2022 IL App (1st) 200634-U

No. 1-20-0634 

Order filed February 17, 2022 

Fourth Division

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

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

______________________________________________________________________________ 

IN THE

APPELLATE TRIAL COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

MARTIN MIRANDA, 

Defendant-Appellant. 

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Appeal from the 

Circuit Court of 

Cook County. 

No. 14 CR 4185 

Honorable 

James Michael Obbish, 

Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court. 

Justices Rochford and Martin concurred in the judgment. 

ORDER

¶ 1 Held: Defendant’s convictions and sentence are affirmed where: (1) defendant was not 

denied the effective assistance of counsel at trial and his forfeited claims of error 

are not excused by the plain error doctrine; and (2) defendant was not denied the 

effective assistance of counsel at sentencing. 

¶ 2 Defendant Martin Miranda and codefendant Andres Guerra were charged with multiple 

counts of first-degree murder based on the shooting death of 15-year-old Miguel Navarrete on 

January 26, 2014. The cases were later severed. A jury convicted defendant of first-degree murder 
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and found that he personally discharged the weapon that killed the victim. The trial court sentenced 

defendant to a total of 75 years’ imprisonment in the Illinois Department of Corrections.

¶ 3 On appeal, defendant alleges that he was denied the effective assistance of counsel at trial 

and sentencing. Alternatively, he alleges that forfeited errors that occurred at trial are subject to 

review under the plain error doctrine. 

¶ 4 For the reasons that follow, we reject defendant’s claims and affirm his conviction and 

sentence.

1

¶ 5 I. BACKGROUND

¶ 6 A. Pretrial Proceedings

¶ 7 The State filed a pretrial motion to admit gang evidence. Specifically, the State alleged that 

Miguel Angel Navarette, a member of the Two-Six street gang, was killed in retaliation for the 

earlier murder of defendant’s friend, Johnny Vargas, a member of the rival Latin Kings street gang. 

The State moved to admit gang evidence based on its belief that such evidence was relevant to 

show defendant’s motive for shooting the victim.

¶ 8 Defense counsel opposed the State’s motion. At a hearing before the trial court, the parties 

argued their respective positions. After considering the parties’ countervailing interests, the trial 

court made a lengthy and detailed oral finding granting the State’s motion. The trial court found 

that defendant’s gang membership was extremely probative to show his motive for committing 

what would otherwise be an inexplicable act.

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this 

appeal has been resolved without oral argument upon the entry of a separate written order.
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¶ 9 Defense counsel successfully opposed the State’s motion to admit the testimony of jail

house informant Nicolas Diaz.

¶ 10 The trial court denied codefendant’s motion to quash the search warrant that resulted in the 

recovery of his phone and the extraction of its contents. The State then moved to admit three video 

clips extracted from codefendant’s phone. The video clips were all dated December 5, 2013, and 

recorded at 3:44 a.m., 4 a.m., and 4:02 a.m., respectively. 

¶ 11 The State characterized the contents of what it believed each clip showed and then played 

the clip to the trial court. The State described the first clip as showing the area of 25th Street and 

Trumbull Avenue, which it alleged was the territory of the Latin Kings street gang. The State 

alleged that the first clip showed defendant displaying an upside-down bunny tattoo on his arm, 

identifying codefendant by his nickname, “Baby K,” and making references to “Karlov, killer 

bitch.” The State noted that the victim was murdered in the area of Kedvale Avenue and Karlov 

Avenue a little more than a month after the making of this recording.

¶ 12 The State then discussed the contents of the second clip. The State alleged that the second 

clip showed the area of 30th Street and Kedvale Avenue, the precise area where the victim was 

killed the following month. The State alleged that the video clip contained numerous gang-related 

remarks.

¶ 13 The State described the third clip as showing codefendant standing on the steps outside a 

house on Karlov Avenue. The State maintained that the contents of the third clip suggested that 

defendant was recording codefendant and that codefendant then resumed recording defendant. The 

State also described the third clip as showing codefendant’s black truck parked in front of the 

house with its lights on. The State alleged that the audio from the third clip contained multiple 

gang-related statements, including “we’re out here, come and get us, come get your body bag” and 
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made repeated references to “Karlov killer.” The State alleged that the third clip showed 

codefendant displaying a gang sign and defendant displaying the symbol for an upside-down 

bunny, the symbol of the Two-Six street gang. The State described defendant saying, “[b]ody, 

count me up. Body count me up” at the end of the third clip.

¶ 14 In finding the three clips admissible as co-conspirator evidence, the trial court ruled that 

Bruton v. United States, 391 U.S. 123 (1968), did not bar the video clips from being admitted at 

either defendant or codefendant’s trial: 

 “THE COURT: This is not a Bruton[-]type situation. They are recovered 

from a phone taken from Guerra. The films depict primarily Defendant Miranda as 

the principal performer in the videos who is making, you know, the majority of all 

statements, but they go to both defendants.

It is Defendant Guerra’s phone that he kept. He clearly is the individual that 

is choosing to videotape what primarily Miranda is stating. Although I think 

especially in this last video, I think it’s pretty clear Miranda was holding the phone 

with his own hand for a good portion of it while he is going through his rant, you 

know, describing, you know, apparently what demonstrates is a motive to, you 

know, kill a Two[-]Sixer.

The defendants both prepared these videos jointly. The fact they’re all on 

the one phone that was recovered when Guerra is arrested doesn’t mean it is not 

evidence against Miranda because Miranda is the principal actor in these things. 

They refer to each other. You know, they flash their signs together. They thought 

these movies were a great idea, and now they’re stuck with them.
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I think they’re – it’s competent. It’s material. And it’s relevant to the 

charges. And it’s relevant to motive. It’s relevant to where the homicide took place. 

It’s relevant to who had possession of a truck that’s allegedly used in the 

commission of the homicide.

These will be all admitted at both defendant’s trials over objection of both 

defendants.” 

¶ 15 The State then sought a pretrial ruling regarding the admissibility of still images taken from 

codefendant’s phone. The State moved to admit two images dated November 30, 2013, that 

displayed defendant and a second person flashing a gang sign and defendant and codefendant 

flashing gang signs. The State offered to redact from both photos a handgun held by defendant in 

the first photograph and by codefendant in the second photograph. Defendant’s counsel agreed to 

the admission of the photographs subject to the redactions. The State also sought to admit a 

photograph taken on December 11, 2013, at 12:46 a.m., that depicted the area of Karlov Avenue 

and West 30th Street. The trial court granted the State’s motion to admit these three photographs. 

¶ 16 Defendant’s counsel and codefendant objected to the admission of a series of photographs 

that depicted three individuals, one of whom was codefendant. The individuals displayed gang 

signs, and one individual (not codefendant) held a shotgun. The State maintained that the 

photographs, taken six days before the murder, were relevant and that the shotgun depicted in them 

appeared to be the shotgun used to murder the victim. The trial court found two of the three 

photographs admissible. It disallowed the first photograph, which only partially revealed 

codefendant’s face. The trial court also disallowed a photograph that depicted codefendant at 

Trumbull Avenue and 25th Street to be admitted against defendant. 
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¶ 17 Over defense counsel’s objection, the trial court also granted the State’s motion to admit 

as co-conspirator evidence, statements made by individuals from the “lead” SUV, and by 

codefendant at the scene of the crime in which they yelled “Two-Six” and flashed the “Two-Six” 

gang sign.

¶ 18 The State also sought a pretrial ruling on the admissibility of defendant’s electronically 

recorded interview to the police while in custody. Defense counsel stated that he had no objection 

to the admissibility of such evidence but believed that the first 48 hours of the interview, in which 

defendant denied committing this offense more than 19 times, should also be admitted at trial. The 

trial court disagreed, finding such evidence, if offered by defendant, to be inadmissible hearsay 

and finding the doctrine of completeness inapplicable.

¶ 19 B. Trial Testimony

¶ 20 Erica Navarette Valdez testified she last spoke with her son Miguel on January 25, 2014. 

Miguel, who was 15 years old, arranged to visit her and his siblings at her home the following day.

Ms. Valdez resided in the area near 30th Street and South Kedvale Avenue. 

¶ 21 Ms. Valdez testified that Miguel said he wanted to see his family and missed them a lot. 

He wanted to see his brothers and give her a letter to deliver to one of his older brothers. He asked 

for the numbers of his aunts and uncles, whom he wanted to call to “know that they were okay.” 

¶ 22 Miguel never made it to his mother’s house. On January 26, 2014, a boy who resided on 

the second floor of Ms. Valdez’s apartment building told Ms. Valdez that Miguel had been shot. 

When Ms. Valdez ran outside to see Miguel, the police informed her that she could not see him 

because he was dead.

¶ 23 On cross-examination, defense counsel asked Ms. Valdez why Miguel did not live with 

her. Ms. Valdez testified that Miguel was afraid to reside with her because the gang that controlled 
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her street wanted him to join and beat him up whenever they saw him. Miguel was living with a 

woman who was a family friend, and he helped care for her children. Miguel would visit her and 

his brothers about once a week.

¶ 24 Amanda Pavon testified that she met Miguel while living near 30th Street and South 

Kedvale Avenue. Ms. Pavon, who grew up in that neighborhood, testified that the Two-Six street 

gang occupied it. The specific faction of the Two-Six street gang that occupied this area was called 

“K-Town.” Ms. Pavon testified that the Two-Six gang sign was a bunny and demonstrated the 

symbol with her right hand.

¶ 25 Ms. Pavon, her husband, Jorge, and their three children moved out of the neighborhood in 

2013. Miguel took up residence with her family and helped care for her children. On January 26, 

2014, Ms. Pavon drove Miguel to Chicago to visit his family. It was snowing outside. Mr. Pavon 

was seated in the front passenger seat of their car, seven-year-old Aliyah was seated behind Ms. 

Pavon, three-year-old Julian was in a car seat in the middle of the rear seat, and Miguel was sitting

behind Mr. Pavon.

¶ 26 At 4:45 p.m., Ms. Pavon stopped her car at the corner of 30th Street and South Kedvale 

Avenue so that Miguel could go into a store at the location and purchase some chips for Julian. 

Miguel exited the car and reached into the trunk to get change from Ms. Pavon’s purse. Julian 

started to get out of the car seat because he wanted to go inside with Miguel.

¶ 27 Ms. Pavon saw a blue Suburban SUV turn onto 30th Street from South Kedvale Avenue. 

The occupants of the Suburban displayed the bunny gang sign, but the sign was not as “curled” as 

it should be. The irregularity of the sign led Ms. Pavon to know that the occupants of the Suburban

were not from the neighborhood and were not Two-Sixers.
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¶ 28 Ms. Pavon saw a black SUV, either a Yukon or an Envoy pull up right behind the Suburban. 

Ms. Pavon saw the individuals in the black SUV throwing up gang signs and “yelling stuff.” Ms. 

Pavon observed the driver of the black SUV also display an incorrect bunny sign and yell out, 

“Two-Six.” Ms. Pavon knew that the driver of the black SUV was also not a Two-Six gang 

member.

