Illinois Official Reports

Appellate Court

People v. Miles, 2020 IL App (1st) 171258

Appellate Court 

Caption

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

DERRICK MILES, Defendant-Appellant.

District & No. First District, Sixth Division 

No. 1-17-1258

Filed May 15, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 12-CR-11891; the 

Hon. Maura Slattery Boyle, Judge, presiding.

Judgment Affirmed; mittimus corrected.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Brett C. Zeeb, of State Appellate 

Defender’s Office, of Chicago, for appellant.

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

Brenda K. Gibbs, and Gerrard R. Burch Jr., Assistant State’s 

Attorneys, of counsel), for the People.

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

Presiding Justice Mikva and Justice Cunningham concurred in the 

judgment and opinion.
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OPINION

¶ 1 Defendant, Derrick Miles, appeals his conviction, after a jury trial, of two counts of first 

degree murder. On appeal, defendant contends (1) the State’s evidence was insufficient to 

prove him guilty beyond a reasonable doubt where the eyewitnesses’ identifications were 

unreliable and no physical evidence connected defendant to the shooting, (2) the trial court 

improperly denied his motion for a continuance to obtain the testimony of a witness who would 

have corroborated the defense’s theory of the case, (3) the trial court improperly barred defense 

counsel from publishing two photographs of the victim holding a gun, (4) he was denied his 

constitutional right to counsel and a fair trial when the trial court repeatedly interrupted defense 

counsel’s closing argument and sustained its own objections, and (5) one of his convictions 

should be vacated pursuant to the one-act, one-crime rule. For the following reasons, we affirm 

but order the mittimus corrected to show one conviction of first degree murder pursuant to the 

greater offense of intentional murder.

¶ 2 I. JURISDICTION

¶ 3 The trial court denied defendant’s motion to reconsider sentence on May 4, 2017. 

Defendant filed a notice of appeal on May 4, 2017. Accordingly, this court has jurisdiction 

pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and 

Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017), governing 

appeals from a final judgment of conviction in a criminal case entered below.

¶ 4 II. BACKGROUND

¶ 5 Defendant was charged by indictment with six counts of first degree murder in the shooting 

death of Marley Collins, also known as Malik. 

¶ 6 At trial, Janique Miller testified that she lived at 1517 South Spaulding Avenue in Chicago,

Illinois. On May 28, 2012, around 5:30 p.m., she was on her porch using Facebook on her 

phone. A few houses down, she saw Collins outside sitting and playing cards with friends. 

There were lots of people outside barbecuing, drinking, and getting high. Miller heard a 

gunshot coming from the gangway. When asked whether she saw a gun at this time, Miller 

responded, “I saw the gun, and then he got—he went through the gangway.” Miller described 

the man with the gun as light-skinned with a shaved or bald head and hair on his chin and 

wearing a white shirt and khaki shorts. Miller testified that she did not know the man but she 

had seen him in the area earlier that day. When asked whether she saw the shooter in court, 

Miller responded, “I’m not sure.” 

¶ 7 Miller testified that she spoke with the police and she described the shooter as 5 feet, 11 

inches tall, wearing tan shorts and a white shirt, with another white shirt across his chest and 

shoulders. On May 30, 2017, Miller viewed a physical lineup at the police station and identified 

defendant as the person who killed Collins. She also identified a photograph of defendant as 

the shooter.

¶ 8 At trial, Miller acknowledged that on August 17, 2015, she spoke with defense attorney 

Kathryn Lisco and investigator Rosa Silva. On that day, she signed a handwritten statement in 

which she stated that she was on her porch and heard one gunshot, but she did not see where 

the shot came from. She ran to another house for safety and did not see the person who shot 
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Collins, nor did she see anyone with a gun. Miller did see someone in the gangway, but she 

was too far away to notice the person’s face or the clothes they were wearing. She noticed that 

the shooter wore the same shoes as someone she had seen walking in the neighborhood earlier 

that day. Miller identified three photographs of Collins shown to her on August 17, 2015, but 

after the State requested a sidebar, the trial court allowed publication of only one. Collins 

brandished handguns in the other photographs, and the trial court deemed them too prejudicial 

to publish to the jury. 

¶ 9 Miller testified that she had lied during her interview on August 17, 2015, but now she was 

telling the truth. She had lied because she was off her medication and she was scared. She had 

been shot in an unrelated matter prior to the meeting. Miller reaffirmed that she did see a person 

with a gun in the gangway, and she saw that person shoot Collins. She stated that the person 

who shot Collins was the same person she had identified to police shortly after the incident. 

