giving them back to him, and that the hospital inventory

Detective Madden’s first name does not appear in the appellate record. 8

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list reflected the seizure of his pants, shirt, and socks at the hospital. Defendant further 9

argued that his counsel was ineffective because she did not use this information to impeach

Officer Cooper and she did not call Harold Jackson as a defense witness. The trial court then

questioned defendant’s counsel, who explained that Harold had given a handwritten

statement to the police and testified before a grand jury that defendant had threatened to cut

his throat, and that Harold was generally not a favorable witness for the defense. Defendant’s

counsel also explained that she tried to admit the interrogation video or a still photo from the

video during trial but the trial court denied her requests. The trial court denied defendant’s

pro se motion, finding that it would have applied its ruling denying the use of the

interrogation video or still to Officer Cooper’s testimony as well. The trial court further

found that the pro se motion “lacked merit” and that it did not justify the appointment of new

counsel.

¶ 78 On April 18, 2011, the defense filed a posttrial motion for a new trial, alleging that the

trial court erred when it: (1) denied defendant’s pretrial motion to quash arrest; and (2)

denied defendant’s motion in limine to bar evidence of other acts of defendant. Among the

claims in the motion for a new trial, the defense argued that the trial court: (1) improperly

denied the use of the interrogation video to impeach Rivera at trial; and (2) erred when it

admitted defendant’s boots, pants, shirt, and socks into evidence despite a broken chain of

custody. The trial court denied the defense’s motion, and defendant then advised the trial

court that he had filed a pro se motion for “obstruction of justice” against the assistant public

defender. The trial court advised defendant that it had already ruled on these issues before, 10

but it nevertheless held another “Krankel-type hearing” and denied defendant’s pro se

motion, finding that the assistant public defender offered a tactical reason for not calling

Harold Jackson as a witness and that defendant did not need new counsel.

¶ 79 The trial court then held a sentencing hearing, and the State noted defendant’s 1985

convictions for armed robbery and residential burglary. The State called three correctional

officers from Cook County Jail to testify to three separate instances of defendant’s

insubordination and confrontation during the pendency of his case. The defense called Eric

Morris, defendant’s younger brother, who testified that defendant worked with their father

as a plumber, that he had moved in with his parents as they were becoming older, and that

defendant had taken care of Eric’s son when Eric was too irresponsible to do so. Defendant

then addressed the trial court and again claimed: (1) that the assistant public defender

provided ineffective assistance of counsel; (2) that the police entered his parents’ home

without probable cause or a warrant; and (3) that there was a break in the chain of custody

of his clothes. Following defendant’s allocution, the State argued in aggravation that the way

While the hospital inventory list was not admitted into evidence at trial, it appears in the 9

record on appeal. The list indicates that defendant’s shirt, pants, and socks were given to a police

officer, while the “Shoes/Boots/Slippers” category is crossed off, indicating that no such items were

recovered. Defendant did notsign the bottom of the list acknowledging that “the indicated items and

disposition are correct and complete.” However, the list is signed by “Sgt. E. Boone 1964” as the

“Accepting Person,” and another signature that is illegible appears below that as a “Witness.”

Defendant’s motion does not appear in the appellate record. 10

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in which defendant murdered Cavin was especially heinous, and that defendant had a long

history of criminal behavior that continued even after he was incarcerated. In mitigation, the

defense argued that the murder was the result of defendant’s continuing struggle with

substance abuse, and that defendant’s actions in jail were actually minor relative to the

environment that he lived in.

¶ 80 After considering the factors in aggravation and mitigation, the trial court considered that

the manner in which defendant struck Cavin’s head warranted a sentence “closer to the

maximum as opposed to the minimum.” The trial court sentenced defendant to 55 years’

imprisonment, with 1,587 days of presentence custodycredit against his sentence, and a $925

fine. The trial court denied defendant’s motion to reconsider, and defendant appealed.