¶ 29 The back door of the black SUV opened, and an individual, later identified by Ms. Pavon 

as defendant, jumped out, said “Two-Six,” and grabbed a shotgun that he was sitting on. Miguel 

was not paying any attention to defendant because he was preventing Julian from falling out of the 

car. Defendant pointed the shotgun at Miguel and fired the first shot. Ms. Pavon testified that 

defendant was about four or five feet from Miguel when he fired the first shot. Miguel’s body first 

struck the back of the car door, and he then fell to the ground.

¶ 30 Defendant then pointed the gun at Ms. Pavon and Julian, who had moved towards his mom.

Miguel screamed to draw defendant’s attention away from them and told defendant, “f*** you.” 

Defendant then moved the gun away from Ms. Pavon and Julian’s faces and shot Miguel two more 

times.

¶ 31 Ms. Pavon saw defendant get back inside the black SUV, after which the car followed the 

Suburban eastbound on 30th Street. Ms. Pavon then went to check on Miguel, whom Julian was 

holding. Miguel was trying to breathe, and Ms. Pavon attempted to keep him awake. Neighbors 

attempted to give Miguel CPR. Police officers and an ambulance arrived. Miguel was pronounced 

dead at the scene.

¶ 32 Ms. Pavon testified that no one in her car had a gun or any weapons on them that day. Ms. 

Pavon also testified that on January 26, 2014, defendant did not have any tattoos on his face.
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¶ 33 Ms. Pavon described defendant to the police as a male Hispanic, 15 to 20 years old, with a 

thin light mustache and goatee, short hair, and a dark hoodie. On February 1, 2014, Ms. Pavon 

identified defendant as the driver from a photo array.

¶ 34 On February 4, 2014, Ms. Pavon viewed a lineup and realized that she had erroneously 

identified defendant as the driver when he was actually the shooter. She immediately informed the 

detectives of her mistake. The same day, Ms. Pavon viewed a second lineup and identified 

codefendant as the driver of the black SUV. Ms. Pavon testified that codefendant was the 

individual who was throwing up the bunny gang sign as he drove past her car. Ms. Pavon testified 

that she gave a videotaped statement to an assistant state’s attorney and later testified before a 

grand jury and identified defendant as the shooter and explained her earlier mistaken identification 

of defendant as the driver. 

¶ 35 On cross-examination, Ms. Pavon testified that her husband was a former member of the 

Two-Six street gang. He was no longer a gang member on January 26, 2014. Miguel was also a 

former member of the Two-Six street gang. 

¶ 36 Jorge Pavon provided similar testimony to that given by Ms. Pavon regarding January 26, 

2014. Mr. Pavon admitted being a former member of the Two-Six street gang and receiving a twoyear sentence in the Illinois Department of Corrections for a felony gun charge. Mr. Pavon testified 

that the area around 30th Street and South Kedvale Avenue was Two-Six street gang territory. The 

area around 25th Street and South Trumbull Avenue was the territory of the Latin Kings street 

gang. Mr. Pavon testified that when the bunny hand gesture is “thrown down,” it means that the 

person making the gesture is saying “Two-Six killer.” “Two-Six killer” indicates that a rival gang 

is seeking to kill a member of the Two-Six street gang.
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¶ 37 On January 26, 2014, Mr. Pavon was no longer a member of the Two-Six street gang. At 

that time, Mr. Pavon was on parole for his gun conviction. Mr. Pavon testified that how the 

individual in the blue Chevy Suburban “threw up” the gang sign “just wasn’t the way we threw it 

up.” Mr. Pavon testified that such misuse of a gang sign is called “false flagging.” The purpose of 

false flagging is to catch gang members associated with a particular geographical area off-guard. 

Mr. Pavon testified that it is common for gang members to enter rival territory and that when they 

do so, “[t]hey’re up to no good.”

¶ 38 When Mr. Pavon saw the person in the blue Suburban false flagging, he thought something 

would happen. Mr. Pavon told Miguel to be careful because he did not recognize these people. Mr. 

Pavon described the driver of the Suburban as a male Hispanic with a stocky build. Mr. Pavon 

heard an exchange of words between Miguel and someone inside the black SUV. Mr. Pavon 

testified that the individual who shot Miguel fired three times and then pointed the shotgun at him, 

his wife, and their children.

¶ 39 Mr. Pavon dialed 911. The three-minute and 37-second 911 call was played for the jury.

In it, Mr. Pavon can be heard asking for an ambulance to come to the corner of 30th Street and 

South Kedvale Avenue to assist the 15-year-old victim, who had been shot. Mr. Pavon described 

two SUVs and possibly a third vehicle involved in this incident. He described the SUVs as a big 

Suburban and a smaller black SUV, possibly a Bravado. Mr. Pavon said that the guy in the back 

of the second SUV had the shotgun. He described the group as male Hispanics and said they drove 

eastbound on 30th Street towards Pulaski Avenue after the victim was shot.

¶ 40 In the background of the 911 call, a woman (Ms. Pavon) can be heard crying, and Mr. 

Pavon is heard telling her, “[h]e’s gone baby, he’s gone baby, he’s gone.” Both Mr. and Ms. Pavon 

implore the victim to “wake up, wake up.”
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¶ 41 Mr. Pavon testified that he spoke with police officers, detectives, and an assistant state’s 

attorney, to whom he provided a videotaped statement. On February 4, 2014, Mr. Pavon viewed 

two lineups but did not identify anyone. When asked whether it was “possible” that the shooter

was in the lineup, Mr. Pavon replied, “I don’t know.” Mr. Pavon also stated that he later testified 

before the grand jury.

¶ 42 Mr. Pavon testified that neither he nor Miguel had any weapons that evening.

¶ 43 On cross-examination, Mr. Pavon testified that displaying an upside-down rival gang sign 

indicates disrespect of the rival gang and that such signs of disrespect are common within the gang 

culture.

¶ 44 Taghfried Shalabi testified that on January 26, 2014, at 4:45 p.m., she was walking towards 

the convenience store at 30th Street and South Kedvale Avenue. As she walked, Ms. Shalabi heard 

three gunshots and turned into an alley to hide behind some garbage cans. Ms. Shalabi saw a black 

SUV turn into the alley where she was standing. Ms. Shalabi saw the driver, whom she later 

identified as codefendant, stop the car, look at her, and hit the gas. The vehicle, which she estimated

was moving at about five miles per hour, drove straight at her, striking her wrist and stomach and 

causing her to fall into the garbage cans. The car driver acknowledged striking Ms. Shalabi by 

putting his hands up.

¶ 45 Ms. Shalabi remained pinned between the car and the garbage cans for about three minutes

while the driver attempted to resume driving. The snow caused the tires to skid and the car’s back 

end to fishtail. Eventually, the car pulled off.

¶ 46 A bystander called 911 for assistance. Ms. Shalabi was transported to Mount Sinai 

Hospital, where she was treated for her injuries and released. Her stomach and hands were bruised, 

and her left wrist was sprained. Photographs of Ms. Shalabi’s injuries were admitted into evidence.
No. 1-20-0634 

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¶ 47 On February 4, 2014, Ms. Shalabi went to Area Central to view two lineups. She identified 

codefendant as the driver of the black SUV and defendant as the front seat passenger. She also 

identified defendant when she spoke with an assistant state’s attorney and when she testified before 

the grand jury.

¶ 48 On cross-examination, Ms. Shalabi testified that she did not recall providing a statement in 

which she said that she saw a third person in the vehicle’s rear seat. 

¶ 49 On January 26, 2014, Detective James Adams and his partner, Detective Patrick Thelan, 

were assigned to investigate the victim’s shooting. When Detective Adams arrived at 4124 West 

30th Street, the victim had been pronounced dead, but his body had not yet been moved. Detective 

Adams testified that the victim sustained two shots to his chest and one to the midline area of his 

body. Detective Adams found three spent .410 shotgun casings and one live .410 shotgun shell on 

the street, just east of the victim’s body. 

¶ 50 After interviewing Mr. and Ms. Pavon, Detective Adams had a description of the shooter. 

He also knew that Ms. Shalabi was taken to Mt. Sinai Hospital to treat her injuries. Detective 

Adams investigated the alley where codefendant struck Ms. Shalabi with his car and observed

knocked-over garbage cans and a tire track that ran alongside the cans.

¶ 51 On January 31, 2014, based on an interview conducted with Oscar Diaz, Detective Adams

retrieved a picture of defendant from a computer system. He noticed that defendant fit the 

description of the shooter and generated a photo array that contained defendant’s image.

¶ 52 On February 1, 2014, Ms. Pavon identified defendant from the photo array as the driver of 

the black SUV. That same day, Detective Adams obtained a search warrant for defendant’s house

at 2500 South Trumbull Avenue. Detective Adams testified that 2500 South Trumbull Avenue is 

Latin Kings gang territory, and defendant was a member of that gang. 
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¶ 53 The search warrant was executed on February 3, 2014. Nothing of evidentiary value was 

found in defendant’s home. Defendant was arrested at his home and taken to Area Central

Headquarters at 51st Street and Wentworth Avenue. On February 3, 2014, defendant did not have 

any facial tattoos.

¶ 54 That same day, Detective Roger Sandoval, accompanied by Detectives Joel Keller and 

Carlos Cortez, interviewed an individual named Maicont Bustos at 2939 West 25th Place. After 

speaking with Mr. Bustos, the detectives went to 2719 South Lombard Avenue to attempt to locate 

and arrest codefendant. The detectives had information that codefendant was known to drive a 

black GMC SUV that fit the description of the vehicle used in the murder.

¶ 55 Upon arriving at 2719 South Lombard Avenue, Detective Sandoval saw codefendant 

driving a black GMC Envoy SUV, which he parked in the garage. Certified vehicle records 

establishing that the vehicle was registered to codefendant at 2719 South Lombard Avenue in 

Cicero, Illinois, were later admitted into evidence. 

¶ 56 Codefendant was arrested shortly after parking his car. A blue and black Apple iPhone was 

recovered from him. Detective Keller obtained a search warrant for the iPhone, and it was sent to 

the Regional Computer Forensic Laboratory. 

¶ 57 Codefendant was placed in a separate interview room from defendant. Both rooms were 

equipped with working video cameras, and everything that transpired was recorded.

¶ 58 On February 4, 2014, Ms. Pavon viewed two separate lineups and identified defendant as 

the shooter and codefendant as the driver of the SUV that defendant exited from to kill the victim. 

¶ 59 That same day, Ms. Shalabi also viewed the lineups and identified codefendant as the driver 

who struck her with his car and defendant as his passenger.
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¶ 60 Defendant was fingerprinted and photographed at the 2nd District lockup at 10:50 p.m. on 

February 4, 2014. 

¶ 61 The following day, February 5, 2014, at 9 p.m., Detective Adams was told that defendant 

wished to speak with him. Detective Adams went downstairs to the lockup and asked defendant if 

he wanted to talk to him. When the defendant said that he did, Detective Adams had defendant 

return to an interview room to record the interview. People’s Exhibit No. 110, the video recording 

of the interview, was admitted into evidence and played for the jury.

¶ 62 In the detailed interview that followed, defendant tearfully recounted his actions on January 

26, 2014. Defendant told Detective Adams that he did not want the detective to think he was a 

“cold-hearted killer” and wanted to repent.

¶ 63 Defendant told Detective Adams that his friend, Johnny Vargas, was shot and killed on 

Latin Kings territory for “no reason” by the Two-Six street gang. Vargas died in defendant’s arms. 

