2023 IL App (1st) 190948-U 

 SECOND DIVISION

June 6, 2023 

No. 1-19-0948 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

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

 ) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

 ) 

 v. ) No. 14 CR 10748 (01) 

 ) 

ANTHONY BRADLEY, ) Honorable 

 ) Maura Slattery-Boyle, 

Defendant-Appellant. ) Judge Presiding. 

______________________________________________________________________________ 

JUSTICE HOWSE delivered the judgment of the court. 

Justices Ellis and Cobbs concurred in the judgment. 

 ORDER

¶ 1 Held: The judgment of the circuit court of Cook County convicting defendant of first 

degree murder is reversed and the cause is remanded for a new trial; the trial court failed 

to comply with Illinois Supreme Court Rule 431(b); because the evidence is closely 

balanced we are required to reverse and remand this case for a new trial. 

¶ 2 The State charged defendant, Anthony Bradley, with first degree murder for the shooting 

death of Kenneth Barbour. The matter proceeded to a trial before a jury. Two eyewitnesses to the 

shooting identified defendant and testified at trial, and a police detective also testified at trial as 

to the eyewitnesses’ identifications, without objection. Defendant’s attorney also elicited 

evidence of a possible motive for the killing and failed to call an expert witness in the field of 

eyewitness identification. The jury found defendant guilty and the trial court sentenced defendant 

to 55 years’ imprisonment. 
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¶ 3 For the following reasons, we reverse defendant’s conviction and remand for a new trial. 

¶ 4 BACKGROUND

¶ 5 In August 2013, Jade Graham, then 16-years-old, got into a fistfight with her former 

friend Ashante Gills, a/k/a Misty, on the street in Chicago in the area of 67th Street and 

Champlain. Jade testified that on the day of the fight she lived in the area of 67th and Rhodes and 

Misty lived in the area of 65th and Rhodes. After the fight, Jade went home walking westbound 

and Misty went in the opposite direction, walking eastbound. Jade testified that as Misty left the 

area, Misty said that she was going to get her brother, the defendant in this case. Jade went home 

but then went back out to the area of 68th and St. Lawrence, where a number of people were 

gathered. Jade testified that when she arrived she saw Barbour and defendant. Jade identified 

defendant in court as the person she saw at 68th and St. Lawrence with Barbour. Misty was also 

present at that time and standing with defendant. Jade learned later that defendant is Misty’s 

brother. Jade testified that she saw that defendant had a gun out, saw Barbour “smack” the gun 

with his hand, and saw defendant shoot Barbour. After defendant shot Barbour, defendant and 

Misty got into separate vehicles and drove away. 

¶ 6 Jade testified she saw Barbour and Jocelyn at the scene. Jade testified that immediately 

after the shooting, after the cars pulled off, she “ran across the street” toward where Barbour was 

shot. Jocelyn was with Barbour. Jade testified that two days after the shooting detectives showed 

Jade a photo array. Jade testified that she recognized defendant’s photo in the array and that 

defendant was the person who shot Barbour. On May 20, 2014, Jade viewed a physical lineup. 

At trial, Jade identified defendant in a photo of the lineup she viewed on May 20, 2014. Jade 

testified that defendant, the person she identified in the photo of the lineup, was the person who 

shot Barbour.
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¶ 7 At trial, on cross-examination defendant’s attorney asked Jade about detectives’ 

questioning of her about the fight between Jade and Misty. During that examination, defendant’s 

attorney asked Jade the following questions, and received the following answers:

 “Q. [Misty] walked away on her own, right? 

 A. Yes. 

 Q. You didn’t knock her out? 

A. No.

 Q. This fight happens and then you tell them [(the police)] about that and 

did Misty, do you recall Misty saying anything at that point? 

A. Repeat that.

Q. Did Misty say anything after the fight, like peace? 

 A. She was going to get her brother. 

 Q. Do you know how many brothers Misty has? 

 A. At that point I knew about one. 

 Q. You only knew about one brother, correct? 

A. Yes.

 Q. My question to you was do you know how many she had? 

A. No.

 Q. The word brother, right, can have many meanings, is that true? 

A. Yes.

 Q. One meaning can be someone who is a close friend, that’s my brother, 

yes?

