2021 IL App (1st) 181621-U

No. 1-18-1621 

Second Division

October 26, 2021

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

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

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

____________________________________________________________________________ 

THE PEOPLE OF THE STATE OF 

ILLINOIS, 

Plaintiff-Appellee,

 v. 

ROMAN FOREMAN, 

Defendant-Appellant. 

) Appeal from the

) Circuit Court of

) Cook County.

) 

) 

) No. 13 CR 17436

) 

) 

) Honorable 

) Matthew E. Coghlan

) Judge, presiding.

____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court.

Presiding Justice Fitzgerald Smith and Justice Lavin concurred.

ORDER

¶ 1 Held: Defendant’s conviction is affirmed where eyewitness testimony was sufficient to 

prove his guilt beyond a reasonable doubt. The trial court did not err in admitting 

other crimes evidence or in responding to the jury’s questions during deliberations. 
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¶ 2 Following a jury trial, defendant Roman Foreman1 was convicted of the first degree murder 

of Freddie Walton and sentenced to 60 years in prison. He now appeals, arguing that (1) the State 

failed to prove him guilty beyond a reasonable doubt where eyewitness accounts identifying him 

were unreliable, (2) the trial court erred in allowing the State to present other crimes evidence, and 

(3) jury questions sent during deliberations showed that the jury did not understand that he did not 

need to present evidence proving his innocence. We affirm. 

¶ 3 I. BACKGROUND

¶ 4 A. Motion to Allow Other Crimes Evidence

¶ 5 In September 2013, defendant was indicted on multiple counts of first degree murder in 

connection with the shooting death of Freddie Walton, which occurred in May 2013. On 

September 29, 2015, the State filed a motion to admit other crimes evidence as probative of 

defendant’ s identity, absence of mistake, or modus operandi. In particular, the State sought to 

introduce evidence related to the uncharged shooting of Caleb Anderson, which occurred 

approximately 10 minutes before and 5 blocks away from Walton’s shooting. For support, the 

State noted that an eyewitness to each shooting identified defendant, that a similarly described car 

was present for both shootings, and that forensic evidence showed that the same gun fired shell 

casings left at both scenes. 

¶ 6 The defense filed a response, contending that there was insufficient evidence tying 

defendant to the Anderson shooting due to certain discrepancies in the eyewitness accounts and 

because the two shootings were too different to be probative of modus operandi. The defense 

attached police reports showing that the two other witnesses to the Anderson shooting, Anderson 

1 Defendant points out in his brief on appeal that his last name is actually spelled “Foremin.” 

However, to maintain consistency with the other proceedings, we will use “Foreman.” 
No. 1-18-1621 

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himself and Derrick Mosley, did not identify defendant. Those reports indicate that aside from 

initially describing the suspect as a 19-or-20-year-old black man with a hat, Anderson did not 

cooperate with the police and signed a refusal to prosecute form. Also according to the reports,

Mosley told a responding officer that the shooting involved a conflict between the “Deuce” 

Gangster Disciples (to which he and Anderson belonged) and the “Trey” Black Disciples. Mosley 

claimed that the suspects were “the same guys” who had shot at him and Anderson from a gray 

SUV several days prior. Mosley stated that the person who shot Anderson was a black male with 

dreads and a “light complexion” who he knew as “PB.” The “other guy” was a 5’10” black male 

with a darker complexion who he knew as “Dawan.” Mosley claimed that both PB and Dawan 

were from Iowa and had returned there after Anderson’s shooting. 

¶ 7 The trial court granted the State’s motion following a hearing on September 28, 2016. 

Defendant filed a motion to reconsider, which was denied. 

¶ 8 B. Voir Dire

¶ 9 Voir Dire began on April 23, 2018. At the beginning of voir dire, the court informed the 

panel that “[u]nder the law the defendant is presumed to be innocent of the charge against him and 

this presumption remains with him throughout the stage of the trial and during your deliberations 

on a verdict.” The court also explained that the presumption of innocence is overcome only if the 

State proves the defendant guilty beyond a reasonable doubt, that the defendant “is not required to 

present any evidence on his own behalf,” and that “[i]f the defendant chooses not to testify, that 

fact cannot be held against him.” 