Defendant was also shot during this incident. Had Vargas not been killed, the following day, 

January 27, 2014, would have been his birthday.

¶ 64 Defendant, codefendant, and others went to a cemetery where they drank and smoked 

marijuana and PCP. Codefendant drove them to “Giggles” house on Christiana Avenue in the 

“hood,” and they continued drinking and smoking for about an hour. Defendant explained that he 

was “broken-hearted,” “hurting,” and in a “blind rage” thinking about Vargas. At one point, when 

defendant told codefendant that they should go to Two-Six territory, codefendant disagreed, saying 

that they were “high” and “drunk as hell.” Codefendant, who had recently joined the gang, asked 

defendant, “what are we doing?” Defendant replied, “I don’t know, man, it’s my first time doing 

this shit, you know I’m saying so let’s just do it for Johnny, he died in my arms man.” Defendant 

told codefendant that they should “just go and see what happens.”
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¶ 65 Jose Orozco (Gizmo) asked defendant why he was upset. Defendant explained that it was 

on account of Vargas’s death. The group ultimately agreed to go to Two-Six territory, and Gizmo 

gave defendant a shotgun and instructed him how to use it. The group went in two vehicles. Gizmo, 

Alan Torres (Reckless), and a third person rode in the first vehicle. Codefendant drove defendant, 

who sat directly behind codefendant in the rear seat with the shotgun.

¶ 66 The two cars drove to the corner of South Kildare Avenue and 30th Street, where defendant

saw a “kid” standing outside of a vehicle. Defendant claimed that the kid flashed the Two-Six

bunny gang sign. Defendant denied that he or his cohort flashed any gang signs. Codefendant told 

defendant, “Hey stupid ass, we could get the m*** f*** right here.” Gizmo kept yelling at 

defendant to “do it” from the other vehicle. 

¶ 67 Defendant opened the car door and “pressed the trigger and boom, boom.” Defendant said 

that he fired the gun two times, striking the victim. Defendant said that he and codefendant were 

“highly nervous,” and codefendant turned the car down an alley to drive away. Codefendant hit a 

lady who was grabbing her hand after being struck. After they drove away, defendant threw the 

shotgun over a fence around 21st Street and Pulaski Avenue in a “black” neighborhood. 

¶ 68 Defendant denied pointing the gun at Ms. Pavon or her children. He told Detective Adams

that he was no longer able to sleep and attempted suicide the night before by trying to suffocate 

himself with a wadded-up bunch of tissues, “but it didn’t work.” Defendant said, “What the f*** 

I did, it didn’t bring Johnny Vargas back, it didn’t solve nothing.” Defendant was “repenting” 

because both his mother and the victim’s mother would now be grieving in addition to Johnny 

Vargas’s mother.

¶ 69 In the videotaped statement, defendant also can be seen speaking to himself when no one 

else was in the interview room. Among other things, defendant can be heard saying: 
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 “DEFENDANT: My friend got killed, and I got shot in the middle of the 

f*** hood for no reason.”

“I can’t live like this – alone I can’t live like this knowing this guilt is inside 

of me.”

“This is not right what I did what they did to Johnny. It wasn’t right. It 

wasn’t right at all. Cost me my life and my daughter’s life.”

“I f*** hate this s***. I swear to God I hate it with a passion. All this shit 

for what? For What? For nothing. For what? For nothing.”

“I f*** hate myself. My mother hates me. His mother hates me. *** 

Because I made a stupid a** decision. For nothing.”

¶ 70 Officer Donald Frugoli, a forensic examiner with the Chicago Police Department, testified 

regarding the video clips and still photographs taken from codefendant’s phone that were the 

subject of the pretrial motions. In accordance with the trial court’s previous rulings, the video clips 

and photographs were admitted into evidence. 

¶ 71 Sergeant John Foster testified regarding the previous gang-related murder of Johnny 

Vargas in March of 2012. Vargas, whose birthday was January 27, 1993, was a Latin Kings street 

gang member. On March 15, 2012, Vargas was shot in Latin Kings territory at 3008 South Saint

Louis Avenue and died the following day. In conjunction with his investigation of the murder, 

Sergeant Foster interviewed defendant, who had sustained a graze wound to his head in the same 

incident. A Two-Six street gang member, Anthony Sodaro, was arrested for Vargas’s murder.

¶ 72 Detective Adams identified a recent photograph of defendant that showed a tattoo on his 

face bearing the name “Maria,” a tattoo on his left temple that said, “RIP Johnny,” a tattoo bearing 

the number “5” on his left cheek, two tattoos on his right cheek, and a tattoo that said “Jasmine” 
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on his right jaw. Detective Adams also identified photographs that depicted tattoos on defendant’s 

right arm and forearm. 

¶ 73 On cross-examination, Detective Adams testified that defendant’s videotaped statement 

was made 57 hours and 41 minutes after his arrest. Detective Adams spoke with defendant at least 

10 times while he was held in the interview room. In response to being advised of his right to have 

an attorney, defendant asked Detective Adams, “what’s an attorney?”

¶ 74 Inspector Franco Domma testified that the Cook County Sheriff’s Office employed him. 

One of his responsibilities was to attempt to get information or intelligence within a facility to 

minimize incidents with inmates and civilian staff. On February 5, 2014, Inspector Domma 

received a call from Officer Ringler, another Cook County Sheriff’s police employee. Codefendant 

had requested to speak to someone in internal affairs.

¶ 75 After Inspector Domma spoke with codefendant, he talked to Detective Adams. Detective 

Adams then shared what he learned from Inspector Domma with Detective James DiCicco. 

¶ 76 Detective DeCicco testified that on February 6, 2014, he was assigned to go to an outdoor 

lot located at 1200 South Kilbourn Avenue to search for a shotgun used in a homicide. The lot 

owner of commercial property at 1247 South Kilbourn used for trucks allowed Detective DeCicco 

to search the property for the shotgun. That day, there was 11⁄2 feet of snow on the ground, and it 

was snowing outside. Detective DeCicco did not find anything that day and asked the lot owner to 

inform him if he found anything when the trucks were moved.

¶ 77 On February 11, 2014, the lot owner called Detective DeCicco and informed him that a 

shotgun had been found. Detective DeCicco returned to the lot, and the owner gave him the 

shotgun, which was found at the west end of the lot. 
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¶ 78 The shotgun was turned over to evidence technician Jamal Judeh who inventoried it.

Forensic testing revealed that the fired shotgun casings recovered from the scene of the murder 

were fired from the recovered shotgun. The parties stipulated that the shotgun was operable and 

that the fired shotshells in People’s Group Exhibit No. 58 were fired from the shotgun.

¶ 79 The parties also stipulated that primer gunshot residue (GSR) was found in codefendant’s 

car above the driver’s side rear door. The presence of GSR indicated that this area was either in 

contact with a residue-related item or was in the environment of a discharged firearm.

¶ 80 The parties further stipulated that assistant medical examiner James Filkins would opine 

that the victim died due to multiple gunshot wounds that involved his heart, aorta, thoracic spine, 

and liver. The manner of death was homicide.

¶ 81 The jury convicted defendant of the first-degree murder of Miguel Navarette and found

that defendant personally discharged the weapon that caused the death. 

¶ 82 C. Sentencing 

¶ 83 The trial court held a sentencing hearing. The trial court reviewed defendant’s presentence 

investigation report (PSI). The PSI reflected that defendant was four months shy of turning 

20 years old when he committed this offense. Defendant had numerous prior juvenile referrals for

battery, reckless conduct, criminal defacing of property, robbery, gang loitering, criminal trespass 

to residence, and aggravated assault. Defendant received five years’ juvenile probation for robbery 

on June 15, 2011. Defendant violated his probation and was sentenced to the Juvenile Department 

of Corrections on November 8, 2012.

¶ 84 Defendant was an “average student” and was suspended several times for fighting. 

Defendant, who was 25 years old at the time of sentencing, had a nine-year-old daughter with 

whom he had no contact.
No. 1-20-0634 

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¶ 85 Defendant reported that he had a good relationship with his parents until his father’s death 

on January 1, 2019. Defendant had two sisters and one brother and got along well with his sister 

but had a “rocky” relationship with his brother. Defendant reported being a member of the Latin 

Kings street gang and having few good friends since his friends were all deceased. 

¶ 86 Defendant was in good physical condition. Defendant was previously shot in the face but 

stated that he made a full recovery after six months.

¶ 87 When he was younger, defendant was seen by a mental health professional who diagnosed 

him with depression. Defendant denied having a problem with alcohol or illegal drugs. Defendant 

stated that he never drank alcohol but had smoked marijuana in the past. Defendant stated that he 

felt that he sometimes lacked control over events in his life because of influences around him 

during his childhood. Defendant felt peer pressured as a “kid.”

¶ 88 The State presented the following evidence in aggravation.

¶ 89 Santo Phillips, an investigator with the Cook County Sheriff’s Office, testified that

defendant made a phone call on September 23, 2018, while detained in Division 9 of the Cook 

County Jail. He told his girlfriend, Jazmin Galeno, that a lawyer visited him. Defendant related 

that the lawyer stated that Detective Murphy was investigating a new case involving the murder 

of a Two-Six gang member from the area of 26th Street and Kolin Avenue. Defendant told Galeno 

that “Bart” got killed the day after Johnny Vargas was killed. Inspector Phillips testified that he 

heard defendant say that his lawyer told him that the police wanted defendant to try on a glove that 

the police found with seven bullets at 32nd Street and Harding Avenue. Defendant stated that “his 

Capon’s,” known as Miguel Rudey and Allen Torres, had DNA on those bullets. When Galeno 

asked defendant what she could tell the detectives, defendant provided several things that she could 

say.
No. 1-20-0634 

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¶ 90 Investigator Phillips also related a phone call that defendant had with his mother and his 

sister on December 4, 2018. In this conversation, defendant learned that his nephew, Carlito, was 

jumped at school by Latin Kings from 27th Street and South Drake Avenue. After learning this 

information, defendant arranged for a three-way conversation with an individual named “Temper” 

to get more information about this incident. Defendant told Temper about this incident and that he 

“wants something done about it.”

¶ 91 In another conversation with his mother on December 4, 2018, defendant told her that she 

should pick up Carlito at school and have him point out to the Trumbull Kings the people 

responsible for Carlito being jumped. They would “smack the s*** out of those kids.”

¶ 92 Investigator Phillips also testified regarding a phone call made by Christian Garcia, a 

member of the Two-Six street gang from the Cook County Jail, on December 3, 2018. Garcia 

called defendant’s mother to tell her “that he is trying to stand on that business for him and get a 

hold of Amanda.” Garcia reported that Amanda was the girl who had snitched on him. Investigator 

Phillips understood the phone calls to indicate that Garcia was trying to influence witnesses by 

helping defendant with the witnesses involved in his case. In turn, defendant was attempting to aid 

Garcia with influencing the witnesses against Garcia.