A. Yes.
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¶ 8 On cross-examination, Jade admitted she did not go to the police after the shooting. 

When police did speak to Jade, Jade did not initially tell police defendant was the shooter; Jade 

learned the shooter’s identity through questioning by police: 

 “A. They had, they asked me questions. Then when they came with the 

pictures, I pointed out or whatever, then that’s when it came out. I didn’t just say 

[defendant] did it, no. It didn’t go like that. That was after all the questions was 

asked and then the pictures was set down. Then the name came about.” 

Jade did not know defendant before police came to her house to interview her. At the time of the 

shooting Jade could only view the side of the shooter’s face, in profile, because of where they 

were standing relative to each other. Defense counsel elicited testimony that Jade could not 

remember what the shooter was wearing, how the shooter’s hair was cut, or whether the shooter 

had any facial hair. Jade also admitted to looking at the gun rather than the person holding it. 

¶ 9 Jade testified the shooter and Barbour were about the same height or the shooter was only 

slightly shorter. On cross-examination Jade testified that the two cars that arrived at the scene 

came from the same direction, one behind the other. Jade then testified on redirect that the two 

cars were already present when she arrived. 

¶ 10 Later in the defense cross-examination of Jade, defendant’s attorney asked Jade whether 

Jade had ever been shown a cell phone on the day of the shooting. Jade testified that she did not 

recall a cell phone being shown to her, or a cell-phone photograph of a person she later identified 

as the shooter being shown to her. Jade denied that anyone showed her a photograph of the 

person she alleges was the shooter. Jade did not recall talking to an attorney about this case and 

indicating to them that someone had shown her a picture of the alleged shooter on a cell phone. 
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¶ 11 Jocelyn Solomon was 17-years old at the time of the shooting and Jocelyn knew the 

victim. On the night of the shooting Jocelyn saw two cars pull up from opposite directions to 

68th Street and St. Lawrence. Jocelyn saw two males exit one vehicle and two females exit the 

second vehicle. One of the males had a gun. The male with the gun and Barbour struggled over 

the gun and the male who arrived with the gun shot Barbour. Jocelyn identified defendant in 

court as the male who had the gun. 

¶ 12 Jocelyn met Chicago Police Department Detective Jones on August 14, 2013 at the police 

station. On that day, Jocelyn viewed a photo array. Jocelyn identified a photo of defendant as the 

person Jocelyn saw shoot Barbour. (Specifically, Jocelyn identified the photo number of that 

person in the photo array.) On May 21, 2014, Jocelyn viewed a physical lineup associated with 

this case. At defendant’s trial Jocelyn viewed a photograph of the lineup she viewed on May 21, 

2014. Jocelyn testified that she identified the “man in the middle as the shooter,” who was 

defendant. 

¶ 13 Jocelyn did not initiate contact with police; they came to her. Jocelyn testified that after 

she arrived at the scene she, Barbour, and Jocelyn’s friend started walking. Then, Jocelyn 

testified, two cars pulled up. Jocelyn testified that “two guys got out of one car” and “two 

females got out of the other car.” On cross-examination, Jocelyn testified that she did not see 

Jade at the scene of the shooting until after an ambulance arrived. Jocelyn also testified that she 

never told police before the trial that two girls exited one of the two cars that approached the 

intersection prior to the shooting. Jocelyn could not describe the shooter’s height beyond saying 

the shooter was shorter than the victim. Jocelyn had never seen the shooter before. Jocelyn stated 

on cross-examination that she could not recall whether the shooter had any facial hair, what the 

shooter’s hair looked like, or what the shooter was wearing. Also, Jocelyn could not recall which 
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hand the shooter held the gun in. Jocelyn testified that when she saw the shooter with a gun, 

Jocelyn was looking at the gun. Defense counsel elicited testimony that Jocelyn only saw the 

shooter “for a matter of seconds.” 

¶ 14 Prior to trial, the State filed a motion in limine to admit evidence of information 

contained in a “contact card” by the Chicago Police Department documenting an encounter with 

defendant in which defendant gave his home address. The State’s motion argued this evidence 

was probative of defendant’s identity, where defendant purported to share an address with his 

sister, and the shooting resulted from an altercation between defendant’s sister and the victim’s 

friend. The trial court granted the State’s motion finding that the contact card is a “business 

record” kept by the Chicago Police Department and that the evidence was probative of how 

police linked defendant to the offense. In its oral ruling on the motion, the trial court stated that 

the assistant state’s attorney “indicates that she’s not getting into the statement [by defendant’s 

sister after the fight] in regards to I’m going to get my brother ***.” 