¶ 10 Tracey Scott testified that on May 28, 2012, around 3:30 p.m., he and his son, Tracey 

Drisdell, arrived for a barbecue at 1505 South Spaulding Avenue. Scott saw Collins, who was 

related to his son and had gone to school with him. Others present included Martell Laura, 

Jamal Dortch, Irma Clay, Joseph “Boo” Vaughn, and Anthony Drisdell (Drisdell). Scott also 

saw someone, who he later identified in court as defendant, “[j]ust pacing in the area, walking 

back and forth by the vacant lot around people.” He had never met defendant and did not know 

his name. Scott sat down and defendant came up behind him. When Scott asked defendant 

what he was doing behind him, defendant replied that he was waiting for Irma to bring him a 

Swisher from the store. 

¶ 11 Around 5 p.m., Scott was in front of the house at 1505 South Spaulding Avenue and 

Drisdell was washing his car by the tree. Scott sat in a chair while he talked to Vaughn, and 

Collins sat in a chair next to Scott. Defendant, who was behind them, pulled out a black gun 

and said, “I got your b*** a***.” He then fired one shot at Collins “really close” and ran 

through the alley toward Sawyer Avenue. On May 29, 2012, Scott met with police and, after 

viewing photographs, identified defendant as the person who shot Collins. The following day, 

Scott met with an assistant state’s attorney and a detective, and again he identified a photograph 

of defendant as the shooter. 

¶ 12 At trial, Scott acknowledged that on October 15, 2015, he spoke with defense attorney 

Lisco and investigator Silva. On that day, he signed a statement in which he indicated he did 

not see the shooter, did not know who the shooter was, and did not see defendant shoot anyone. 

He was shown a photograph of defendant, and on the back he wrote, “I didn’t see him shoot 

nobody.” Scott signed and dated the photograph. Scott testified that in 2015 he had changed 

his statement because “my life was threatened.” He testified that his 2015 statement was not 

true and that his earlier statement about what happened on May 28, 2012, was the truth. 

¶ 13 Drisdell testified that in May 2012, he lived at 1505 South Spaulding Avenue with his 

parents. He had a 2004 felony conviction for state benefits fraud, and he completed his sentence 

of probation. He has been an online academic advisor since May of 2016. On May 28, 2012, 

he was home celebrating Memorial Day with his family. He saw his Aunt Irma outside, and 

Vaughn and Collins were sitting and talking. He also saw Scott and Scott’s son. Defendant 

was on the porch at 1511 South Spaulding Avenue talking to one of the guys who lived next 

door. Drisdell had never seen defendant before, but he stood in front of defendant and talked 

to him “about things in the neighborhood.” Drisdell identified defendant in open court. 
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¶ 14 Around 5:30 p.m., Drisdell’s fiancée parked her car in front of his house. He went to clean 

the car because the kids who greeted his fiancée left fingerprints on it. As he wiped the front 

fender, he noticed Scott sitting in a chair along with Collins and Vaughn. Defendant was 

standing behind Collins. Defendant pulled up his shirt, took a black gun from his waistband, 

and said, “I got your a***.” He shot Collins once and fled through the vacant lot. Drisdell ran 

and called 911. He testified that he had seen defendant “pretty much all day” and got a good 

look at the shooter’s face because the shooting happened about 8 to 10 feet away. At the scene, 

Drisdell described the shooter to police as 5 feet, 9 or 10 inches tall, 170 to 180 pounds, lightskinned, bald, and wearing dark blue jeans and a T-shirt. 

¶ 15 The next day, Drisdell met with police and viewed a physical lineup. He identified 

defendant as the person who shot Collins. Drisdell also identified defendant in a photograph. 

Drisdell testified that he requested relocation services from the state’s attorney’s office because 

he was afraid to live at his home where the murder occurred. He was provided with a security 

deposit, first month’s rent, and moving expenses. 

¶ 16 Simone Birden testified that on May 28, 2012, she lived at 1511 South Spaulding Avenue. 

Defendant came to her apartment that afternoon. She had known him for about a year. They 

spoke for three to five minutes, and defendant asked for Birden’s phone number. After she 

gave him her number, she hugged him and he left. Birden testified that when she hugged 

defendant, she had her arms around him and did not feel a gun on him. She subsequently 

testified that she touched him around the waist. 

¶ 17 About 20 minutes after defendant left, Birden heard one gunshot, and she went outside 5 

minutes later. After the shooting, Birden saw a lot of people running south, but she did not see 

anyone with a gun. When police arrived, she told them that defendant had visited her home. 

She went to the police station and identified a photograph of defendant, but she did not identify 

defendant as the shooter because she did not witness the shooting. Birden signed a handwritten 

statement indicating that defendant told her he would come back later and that she did not see 

the shooting. 