¶ 93 The Assistant Executive Director of the Cook County Jail, Steven Wilensky, also testified 

in aggravation. Mr. Wilensky testified that defendant had 53 recorded incident reports since his 

arrival at Cook County Jail on February 6, 2014. Defendant was repeatedly disciplined for: fighting 

with other inmates; exposing his penis to a female visitor; masturbating publicly; threatening 

officers at the jail; threatening to kill a county officer; issuing verbal threats to a reporting officer; 

refusing orders from officers; possessing contraband, including various metal objects and shanks; 

urinating; setting fires in his cell; and damaging property. 
No. 1-20-0634 

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¶ 94 Defendant was also charged with public indecency based on an incident that occurred in 

the lockup during the pendency of this case. Assistant Public Defender (APD) Samantha French 

testified that she was assigned to the trial court’s trial courtroom on October 19, 2017. On that day,

APD French had a client who was being held in the court’s lockup area. Defendant was in the 

holding cell with APD French’s client that day. While APD French spoke with her client about his 

case, she observed defendant standing about three to four feet away from her with his pants around 

his thighs. Defendant’s erect penis was exposed, and he was masturbating while glaring at APD 

French. Misdemeanor charges were brought against defendant as a result of this incident.

¶ 95 Defendant presented no witnesses in mitigation. Defense counsel relied on the PSI to argue 

mitigation. Defense counsel argued that to survive, defendant did not have a choice but to affiliate 

with a gang and that for the past year defendant did not have any disciplinary infractions while 

housed at the Cook County Jail. Defense counsel urged the court to impose a minimum sentence.

¶ 96 Defendant made a statement in allocution. He maintained his innocence and stated that 

many mistakes were made at trial. Defendant stated that he made mistakes as a youth because he 

was young and subject to a lot of peer pressure.

¶ 97 The trial court made lengthy factual findings before imposing a 50-year sentence on the 

charge of first-degree murder and a 25-year consecutive sentence for the firearm sentencing 

enhancement. 

¶ 98 II. ANALYSIS 

¶ 99 On appeal, defendant alleges that he was denied the effective assistance of counsel at trial 

and sentencing. With respect to trial, defendant alleges that defense counsel failed to ask any 

questions during voir dire and acquiesced to the admission of multiple instances of improper 

testimony. Alternatively, he maintains that we should review his forfeited claims for plain error. 
No. 1-20-0634 

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Regarding sentencing, defendant maintains that trial counsel failed to present adequate mitigation 

evidence and urge that the imposition of a de facto life sentence was unconstitutional as applied to 

him.

¶ 100 On the other hand, the State maintains that defendant was not denied the effective 

assistance of counsel at trial or sentencing. Additionally, the State argues that defendant’s claims 

of trial error are forfeited and not subject to review under the plain error doctrine. 

¶ 101 For the reasons that follow, we agree with the State.

¶ 102 A. Defendant Was Not Denied the Effective Assistance of Counsel at Trial

¶ 103 Claims of ineffective assistance of counsel are evaluated under the two-pronged test 

announced in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court

in People v. Albanese, 104 Ill. 2d 504, 525 (1984). Under Strickland, a defendant must show that 

his counsel’s representation fell below an objective standard of reasonableness and that the 

deficient performance prejudiced his defense. Strickland, 466 U.S. at 687; Albanese, 104 Ill. 2d at 

52. 

¶ 104 Under the first prong of Strickland, defendant must prove that counsel made errors so 

serious and that counsel’s performance was so deficient that counsel was not functioning as the 

“counsel” guaranteed by the sixth amendment. People v. Griffin, 178 Ill. 2d 65, 73-74 (1997). 

Counsel’s performance is measured using an objective standard of competence under prevailing 

professional norms. The defendant must overcome the strong presumption that the challenged 

action or lack of action might have been the product of sound trial strategy. People v. Sanchez, 

169 Ill. 2d 472, 487 (1996); People v. Mahaffey, 165 Ill. 2d 445, 457-58 (1995); People v. Flores, 

153 Ill. 2d 264, 283 (1992).
No. 1-20-0634 

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¶ 105 Under the second prong of Strickland, the defendant must establish prejudice. The 

defendant must prove that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. People v. Patterson, 2014 IL 

115102, ¶ 81. A reasonable probability is one that is sufficient to undermine confidence in the 

outcome. People v. Hale, 2013 IL 113140, ¶ 18.

¶ 106 A defendant’s failure to establish either proposition will be fatal to the claim. Strickland, 

466 U.S. at 697. We can dispose of an ineffective assistance of counsel claim on either prong of 

Strickland. People v. Janusz, 2020 IL App (2d) 190017, ¶ 69. The trial court need not go further 

if defendant is unable to demonstrate prejudice. People v. White, 2011 IL 109689, ¶ 134.

¶ 107 In People v. Everhart, 405 Ill. App. 3d 687, 697 (2010), the defendant alleged that he was 

denied the effective assistance of counsel where his attorney failed to fulfill the promise made in 

opening statements that the defendant would testify and tell the jury what “really happened.” The 

appellate court determined that it need not reach the question of whether trial counsel’s conduct 

was deficient where the defendant failed to show resulting prejudice. Id. 

¶ 108 The court found that the State’s evidence of his guilt was overwhelming. Id. Such evidence 

included the defendant’s post-arrest admission that he attacked the victim, forced her to remove 

her pants and bend down over the hood of her car, placed his penis inside her vagina against her 

will, and took her purse and discarded its contents as he drove away. The court concluded that the 

defendant failed to show how the outcome of his trial would have differed had he testified at trial 

or had his attorney not promised the jury that he would testify. Id. 

¶ 109 In People v. Thomas, 164 Ill. 2d 410, 417 (1995), the defendant alleged, inter alia, that he 

was denied the effective assistance of counsel where his attorney failed to recognize the racial 

implications of his case where the defendant, a Black male, was accused of killing a White female. 
No. 1-20-0634 

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The defendant alleged that counsel’s incompetence was demonstrated by counsel’s: (1) failure to 

attempt to prevent an all-white jury from sitting in judgment of him; (2) failure to question four 

jurors about their attitudes toward race; and (3) failure to formulate a defense strategy to minimize 

potential racial bias against him. Id. at 417-18. In support of his allegations of incompetence, the 

defendant relied on trial counsel’s deposition testimony in which she testified that she did not 

believe racial implications are present in a case simply because a black man is accused of killing 

a white woman. Id. at 419.

¶ 110 Our supreme court found the defendant’s claim lacked merit based on his failure to make 

a substantial showing of prejudice. Id. at 419. The court’s rejection of the defendant’s claim was 

based on its conclusion that the evidence of the defendant’s guilt was overwhelming. Id. Such 

evidence included the defendant being placed at the crime scene, admitting to several persons that 

he was previously in the victim’s garage, his oral and written confessions, and testimony that blood 

taken from his vest was the same type as the victim’s and different from the defendant’s. Id. at 

419-20. 

¶ 111 We have set forth a detailed recitation of the evidence adduced at trial, including the 

substance of defendant’s lengthy videotaped confession which is based on our review of 

defendant’s videotaped statement. Defendant neither challenges the admissibility of this evidence 

nor claims that its admission constituted ineffective assistance of counsel. 

¶ 112 Defendant’s videotaped custodial statement recounted in a detailed and highly emotional 

manner the murder itself as well as the events that preceded and followed its commission. While 

defendant denied exiting codefendant’s car or threatening the Pavon family, the remaining details 

related by defendant generally dovetailed with the testimony given by Ms. Pavon, Mr. Pavon, and 

Ms. Shalabi.
No. 1-20-0634 

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¶ 113 Defendant’s confession was corroborated by the three video clips and accompanying still 

photographs taken from codefendant’s phone. Again, defendant does not allege that this evidence 

was wrongly admitted at trial nor that their admission resulted from the ineffective assistance of 

counsel. We have also reviewed these video clips and agree with the trial court’s conclusion as to 

their probative value. As characterized by the trial court, the clips were: 

 “THE COURT: [P]robably some of the most probative evidence I’ve ever 

seen to certain issues in this particular case as to motive and the plan you know as 

to what was going to take place. It wasn’t somebody’s interpretation of what 

somebody else said. It was the defendant’s own words, who was aware of where 

the defendant was when he was yelling out those threats and these challenges. Was 

it prejudicial? I[t] was extremely prejudicial to the defendant’s interest of whether 

or not he was guilty beyond a reasonable doubt. All evidence which points to the 

guilt of an individual committing a horrific crime of murder is prejudicial to the 

Defense, to the defendant’s desire not to be convicted, but this was so 

extraodinar[ily] probative of what occurred in this particular case, and what the plan 

was, and as to why 15-year-old Miguel is not with us anymore. It’s all there. 

And so as [the prosecutor] points out, the video not only puts the two 

defendants together, the driver of the vehicle that the defendant jumped out of to 

take the life of Miguel, but it also shows the vehicle in question that was, again, 

described by the eyewitnesses to the actual execution of Mr. Navarette.”

¶ 114 The probative value of the video clips was enhanced by the gang evidence that was testified 

to by Mr. and Ms. Pavon and by Sergeant Foster. Mr. Pavon’s explanation of the territorial 

boundaries of the Latin Kings and Two-Sixers coincided with the images depicted in the video 
No. 1-20-0634 

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clips. Mr. Pavon explained what was meant by “false-flagging,” which was a gesture that 

defendant made on the clips.

¶ 115 Sergeant Foster’s testimony corroborated defendant’s motive for shooting the victim; his 

desire to avenge the murder of Vargas on the near anniversary of what would have been Vargas’

birthday. Again, defendant does not challenge the admissibility of this evidence or claim that its 

admission was the result of ineffective assistance of counsel.

¶ 116 The State also established that Ms. Pavon and Ms. Shalabi made lineup identifications of 

defendant and codefendant. While Ms. Pavon initially erroneously identified defendant as the 

driver in the vehicle based on her viewing of a photo array, just three days later, upon viewing the 

lineup, she immediately realized her mistake, which she then brought to the attention of the 

detectives. That Ms. Pavon was initially mistaken in believing defendant to be the driver finds 

direct support in defendant’s confession. Likewise, any question of whether defendant was seated 

in the front passenger seat or the rear seat of the SUV when Ms. Shalabi was struck does not 

undermine the strength of her identification where defendant admitted to being present in the 

vehicle with codefendant when she was struck and did not indicate that a third individual was 

present in the vehicle. 

¶ 117 The witnesses’ accounts were corroborated by physical evidence. Gunshot residue was 

found in the rear driver’s side of codefendant’s car, the very spot where defendant was placed by 

the Pavons, and defendant himself in his videotaped confession. The State also established that the 

recovered shotgun was the weapon used to kill the victim.

¶ 118 As in Everhart and Thomas, viewed in toto, the evidence of defendant’s guilt, in this case,

was overwhelming. Despite his many allegations of error, defendant is unable to satisfy the 
No. 1-20-0634 

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prejudice prong of Strickland. We conclude that defendant has failed to demonstrate that he was 

denied his right to the effective assistance of counsel.

¶ 119 B. Defendant’s Alternative Request That We Review His

 Claimed Errors Under the Plain Error Doctrine

¶ 120 We next consider defendant’s alternative request that we review trial counsel’s alleged 

failings under both prongs of the plain error doctrine. 

¶ 121 1. Review of Forfeited Claims Under the Plain Error Doctrine

¶ 122 To preserve an error on appeal, the defendant must object at trial and raise the issue in a 

written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Failure to set forth the trial 

court’s alleged errors and specify the grounds for a new trial in a posttrial motion constitutes a 

procedural default of the issue on review in the absence of plain error. People v. Naylor, 229 Ill. 