¶ 10 Shortly later in voir dire, the court again explained the following principles of law to the 

panel: (1) “that a person accused of a crime is presumed to be innocent of the charges against him,” 

(2) “that the presumption of innocence stays with the defendant throughout the trial and is not 
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overcome unless from all the evidence you believe the State proved his guilt beyond a reasonable 

doubt,” (3) “that the State bears the burden of proving the defendant’s guilt beyond a reasonable 

doubt,” (4) “that the defendant does not have to present any evidence on his own behalf and he 

may rely on his presumption of innocence,” and (5) that “if the defendant chooses not to testify 

that fact cannot be held against him.” The court asked the panel whether they understood and

accepted each principle, and none of the potential jurors indicated that they did not. 

¶ 11 C. Trial

¶ 12 The case proceeded to trial on April 26, 2018. Before the State introduced its evidence of 

the Anderson shooting, the trial court admonished the jury that:

“This evidence will be received on the issue of the defendant’s identification and may be 

considered by you only for that limited purpose. It is for you to determine whether the 

defendant was involved in that offense and, if so, what weight should be given to this 

evidence on the issue of the defendant’s identification.”

Then, Lafayette Ayers testified that just after 1 p.m. on May 29, 2013, he was talking to Anderson 

and Mosley in the street outside his home in the 12000 block of South Carpenter Street in Chicago. 

A “little gray” or silver car drove northbound on Carpenter and slowed down as it reached a speed 

bump in front of Ayers’ house. Ayers was nearest to the driver’s side of the car and could see that 

there were three occupants, two in the front seat and one behind the driver. When the car went 

over the speed bump, the back passenger “leaned up” in his seat and stuck his arm out of the 

window holding a gun. Ayers heard a gunshot and took cover. As he ran away, he heard a second 

set of gunshots that were different and “much louder” than the first. The car then drove away, 

turning right at the end of the road to travel eastbound on 122nd Street. 
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¶ 13 Ayers testified that the shooter in the back seat was “close enough [that he] could have 

snatched that gun out of his hand.” It was daytime, and Ayers had an unobstructed view of the 

shooter’s face. Because of his work as an armed security guard, Ayers was familiar enough with 

firearms to recognize the first shooter’s gun as a .22 caliber. 

¶ 14 On July 2, 2013, Ayers met with detectives to view a photo array. After signing an advisory 

form, Ayers identified defendant as the first shooter. On August 10, 2013, Ayers did the same in 

a physical line-up. He also identified defendant as the shooter in open court. 

¶ 15 On cross-examination, Ayers testified that the driver of the gray or silver car was “a guy 

with dreads.” He denied telling detectives that the driver was a woman, explaining instead that the 

woman was the front passenger. Ayers also agreed that he was “looking at the gun” as the car 

drove by, but stated that someone pointing a gun at him was a common occurrence in his line of 

work. 

¶ 16 Choyce Dickerson, Walton’ longtime girlfriend, testified as an eyewitness to Walton’s 

shooting. She stated that on May 29, 2013, Walton called her and asked her to bring some money 

he had left at home to the corner of West 122nd Street and South Emerald Avenue in Chicago. 

Dickerson met Walton at that location, and they decided to go to a nearby convenience store 

located less than a block away on South Halsted Street. Dickerson drove to the store while Walton 

walked. As Dickerson waited in the store’s drive-through, Walton stood outside the car and spoke 

to her through the passenger’s side window. Then, Dickerson heard the “pop” of her passenger’s 

side mirror shattering. Thinking that Walton must have done something to break the mirror, 

Dickerson turned her attention in that direction. Upon doing so, she saw Walton fall to the ground. 

Standing behind him was man holding a black gun with two hands. The man shot Walton two 

more times before running behind a fence that was behind Dickerson’s car. Through gaps between 
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the fence panels, Dickerson observed a silver car speed away from the scene. She called 9-1-1 after 

the shooter fled.

¶ 17 Dickerson testified that the gunman, whom she identified in open court as defendant, was 

an approximately 5’7” black man with a short haircut and a “caramel” complexion. He was 

“[a]bout arm’s length” away from her car when he shot Walton and nothing obscured her view of 

his face. It was just after 1 p.m. and “bright” outside. 