¶ 15 Officer Bruno testified that on June 19, 2013, he was working as a police officer and 

encountered defendant. The State asked Officer Bruno whether, during his conversation with 

defendant, defendant indicated that he lived in the vicinity of 65th Street and Rhodes in Chicago. 

Bruno testified that defendant did so indicate. The purpose of a contact card is to document an 

officer’s interaction with an individual. Officer Bruno testified he completed a contact card for 

his interaction with defendant. Officer Bruno admitted he would not be able to recognize 

defendant. 

¶ 16 Officer Bruno testified that the contact card for Officer Bruno’s interaction with 

defendant states that the officer was not able to verify the name of the individual because the 

individual did not have identification. Defense counsel asked Officer Bruno whether he knew if 
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the person he had contact with was in fact defendant, and Officer Bruno testified that he did not 

recall defendant. Officer Bruno testified that other officers on the scene would have checked 

police databases for warrants for the individual involved in the contact. Police can access

photographs of people who have been previously arrested with a name and date of birth. Officer 

Bruno testified police would not allow the individual to leave until police verified the name the 

individual gave them. Officer Bruno admitted he cannot verify where an individual lives without 

going to the location and he otherwise has no way to verify an address an individual gives him. 

¶ 17 Detective Jones of the Chicago Police Department testified that he met with Jade on 

August 11, 2013 and showed Jade a photo array. Detective Jones did not testify that Jade 

identified anyone when Detective Jones showed Jade the photo array. Detective Jones testified 

that after he showed Jade the photo array, he issued an “investigative alert” for defendant. (An 

investigative alert is a means by which the Chicago Police alert members of the department that 

detectives wish to interview an individual.) 

¶ 18 Detective Jones testified that he met with Jocelyn Solomon that same day (August 11). 

Detective Jones had learned that Jocelyn was a witness to the shooting. Detective Jones testified 

that Jocelyn identified a photograph of defendant from the photo array as the person who shot 

and killed Barbour on August 9, 2013. The detective identified defendant in court as the person 

in the photograph. Detective Jones also testified that on August 14, at the police station, Jocelyn 

identified defendant from a separate photo array as the person who shot and killed Barbour. 

¶ 19 On May 20, 2014, Detective Jones learned that defendant was in custody. As a result, 

Detective Jones wanted Jade and Jocelyn to view a physical lineup. Detective Jones testified that 

Jade viewed a physical lineup in the evening of May 20, 2014, and Jade identified defendant as 

the person who shot and killed Barbour on August 9, 2013. Detective Jones testified that Jocelyn 
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viewed a physical lineup the next day, May 21, 2014, and that Jocelyn identified defendant as the 

shooter who killed Barbour. 

¶ 20 The parties entered a stipulation that on November 29, 2017, Jade met with an assistant 

state’s attorney and during that meeting, Jade told the ASA that people had gathered to talk and

what happened shortly after the shooting. During that time someone showed Jade a picture of 

defendant on a cell phone. When Jade saw defendant’s picture on the cell phone Jade recognized 

defendant as the shooter. 

¶ 21 The jury found defendant guilty of first degree murder. The trial court sentenced 

defendant to a 55-year term of imprisonment.

¶ 22 This appeal followed. 

¶ 23 ANALYSIS

¶ 24 Defendant first argues the trial court denied defendant the right to a fair and impartial 

trial when the court failed to ensure that potential jurors understood and accepted the principle 

that a defendant’s failure to testify cannot be held against them and that the potential jurors 

would abide by that principle. Defendant admits his trial counsel failed to preserve this issue for 

review but asks this court to review the matter for plain error under the first prong of plain error 

review. The State agrees the trial court erred when it “failed to ensure that prospective jurors 

understood and accepted that defendant’s decision not to testify could not be held against him.” 

Nonetheless, the State responds first-prong plain error review is not warranted in this case; 

therefore, defendant forfeit this claim for review.