2d 584, 592-93 (2008). Specifically, the plain error doctrine permits “a reviewing trial court to 

consider an unpreserved error when: (1) a clear or obvious error occurred and the evidence is so 

closely balanced that the error alone threatened to tip the scales of justice against the defendant, 

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

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

judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 

565 (2007), (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). Under either prong of the 

plain error doctrine, the burden of persuasion remains on the defendant. People v. Bowman, 

2012 IL App (1st) 102010, ¶ 29, (citing People v. Lewis, 234 Ill. 2d 32, 43 (2009)).

¶ 123 For reasons that follow, we find defendant has failed to establish plain error under both 

prongs of the plain error doctrine. 
No. 1-20-0634 

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¶ 124 2. First-Prong Plain Error

¶ 125 Under the first prong of the plain-error doctrine, the defendant must show that “the 

evidence was so closely balanced [that] the error alone severely threatened to tip the scales of 

justice.” People v. Sebby, 2017 IL 119445, ¶ 51. In determining whether the evidence was closely 

balanced, the reviewing trial court evaluates the totality of the evidence and conducts a qualitative, 

commonsense assessment of it within the context of the case. Id. ¶ 53. 

¶ 126 Defendant cannot establish first-prong plain error for the same reason that he cannot 

establish ineffective assistance of counsel; he cannot demonstrate prejudice.

¶ 127 In People v. White, 2011 IL 109689, ¶ 130, the defendant alleged that after his right to 

counsel had attached, he was displayed in a lineup without his attorney being present. The 

defendant sought review of this claimed error under the closely balanced prong of the plain-error 

rule. Id. ¶ 131. 

¶ 128 In rejecting the defendant’s claim, the supreme court noted the similarity between the 

court’s review of a forfeited claim under the closely-balanced-evidence prong of the plain-error 

doctrine and review of an ineffective assistance of counsel claim under the prejudice prong: 

“Plain error review under the closely-balanced-evidence prong of plain 

error is similar to an analysis for ineffective assistance of counsel based on 

evidentiary error insofar as a defendant, in either case, must show he was 

prejudiced: that the evidence is so closely balanced that the alleged error alone 

would tip the scales of justice against him, i.e., that the verdict ‘may have resulted 

from the error and not the evidence’ properly adduced at trial (see People v. Herron, 

215 Ill. 2d 167, 178 (2005) (plain error)); or that there was a ‘reasonable 
No. 1-20-0634 

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probability’ of a different result had the evidence in question been excluded (see 

Strickland, 466 U.S. at 694).” White, 2011 IL 109689, ¶ 133.

¶ 129 Where the record demonstrated how heavily the evidence weighed in favor of the State,

the court determined that it need not resolve whether an error had occurred because the defendant 

was unable to demonstrate resulting prejudice. Id. ¶ 134. The trial court found whether the issue 

was reviewed as an ineffective assistance of counsel claim, or one based on the closely-balancedevidence prong of the plain error doctrine that:

“[t]here is no reason to go further for purposes of either an ineffective 

assistance analysis or one founded upon the closely balanced prong of plain error. 

Both analyses are evidence-dependent and result-oriented. Even if we were to 

assume, arguendo, there was error in the admission of evidence concerning the 

lineup, the evidence against defendant is such that he cannot show prejudice for 

purposes of either analysis.” Id.

¶ 130 Based on White, we find that defendant’s failure to establish prejudice under the second 

prong of Strickland necessarily means that he is unable to establish prejudice under the first prong 

of the plain error doctrine. Therefore, to the extent that defendant seeks review of his claims under 

the closely-balanced-evidence prong of the plain error doctrine, we deny his request.

¶ 131 3. Second-Prong Plain Error

¶ 132 Defendant also requests review of his claims under the second prong of the plain error 

doctrine, asserting that his alleged errors “created a pervasive pattern of unfair prejudice.” Under 

the second prong of the doctrine, prejudice is presumed if the defendant can show that the claimed 

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

of the judicial process. People v. Sebby, 2017 IL 119445, ¶ 50. Prejudice to the defendant is 
No. 1-20-0634 

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presumed because of the importance of the right involved, regardless of the strength of the 

evidence. People v. Herron, 215 Ill. 2d 167, 178-79 (2005). “A reviewing trial court will grant 

relief under the second prong of the plain error rule only if the error is so fundamental to the 

integrity of the judicial process that the trial court could not cure the error by sustaining an 

objection or instructing the jury to disregard the error.” People v. Vargas, 174 Ill. 2d 355, 363-64 

(1996). 

¶ 133 Very few trial errors meet the standard for second-prong plain error. Second-prong plain 

error is generally equated with “structural error.” People v. Thompson, 238 Ill. 2d 598, 613-14 

(2010), (citing People v. Glasper, 234 Ill. 2d 173, 197-98 (2009). Structural error is a “systematic 

error which serves to ‘erode the integrity of the judicial process and undermine the fairness of the

defendant’s trial.’ ” Glasper, 234 Ill. 2d at 197-98 (quoting People v. Herron, 215 Ill. 2d 167, 186 

(2005)).

¶ 134 In Thompson, our supreme court discussed the limited class of structural errors as 

including: (1) a complete denial of counsel; (2) trial before a biased judge; (3) racial discrimination 

in the selection of a grand jury; (4) denial of self-representation at trial; (5) denial of a public trial; 

and (6) a defective reasonable doubt instruction. Thompson, 238 Ill. 2d at 609, (citing Washington 

v. Recuenco, 548 U.S. 212, 218 n. 2 (2006)).

¶ 135 In People v. Blue, 189 Ill. 2d 99, 139 (2000), the court held that when the cumulative effect 

of errors that cast doubt upon the reliability of the judicial process creates a “pervasive pattern of 

unfair prejudice to defendant’s case” that they may be regarded as structural error under the second 

prong of the plain error rule.
No. 1-20-0634 

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¶ 136 In People v. Johnson, 208 Ill. 2d 53, 64 (2003), the trial court reiterated that “a pattern of 

intentional prosecutorial misconduct may so seriously undermine the integrity of judicial 

proceedings as to support reversal under the plain-error doctrine.” 

¶ 137 We reject defendant’s attempt to bring himself under the umbrella of structural error as 

described in Blue and Johnson, based on his charge that the magnitude of the alleged errors, in this 

case, affected the integrity of the trial and “created a pervasive pattern of unfair prejudice.” This 

case bears no factual resemblance to the facts of those cases.

¶ 138 In Blue, the defendant’s allegations of trial error included: (1) the State, over objection,

displaying a life-size mannequin clothed with the deceased officer’s uniform which was bloodied 

and brain-splattered; (2) the State arguing that the deceased officer’s family and the police “needed 

to hear” from the jury; and (3) the State “testifying” through thinly-veiled “objections,” to defense 

counsel’s examination of a witness after having elicited hearsay testimony during direct 

examination. Blue, 189 Ill. 2d at 120-21, 126-27, 135-36. Further, the defendant alleged as error 

the trial court’s refusal to ask potential jurors if they would automatically sentence him to death 

for killing a police officer. Id. at 119, 135. 

¶ 139 With respect to the defendant’s first claim, which trial counsel preserved, the court found 

that while display of the uniform was nominally probative of a material fact, its potential prejudice 

outweighed its probative value where it was “the actual remnants of the scene itself, spattered with 

the actual blood and brains of the victim.” Id. at 125-26. The error was exacerbated by the jury’s 

extended exposure to the mannequin, which culminated in the trial court furnishing the jurors with 

gloves that “appeared to encourage the jury to engage in a tactile interaction with the uniform.” 

Id. at 126.
No. 1-20-0634 

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¶ 140 The court then considered the defendant’s unpreserved claims of prosecutorial misconduct 

based on remarks made by the State during its rebuttal closing argument. First, the court 

determined that the State improperly “appealed directly to the jurors’ passions and prejudices by 

urging the jury to use its verdict to send a message to [the officer’s] family and to the police.” 

Id. at 133. The error was compounded where a Commander of the Chicago Police Department 

testified that he attended the deceased officer’s “star ceremony,” read aloud the oath of office that 

the deceased officer took during the ceremony and testified that the deceased officer’s police badge 

was retired and displayed in the “honored star case” at Chicago Police Department Headquarters.

Id. 

¶ 141 The court found that the State improperly remarked on the pain endured by the victim’s

parents in the loss of their only child. Id. at 130. The inflammatory impact of this improper 

argument was enhanced by the introduction of evidence designed to “highlight the poignancy of 

the [deceased officer’s] family’s loss and to suggest to the jury that the family’s pain could be 

alleviated by a guilty verdict.” Id. at 131. 

¶ 142 Based on a thorough review of the record and controlling case law, the court found that the 

defendant was denied his due process right to a fair trial and that a combination of errors may have 

coerced the jury into returning a verdict grounded in sympathy, a possibility that called into doubt 

the constitutionality of the defendant’s trial. Id. at 120. 

¶ 143 In Johnson, the trial court found misconduct similar to that in Blue was engaged in in the 

trial of Blue’s two codefendants. Johnson, 208 Ill. 2d at 74-75. In affirming the appellate court’s

reversal of the codefendant Parker’s convictions, the trial court held: 

“As in Blue, we see in this case cumulative error and a pervasive pattern of 

unfair prejudice that denied defendant a fair trial and cast doubt upon the reliability 
No. 1-20-0634 

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of the judicial process. [Citation.] We note that the prejudice in this case, as in Blue, 

was engendered in the main by prosecutorial misconduct. As in Blue, the 

coalescence of improper, emotion-laden evidence, and inflammatory argument 

obviously designed to exploit that evidence, created a synergism of parallel errors. 

[Citation.] As in Blue, a new trial is necessary in this case to preserve and protect 

the integrity of the judicial process, as “the trial court allowed the guilty verdict to 

rest on considerations other than the evidence alone.” [Citation.] Johnson, 208 Ill. 

2d at 84. 

¶ 144 We note a factual distinction between this case and Blue and Johnson at the outset. Unlike

those cases, defendant makes no freestanding claim of prosecutorial misconduct based on improper 

closing argument. Indeed, this is the common feature of Blue and Johnson and was integral to the 

court’s determinations that structural error was established such that new trials were required. 

¶ 145 To be clear, we are not suggesting that structural error requires both prosecutorial 

misconduct in closing argument and the State’s introduction of improper evidence. Indeed, in 

People v. Ray, 126 Ill. App. 3d 656, 663 (1984), the appellate court determined that the State’s 

closing argument, standing alone, constituted second prong plain error. However, we believe that 

the exception announced in Blue should be construed narrowly and not applied simply based on 

the sheer number of forfeited claims raised on appeal or because defendant alleges the forfeited 

errors “created a pervasive pattern of unfair prejudice.” In Johnson, the court specified that “[t]he 

common threads that bind these cases for purposes of appeal are alleged patterns of prosecutorial 

misconduct and related trial error.” Johnson, 208 Ill. 2d at 62. 
No. 1-20-0634 

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¶ 146 With this understanding in mind, we find defendant’s claim of second-prong plain error 

fails where his alleged errors do not display a pattern of prosecutorial misconduct. We now address 

defendant’s claims of error to support our conclusion. 