¶ 18 Dickerson spoke to detectives the day after the shooting and then again on June 17, 2013. 

Dickerson viewed a photo array on that date, but was unable to identify a suspect. She next spoke 

to detectives on July 1, 2013 and, after signing a photo array advisory form, identified defendant 

as the shooter. She also identified defendant from a physical line-up at the police station on August 

9, 2013. 

¶ 19 On cross-examination, Dickerson stated that she told detectives about the silver car, but 

did not mention it in her grand jury testimony because she was not asked about it. She was unable 

to describe the shooter’s gun in detail because she was “not familiar with guns.” She denied telling 

detectives that the gun was either an Uzi or MAC-10, and did not know what those types of guns 

were. Finally, Dickerson acknowledged that surveillance footage from the convenience store

showed there were actually two gunmen, but she only saw one gunman at the time of the incident 

and did not learn about the other until she viewed the video for the first time in October 2017.

¶ 20 Chicago police sergeant Isaac Lambert and detective Christopher Tenton testified that they 

were the detectives assigned to the case in May 2013. Both confirmed that they first spoke to 

Dickerson on the day after the shootings, and then showed her a photo array on June 17, 2013. 

Defendant’s photograph was not included in the array and Dickerson did not identify a suspect. 

According to Lambert, Dickerson described the shooter’s weapon as a “black Uzi or a MAC-10 
No. 1-18-1621 

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style gun.” After speaking to Dickerson again on July 1, 2013, Lambert assembled another array 

from which Dickerson identified defendant as the shooter. Both Ayers and Dickerson later 

identified defendant from separate physical lineups conducted on August 9, 2013. Tenton testified 

that both witnesses made their identifications “[i]mmediately” upon viewing the lineup. 

¶ 21 Marc Pomerance, a forensic scientist for the Illinois State Police, was qualified as an expert 

in the field of firearms and toolmark examination without objection. He explained that toolmark 

identification involves using a microscope to examine a fired bullet or shell casing to determine 

whether it was fired from a particular gun. The process requires the examiner to consider both 

class characteristics—things like caliber and the number and twist direction of lands and grooves—

and individual characteristics—traits specific to a particular firearm due to “microscopic 

irregularities and imperfections on the surface of an object that make one object unique and 

distinguishable from all others of a certain type.”

¶ 22 Pomerance testified that he received five .45-caliber fired shell casings that were recovered 

from the scene of Walton’s shooting as well as three .45-caliber fired shell casings and two .22-

caliber shell casings recovered from the scene of Anderson’s shooting. Pomerance observed that 

the .45-caliber casings from the Walton shooting all had a “hemispherical-shaped firing pin 

impression” and similar “smooth and parallel” breech face marks. After further microscopic 

examination utilizing “practices and procedures commonly accepted in the field of firearms 

identification,” Pomerance concluded that those five casings were all fired from the same gun. He 

then compared the three .45-caliber casings from the Anderson shooting and determined that they 

were also all fired from the same gun used to fire the casings found at the Walton shooting. Finally, 

Pomerance concluded that the two .22-caliber casings were fired from the same gun as one another, 

but a different gun than the one that fired the .45-caliber casings. 
No. 1-18-1621 

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¶ 23 The State also presented stipulations that the shell casings and other physical evidence from 

the Walton shooting were tested for fingerprints and DNA, but there were insufficient samples to 

produce a profile for comparison. 

¶ 24 The State rested, and the defense moved for a directed verdict, which was denied. 

¶ 25 The defense then proceeded by way of stipulation. First, the parties stipulated that retired 

Chicago police detective William Galvan would testify that on May 30, 2013, Ayers told him that 

the driver of the gray or silver car was a “black female with braids.” Second, the parties stipulated 

that Lambert would testify that Dickerson told him on May 30, 2013, that she observed the shooter 

run into an alley behind her car, but did not mention that she saw the shooter get into a vehicle. 

¶ 26 Defendant did not testify, and the defense rested without presenting any live witnesses. 