¶ 25 Whether the trial court complied with its obligations under Rule 431(b) is a question of 

law we review de novo. People v. Joseph, 2021 IL App (1st) 170741, ¶ 20 (citing People v. 

Belknap, 2014 IL 117094, ¶ 41). Whether a claimed error is subject to review under the first 
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prong of the plain error rule is also a question we review de novo. People v. Mudd, 2022 IL 

126830, ¶ 22; People v. Lozano, 2022 IL App (1st) 182170, ¶ 58. We find that the trial court 

erred in failing to ask potential jurors whether they understand and accepted the principle that a 

defendant’s choice not to testify cannot be held against them. We also find that this error is 

subject to review under the first prong of the plain error rule. 

¶ 26 Our supreme court codified its decision in People v. Zehr, 103 Ill. 2d 472 (1984), in 

Illinois Supreme Court Rule 431(b) (eff. Jul. 1, 2012). People v. Birge, 2021 IL 125644, ¶ 31. 

Rule 431(b) reads, in pertinent part, as follows: 

 “(b) The court shall ask each potential juror, individually or in a group, 

whether that juror understands and accepts the following principles: (1) that the 

defendant is presumed innocent of the charge(s) against him or her; (2) that before 

a defendant can be convicted the State must prove the defendant guilty beyond a 

reasonable doubt; (3) that the defendant is not required to offer any evidence on 

his or her own behalf; and (4) that if a defendant does not testify it cannot be held 

against him or her; however, no inquiry of a prospective juror shall be made into 

the defendant’s decision not to testify when the defendant objects.” IL S. Ct. R. 

431(b). 

¶ 27 The trial court erred when it failed to question potential jurors on whether they 

understood and accepted the fourth Zehr principle, that defendant’s decision not to testify could 

not be held against defendant. People v. Magallanes, 409 Ill. App. 3d 720, 730 (2011) (“error 

clearly occurred here because the trial court did not question each venireperson as to whether he 

or she understood and accepted the fourth Zehr principle”). See also id. at 736 (citing People v. 

Glasper, 234 Ill. 2d 173, 197 (2009)). 
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¶ 28 Defendant failed to preserve this issue for review by not objecting at trial and including it 

in a posttrial motion. People v. Jackson, 2022 IL 127256, ¶ 15 (“We have long held that, for a 

criminal defendant to preserve an issue for review on appeal, the defendant must object at trial 

and raise the issue in a written posttrial motion.”). Therefore, we must assess the claimed error

for plain error review. 

 “The conviction of an innocent person due to an error during the pretrial 

or trial proceedings would be a miscarriage of justice; therefore, a reviewing court 

may consider the forfeited error under the first prong of the plain error rule when 

the evidence is closely balanced. Id. In other words, errors reviewable under the 

first prong of the plain error rule are the type of errors that are subject to harmless 

error analysis, and a defendant must establish prejudice resulting from the error to 

excuse his forfeiture of such an error. [Citation.] 

 In contrast, under the second prong of the plain error rule, the reviewing 

courts are not concerned with “prejudicial” error. [Citation.] Instead, the concern 

under the second prong of the plain error rule is addressing unpreserved errors 

that undermine the integrity and reputation of the judicial process regardless of 

the strength of the evidence or the effect of the error on the trial outcome.” 

Jackson, 2022 IL 127256, ¶¶ 23-24. 

¶ 29 The first step in applying the plain error rule is to determine whether a clear or obvious 

error occurred, which we have done. 

¶ 30 Our supreme court has held that a trial court’s failure to comply with Rule 431(b) is not a 

“structural error” that undermines the integrity and reputation of the judicial process. People v. 
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Birge, 2021 IL 125644, ¶ 24 (“a violation of Rule 431(b) is not a second-prong, structural error 

that requires automatic reversal under a plain-error analysis” (and cases cited therein)). 

 “[A] defendant with an unpreserved Rule 431(b) claim must demonstrate 

first-prong plain error—that is, that the trial evidence was closely balanced.

[Citation.] Whether the evidence was closely balanced is not a sufficiency 

analysis but ‘a qualitative, commonsense assessment of the totality of the 

evidence within the context of the case,’ including evidence of witness credibility. 

[Citation.]” People v. Rodriguez, 2022 IL App (1st) 200315, ¶ 134. 