¶ 147 a. Defense Counsel’s Failure to Ask Questions During Voir Dire

¶ 148 First, defendant’s claim that defense counsel was ineffective for failing to ask any questions 

during voir dire cannot support second-prong plain error review where it is not fairly attributed to

any action by the State. Defendant’s apparent reliance on the court’s pretrial rulings allowing gang 

evidence to be admitted at trial and remarks made by the State concerning such evidence does not 

make this claim subject to plain error review, where no error is alleged in either the court’s pretrial 

rulings on the admissibility of gang evidence or remarks made by the State relating to this 

evidence.

¶ 149 Thus, defendant’s claim remains one restricted to review under Strickland. As we have 

previously noted, defendant is unable to satisfy the second prong of Strickland where the evidence 

of his guilt was overwhelming. 

¶ 150 Furthermore, this claimed error may not be characterized as “structural,” where the 

decision to question a potential juror on a particular subject is a matter of trial strategy. People v. 

Fudge, 332 Ill. App. 3d 1019, 1026 (2002). Such strategy decisions are virtually unchallengeable. 

People v. Palmer, 162 Ill. 2d 465, 476 (1994). Reviewing court should be highly deferential to 

jury selection decisions involving trial strategy. People v. Manning, 241 Ill. 2d 319, 333 (2011).

¶ 151 Defendant’s suggestion that defense counsel be presumed incompetent for failing to ask 

gang bias questions in a gang-related offense inverts the presumption of competency that is a 

centerpiece of Strickland. Strickland, 466 U.S. at 689. It is also irreconcilable with our supreme 

court’s holding in Manning.
No. 1-20-0634 

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¶ 152 In Manning, the court rejected the defendant’s ineffective assistance of counsel claim 

where defense counsel failed to remove a juror who stated that he believed that sex offenders 

should be locked up for life. Manning, 241 Ill. 2d at 334-35. The court noted that:

 “[d]efendant’s attorney was faced with a difficult case, given the strong 

evidence against defendant, and his chosen strategy reflected that difficulty. 

Highlighting defendant’s sex offender status was a risky choice, given largely 

negative views of sex offenders by the general public. Based upon his decisions as 

to when to exercise peremptory challenges, it does not appear that counsel expected 

prospective jurors to be able to completely put those views aside.” Id. at 335.

¶ 153 People v. Strain, 194 Ill. 2d 467 (2000), does not support defendant’s claim. Strain does 

not negate the fact that defense counsel retains the power to decide, as a matter of trial strategy,

how to approach voir dire. Strain does not affirmatively require that defense counsel inquire 

whether potential jurors are prejudiced against street gangs because gang evidence will be admitted 

at trial. Similarly, the trial court is not obligated to question prospective jurors, sua sponte, about 

potential prejudice against gangs. People v. Campbell, 2012 IL App (1st) 101249, ¶ 28.

¶ 154 In conclusion, we reject defendant’s reliance on counsel’s failure to ask any questions 

during voir dire as a basis for us to find resulting structural error in this case.

¶ 155 b. Defendant’s Claim That Improper Life and Death

 Testimony Was Given at Trial

¶ 156 We next address defendant’s contention that the State elicited improper testimony from the 

victim’s mother designed to garner sympathy for the victim. Defendant’s claim is premised on the 

following question and response: 
No. 1-20-0634 

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 “THE STATE: When you last spoke to Miguel, how did you leave things 

with him on the phone? 

MS. NAVARETTE: The last time we spoke, he said he wanted to go see 

us. That he missed us a lot. That he wanted to see his brothers and he wanted to 

give me a letter for one of his other brothers. And he asked me for the phone 

numbers of all his aunts and uncles.” 

¶ 157 We reject defendant’s claim that the State’s “question served no purpose other than to prey 

on the sympathy of the jury.” We agree with the State that, placed in context, this question “was 

better understood as a question asking whether Ms. Navarrete expected Miguel to follow through 

with his plan to visit the family, and what time he was expecting to arrive.” 

¶ 158 While admitting that the question was “open-ended,” defendant maintains that the “risk 

was obvious that the State could seek the jury’s sympathy with irrelevant evidence.” We do not 

ascribe prosecutorial overreaching to the State’s question. 

¶ 159 While defense counsel did not object to this testimony at trial, defendant’s motion for new 

trial claimed that Ms. Navarette’s testimony was elicited “only to incite sympathy [over] the loss 

of her son.” The trial court rejected this claim, finding that the State’s direct examination “was 

limited to the appropriate life and death nature of her testimony regarding her son and how she 

learned of his passing.” 

¶ 160 The admission of evidence is within the trial court’s sound discretion, whose ruling is 

reviewed for an abuse of discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010). An abuse of 

discretion occurs when the trial court’s decision is arbitrary, fanciful, unreasonable, or when no 

reasonable person would have taken the same view as the trial court. People v. Morris, 2013 IL 

App (1st) 110413, ¶ 47. 
No. 1-20-0634 

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¶ 161 A distinction exists between cases where the jury is made aware of the family left behind 

and cases where the prosecution dwells upon the deceased’s family to the point that the jury would 

relate that evidence to the defendant’s guilt. People v. Sandifer, 2016 IL App (1st) 133397, ¶ 58, 

(citing People v. Jones, 2011 IL App (1st) 092529, ¶ 33.))

¶ 162 In People v. Harris, 225 Ill. 2d 1 (2007), our supreme court considered the proper scope of 

life and death witness testimony. The court noted that introductory, foundational questions 

regarding the witness’s background are not improper. Id. at 32. Nor is the testimony of surviving 

victims describing their own personal backgrounds. Id. at 31-32. However, testimony that a 

deceased has left a family is prejudicial if presented in such a manner to cause the jury to believe 

it is material. [Citation.] Id. at 31. Likewise, an argument that dwells upon a decedent’s family or 

attempts to relate a defendant’s punishment to such family is improper. [Citation.] Id. 

¶ 163 We find no basis for concluding that the trial court abused its discretion in determining that 

Ms. Navarette’s testimony was not prohibited. The record does not support the conclusion that the 

State’s open-ended question was designed to do more than establish that Ms. Navarette expected 

to see Miguel the following day. Nor was the testimony highlighted during the State’s closing 

argument. We find the testimony to have been incidental and not material to defendant’s guilt and 

therefore not to support defendant’s claim of structural error. 

¶ 164 c. Admissibility of Lineup Photographs

¶ 165 Defendant alleges that the State improperly introduced into evidence a prejudicial lineup 

photograph that displayed him wearing a shirt that read, “if you turn your head to read this, you 

owe me a blow job.” While defendant admits that identity was at issue in this case and that Ms. 

Pavon’s identification of him was a critical issue where she initially identified him as the car driver, 

he maintains that this particular photograph was unnecessary or that it should have been redacted.
No. 1-20-0634 

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¶ 166 In the absence of any objection to the introduction of this evidence and in light of its clear 

relevance, we reject defendant’s claim that this “error” should be regarded as implicating structural 

error.

¶ 167 Evidence will be deemed admissible when relevant to a disputed issue if its prejudicial 

effect does not substantially outweigh its probative value. People v. Patterson, 192 Ill. 2d 93, 

114-15 (2000). We agree with the State that the full-bodied picture of defendant assisted the jury 

in determining his size, height, and build in a way that the other photographs did not. As such, the 

lineup photographs were relevant evidence. 

¶ 168 Insofar as the “prejudicial” nature of the photograph is concerned, we also agree with the 

State that while the shirt worn by defendant can be characterized as “inflammatory” and “crude,” 

we cannot say that this photograph resulted in prejudice to defendant. Nor does the record support 

the conclusion that the State sought to put this evidence before the jury to engender prejudice 

against defendant.

¶ 169 d. Admission of the 911 Call

¶ 170 Defendant maintains that the State’s “only purpose” for seeking to admit the 911 call by 

Mr. Pavon into evidence was “to prey on the jurors’ sympathy by giving them a real-time look at 

the horror of the Pavons watching Miguel die.” We disagree with defendant’s assertion of 

prosecutorial overreaching and reliance on People v. Smith, 2017 IL App (1st) 143728, to support 

his contention. 

¶ 171 Smith is distinguishable for two fundamental reasons. First, in stark contrast to this case, in 

Smith, the trial court noted that “whether defendant committed the acts that resulted in [the 

victim’s] death was not at issue ***.” Id. at 58. Second, in Smith, the defendant objected to the 
No. 1-20-0634 

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introduction of the 911 call as being unduly inflammatory and prejudicial. Id. at 64. The 

defendant’s preserved allegation of error found support in the 51⁄2 minute 911 call that was 

introduced at trial where “crying and mostly unintelligible screaming is heard in the background.” 

Id. at 65. 

¶ 172 In contrast to Smith, identification was the issue to be resolved by the jury in this case. We 

have listened to the 911 call and find it to have been probative of that contested issue. While Ms. 

Pavon is heard crying in the background, Mr. Pavon is heard telling her, “[h]e’s gone baby, he’s 

gone baby, he’s gone,” and both repeatedly implore the victim to “wake up,” the call was clearly 

relevant. It described what Mr. Pavon witnessed while attempting to get an ambulance to attend to 

the victim who was shot and dying. Mr. Pavon described: (1) the two cars involved in this incident, 

(2) the ethnicity of the individuals, (3) the weapon that was used to shoot the victim, (4) the shooter

as being in the back of the black SUV, and (5) the direction that the SUV’s headed after the victim 

was shot. The record affirmatively refutes defendant’s claim that this evidence’s primary purpose 

was to inflame the jury. 

¶ 173 Nor would this evidence be likely to improperly inflame the jury given the remaining 

properly admitted evidence of defendant’s guilt. People v. Jurczak, 147 Ill. App. 3d 206, 214 

(1986) (declining to find error based on the admission of a 911 tape “when the jury was also 

confronted with the defendant’s own description of the stabbing, the testimony of the police 

officers who found the body within minutes of the killing, and the photographs of the victim’s 

body and the bloody scene.”) 

¶ 174 As such, we reject defendant’s claim that the introduction of this unobjected-to evidence 

shows prosecutorial overreaching that supports second-prong plain error review of his contentions 

of error. 
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¶ 175 e. Defendant’s Remaining Hearsay Claims Based on Allegedly Improper

 Prior Consistent Statements, Testimony That Exceeded the Course- 

 of-Investigation Exception, and Irrelevant Evidence

¶ 176 Based on our review of the record and applicable law, with one exception, which will be 

considered shortly, we find that defendant’s remaining claims of error are run-of-the-mill hearsay 

claims that do not fall under the umbrella for second-prong plain error because they are not 

suggestive of pervasive prosecutorial misconduct. 

¶ 177 Our conclusion finds direct support in People v. Temple, 2014 IL App (1st) 111653, ¶¶ 26, 

49, 52. As in this case, in Temple, the defendant argued alternatively that his claimed errors resulted 

from ineffective assistance of counsel or constituted plain error under both prongs of the plainerror doctrine. The appellate court found that the defendant’s claims of error based on the 

admission of prior consistent statements and police testimony that exceeded the course-ofinvestigation exception did not fall under the “umbrella of structural error” and declined to 

consider them further. Id. ¶ 51. 