¶ 18 Paramedic Joshua Kowalczyk testified that on May 28, 2012, he and his partner arrived at 

1505 South Spaulding Avenue to a “somewhat hectic” scene. They found Collins lying on his 

back, unresponsive and not breathing. There was a “slight graze wound” and a gunshot wound 

near Collins’s belly button. Since the crowd was unruly, Kowalczyk and his partner provided 

routine trauma care and then transported Collins to Mt. Sinai Hospital for further medical care. 

¶ 19 Evidence technician Terrance McKitterick testified that he and his partner processed the 

crime scene and recovered a Winchester .45-caliber auto fired cartridge case. In the east alley, 

McKitterick found what he suspected was blood, and he swabbed the substance. He did not 

find any other physical evidence. 

¶ 20 The parties stipulated that forensic scientist John Onstwedder would testify that he found 

no latent impressions suitable for comparison on the shell casing. Forensic scientist Francesca 

Antonacci would testify that no blood was found on the swab taken at the crime scene. 

¶ 21 Medical examiner Lauren Moser-Woertz testified that she performed a postmortem 

examination on Collins. She found a gunshot wound in his abdomen and recovered a deformed 

copper jacketed projectile. He also had a graze wound “superior to the entrance wound.” The 

direction of the wound path was front to back and downward. She found no evidence of contact 

or close range firing around the entrance wound. The cause of death was a gunshot wound, and 

the manner of death was homicide. 
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¶ 22 Tajuana West testified for the defense. She stated that on May 28, 2012, she was at 15th 

Street and Spaulding Avenue, walking home from her grandmother’s house, when she heard a 

gunshot. She looked up and saw a man fall to the ground. She saw “another man take off 

running, throw something in the bushes, run through the light and then down the alley.” West 

saw the man’s face and described him as thin; light-skinned; 5 feet, 9 inches tall; and wearing 

a white tank top and khakis. West did not know anyone from the area and did not want to be 

at trial. She was testifying only because she had been subpoenaed. 

¶ 23 On cross-examination, West stated that the person who ran away from the victim was the 

only person she had seen on the street. She “did not exactly” see someone shoot Collins, but 

she saw a person run from the body and throw something into the bushes. She did not see a 

group of people and assumed the person running away was the shooter. West called 911, and 

when police arrived, she tried to tell them what happened, but they handcuffed her and put her 

in a car for over an hour with the windows up. She told the officers that she saw the shooter 

throw something in the bushes. West tried to tell them that they were looking in the wrong spot 

for the gun, but they were not interested. The police let her go after “mak[ing] sure she had no 

warrants or nothing else on her background.” She refused to view photographs because she 

disliked how she was treated. 

¶ 24 On March 13, 2015, defense attorney Lisco and investigator Silva came to West’s house 

and showed her four photographs of the same person. She told them that it looked like the 

person she saw at the scene, but she was not sure. West signed two photographs that she 

thought looked like the man who threw something in the bushes. The man in the photographs 

was not defendant. On August 14, 2015, Detectives Jones and Esparza visited West, and she 

told them that an attorney showed her photographs of someone who looked like the shooter. 

She told the detectives that she saw the shooter’s face and that he threw an object into the 

bushes. She had tried to tell police at the scene what happened, but she was handcuffed and 

placed in a car for over an hour. West stated that she saw the shooter throw a black gun in the 

bushes, but no one listened to her at the time. On November 14, 2016, attorney Lisco visited 

West again and showed her one photograph of defendant. West identified the photograph as 

someone who “was not the shooter.” 

¶ 25 West testified that she did not know defendant, she denied he was the person she saw with 

a gun who threw something in the bushes, and she did not know Collins or anyone who lived 

in the area. 

¶ 26 The parties stipulated that Officer Manuel Ramirez would testify that on May 28, 2012, he 

and his partner responded to a call of a person shot at 1503 South Spaulding Avenue. He met 

with West at the scene, and she described the shooter as a “male black, five nine, weighing 

between 150, 160 pounds, black hair with a fade hairstyle, light brown complexion, wearing a 

white tank top and tan cargo pants.” West did not tell him that the shooter put something in the 

bushes. She informed him that the shooter fled eastbound from 15th Street. 

¶ 27 In rebuttal, Officer Angel Mendez testified that on May 28, 2012, he responded to a call of 

a shooting in the 1500 block of South Spaulding Avenue. He did not speak with West nor did 

he see a female handcuffed in a police car. Detective Jones testified that he did not speak with 

West at the scene, he never saw a woman in handcuffs, and he never saw anyone in the back 

of a police car. He spoke with West for the first time on August 14, 2015, after he learned that 

defense counsel and an investigator had previously interviewed her. Jones showed West the 

same photographs defense counsel had shown her of a person who was not defendant but who 
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West had said looked like the person who threw something in the bushes. However, West told 

Jones that “she could not actually see the face of the shooter” and she never saw anyone with 

a gun. Jones did not set up an identification for West because she had told him she did not see 

the shooter’s face. 