¶ 31 Generally, “[w]here judgment rests solely on the credibility of witnesses at trial, the 

evidence is closely balanced.” People v. Jackson, 2012 IL App (1st) 102035, ¶ 17 (citing People 

v. Steidl, 177 Ill. 2d 239, 256 (1997)). Our supreme court has addressed situations in which the 

question was whether the evidence was closely balanced when the defendant does not present 

any evidence and found that it can be. In People v. Piatkowski, 225 Ill. 2d 551, 567 (2007), the 

defendant presented no alibi and no evidence whatsoever, other than calling the detective who 

interviewed the witnesses to testify (and, from the court’s recitation of the facts who was called 

to highlight inconsistencies in those witness’s statements (see Piatkowski, 225 Ill. 2d at 560-61)). 

The Piatkowski court held that the fact the defendant presented no alibi and no evidence was not 

fatal to the question of whether the evidence was nevertheless closely balanced. Piatkowski, 225 

Ill. 2d at 567. See also People v. Othman, 2019 IL App (1st) 150823, ¶¶ 67-68 (citing 

Piatkowski, 225 Ill. 2d at 567) (expressly rejecting dissenting view that the case was not closely 

balanced because the defendant presented no evidence). 

¶ 32 As our supreme court later explained in People v. Sebby, 2017 IL 119445, ¶ 53, “[i]n 

determining whether the evidence adduced at trial was close, a reviewing court must evaluate the 
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totality of the evidence and conduct a qualitative, commonsense assessment of it within the 

context of the case. [Citations.]” Sebby, 2017 IL 119445, ¶ 53. In that case, where the trial court 

failed to ask potential jurors whether they understood and accepted any of the Zehr principles 

(see Sebby, 2017 IL 119445, ¶ 49), our supreme court examined the evidence as to each element 

of the offense to determine whether the evidence was closely balanced. Id. ¶¶ 54-59. 

¶ 33 In Sebby, the defendant did present evidence. See id. ¶¶ 54-59. Nonetheless, our supreme 

court refused to rely on the defendant’s argument that the evidence was closely balanced 

“because both parties presented plausible versions of events.” Id. ¶ 60. The Sebby court stated 

clearly that the issue was not “the sufficiency of close evidence but rather the closeness of 

sufficient evidence.” Id. (citing Piatkowski, 225 Ill. 2d at 566). Instead, the Sebby court relied on 

the fact that “[a]s in [People v.] Naylor, [229 Ill. 2d 584, 606-07 (2008),] the outcome of this 

case turned on how the finder of fact resolved a “contest of credibility. [Citation.]” Sebby, 2017 

IL 119445, ¶ 63. 

¶ 34 Notably, the Sebby opinion does not state or imply that its holding is necessarily 

dependent upon the defendant’s presentation of a credible competing version of events. In 

refuting the dissent’s arguments, the majority in Sebby noted that the question was whether a 

Rule 431(b) violation is reversible error under the first prong of the plain error analysis “where 

the defendant demonstrates that the trial evidence was close.” Id. ¶ 78. The answer to that 

question involved “the quantum of evidence presented by the State against the defendant.” 

(Internal quotation marks omitted.) Id. ¶ 78 (quoting People v. Herron, 215 Ill. 2d 167, 193 

(2005)).

¶ 35 In Piatkowski, on which Sebby relied for its rule as to what constitutes “closely balanced” 

evidence (see id. ¶ 60), the defendant “presented no alibi and no evidence whatsoever” other than 
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the testimony of a police detective who interviewed the State’s witnesses. Piatkowski, 225 Ill. 2d 

at 567. The Piatkowski court also noted that the State “presented no physical evidence to connect 

[the] defendant to the shooting, and no inculpatory statements by [the] defendant were admitted.” 

Id. The quantum of evidence in Piatkowski largely mirrors the quantum of evidence in this case. 

In this case, the State presented only the testimony of two alleged witnesses to the shooting, 

despite the undisputed presence of a large number of people; and the State adduced no physical 

evidence linking defendant to the shooting and defendant did not make any inculpatory 

statements. 