¶ 27 D. Jury Instructions and Questions

¶ 28 After closing arguments, the trial court instructed the jury, in relevant part, as follows: (1) 

that the other crimes evidence must be considered only for the limited purpose of defendant’s 

identity, (2) that defendant is presumed innocent unless and until the jury finds that the State 

proved his guilt beyond a reasonable doubt, (3) that defendant “is not required to prove his 

innocence” or to disprove any allegation, and (4) that “[t]he fact that the defendant did not testify 

must not be considered by you in any way in arriving at your verdict.” 

¶ 29 During deliberations, the jury sent the trial court a note containing two written questions. 

First, the jury asked, “What were the leads to place the [defendant] in a line up/photo line up?” 

Second, and more relevant to the arguments on appeal, the jury asked, “Can the Defen[s]e share if 

there was a presumed alibi?” In a hearing with counsel for both parties, the court stated that the 

jury was not asking about a point of law and therefore suggested informing the jury that they have 

heard all the evidence and should continue deliberations. Both defense counsel and the State agreed 
No. 1-18-1621 

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with the court’s suggestion. Accordingly, the court responded to the jury, “You have heard the 

evidence. Please continue to deliberate.” After further deliberations, the jury found defendant 

guilty of first degree murder.

¶ 30 E. Motion for New Trial

¶ 31 Defendant filed a motion for a new trial, arguing that (1) the State failed to prove his guilt 

beyond a reasonable doubt where Dickerson and Ayers were impeached and not credible and (2) 

the court erred in admitting the other crimes evidence where “[t]he State did not meet the first 

requirement of making a showing that [he] actually committed the other crime which it was 

seeking to introduce at trial.” The court denied the motion after a hearing, and later sentenced 

defendant to a total of 60 years in prison. This appeal followed. 

¶ 32 II. ANALYSIS

¶ 33 A. Admission of Other Crimes Evidence 

¶ 34 1. Defendant’s Connection to the Anderson Shooting

¶ 35 On appeal, defendant first argues that the trial court erred in admitting the other crimes 

evidence of the Anderson shooting. Specifically, defendant contends that the State failed to 

sufficiently prove that he was involved in the Anderson shooting where there was a lack of physical 

evidence and Ayers gave an unreliable identification. We disagree.

¶ 36 Evidence of other crimes is generally inadmissible where it is relevant only to prove a 

defendant’s criminal propensity. People v. Robinson, 167 Ill. 2d 53, 62 (1995). The rationale 

behind this rule is that such evidence might cause the jury to convict a defendant solely because it 

feels that he is a bad person deserving of punishment. Id. However, other crimes evidence may be 

admissible if relevant for any other purpose, such as to prove modus operandi, intent, identity, 

motive, or lack of mistake. Id. at 62-63. Before the State can present other crimes evidence, it must 
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show both that a crime occurred and that the defendant participated in its commission. People v. 

Nash, 2013 IL App (1st) 113366, ¶ 20. The State’s evidence need not rise to the level of beyond a 

reasonable doubt, but must be “more than a mere suspicion.” Id. Additionally, the trial court must 

weigh the probative value and the prejudicial effect of the other crimes evidence and exclude the 

evidence if it is substantially more prejudicial than probative. People v. Illgen, 145 Ill. 2d 353, 365 

(1991). The ultimate decision on the admissibility of other crimes evidence rests within the sound 

discretion of the trial court, and the court’s decision on the matter will not be disturbed on appeal 

absent a clear abuse of that discretion. People v. Dabbs, 239 Ill. 2d 277, 284 (2010). A trial court 

abuses its discretion when its ruling is “arbitrary, fanciful, or unreasonable, or where no reasonable 

person would take the position adopted by the trial court.” People v. Thompson, 2020 IL App (1st) 

171265, ¶ 84.

¶ 37 Here, we find that the State provided more than a mere suspicion that defendant was 

involved in the Anderson shooting. Ayers, an eyewitness to the shooting, identified defendant as 

the shooter on three separate occasions: at a photo array, a physical lineup, and in open court . See 

People v. Harris, 2018 IL 121932, ¶ 27 (a positive and credible identification from a single 

eyewitness is sufficient to sustain a conviction beyond a reasonable doubt). Nevertheless, much of 

defendant’s argument as to why his involvement in the Anderson shooting was not proven above 

a mere suspicion focuses on his contention that Ayers’ identification was unreliable under the 

factors set forth by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972). 