¶ 81 The Office of the State Appellate Defender, appointed on April 28, 2011, represents

defendant on appeal. On July 25, 2012, appointed counsel filed a brief and argument on

behalf of defendant. Defendant then filed a pro se brief and argument on March 20, 2013,

entitled “Supplemental Breif [sic] and Argument For Defendant-Appellant Pursuant to

Supreme Court Rule 341(b).” In his pro se brief, defendant makes numerous additional

claims of trial court errors and ineffective assistance of counsel at the suppression hearing

and at trial. Defendant states that his pro se brief is intended to supplement the briefs filed

by his appellate counsel because his counsel chose not to raise these additional issues on

appeal. Since defendant is represented by counsel and has made no request to proceed pro se,

we will consider only the claims raised by counsel. People v. McDonald, 168 Ill. 2d 420, 435

(1995); People v. Thompson, 331 Ill. App. 3d 948, 951 (2002).

¶ 82 ANALYSIS

¶ 83 On appeal, defendant’s counsel argues, first, that his conviction should be reversed and

remanded for a new trial by three related chain-of-custody errors: (1) the trial court

improperly admitted defendant’s bloodstained pants and boots into evidence despite a

deficient chain of custody; (2) the assistant public defender provided ineffective assistance

of counsel at trial when she did not introduce the hospital belongings list into evidence to

show that defendant’s boots were not seized at the hospital; and (3) the trial court denied the

defense’s request to show a still shot from a video of an unidentified officer removing

defendant’s boots in an interrogation room at the police station. Second, counsel argues that

the trial court erred when it denied the defense’s motion in limine to bar testimony that

defendant threatened to cut Abel Smith’s and Harold Jackson’s throats the morning of the

homicide. Third, defendant’s appellate counsel argues that the trial counsel was ineffective

for not objecting to the State’s latent fingerprint analysis. For the following reasons, we

affirm.

¶ 84 I. Chain of Custody

¶ 85 The first claim is that the trial court erred when it admitted defendant’s bloodstained

pants and boots into evidence despite a break in the chain of custody. The admissibility of

evidence lies within the sound discretion of the trial court, and the trial court’s decision may

not be overturned on appeal absent an abuse of discretion. People v. Becker, 239 Ill. 2d 215,

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234 (2010). “An abuse of discretion occurs where the trial court’s decision is arbitrary,

fanciful, or unreasonable, or where no reasonable person would take the view adopted by the

trial court.” Becker, 239 Ill. 2d at 234.

¶ 86 When the State seeks to introduce bloodstained clothing into evidence, it must lay an

adequate foundation either “ ‘through its identification by witnesses or through a chain of

possession.’ ” People v. Woods, 214 Ill. 2d 455, 466 (2005) (quoting People v. Stewart, 105

Ill. 2d 22, 59 (1984)). “[W]here an item has readily identifiable and unique characteristics,

and its composition is not easily subject to change, an adequate foundation is laid by

testimony that the item sought to be admitted is the same item recovered and is in

substantially the same condition as when it was recovered.” Woods, 214 Ill. 2d at 466.

¶ 87 In the case at bar, the State sufficiently established a foundation because defendant’s

pants and boots were readily identifiable by unique characteristics that were not easily

subject to change. Woods, 214 Ill. 2d at 466. At trial, four witnesses identified the pants and

boots as defendant’s. First, the State presented the jeans and boots to William Alston, who

identified them, along with defendant’s leather jacket, as the clothing that he observed

defendant wearing the morning of the crime. Next, Sergeant Daniel O’Connor identified

defendant’s jeans and boots as the same clothing that defendant was wearing at the time of

his arrest. O’Connor also pointed out where he observed the bloodstains on defendant’s

pants. After that, Officer Deronis Cooper identified the black jeans and tan boots as the

clothes that defendant was wearing at the time of his arrest. And lastly, forensic investigator

Victor Rivera identified defendant’s black jeans and boots as the items he recovered at the

police station. Rivera testified that, besides the markings made by the crime lab, the items

were in the same or substantially the same condition as when he recovered and inventoried

the clothing.

¶ 88 As a result, the State established a sufficient foundation for defendant’s pants and boots

because four witnesses identified the articles of bloodstained black jeans and tan boots as

defendant’s. Woods, 214 Ill. 2d at 466. Because the State sufficiently laid a foundation for

the pants and boots, it was not required to establish a chain of custody for the evidence to be

admissible, and the trial court did not err when it allowed the items into evidence over the

defense’s objection. Woods, 214 Ill. 2d at 466. See People v. Gilyard, 124 Ill. App. 2d 95,

105 (1970) (the State established a sufficient foundation for hat and gloves found at the crime

scene where witnesses identified the items as those worn by defendant during the crime);

People v. Kristovich, 32 Ill. App. 3d 979, 985 (1975) (foundation sufficient where witness

identified clothing exhibits as her own).