¶ 36 In Piatkowski, the alleged error “related to how the jury would assess the reliability of 

[the State’s] eyewitness testimony.” Id. The Piatkowski court held that it must “consider whether 

the evidence presented on the reliability of the eyewitness testimony rendered this case one that 

is closely balanced.” Id. The Piatkowski court reviewed the evidence as to each Biggers factor to 

assess the reliability of the identification testimony. Id. at 567. The Piatkowski court found that 

after “carefully examining [the] defendant’s argument in relation to the facts in the record, *** 

the evidence presented on these five factors did not overwhelming [sic] favor the State, and we 

believe that [the] defendant has met his burden to show that the evidence was sufficiently closely 

balanced so as to require a remand for a new trial.” Piatkowski, 225 Ill. 2d at 568. 

¶ 37 Again notably, the Piatkowski court did not hold that it had to consider whether the 

defendant presented a credible version of events. See id. at 567. The court based its decision on 

the fact the “case turned on the credibility of the witnesses’ identification testimony and the 

erroneous instruction involved how the jury would weigh and evaluate such identification 

testimony. See id. at 567-68. 
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¶ 38 This case also turns on the credibility of the witnesses. Here, the error involves the 

credibility of the witnesses weighed against the absence of contrary testimony by the defendant 

and how the jury would consider that circumstance. Under the foregoing authority, we look to 

“the quantum of evidence presented by the State against the defendant” (Sebby, 2017 IL 119445, 

¶ 78) in the context of how the alleged error impacts the jury’s assessment of that evidence or the 

case (Piatkowski, 225 Ill. 2d at 567) by conducting “a qualitative, commonsense assessment of 

[the evidence] (Sebby, 2017 IL 119445, ¶ 53). Thus, in this case, we must consider whether the 

evidence presented by the State in the absence of an instruction that the jury may not use 

defendant’s silence against him “rendered this case one that is closely balanced.” See Piatkowski, 

225 Ill. 2d at 567. 

¶ 39 As to the alleged error, in Sebby our supreme court found that “[a]n instructional error 

may not bear upon the evidence yet may still affect the verdict because it relates to ‘the manner 

in which a jury was instructed to evaluate that evidence.’ [Citation.]” Sebby, 2017 IL 119445, ¶ 

66. The Sebby court found that: 

“a Rule 431(b) violation may affect the verdict. If jurors do not understand and 

accept that the defendant is presumed innocent, then credibility contests could 

lean in the State’s favor, which could tip the scales of justice against the 

defendant in a close case. Or if jurors do not understand and accept that the State 

bears the burden of proof beyond a reasonable doubt, then, again, credibility 

contests could lean in the State’s favor, which also could tip the scales of justice 

against the defendant in a close case. A jury that does not understand and accept 

those principles may weigh the evidence in favor of the State or render a guilty 

----
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verdict on insufficient proof, again tipping the scales against the defendant in a 

close case.” Sebby, 2017 IL 119445, ¶ 67. 

¶ 40 As to the evidence in this case, after performing a qualitative, commonsense analysis of 

the evidence, considering the evidence in relation to the alleged error in this case, we find that 

the evidence “was sufficiently closely balanced so as to require a remand for a new trial.” See 

Piatkowski, 225 Ill. 2d at 568 (“After carefully examining defendant's argument in relation to the 

facts in the record, we find that the evidence presented on these five factors did not 

overwhelming favor the State, and we believe that defendant has met his burden to show that the 

evidence was sufficiently closely balanced so as to require a remand for a new trial.”). Here, the 

State’s case relied entirely on the credibility of its two eyewitnesses. The defense strategy was 

clearly to attack the lack of physical evidence and the quality of the police investigation, but also 

to attack the credibility of the witnesses’ identifications. In closing argument, defendant’s 

attorney argued, in part, as follows: 

 “[W]hat were [Jade’s] words about what she said that the shooter looked 

like? What did she tell them [(the police)]? She said that he was dark-skinned and 

that he was tall and thin ***. 

* * * 

Jade Graham is half a block away where she says that she sees the sisters 

come out of the car and talk about ‘shoot him, shoot him,’ but you heard from the 

woman who that [sic] was there, Jocelyn, right? Jocelyn told you that they—when 

she was originally interviewed in the case, that the sisters never came out [(of the 

second car).] Then we know that she gave sworn testimony that she indicated the 

sisters didn’t step out. 