Although the Biggers factors are typically used to determine whether an eyewitness identification 

was sufficiently reliable to sustain a conviction, the same factors also apply in the other crimes 

context. Thompson, 2020 IL App (1st) 171265, ¶ 89. Those factors for a court to consider in 

assessing the reliability of an eyewitness identification are: (1) the witness’s opportunity to view 
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the offender during the offense, (2) the witness’s degree of attention to the offender, (3) the 

accuracy of the witness’s description of the offender, (4) the witness’s level of certainty in the 

identification, and (5) the length of time between the offense and the identification. Id. ¶ 42. 

¶ 38 On balance, we find that the Biggers factors support the reliability of Ayer’s identification. 

First, Ayers testified that as the offenders drove down his street and slowed for a speed bump in 

front of his house, he had an unobstructed view of defendant’s face in broad daylight. Ayers was 

also able to recognize that defendant had a .22-caliber firearm and that the second shooter had a 

different kind of firearm, which was corroborated by both .22 and .45-caliber shell casings being 

found at the scene. Although Ayers gave only a general description of defendant after the shooting, 

we find the description to be generally accurate and note that Ayers subsequently and consistently 

identified defendant on multiple occasions. See People v. Tomei, 2013 IL App (1st) 112632, ¶ 51-

52 (identification reliable where the eyewitness positively identified the defendant despite only 

being able to describe race and clothing after the offense). Tenton testified that Ayers identified 

defendant “immediately” during the lineup, and nothing in the record suggests Ayers ever wavered

in his identification. Finally, we find that the approximately one-month gap between the offense 

and Ayers’ first identification does not significantly weigh in favor of unreliability. Indeed, this 

court has often found identifications reliable despite longer delays. See, e.g., People v. Corral, 

2019 IL App (1st) 171501, ¶ 81 (45-day gap); People v. Green, 2017 IL App (1st) 152513, ¶ 113 

(3-month gap); People v. Malone, 2012 IL App (1st) 110517, ¶ 36 (16- month gap). Consequently, 

we conclude that the Biggers factors support the trial court’s ruling. 

¶ 39 Aside from the Biggers factors, defendant also cites the suggestiveness of the identification 

procedures in arguing that Ayers’ identification was unreliable. In particular, defendant notes that 

while the photo array and lineup that Ayers viewed contained only four “fillers,” section 107A-2 
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of the Code of Criminal Procedure of 1963 (725 ILCS 5/107A-2 (West 2020)) now requires a 

lineup to contain at least five fillers. Defendant also asserts that detectives used an old photograph 

of him, filled the physical lineup with people who looked “grossly dissimilar” from him, and did 

not conduct the procedures in a “double blind” fashion because they were likely aware who 

Dickerson had previously identified as a suspect. 

¶ 40 The State responds that defendant has waived any argument regarding the suggestiveness 

of the identification procedures by not filing a pretrial motion to suppress. However, while the lack 

of a motion to suppress may prohibit a defendant from challenging the admissibility of an 

identification (People v. Brooks, 187 Ill. 2d 91, 125-26 (1999)), it “d[oes] not preclude him from 

challenging the reliability of those identification and thus the overall sufficiency of the proof 

against him at trial.” In re T.B., 2020 IL App (1st) 191041, ¶ 41. With that said, we still see no 

basis in the record before us to conclude that the identification procedures used in this case were 

unduly suggestive. For instance, as defendant concedes, section 107A-2 did not take effect until 

January 2015, and thus it “does not inform our review.” Corral, 2019 IL App (1st) 171501, ¶ 96. 

Additionally, even if we were to find the procedures overly suggestive, we would still find Ayers’ 

testimony reliable. Where a defendant establishes a pretrial identification involved impermissibly 

suggestive procedures, a court may nevertheless allow the identification if, after considering the 

Biggers factors and the totality of the circumstances, there is clear and convincing evidence that 

the witness identified defendant solely on the basis of his memory of the offense. People v. Daniel, 