¶ 89 Defendant’s counsel argues that since the pants and boots contained bloodstains, the

State needed to establish a sufficient chain of custody, rather than witness identification, for

the items to be admissible. Counsel argues that courts have found that blood is a highly

fungible, highly transferrable substance that requires a chain of custody to ensure that the

evidence is preserved and cites three cases: (1) People v. Winters, 97 Ill. App. 3d 288, 295-96

(1981) (discussing chain-of-custody requirements for admitting a blood sample); (2) People

v. Shiflet, 125 Ill. App. 3d 161, 178-79 (1984) (chain of custody established for admission

of a vial of victim’s blood); and (3) People v. Bradney, 170 Ill. App. 3d 839, 864-65 (1988)

(same). See also 725 ILCS 5/116-3 (West 2012)(procedure forsecuring postconviction DNA

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testing requires defendant to establish a chain of custody for physical items to be tested).

¶ 90 Defendant’s counsel also points to two 30-year old cases where courts applied a chain-ofcustody analysis to clothing exhibits that contained biological material. In People v.

Gholston, 124 Ill. App. 3d 873, 890-91 (1984), the appellate court analyzed the chain of

custody of the defendant’s pants and underwear that were later shown to contain mucus and

spermatozoa. In People v. Rogers, 42 Ill. App. 3d 499, 501 (1976), the appellate court

examined the chain of custody for bloody shorts admitted at trial. Counsel argues that, while

foundation may have been proper for the articles of clothing alone, the fact that they

contained visible samples of blood meant that the State was required to show a sufficient

chain of custody to establish a foundation for the evidence.

¶ 91 However, the Winters, Shiflet, and Bradney cases cited bydefendant’s counsel concerned

vial or samples of blood rather than bloody clothing. Winters, 97 Ill. App. 3d at 295-96;

Shiflet, 125 Ill. App. 3d at 178-79; Bradney, 170 Ill. App. 3d at 864-65. While a sample of

blood in itself may require a sufficient chain of custody for admissibility, the blood in the

instant case was contained on unique articles of clothing that were identified by several

witnesses at trial. Once the blood samples were recovered from the clothing, then they were

subject to the chain-of-custodyprocedures used for samples of biological material. However,

the defense never raised a challenge to the chain of custody of the blood after the samples

were removed from the clothing.

¶ 92 Furthermore, while the appellate court in the Gholston and Rogers cases analyzed the

chain of custody for clothing exhibits that contained biological material, neither case states

that such an analysis is required or that the State must prove a chain of custody in such

instances. Gholston, 124 Ill. App. 3d at 890-91; Rogers, 42 Ill. App. 3d at 501. Rather, our

supreme court in Woods held that a chain of custodyis not required where an item has readily

identifiable and unique characteristics, and its composition is not easily subject to change.

Woods, 214 Ill. 2d at 466. Since the composition of the pants and boots were not easily

subject to change, and several witnesses identified the items through unique characteristics,

the State did not need to establish a chain of custody. The State laid a sufficient foundation

for the exhibits, and the trial court did not err when it admitted the pants and boots into

evidence at trial.

¶ 93 Even if the State failed to establish a sufficient foundation, the trial court’s error was

harmless beyond a reasonable doubt. People v. Thurow, 203 Ill. 2d 352, 363 (2003) (citing

United States v. Olano, 507 U.S. 725, 734 (1993)). The evidence at trial showed that

defendant was angered by Sharon’s comments, and that he acted aggressively toward Cavin

throughout the morning. Defendant was then observed approaching the house with a knife

in his pocket, and then observed leaving the home shortly before Cavin was discovered dead

in the basement. The police recovered a bloody shovel at the home, which contained

defendant’s fingerprints. Even if the clothing had been excluded at trial, there was still

overwhelming evidence that defendant was guilty beyond a reasonable doubt.