----
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 The same way she raised her hand, I am going to tell the truth, nothing but 

the truth, and then she got up here and told you a different truth. What does that 

make her? A liar. The State wants you to believe in a liar. The State wants you to 

believe that that person is telling you the truth about what they saw, and that 

person who was allegedly two to three feet away from the individual involved 

described the individual as being medium height and brown skin. 

 Well, we know, based upon the testimony that you heard, that the two 

individuals [(the victim and the shooter)]—one was six feet tall *** and then you 

had the officer tell you that [defendant] was five foot eleven. It is an inch 

difference. That’s not going to appear to be too much taller or shorter. Going to be 

pretty much someone of the same size.

* * * 

[W]e are looking to determine what actually happened because we already 

know from the beginning we have two different descriptions of the same person 

who is allegedly the shooter. Completely different. One is short, brown. One is 

dark-skinned and tall. 

 This isn’t a situation where there was some sort of cross-cultural 

identification issue. This was an African American woman looking at an African 

American man, and I would find it very hard to believe that they can’t distinguish 

between what is a light-skinned brother versus a medium-complected brother 

versus a dark-skinned brother, but yet she was very certain he is dark-skinned, 

and both of them were clear that they didn’t know who he was. They had never 

met him before.
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* * * 

 In addition, ladies and gentlemen, when they talked about how the cars 

came, one version is the cars come in two different directions toward each other. 

In the other situation they are going one behind the other. 

 Now, I don’t know how it is that now they can give testimony that defies 

logic. 

* * * 

 We were told that we have two people that we need to believe in. Did the 

police even bother to check phone records to see if people were there, do anything 

to see if there is any truth to it? They said they see a video of a fight. Okay. Is 

there anything there? 

* * * 

 What’s even more telling *** is that the woman who comes up with the 

whole fight theory, she tells you that she there [sic] on the scene. What did her 

friend Jocelyn say? I didn’t see her. When did she come by? She came by after 

the ambulance came. How long did the ambulance take. One says 20 minutes. The 

other says five minutes. Really? You are going to screw up that much time?

 She doesn’t even know that the neighbor has come out to give this young 

man a towel. How are we to believe these individuals? Because that’s what this 

case is about. Because we don’t have anything in terms of the police 

investigation, in and of itself, that corroborates what was said.

* * * 
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Who did they have to say that [defendant] was in that area at all? Two 

people that told two conflicting stories. 

The problem is that the State, no matter what they say—they get the last 

word *** but what are the things they can’t change? Number one, that Jocelyn is 

a liar. Can’t change that.

 [N]either one of these ladies could give you any description other than 

what we have. Couldn’t remember clothing. *** There was none of that. Not one 

piece of that happen [sic], and those are easier things to see than the details of a 

human face.

 Couldn’t describe hair, whether it was a natural, whether it was shaven, 

whether there were dreads. Nothing. Nothing, and on all of this emptiness, the 

State’s response is always going to be, but, ladies and gentlemen, they didn’t tell 

you once, they didn’t tell you twice, they told you three time [sic].

 Here is the problem. A lie is a lie is a lie. If you are wrong, you are wrong, 

and the fact that you repeat the same mistakes over and over again doesn’t make it 

true. The problem with this case, ladies and gentlemen, is that you dealt with two 

witnesses who, talking about the same event, couldn’t give any type of 

description. 

* * * 

That’s the other thing. Did either of these witnesses come to the police: 

oh, my God, let me tell you what I say, what happened? No. It didn’t happen that 

way. The best friend of ten years, oh, no. I just left. Didn’t even go to the hospital. 

Just left.
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 What’s most telling *** is that when you do not have consistent versions, 

that is doubt. When you listen to this evidence, there is no way that you can 

determine who the person was that was involved in this shooting. *** The 

witnesses just compound the mess that is this case.