2014 IL App (1st) 121171, ¶ 21. Given Ayers’ opportunity to view defendant’s face from close 

range and in good lighting, as well as the unequivocal nature of his testimony, it is clear that Ayers’ 

identification was based on his independent recollection. 
No. 1-18-1621 

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¶ 41 We are also unpersuaded by defendant’s other arguments as to why the State did not prove 

his involvement in the Anderson shooting above a mere suspicion. Although defendant repeatedly 

emphasizes that he was never charged for that shooting, we find this to be of limited significance

since Illinois courts have upheld the admission of other crimes evidence “regardless of any 

conviction or charges relating to the offenses in the other-crimes evidence.” People v. Arze, 2016 

IL App (1st) 131959, ¶ 101. Additionally, defendant notes that Ayers was the only one of the three 

witnesses to the Anderson shooting to identify him as the shooter. However, it was the trial court’s 

role to weigh the effect of the conflicting witness accounts. We cannot say that the court abused 

its discretion in this regard, especially where Anderson refused to cooperate with police and the 

record contains no testimony as to why Mosley believed the shooters were people other than 

defendant. 

¶ 42 Accordingly, we find that the trial court did not abuse its discretion in determining that the 

State sufficiently connected defendant to the Anderson shooting. 

¶ 43 2. Probative Value vs. Prejudicial Effect

¶ 44 We now turn to defendant’s argument that, regardless of the reliability of Ayers’ testimony, 

the other crimes evidence failed to meet a “threshold requirement of similarity” to the charged 

offense, and was therefore substantially more prejudicial than probative. 

¶ 45 As previous noted, a trial court presented with other crimes evidence must weigh its 

probative value and prejudicial effect. Illgen, 145 Ill. 2d at 365. Generally, the probative value of 

other crimes evidence becomes greater as the factual similarities between the other crime and the 

charged crime increase. People v. Wilson, 214 Ill. 2d 127, 142 (2005). Thus, Illinois courts have 

described some level of similarity as a “threshold” requirement for the admissibility of other 

crimes evidence. See, e.g., id. at 136. The degree of similarity required varies depending on the 
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purpose for which the other crimes evidence is offered. Where the State seeks to prove a 

defendant’s modus operandi, it must show strong and persuasive similarities. Id. at 140. However, 

where, as here, the State seeks to introduce other crimes evidence for a purpose other than modus 

operandi, a lesser degree of similarity is required. Id. at 141. In such cases, “general areas of 

similarity will suffice [.]” People v. Littleton, 2014 IL App (1st) 121950, ¶ 36. 

¶ 46 Here, there are ample similarities between the Anderson shooting and the Walton shooting. 

Both shootings occurred within approximately 10 minutes and 5 blocks of one another. There was 

also evidence that the offenders arrived unexpectedly in a light-colored vehicle and fled in that 

same vehicle after the incident. Moreover, there were two gunmen in each instance, and at least 

the very same .45-caliber firearm was used in both shootings. We find this more than sufficient to 

meet the “general” similarities required for admissibility. Furthermore, we note that the trial court 

properly instructed the jury that the other crimes evidence was relevant only to prove defendant’s 

identity with respect to the Walton shooting. See People v. Sims, 2019 IL App (3d) 170417, ¶ 31 

(an instruction on the limited purpose of other crimes evidence “substantially reduces any 

prejudicial effect created by the admission of the evidence”). Under these circumstances, the trial 

court did not abuse its discretion in admitting the other crimes evidence.

¶ 47 B. Sufficiency of the Evidence

¶ 48 Defendant next argues that he was not proven guilty of the Walton shooting beyond a 

reasonable doubt. When a defendant challenges the sufficiency of the evidence against him, a 

reviewing court must determine whether, viewing all the evidence in the light most favorable to 

the State, any rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt. People v. Gray, 2017 IL 120958, ¶ 35. It is the jury’s responsibility to weigh, 

resolve conflicts in, and draw reasonable inferences from the evidence, and this court will not retry 
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the defendant by substituting its judgment on the these matters for that of the jury. Id. Instead, we 

will reverse a conviction on appeal only if the evidence is so unreasonable, improbable, or 

unsatisfactory that a reasonable doubt of the defendant’s guilt remains. Id. 