¶ 94 II. Hospital Belongings List

¶ 95 The second claim is that the assistant public defender provided ineffective assistance at

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trial when she did not present defendant’s hospital belongings list to challenge the chain of

custody of the clothing exhibits. “ ‘The sixth and fourteenth amendment of the United States

Constitution guarantee the fundamental right of a defendant in a criminal case to be

effectivelyassisted by counsel.’ ” People v. Young, 347 Ill. App. 3d 909, 927 (2004) (quoting

People v. Spann, 332 Ill. App. 3d 425, 429 (2002), citing U.S. Const., amends. VI, XIV). A

successful claim of ineffective assistance of counsel requires a two-pronged showing: (1) that

counsel’s representation falls below an objective standard of reasonableness; and (2) that

there is a reasonable probability that, but for counsel’s deficient performance, the result of

the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

People v. Albanese, 104 Ill. 2d 504, 525 (1984). If we can dismiss on the second prong for

failure to show prejudice, we need not discuss the first prong. Albanese, 104 Ill. 2d at 527.

¶ 96 With respect to the second prong, defendant’s appellate counsel argues that the assistant

public defender failed to present the hospital belongings list at trial to attack the chain of

custody of defendant’s pants and boots. The list shows that defendant’s pants, shirt, and

socks were removed at the hospital and given to a police officer, presumably Sergeant

Boone, who then signed the form. Counsel argues that the list would have had had the effect

of proving a gap in the chain of custody, since forensic investigator Rivera testified that he

recovered the clothes at the Area 2 police station and did not state Boone obtained possession

of the items first.

¶ 97 However, the assistant public defender’s performance did not prejudice defendant

because, as discussed in section I, the State was not required to prove a chain of custody for

defendant’s clothing. Woods, 214 Ill. 2d at 466. Even if the hospital belongings list were

presented at trial, it would have had no effect on the outcome of the case because the State

laid a proper foundation for defendant’s pants and boots through witness identification.

Woods, 214 Ill. 2d at 466.

¶ 98 Also, as previously stated in section I, even if the clothing had been excluded at trial,

there was still overwhelming evidence that defendant was guilty beyond a reasonable doubt.

The evidence at trial showed that defendant acted aggressively toward Cavin and threatened

him, that defendant was observed in the house near the time of the murder, and that

defendant’s fingerprints were on a bloody shovel found at the crime scene. Since defendant

was not prejudiced by his counsel’s failure to present his hospital belongings list, the

assistant public defender did not provide ineffective assistance of counsel, and we need not

consider counsel’s performance with respect to the first prong. Strickland, 466 U.S. at 690;

Albanese, 104 Ill. 2d at 527.

¶ 99 III. Exclusion of the Interrogation Video

¶ 100 The third claim is that the trial court erred when it barred the defense from showing a still

frame from a video recording of defendant in an Area 2 interrogation room. A trial court’s

finding concerning whether evidence is relevant and admissible will not be reversed absent

a clear abuse of discretion. People v. Morgan, 197 Ill. 2d 404, 455 (2001) (citing People v.

Hayes, 139 Ill. 2d 89, 130 (1990)). As stated, “[a]n abuse of discretion occurs where the trial

court’s decision is arbitrary, fanciful or unreasonable [citation] or where no reasonable

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person would agree with the position adopted by the trial court.” Becker, 239 Ill. 2d at 234.

¶ 101 The federal constitution guarantees the right of an accused to present a defense, including

evidence to rebut the State’s version of events. U.S. Const., amend. VI; Washington v. Texas,

388 U.S. 14, 19 (1967); People v. Manion, 67 Ill. 2d 564, 576 (1977). “Evidence is

admissible if it is relevant to an issue in dispute and its prejudicial effect does not outweigh

its probative value.” People v. Ross, 395 Ill. App. 3d 660, 678 (2009) (citing People v.

Patterson, 192 Ill. 2d 93, 114-15 (2000)). “Evidence is considered relevant if it has any

tendency to make the existence of any fact that is of consequence to the determination of an

action either more or less probable than it would be without the evidence.” Morgan, 197 Ill.

2d at 455-56 (citing People v. Illgen, 145 Ill. 2d 353, 356-66 (1991)). A trial court may bar

evidence on the grounds of relevancy if the evidence is remote, uncertain, or speculative.

Morgan, 197 Ill. 2d at 456 (citing People v. Cloutier, 156 Ill. 2d 483, 501 (1993)).