¶ 178 As in Temple, we find that defendant’s claims relating to the unobjected-to admission of

(1) allegedly prior consistent statements by Mr. and Ms. Pavon and Ms. Shalabi; (2) irrelevant 

evidence; (3) improper leading questions; and (4) police testimony that allegedly exceeded the 

course-of-investigation exception are not properly regarded as structural error. 

¶ 179 Our conclusion is not altered by People v. Wheeler, 186 Ill. App. 3d 422 (1989), which we 

find to be distinguishable. In Wheeler, the appellate court considered the defendant’s forfeited 

interrelated claims of structural error arising from the State’s introduction of evidence of prior 

consistent statements and remarks during closing argument that highlighted such evidence. Id. at 

426. At trial, the victim, who was impeached with his prior convictions, was permitted to testify 
No. 1-20-0634 

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that he made a prior consistent statement to the police. Id. The prosecutor bolstered the witness’s

testimony by referencing the prior consistent statement during closing argument, actually 

interjecting his personal belief that such testimony was accurate and asking the jury to return a 

guilty verdict based thereon. Id. The court found that the combination of the improper testimony 

and improper commentary bolstering it was plain error where the proof of the defendant’s guilt 

depended almost entirely on such testimony. Id. 427-28. 

¶ 180 Here, as we have previously noted, defendant makes no freestanding claim of prosecutorial 

error based on the State’s closing argument. As previously discussed, defendant’s guilt did not 

hinge on the credibility of Ms. Pavon, Mr. Pavon, or Ms. Shalabi. Thus, Wheeler does not support 

defendant’s claim that the introduction of allegedly hearsay testimony should be regarded as 

supporting his claim of structural error.

¶ 181 f. Inspector Domma’s Testimony

¶ 182 We choose to address the merits of one alleged error in the admission of hearsay evidence

because defendant claims that this error was exacerbated by a remark made during the State’s 

closing argument. Specifically, defendant contends that the course-of-investigation exception was 

exceeded by Inspector Domma’s testimony about how he came into possession of the shotgun used 

to kill the victim. Defendant alleges that “[t]he State violated [defendant’s] constitutional right to 

a fair trial when it elicited from Investigator Domma that [defendant’s] non-testifying 

co-defendant, Andres Guerra, confessed to the location of the gun.” Defendant further alleges that 

the State then “highlighted the most damaging aspect of it in closing argument” when it remarked: 

“How did we get the gun? Well, they went looking for it after Investigator Domma had a 

conversation with Andres Guerra.”
No. 1-20-0634 

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¶ 183 We disagree with defendant’s characterization of Inspector Domma’s testimony and his 

suggestion that the State heightened the alleged error in closing argument.

¶ 184 A police officer’s testimony regarding another’s statements, or nonverbal conduct is not 

hearsay if offered to explain the steps in his investigation of a crime. People v. Simms, 143 Ill. 2d 

154, 174 (1991). Even if it suggests that a nontestifying witness implicated the defendant, such 

testimony is admissible. Id. The exception allows the introduction of such evidence even if the 

information is derived from a co-offender. People v. Williams, 52 Ill. App. 3d 81, 87-88 (1977).

Where the officer does not testify to the confession or statement of a codefendant which implicates

the defendant in a crime, Bruton v. United States, 391 U.S. 123 (1968), is not violated. People v. 

Dixon, 133 Ill. App. 3d 1073, 1083 (1985). 

¶ 185 Inspector Domma did not testify that codefendant “confessed to the location of the gun.” 

In point of fact, Inspector Domma did not testify as to anything that codefendant said. To the extent 

that the jury could infer that codefendant provided the location of the shotgun, such inference was

permissible. Simms, 143 Ill. 2d at 174. 

¶ 186 Our conclusion finds support in In re E.H., 299 Ill. App. 3d 42 (1998). In E.H., the 

respondent was adjudged delinquent of first-degree murder. On appeal, he alleged that hearsay 

testimony was improperly admitted at trial, where an officer testified that after he spoke with the 

respondent’s mother, she accompanied him to a park. Id. at 50-51. Upon exiting the police vehicle, 

she pointed to an area where he found a pistol. Id. The court rejected the respondent’s claim of 

error, finding the evidence admissible to show the course of the officer’s investigation. Id at 51. 

¶ 187 However, the court found that the State’s closing argument exceeded that legitimate

purpose where it drew an improper hearsay inference from the testimony. Id. at 52. Nevertheless, 

the court affirmed the respondent’s conviction based on its conclusion that the trial court did not 
No. 1-20-0634 

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rely on any hearsay inferences to find the respondent guilty beyond a reasonable doubt. Id. As 

such, the prosecutor’s closing argument did not prejudice the respondent. Id. 

¶ 188 Turning to the single and fleeting remark that defendant relies on to support his claim of 

error, the remark did not address the substance of what codefendant said. The inference raised in 

the State’s remark is the same inference that the testimony itself permitted. 

¶ 189 Even if the remark highlighted the inference, the State’s remark did not rise to the level of 

second-prong plain error where defendant’s custodial statement established that defendant tossed 

the gun out of codefendant’s car while the two were driving away from the scene of the crime. 

Moreover, during the statement, defendant was specifically confronted with his codefendant’s 

statement wherein he informed the police that the gun was disposed of in the area of 22nd Street 

and Cicero Avenue. Defendant did not disagree with codefendant’s assessment of the location 

where the gun was thrown away. Therefore, at most, the alleged inference drawn by the State 

during closing argument was cumulative to what was already before the jury. 

¶ 190 The facts of this case bear no resemblance to those in People v. Ochoa, 2017 IL App 1st 

140204. In Ochoa, after the appellate court remanded the matter for a second retrial of the 

defendant based on a Bruton violation, the State committed the same error by introducing an array 

of evidence that went beyond the course-of-investigation exception. Id. ¶ 36. Defense counsel 

interjected objections to some of the evidence, which included police testimony regarding learning 

the defendant’s gender, ethnicity, nickname, build, and home address after speaking with his three 

codefendants. Id. ¶ 54. The court noted that, as in the prior trial, such testimony strongly inferred 

that the defendant’s three codefendants implicated him to the police. Id. ¶¶ 52-53. 

¶ 191 The court also found that the State’s objected-to closing argument reinforced the repeated 

error where it linked the defendant’s confession to the fact that his codefendants were arrested and 
No. 1-20-0634 

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were in custody upon his arrival at the police station and gave the jury reason to infer that the 

description testified to by the police that included the defendant’s gender, ethnicity, nickname, 

build, and home address, was provided to them by the three codefendants. Id. 

¶ 192 The evidence and argument in Ochoa are clearly distinguishable from the testimony given 

by Inspector Domma and the State’s closing argument based on that testimony. For the reasons 

previously discussed, we reject the notion that this alleged error is properly regarded as one that 

could conceivably render defendant’s trial fundamentally unfair or unreliable or challenge the 

integrity of the judicial process. Piatkowski, 225 Ill. 2d at 565. 

¶ 193 4. Defendant Was Not Denied the Effective Assistance of Counsel at Sentencing

¶ 194 Next, we consider defendant’s claim that he was deprived of the effective assistance of 

counsel at sentencing. Defendant maintains that counsel was deficient for failing to present “any 

mitigating evidence” and that prejudice resulted where he received a 75-year de facto life sentence. 

¶ 195 The State maintains that defendant has failed to establish either that trial counsel was 

deficient during the sentencing hearing or that the trial court would have imposed a different 

sentence had trial counsel not performed deficiently. We agree with the State.

¶ 196 The test established in Strickland also applies to the sentencing phase of a defendant’s trial. 

People v. Franklin, 167 Ill. 2d 1, 25 (1995); People v. Rebecca, 2012 IL App (2d) 091259, ¶ 107. 

The defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional 

errors, his sentence would have been different. Laflin v. Cooper, 566 U.S. 156, 165 (2012). Even 

when counsel’s performance is deficient based on his failure to investigate mitigating evidence 

and present it at sentencing, the defendant must demonstrate resulting prejudice. People v. Pulliam, 

206 Ill. 2d 218, 239 (2002).
No. 1-20-0634 

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¶ 197 a. Ineffective Assistance of Counsel / De Facto Life Sentence

¶ 198 We first address defendant’s claim that trial counsel should have made an argument that “a 

de facto life sentence for [defendant], just one year over the age of adulthood, would violate the 

Illinois Constitution’s proportionate penalties clause.”

¶ 199 In Miller v. Alabama, 567 U.S. 460, 471-80 (2012), the United States Supreme Court held 

that mandatory life sentences imposed on juvenile offenders (those under the age of 18 at the time 

of the offense) violate the eighth amendment in the absence of consideration of the mitigating 

aspects of youth, i.e., immaturity, impulsivity, and increased vulnerability to negative influences.

¶ 200 In People v. Reyes, 2016 IL 119271, ¶ 8, the court held that the Miller rationale applies to 

de facto life sentences. 

¶ 201 In People v. Holman, 2017 IL 120655, ¶ 40, our supreme court held that Miller also applies 

to discretionary life sentences. 

¶ 202 In People v. Buffer, 2019 IL 122327, ¶¶ 27, 40-41, our supreme court defined a de facto

life sentence for a juvenile as a sentence in excess of 40 years’ imprisonment.

¶ 203 The foregoing principles were relied on in People v. Thompson, 2015 IL 118151, ¶¶ 38, 

44, and People v. Harris, 2018 IL 121932, ¶¶ 44, 48, as a basis for alleging that a de facto life 

sentence imposed on a young adult offender may be unconstitutional as applied under the 

proportionate penalties clause of the Illinois Constitution. 

¶ 204 The proportionate penalties clause of the Illinois Constitution provides that “[a]ll penalties 

shall be determined both according to the seriousness of the offense and with the objective of 

restoring the offender to useful citizenship.” Ill. Const. 1970, art. 1, § 11. A sentence violates the 

proportionate penalties clause if “the punishment for the offense is cruel, degrading, or so wholly 
No. 1-20-0634 

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disproportionate to the offense as to shock the moral sense of the community.” People v. Miller, 

202 Ill. 2d 328, 338 (2002). The proportionate penalties clause provides broader protections than 

those provided in the eighth amendment. People v. Gipson, 2015 IL App (1st) 122451, ¶¶ 69-78. 

People v. Clemons, 2012 IL 107821, ¶ 36.

¶ 205 Based on the court’s holding in Thompson and Harris, a young adult offender may rely on 

the evolving neuroscience and societal standards underlying the rule in Miller as a basis for 

bringing an as-applied challenge to the constitutionality of a de facto life sentence under the 

proportionate penalties clause. Thompson, 2015 IL 118151, ¶¶ 38, 44; Harris, 2018 IL 121932, 

¶¶ 44, 48. As the court noted in People v. Evans, 2021 IL App (1st) 172809, ¶ 16, these rulings

“opened the door for young adult offenders to demonstrate that their own specific characteristics 

at the time of their offense were so like those of a juvenile that the imposition of a life sentence, 

absent the safeguards established in Miller, violates the proportionate penalties clause.”