¶ 49 It is well-established that the positive and credible testimony of a single witness is 

sufficient to sustain a conviction. Id. ¶ 36. On appeal, defendant primarily attacks Dickerson’s 

identification as unreliable, which again requires us to examine her testimony through the lens of 

the Biggers factors. As previously explained, those factors are: (1) the witness’s opportunity to 

view the offender, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior 

description of the offender, (4) the witness’s level of certainty, and (5) the length of time between 

the offense and the identification. Thompson, 2020 IL App (1st) 171265, ¶ 84. No single Biggers 

factor conclusively establishes whether an identification was reliable; we must examine the factors 

as a whole in the context of the totality of the circumstances. People v. Macklin, 2019 IL App (1st)

161165, ¶ 22. 

¶ 50 Many of defendant’s arguments regarding Dickerson’s testimony are similar to those he 

made with respect to Ayers’ testimony, and we disagree with them for similar reasons. For 

example, defendant contends that Dickerson had a poor opportunity to view the offender because 

her car “likely created an interference to her ability to see the shooter’s face[.]” However, 

Dickerson’s unrebutted testimony was that she was able to view defendant’s face in the middle of 

the day for several seconds as he was just an arm’s length away. The record also suggests that 

Dickerson’s degree of attention was high, as she stated that she specifically focused toward where 

Walton had been standing when she heard her side mirror shatter. As to the third Biggers factor, 

Dickerson, like Ayers, gave a somewhat generalized but largely accurate description of defendant, 

describing him as a black male about 5’7” with a short haircut and a “caramel” complexion. Also 
No. 1-18-1621 

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like Ayers, Dickerson consistently and unwaveringly identified defendant thereafter. She also 

declined to identify a suspect when shown a photo array that did not contain defendant’s 

photograph. Finally, as examined above with respect to Ayers’ testimony, neither the identification 

procedures nor the length of time between the first identification and the offense compel a 

conclusion that Dickerson’s identification was unreliable. Thus, the totality of the Biggers factors 

suggest that Dickesron was reliable. 

¶ 51 Nor are we troubled by the various minor discrepancies raised by defendant. It was the 

jury’s role to resolve any conflicts in the evidence, and minor inconsistencies in the testimony may 

affect the weight of the testimony but do not necessarily create reasonable doubt. Corral, 2019 IL 

App (1st) 171501, ¶ 85. Additionally, the “inconsistencies” identified by defendant are all capable 

of being reasonably resolved in the State’s favor. For example, defendant notes that (1) Ayers 

testified that defendant’s car turned eastbound onto 122nd Street, but a vehicle seen on the 

surveillance video enters the area of Walton’s shooting going westbound on 122nd; (2) Ayers 

testified that defendant had a .22, but Walton was shot with a .45; (3) Ayers testified that defendant 

wore a hat during the Anderson shooting, but Dickerson did not mention a hat during the Walton 

shooting; and (4) the State presented no motive or physical evidence other than the ballistic 

findings. However, viewing the evidence in the light most favorable to the State, the jury could 

have easily concluded that defendant’s car either turned around or was not the same one on the 

video, that defendant switched guns between shootings (especially where the same .45-caliber 

firearm was used in both shootings), and that defendant simply removed his hat between shootings. 

Moreover, while the State did present firearms evidence connecting the two shootings, a conviction 

does not require physical evidence (People v. Herron, 2012 IL App (1st) 090663, ¶ 23) or a proven 
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motive (People v. Cerda, 2021 IL App (1st) 171433, ¶ 109). In sum, we find that a reasonable jury 

could have relied on Dickerson’s testimony in finding defendant guilty beyond a reasonable doubt. 

¶ 52 C. Response to the Jury’s Question 

¶ 53 Finally, defendant argues that we should reverse his conviction and remand for a new trial 

where the jury did not honor the legal principles set forth in Illinois Supreme Court Rule 431(b) 

(eff. July 1, 2012). Specifically, defendant contends that by asking whether he had an alibi for the 

time of the shootings, the jury “clearly establish[ed] that they were considering [his] failure to 

testify or present any evidence.” He further maintains that the trial court abused its discretion by 

failing to inquire into potential juror bias or confusion surrounding the presumption of innocence. 