¶ 102 Defendant’s counsel argues in its brief that the defense twice sought to present a “short

video clip depicting an unnamed officer seizing [defendant’s] boots at Area 2 before

[defendant] was taken to the hospital,” and that the trial court barred this evidence both

times. This is an incorrect statement of the facts because the appellate record shows that the

defense never attempted to play a video clip at trial. Rather, during the cross-examination of

forensic investigator Rivera, the defense informed the trial court that it intended to present

a still frame from the video, and the trial court denied the request. Afterwards, before the

State rested, the defense twice informed the trial court that it intended to play a clip of the

video in the future during its case-in-chief, but both times the trial court stated that the issue

was not yet before the trial court, though it “probably would not” allow the video to be

presented later. The defense never actually attempted to play the video at any other time at

trial.

¶ 103 As a result, our review is limited to the trial court’s decision to bar the defense from

presenting a still frame of the video during Rivera’s cross-examination. Rivera testified on

direct examination that he “recovered” defendant’s boots. During the cross-examination, the

defense informed the trial court that it intended to show a single frame from the video, which

would show three police officers in an Area 2 interrogation room with defendant. The

defense stated that it would first ask Rivera if he personally removed defendant’s boots, and

if Rivera said no, the still video would not be presented. If Rivera said yes, then the defense

would present the stillshot and ask Rivera if he was one of the officers depicted in the frame,

with his anticipated answer being no. The trial court barred the presentation of a still frame,

and when the cross-examination resumed, Rivera explained that, although he recovered

defendant’s boots at the Area 2 police station, he did not recall who personally removed

defendant’s boots. On appeal, defendant’s counsel argues that the trial court improperly

barred the presentation of a still video frame because it would have impeached Rivera, who

had just testified that he recovered defendant’s boots. Vancil v. Fletcher, 90 Ill. App. 2d 277,

284 (1967) (finding defendant may impeach a witness’s equivocal answers); Edward Don

Co. v. Industrial Comm’n, 344 Ill. App. 3d 643, 652 (2003) (finding impeachment proper

where witness denies making prior inconsistent statement or gives unequivocal answers to

question concerning prior statement); People v. Preston, 341 Ill. 407, 419 (1930) (same).

Additionally, counsel argues that the still video is relevant because it attacks the weight of

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the evidence by showing that the police’s handling left a break in the chain of custody for

defendant’s boots. The trial court did not err when it barred the defense from showing a still

shot from the video because it was not impeaching Rivera’s testimony. Although Rivera

testified that he “recovered” defendant’s boots at the Area 2 police station, he did not state

that he actually removed the boots from defendant’s feet. When asked on cross-examination

to clarify how he came into possession of defendant’s boots, Rivera stated that he did not

recall if he personally removed defendant’s boots or if another police officer had removed

them before Rivera arrived at the police station. Since Rivera testified that he only recovered

the boots and did not personally remove them from defendant, video evidence of another

police officerremoving defendant’s boots does not impeach or contradict Rivera’stestimony.

¶ 104 Furthermore, as the trial court correctly noted, the still image shows only one moment

from the entire time that defendant was in custody, which is inconclusive to the question of

who removed the boots from defendant’s feet. A still video image would not impeach Rivera

because the presentation of a single moment in time would not be determinative of whether

he recovered defendant’s boots. Also, presenting a still image would not undermine the

boots’ chain of custody because it would be impossible to determine who actually removed

the boots, which police officers handled the boots, and how the boots were inventoried. As

we explained in section I, four witnesses identified the boots as belonging to defendant, and

the State was not required to demonstrate a chain of custody to lay a sufficient foundation.

Woods, 214 Ill. 2d at 466. Thus, the trial court did not err when it barred the defense from

presenting a still video shot that neither impeached Rivera nor undermined the State’s

evidence.

¶ 105 Also, the trial court’s error was harmless beyond a reasonable doubt because, as

discussed in sections I and II, the evidence against defendant was overwhelming. Thurow,

203 Ill. 2d at 363 (citing Olano, 507 U.S. at 734). The evidence at trial showed that

defendant had a motive and opportunity to kill Cavin, and that his palm prints were

discovered on the murder weapon. Even if the defense had impeached Rivera, there was still

overwhelming evidence that defendant was guilty beyond a reasonable doubt.

¶ 106 IV. Verbal Threats Against Abel Smith and Harold Jackson

¶ 107 The fourth claim is that the trial court erred when it allowed the State to present evidence

that defendant verbally threatened to cut Abel Smith’s and Harold Jackson’s throats the

morning of the crime. The admissibility of evidence, including other crimes evidence, is left

to the trial court’s discretion and will not be overturned absent a clear abuse of discretion.