¶ 206 Here, defendant’s claim fails where the record reflects the fact that the trial court

acknowledged that defendant fell within the class of young offenders and considered the potential 

applicability of Miller to his circumstances: 

“THE COURT: And so another thing that I felt appropriate was to review 

the statutory law that is now in effect, which speaks of sentencing individuals under 

the age of 18 at the time of the commission of the offense. I know the defendant is 

not under 18, he was over 19-and-a-half years, I believe, by my calculations at the 

time of the offense, but still there is language there given the fact that the defendant 

was only a year and a half removed from that having the benefit of that particular 

law. So he’s still a young person. And I think youth is always something to be taken 
No. 1-20-0634 

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into consideration. So that’s why I wanted to also look at that particular statute 

which is now in effect.” 

¶ 207 After expressing its intent to consider defendant’s youth in fashioning a sentence, the trial 

court made factual observations that negated the notion that defendant should be regarded as akin 

to a juvenile: (1) defendant was the shooter; (2) defendant’s actions were entirely unprovoked by 

the victim; and (3) defendant had an extensive history of delinquency which included a failed 

probationary term that resulted in a sentence in the Juvenile Department of Corrections. The court 

further relied on: (1) the video clips; (2) defendant’s violations at the Cook County Jail after being 

placed in pretrial detention in Cook County Jail; (3) defendant’s act of masturbating in the presence 

of an assistant public defender in the lockup behind the courtroom; and (4) phone calls made by 

defendant and Christian Garcia to defendant’s mother during defendant’s pretrial detention in 

imposing sentence. 

¶ 208 The trial court again referenced the sentencing parameters for juveniles in imposing 

sentence: 

 “THE COURT: As I said, I’ve reviewed the sentencing considerations for 

someone who’s younger than Mr. Miranda under 18, I have considered his age, I 

mean he was 19-and-a-half. What were his ability to consider the risk and the 

consequences of his behavior.”

¶ 209 The trial court went on to make the following factual findings. Defendant’s actions were 

premeditated where the video clips showed him to be the primary actor who went to Two-Six 

territory at 3:30 a.m. “asserting his dominance.” While defendant’s videotaped statement and 

exchange between defendant and codefendant while the two were in nearby holding cells revealed 

an expression of remorse, and the videotape was “compelling and moving,” any “semblance of 
No. 1-20-0634 

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hope” “went out the window” at the Cook County Jail. The trial court described defendant’s actions

there as a four-year “rampage” that demonstrated defendant’s unwillingness to change or leave 

gang life. Defendant was not “succumbing to peer pressure” but “exerting peer pressure.” 

Defendant was the “killer” of the gang. The circumstances leading up to and surrounding this crime 

showed that defendant planned this crime and was the individual armed with the shotgun used to 

kill the victim. 

¶ 210 The trial court again returned to the question of whether the sentencing considerations for 

juveniles applied in this case:

“THE COURT: So many of the juvenile cases which come back before this 

trial court for resentencing because individuals who were 15, 16 years of age got 

involved in criminal behavior that caused them to be sentenced to natural life in 

prison, when they were lookouts. That’s a consideration, but his specific role is that 

he was the offender. He was the guy that planned it. He was the main actor. He’s 

the gunman. He’s the shooter. Nobody else got out of the car with a gun. They got 

out of the car with their fingers and did their little gang signs by waving their hands 

in the air, but he was empowered because he had that firearm.”

¶ 211 The trial court also considered whether anything about defendant’s childhood supported 

treating defendant as a juvenile:

“THE COURT: There’s no history of parental neglect. There’s no history 

of physical abuse. No history of childhood trauma. I know he lost his father, but he 

lost his father a year ago. His father was alive and well and providing support for 

him and the other members of the family, I assume at the time when this offense 
No. 1-20-0634 

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occurred. I see the family members come to court. They’re here. Gang bangers 

aren’t here. His family is here. The Kings have better things to do.

The circumstances of the offense that they need not be restated again, his 

participation of his role in the offense is clear. We’ve covered that. Was he able to 

participate in his defense, yes, he was. Clearly he was. He hasn’t been prevented in 

any way. He does have a prior juvenile history. So none of these things [inure] to 

the favor of the defendant as it turns out to make the court try to impose the most 

minimal of sentences.”

¶ 212 The trial court also noted that under the new sentencing laws, that defendant could possibly 

be released after serving 20 years in the Illinois Department of Corrections. The trial court stated 

that while it was “not necessarily a big fan of a lot of the mandatory sentencing enhancements” 

based on the use of a firearm in the commission of an offense, in this case, imposition of the 

enhancement was “entirely appropriate.”

¶ 213 Later, in reconsidering the sentence based on defendant’s motion in which he alleged that 

his sentence was an unconstitutional de facto life sentence under the eighth amendment, the trial 

court observed: 

 “THE COURT: This was an individual, Mr. Miranda, that was over the age 

of 18 but under the age of 21 at the time of the offense, as I recall. And I did spend 

a great deal of time considering what an appropriate sentence would be considering 

it, trying to review as much as I could even before to the sentencing hearing, per 

se, by going over the relevant testimony that showed what the facts were which led 

to this conviction for first degree murder.”
No. 1-20-0634 

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¶ 214 The trial court reiterated that the offense was premeditated, that the victim was “baited” by 

the Latin Kings, that defendant shot the victim in “cold-blood execution” style, “and he finished 

off when [the victim] was already on the ground suffering [an] earlier shotgun wound. It was close 

range, it was face to face, it’s a[s] cold-blooded [a] murder as one could ever imagine.”

¶ 215 The trial court again referenced the requirement that it “consider the ability of the defendant 

to consider risks and the consequences of his behavior.” The trial court found that defendant: 

“THE COURT: considered the risks and put himself in a position where he 

would not only be able to murder a young man but that he would be in a good 

position to get away with it. This was not some sort of rash act by an 18-year-old 

youth who didn’t understand the consequences of his actions. This was someone 

who took the consequences of his actions and considered them in order to make 

sure that he could get away with the behavior that he engaged in.”

¶ 216 The trial court also addressed defendant’s statement in allocution where he said that he was 

subject to peer pressure. The court noted that defendant had a good family, and there was no

evidence that someone in his family “indoctrinated him into this sort of life.” Rather, defendant 

“chose to reject his own good family upbringing and join the Two[-]Sixers.[2] He embraced the 

Two[-]Sixers. He covered himself with gang tattoos, committed crimes.” 

¶ 217 The trial court again considered defendant’s rehabilitative potential:

“THE COURT: I said there was nothing brought to the court’s attention that 

showed his family or his home environment that there was any type of history of 

any parental neglect, there was no physical abuse, any other childhood drama 

2 The trial court misspoke where the evidence conclusively established that defendant was a 

member of the Latin Kings street gang.
No. 1-20-0634 

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brought to the court’s attention other than the fact that he claimed that he had been 

diagnosed as suffering from depression, I believe, at one point. And that as I pointed 

out earlier he had in fact been shot himself and the motivation for that would have 

been gang related as well.

His potential for rehabilitation and the evidence of his rehabilitation was, 

quite frankly, the evidence of it was nonexistent as best – or at best. As [defense 

counsel] had tried to point out, he had gone a good number of months at the end of 

his custodial period at Cook County Jail without picking up any new violations; but 

his history taken in total demonstrated a complete lack of potential for 

rehabilitation, at least at this stage.” 

¶ 218 The trial court reiterated that there was a 24-hour period “where the defendant showed 

some signs of potential for rehabilitation” after his arrest, but that such potential immediately 

dissipated. 

¶ 219 Again, the trial court acknowledged that defendant “is actually going to have the 

opportunity to make a demonstration to the Department of Corrections that he can be rehabilitated” 

where he would be potentially eligible for release after serving 20 years of his sentence.

¶ 220 The trial court’s extensive and detailed findings in imposing sentence establish that it

considered and rejected the possibility that defendant should be sentenced as if he were a juvenile. 

The trial court’s findings evince its full understanding of current law, including a youthful 

offender’s ability to claim that a sentence in excess of 40 years could potentially be 

unconstitutional as applied to him under the proportionate penalties clause. After engaging in a 

detailed consideration of everything before it that could potentially bear on this question, the trial 
No. 1-20-0634 

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court basically determined that defendant, while 19 years of age when this offense was committed, 

was not akin to a juvenile.

¶ 221 We conclude that defendant cannot establish that he was denied the effective assistance of 

counsel at sentencing under Strickland based on counsel’s failure to claim that a de facto sentence 

would be unconstitutional as applied to him under the proportionate penalties clause of the Illinois 

Constitution. 

¶ 222 b. Ineffective Assistance of Counsel / Failure to Present Mitigation Evidence

¶ 223 We next address defendant’s claim that trial counsel should have “marshaled mitigation 

evidence.” Put simply, we are unaware of any mitigation evidence that defense counsel could have 

“marshaled” to obtain a different outcome. Defendant’s claim lacks factual support. 

¶ 224 Defense counsel faced an uphill battle and did what he could to mitigate the substantial 

evidence presented in aggravation. Defense counsel relied on the PSI to argue that defendant’s 

actions resulted from growing up in a gang-infested neighborhood and being subject to peer 

pressure. Defense counsel argued, 

“DEFENSE COUNSEL: you can raise them, you can do your best, you can 

guide them you can give them the information. They step outside those walls the 

gangs take over ***. It doesn’t matter how strong your family is, you don’t have a 

choice. If you’re going to survive from here to school, you don’t have a choice.” 

¶ 225 Defense counsel argued that defendant had rehabilitative potential and had not committed 

any disciplinary violations in the year before being sentenced. Defense counsel noted the support 

of his family and asked the court to impose a minimum sentence.

¶ 226 The only “facts” relied on by defendant to support his contention are counsel’s failure to 

call his mother to testify and failure to rely on the physical and emotional trauma suffered by 
No. 1-20-0634 

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defendant due to being shot and witnessing the death of Vargas. Such alleged failings do not 

establish either deficient performance by counsel or resulting prejudice to defendant. In other 

words, they do not satisfy Strickland. 

¶ 227 With respect to defense counsel’s failure to call defendant’s mother to testify as a 

mitigation witness, we find ample basis for concluding that this was a matter of strategy. If called 

as a mitigation witness, defendant’s mother would surely have been questioned about the phone 

calls placed to her by defendant and Christian Garcia from Cook County Jail. 

¶ 228 Defendant’s claim that trial counsel should have relied on his prior injury and trauma both 

from being shot and witnessing his best friend’s death also does not support his claim of ineffective 

assistance of counsel. As previously mentioned, the trial court considered these “facts” but did not 

regard them as mitigating. Additionally, the PSI rebuts the notion that defendant suffered lasting 

effects from being shot, where he reported having fully recovered six months later. 

¶ 229 Furthermore, in imposing sentence, the trial court considered that defendant was diagnosed 

with depression. The PSI does not indicate whether the “depression” was related to the earlier gang 

shooting. However, the facts of this case support the trial court’s conclusion that defendant’s 

response to the prior incident was precisely what he indicated in his videotaped statement: the 

basis for him formulating a plan to exact revenge from a Two-Sixer. 

¶ 230 In conclusion, the record in this matter fully supports the sentence imposed by the trial 

court and undermines any claim that defendant was denied the effective assistance of counsel under 

Strickland. 

¶ 231 III. CONCLUSION

¶ 232 For the foregoing reasons, we affirm the judgment of the trial court. 

¶ 233 Affirmed.