¶ 54 At the outset, defendant concedes that he failed to preserve the issue by neither objecting 

in the trial court nor raising the matter in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 

186 (1988) (both a contemporaneous objection and a posttrial motion raising the matter are 

required to preserve an issue for appeal). Accordingly, defendant asks us to consider his argument 

under the plain error doctrine, which allows a reviewing court to consider a forfeited issue where 

the defendant can show that a clear error occurred and that either the evidence was closely balanced 

or the error was significant enough to implicate the fairness of the defendant’s trial and the integrity 

of the judicial process. People v. Sebby, 2017 IL 119445, ¶ 48. 

¶ 55 However, as the State points out, defense counsel did more than simply fail to preserve this 

issue—counsel affirmatively acquiesced to the alleged error by agreeing with the trial court’s 

proposed response to the jury. Normally, a party who acquiesces to the manner in which a trial 

court proceeds affirmatively waives the ability to later claim on appeal that the trial court erred. 

People v. Cox, 2017 IL App (1st) 151536, ¶ 73. One exception to this general waiver rule involves 

structural errors, which, whether invited or not, must be “automatically reversed” in order to 
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protect the integrity of the judicial process. People v. Lewis, 2019 IL App (4th) 150637-B ¶ 86.

Defendant argues that the error in this case rose to the level of a structural error because the jury’s 

questions revealed a clear instance of jury bias. However, for reasons we will explain, we conclude 

that the trial court did not err, and thus no structural error occurred. Id. ¶ 87. By that same token, 

we also find that defendant is not entitled to relief under the plain error doctrine or as a matter of 

ineffective assistance based on counsel’s failure to preserve the issue. See People v. Lopez, 2012 

IL App (1st) 101395, ¶ 64 (“If there was no error in the first instance, there can be no plain error.”). 

¶ 56 First, this court will not presume that a jury was biased, and it is the defendant who bears 

the burden of persuasion on the issue. People v. Peters, 2011 IL App (1st) 092839, ¶ 40. Here, 

defendant’s only evidence of potential bias is the question itself. However, we are not persuaded 

that the jury’s question alone showed that defendant’s failure to testify was a factor in the verdict. 

This is especially so because the jury was properly instructed, on multiple occasions throughout 

the proceedings, that defendant was presumed innocent and was not required to testify or present 

other evidence. All of the jurors in this case indicated that they understood and accepted these 

principles. Put simply, we see no reason to presume that the jury did not follow the court’s 

admonishments once they were informed that there would be no alibi evidence. See People v. 

Green, 2017 IL App (1st) 152513, ¶ 98 (jury is presumed to follow the trial court’s instructions 

absent a showing to the contrary). 

¶ 57 Second, we find that the trial court’s response to the jury’s questions was appropriate. 

Evaluating a trial court’s handling of a jury question involves a two-step analysis. First, we must 

determine whether the court should have answered the question at all. People v. Leach, 2011 IL 

App (1st) 090339, ¶ 16. The decision on whether to answer a jury’s question is within the sound 

discretion of the trial court. Id. Second, if the court chooses to provide an answer, we must then 
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decide whether the court’s response was accurate. Id. That determination is a question of law which 

we review de novo.

¶ 58 Generally, a trial court has a duty to answer a jury’s questions where the jurors are 

“manifestly confused” or ask for clarification on a point of law. People v. Ware, 2019 IL App (1st) 

160989, ¶ 18. However, a court may decline to answer a question where it involves a question of 

fact or where the instructions already given are readily understandable and sufficiently explain the 

relevant law. Id. ¶ 19. In this case, the jury’s question as to whether defendant could provide an 

alibi was squarely a question of fact, i.e., it was an inquiry into what evidence was available for 

them to consider. As such, it was within the trial court’s discretion to not provide an answer. The 

court’s response that the jury had heard all the evidence and should continue deliberating was also 

concise, easily understandable, and accurate. See People v. Adams, 404 Ill. App. 3d 405, 419 

(2010) (describing “You have heard the evidence. Please continue deliberating.” as the “traditional 

response” when declining to answer a jury question involving a question of fact). Additionally, the 

instructions in this case were complete and clear as to what the evidence was and what the jury 

could and could not consider against defendant. Accordingly, we find no error in the trial court’s 

handling of the jury’s questions. 

¶ 59 III. CONCLUSION

¶ 60 For the reasons stated, we affirm the judgment of the circuit court.

¶ 61 Affirmed.