Illgen, 145 Ill. 2d at 364. As stated, “[a]n abuse of discretion occurs where the trial court’s

decision is arbitrary, fanciful or unreasonable [citation] or where no reasonable person would

agree with the position adopted by the trial court.” Becker, 239 Ill. 2d at 234.

¶ 108 Other crimes evidence is admissible if it is relevant to a proper issue, such as “motive,

intent, identity, absence of mistake or accident, modus operandi, or the existence of a

common plan or design.” People v. Norwood, 362 Ill. App. 3d 1121, 1128-29 (2005) (citing

People v. Wilson, 214 Ill. 2d 127, 135-36 (2005)). Evidence of other crimes is admissible to

prove any material fact relevant to the case, but is inadmissible if only relevant to

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demonstrate a defendant’s propensity to engage in criminal activity. Norwood, 362 Ill. App.

3d at 1128 (citing People v. Donoho, 204 Ill. 2d 159, 170 (2003), and People v. Hendricks,

137 Ill. 2d 31, 52 (1990)). The trial court may exclude evidence of other crimes if its

prejudicial effect substantially outweighs its probative value. Illgen, 145 Ill. 2d at 365. When

the prior conduct is intrinsic to the matter being charged as a “continuing course of conduct,”

other crimes evidence may be admitted if it is relevant to establish a material issue, and the

general principles of relevance apply. People v. Manuel, 294 Ill. App. 3d 113, 123-24 (1997).

Generally, threats by a defendant against a third party are not admissible unless “ ‘ “the

connection between them and the deceased is such that under certain circumstances the threat

would import harm to or hostility toward the deceased.” ’ ” People v. Szudy, 262 Ill. App.

3d 695, 706 (1994) (quoting People v. Williams, 85 Ill. App. 3d 850, 856 (1980), quoting

People v. Scott, 284 Ill. 465, 474-75 (1918) (“The general rule also is, that a threat by the

accused to kill or injure a person other than the deceased, or a mere idle threat of a general

nature not directed to any particular person, is not admissible to show malice towards the

deceased.”)). “The threat must in some way be linked to the victim.” Williams, 85 Ill. App.

3d at 856 (citing People v. Watkins, 34 Ill. App. 3d 369, 374 (1975)).

¶ 109 In the case at bar, defendant’s counsel argues that defendant’s threats to Abel Smith and

Harold Jackson were inadmissible because they were not directed toward Cavin and bore no

connection to his death. At trial, Abel testified that defendant threatened to cut his throat the

morning of the crime, and William Alston testified that defendant confronted Harold and

similarly threatened to cut Harold’s throat. Counsel argues that Cavin was not present during

either incident, and that the State did not establish a connection between defendant’s threats

and a threat of harm to Cavin.

¶ 110 However, whereas evidence of other crimes may be admissible to show, among other

things, motive, intent, identity, absence of mistake or accident, modus operandi, or the

existence of a common plan or design (Norwood, 362 Ill. App. 3d at 1128 (citing Wilson, 214

Ill. 2d at 135-36)), relevant evidence merely tends to “ ‘make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.’ ” People v. Stewart, 105 Ill. 2d 22, 54 (1984) (quoting Fed.

R. Evid. 401). Here, defendant’s threats to Abel and Harold constituted a continuing “course

of conduct” that led up to Cavin’s murder. Manuel, 294 Ill. App. 3d at 124.

¶ 111 The evidence at trial showed that defendant spent the night drinking alcohol and smoking

crack cocaine, and then argued with and slapped his girlfriend when she asked Cavin to

watch her house while she was in Iowa. Maurice heard defendant arguing with Cavin that

night about Cavin leaving the house, and Abel asked defendant not to put his hands on his

mother. Abel also observed defendant talking to himself and pacing in the kitchen, and

defendant told Abel that Cavin had to leave and that he would not leave unless Cavin left

first. Defendant became increasingly hostile and threatened to cut Abel’s throat. Abel later

heard defendant confront Cavin in the basement, and Cavin responded that if defendant hurt

him, then defendant would only be hurting himself. Laterthat morning, Williams Alston also

observed defendant’s temper flare when he started breathing on Harold’s food, to which

Harold insisted that defendant back away. Defendant responded that he would cut Harold’s

throat, and Harold pushed him. Defendant then left the house in Maurice’s vehicle and

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returned 10 to 15 minutes later with a knife in his pocket. William and Harold quickly left

to visit a nearby gas station, and when they returned a few minutes later, William observed

defendant walking away from the house. Inside, William discovered a bloody shovel and

Cavin dead in the basement.