¶ 41 After reviewing the evidence we find that the State’s case is based entirely on the jury’s 

assessment of the credibility of the State’s witnesses. Considering that at the conclusion of the 

case the jury did not understand and accept that it may not hold defendant’s silence against him, 

the quantum and the quality of the State’s evidence is not so overwhelming such that in the 

absence of the instruction the jury viewed the State’s evidence less skeptically and/or weighed 

the State’s evidence more heavily than it otherwise would and it is possible that the jury might 

find defendant guilty based on insufficient evidence; accordingly, we find the evidence in this 

case is closely balanced. Sebby, 2017 IL 119445, ¶ 67. See also People v. Othman, 2019 IL App 

(1st) 150823, ¶¶ 67-68 (“Othman has a constitutional right not to present evidence and not 

testify. The evidence can be closely balanced where the evidence comes from unreliable 

witnesses who offer conflicting accounts or from prosecution witnesses who provide evidence 

favorable to Othman. Even when the defense presents no evidence, the case can still be closely 

balanced.”).

¶ 42 The defendant has demonstrated error and the State has conceded error in a case where 

we find the evidence is closely balanced. The “question here is whether a clear Rule 431(b) 

violation is reversible error under the first prong [of the plain error rule,] where the defendant 

demonstrates that the trial evidence was close.” Sebby, 2017 IL 119445, ¶ 78. As in Sebby, “we 

conclude that, because the evidence was so closely balanced, the trial court’s clear instructional 
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error alone may have tipped the scales in favor of the State. We choose to err on the side of 

fairness and remand for a new trial.” Id. 

¶ 43 Defendant’s remaining issues on appeal are that (1) he was denied due process by the 

erroneous admission of evidence of prior consistent statements of identification of defendant in 

the form of testimony that Jade and Jocelyn identified defendant in a photo array and in a 

physical lineup; and (2) numerous allegations defendant received ineffective assistance of 

counsel by defense counsel’s (a) failure to call an expert in the field of eyewitness identification, 

(b) eliciting evidence prejudicial to defendant, and (c) failure to object to prior consistent 

statements of identification and introduction of prejudicial identification evidence; and (3) the 

trial court allowed the State to present inadmissible hearsay evidence in the form of testimony 

about a Chicago Police Department “contact card.”

¶ 44 If the State does retry this defendant, this court can only speculate as to what evidence the 

State will present, how it will present it, and for what purpose. Nor can we state accurately 

whether or when defense counsel will object and on what, if any grounds. Given that the 

remainder of defendant’s issues involve matters that may or may not recur at retrial, under the 

circumstances we decline to address those remaining issues, as doing so would amount to an 

advisory opinion. State by Raoul v. Hitachi, Ltd., 2021 IL App (1st) 200176, ¶ 51 (“Because we 

have determined that the trial court properly granted summary judgment in this case, we will not 

go on to provide an advisory opinion or consider abstract questions as to the notice requirements 

that are not necessary to our resolution of this appeal. [Citation.] (‘As a general rule, courts of 

review in Illinois do not *** render advisory opinions, or consider issues where the result will 

not be affected regardless of how those issues are decided. [Citation.] This court will not review 

cases merely to establish a precedent or guide future litigation.’ (Internal quotation marks 
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omitted.)”)). See also Business & Professional People for Public Interest v. Illinois Commerce 

Comm’n, 136 Ill. 2d 192, 228 (1989) (“Any decision on our part would be premature, as the 

issue may not recur upon remand.”); People v. Jones, 105 Ill. 2d 342, 353 (1985) (“The parties 

have briefed and argued a number of questions, but in view of our conclusion that the judgment 

must be reversed and the cause remanded for a new trial, we need not consider those which are 

unlikely to arise on retrial.”); In re Marriage of Birt, 157 Ill. App. 3d 363, 369 (1987) (“we need 

not address most of the other issues raised by respondent which generally involve discretionary 

rulings or depend on evidentiary facts which may not be present in a retrial.”).

¶ 45 Without expressing any opinion as to defendant’s guilt or innocence, we find that the 

evidence presented at trial was sufficient to prove defendant guilty beyond a reasonable doubt; 

therefore, there is no double jeopardy impediment to retrial upon remand. People v. Cox, 2023 IL 

App (1st) 170761, ¶ 64 (“As the evidence presented at trial was sufficient to establish that Cox 

was guilty of murder on a theory of accountability beyond a reasonable doubt, his retrial on these 

charges presents no double jeopardy impediment. Again, this finding is only for purposes of 

double jeopardy, and we reach no conclusions as to Cox’s guilt that are binding on retrial.”).

¶ 46 CONCLUSION

¶ 47 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed 

the cause remanded for a new trial. 

¶ 48 Reversed and remanded.