¶ 112 These facts demonstrate defendant’s increased agitation and escalating hostility, the focus

of which was Cavin’s refusal of defendant’s demands to leave the house. The incident began

when Sharon asked Cavin to watch the house. Defendant’s anger or jealousy continued

throughout the night as he argued with Cavin several times, demanding that he leave. Also,

defendant became increasing more violent, as he first slapped Sharon, and then later

threatened to cut the throats of her son and his friend. This course of events culminated in

defendant beating Cavin to death with a shovel in the basement. As such, the trial court did

not abuse its discretion when it allowed the testimonythat defendant had threatened Abel and

Harold the morning before the murder. Illgen, 145 Ill. 2d at 364.

¶ 113 Even if the testimonyconcerning defendant’s threats should have been excluded, the trial

court’s error was harmless beyond a reasonable doubt. Thurow, 203 Ill. 2d at 272 (citing

Olano, 507 U.S. at 734). The evidence at trial showed that defendant was with Cavin, and

that defendant was observed approaching the home with a knife shortly before Cavin was

discovered dead in the basement. Defendant’s prints were discovered on the bloody shovel,

and defendant’s clothes contained bloodstains, which matched Cavin’s DNA profile. There

was overwhelming evidence to convict defendant beyond a reasonable doubt even in the

absence of the testimony that he threatened Abel and Harold.

¶ 114 V. Latent Fingerprint Analysis

¶ 115 The final claim is that the assistant public defender provided ineffective assistance of

counsel when she did not request a Frye hearing concerning the admissibility of Illinois State

Police print examiner Anastasia Petruncio’s testimony that a palm print recovered from the

bloody shovel found at the crime scene matched defendant’s left palm print. Frye v. United

States, 293 F. 1013, 1014 (D.C. Cir. 1923); Donaldson v. Central Illinois Public Service Co.,

199 Ill. 2d 63, 77 (2002). A defendant is denied effective assistance of counsel when: (1) his

counsel’s representation falls below an objective standard of reasonableness; and (2) there

is a reasonable probability that, but for his counsel’s deficient performance, the result of the

trial would have been different. Strickland, 466 U.S. at 688; Albanese, 104 Ill. 2d at 525.

¶ 116 The decision whether to file a pretrial motion is considered trial strategy, and trial

counsel enjoys a strong presumption that the failure to file such a motion was proper. People

v. Spann, 332 Ill. App. 3d 425, 432 (2002) (citing People v. Rodriguez, 312 Ill. App. 3d 920,

925 (2000)). To overcome that presumption, the defendant must demonstrate: (1) that the

motion had a reasonable probability of success; and (2) that the outcome of the trial would

have been different. Spann, 332 Ill. App. 3d at 432-33. A reasonable probability is defined

as a probability sufficient to undermine confidence in the outcome. Spann, 332 Ill. App. 3d

at 437 (citing Strickland, 466 U.S. at 694). The question then, is not whether the defendant

would more likely than not have received a different verdict absent the deficiency, but

whether in light of the deficiency, he received a fair trial resulting in a verdict worthy of

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confidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995). Since the facts surrounding trial

counsel’s performance are not in dispute and the claim was not raised in trial court, this

court’s review is de novo concerning assessment of the ultimate legal issue of whether

counsel’s omission supports an ineffective assistance claim. People v. Berrier, 362 Ill. App.

3d 1153, 1166-67 (2006) (citing People v. Davis, 353 Ill. App. 3d 790, 794 (2004)). De novo

consideration means we perform the same analysis that a trial judge would perform. Khan

v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 117 Illinoisfollows the test outlined in Frye, commonly called the “general acceptance” test,

which dictates that “scientific evidence is only admissible at trial if the methodology or

scientific principle upon which the opinion is based is ‘sufficientlyestablished to have gained

general acceptance in the particular field in which it belongs.’ ” Central Illinois Public

Service Co., 199 Ill. 2d at 77 (quoting Frye, 293 F. at 1014). “A court may determine the

general acceptance of a scientific principle or methodology in either of two ways: (1) based

on the results of a Frye hearing; or (2) by taking judicial notice of unequivocal and

undisputed prior judicial decisions or technical writings on the subject.” People v. McKown,

266 Ill. 2d 245, 254 (2007).

¶ 118 Defendant’s appellate counsel argues that there is a long-standing debate in the scientific

community concerning the validity of latent print identification. In support, counsel cites a

2009 National Research Council (NRC) report, which opined that latent fingerprint analysis,

as well as other forensic identification methods, has not “been rigorously shown to have the

capacity to consistently and accurately demonstrate a connection between evidence and a

specific individual source.” National Research Council of the National Academies,

Strengthening Forensic Science in the United States: A Path Forward 137 (2009), at

https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf. Counsel also cites an unpublished

Maryland trial court order, Maryland v. Rose, No. K06-0545 (Cir. Ct. Baltimore Co. Oct. 19,

2007), which excluded fingerprint analysis from evidence after the trial court conducted a

Frye hearing.

¶ 119 However, over 100 years ago, our supreme court found that there is a scientific basis for

fingerprint identification and that courts are justified in admitting this class of evidence.

People v. Jennings, 252 Ill. 534, 549 (1911). Since then, federal and state appellate courts

have uniformly rejected challenges to latent fingerprint analysis. People v. Luna, 2013 IL

App (1st) 072253, ¶ 68. Though defendant’s appellate counsel claims that the unpublished

Maryland trial court orderrejected the “general acceptance” of latent fingerprint analysis, we

are unaware of the trial court’s standing on that issue. After the prosecution withdrew the

case in state court, the federal district court considered the issue on the same record and

rejected the challenge to the fingerprint analysis. United States v. Rose, 672 F. Supp. 2d 723,

725 (D. Md. 2009). After the district court’s finding in Rose, the Maryland appellate court

noted that the defendant had provided only a “sole citation *** to a circuit court decision

excluding fingerprint evidence,” and it rejected the defendant’s argument that latent print

analysis was not a generally accepted methodology within the scientific community.

Markham v. State, 984 A.2d 262, 274 n.7 (Md. Ct. Spec. App. 2009). Accordingly, there is

no authority in Illinois, or in any other state, to support the claim that it is error for a circuit

court to not hold a Frye hearing concerning the admissibility of latent fingerprint analysis.

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People v. Mitchell, 2011 IL App (1st) 083143, ¶ 31.

¶ 120 Also, even if the assistant public defender erred in failing to request a Frye hearing,

defendant did not suffer prejudice because there was still overwhelming evidence that he was

guilty beyond a reasonable doubt. The evidence at trial showed that defendant was angry and

acted aggressively toward Cavin, that defendant was observed leaving the house just prior

to the discovery of the murder, and that the blood on defendant’s clothing matched Cavin’s

DNA profile. Since defendant was not prejudiced by his counsel’s failure to object to the

latent fingerprint analysis, the assistant public defender did not provide ineffective assistance

of counsel. Strickland, 466 U.S. at 690.

¶ 121 CONCLUSION

¶ 122 For the foregoing reasons, we affirm defendant’s conviction and sentence. First, the trial

court did not err when it admitted defendant’s bloodstained pants and boots into evidence

because the State established a sufficient foundation through witness identification. Second,

the assistant public defender did not provide ineffective assistance of counsel at trial for not

introducing the hospital belongings list since the State was not required to prove a chain of

custody. Third, the trial court did not err when it denied the defense’s request to show a still

shot from the Area 2 interrogation video because doing so would not impeach forensic

investigator Rivera. Fourth, the trial court did not err in denying the defense’s motion in

limine to bar testimony that defendant threatened to cut Abel Smith’s and Harold Jackson’s

throats the morning of the homicide because it established defendant’s continuing course of

conduct of anger and jealousy that culminated in Cavin’s murder. And last, the assistant

public defender was not ineffective for not objecting to the State’s latent fingerprint analysis

since such methods have been generally accepted in the scientific community for over 100

years. Also, we will not consider defendant’s pro se supplemental motion because defendant

is represented by counsel on appeal and has made no request to proceed pro se.

¶ 123 Affirmed.

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