¶ 28 The jury found defendant guilty of first degree murder and that, during the commission of 

the offense, he personally discharged a firearm that proximately caused death. The trial court 

denied defendant’s motion for a new trial and sentenced him to 60 years’ imprisonment. 

Defendant filed a motion to reconsider sentence, which was denied. This appeal followed.

¶ 29 III. ANALYSIS

¶ 30 Defendant first contends that the State failed to prove him guilty beyond a reasonable 

doubt. When a defendant challenges the sufficiency of the evidence used to convict him, we 

determine whether, when viewing 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. Smith, 185 Ill. 2d 532, 541 (1999). The jury, as fact finder, determines the 

credibility of witnesses and the weight to be given their testimony, and this court will not 

substitute its judgment for that of the jury on these matters. People v. Brooks, 187 Ill. 2d 91, 

132 (1999). Defendant’s conviction will not be overturned unless the evidence “is so 

unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of defendant’s 

guilt.” People v. Wheeler, 226 Ill. 2d 92, 115 (2007). 

¶ 31 Defendant contends that he was convicted based on eyewitness testimony identifying him 

as the shooter, but the testimony was unreliable. He points out that Miller only heard a gunshot 

and she never testified that she actually saw Collins get shot. Scott testified that Collins was 

shot at close range, which was contradicted by the medical examiner who found no evidence 

of close range firing. Drisdell testified that defendant pulled a gun out of his waistband, but 

Birden testified that she did not feel a gun on defendant when she hugged him. Furthermore, 

both Miller and Scott signed handwritten statements in 2015 stating that they did not see the 

shooter’s face and did not know who shot Collins. Scott also signed a photograph of defendant 

in 2015 and wrote on the back, “I didn’t see him shoot nobody.” Defendant argues that Anthony 

Drisdell, the third witness who identified defendant as the shooter, was not credible because 

he received a benefit from the prosecution in the form of rent, a security deposit, and moving 

expenses. Given that no physical evidence connected him to the shooting, defendant contends 

their unreliable testimony was insufficient to convict him beyond a reasonable doubt. 

¶ 32 We disagree. While Miller and Scott gave statements to defense counsel in 2015 that they 

did not see the shooter and did not know who shot Collins, both gave prior statements at the 

time of the murder that they had seen the shooter and identified defendant as the person who 

shot Collins. At trial, both eyewitnesses acknowledged that they lied to defense counsel in 

2015 because they were afraid, but they confirmed that their prior identification of defendant 

as the shooter was true. Although Miller and Scott made prior inconsistent statements 

regarding the identification of the shooter, the jury heard this evidence, and it is the jury’s 

responsibility to resolve factual disputes and assess the credibility of witnesses. People v. 

White, 2011 IL App (1st) 092852, ¶ 78; see also Brooks, 187 Ill. 2d at 132 (finding that it is 

for the trier of fact to determine the credibility of recantation testimony). The jury clearly 

believed Miller and Scott when they testified that their identification of defendant as the 

shooter was the truth. 
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¶ 33 The critical inquiry here is whether, after viewing the evidence in the light most favorable 

to the State, any rational trier of fact could have found that defendant shot Collins beyond a 

reasonable doubt. People v. Green, 2017 IL App (1st) 152513, ¶ 102. When evaluating the 

reliability of identification testimony, we consider (1) the opportunity the witness had to view 

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

of the offender, (4) the witness’s level of certainty regarding the identification, and (5) the 

length of time between the event and the witness’s identification. People v. Slim, 127 Ill. 2d 

302, 307-08 (1989). 

¶ 34 Eyewitnesses Miller, Scott, and Drisdell testified that they were outside near 1505 South 

Spaulding Avenue on the day of the incident. Each stated that defendant was in the area for 

some time before the shooting so they had an opportunity to observe him. All testified that 

they heard one gunshot and saw a person with a gun flee the scene. They described the person 

as 5 feet, 9 inches to 5 feet, 11 inches tall and light-skinned, and Miller and Drisdell described 

him as wearing a white T-shirt and shorts. Defense witness West gave a similar description of 

the suspect. Shortly after the incident, Miller, Scott, and Drisdell separately viewed 

photographs and/or a lineup and unequivocally identified defendant as the person who was at 

the scene with a gun. Although there were minor inconsistencies in their testimony regarding 

the exact clothes the shooter was wearing, whether the shooter came from the gangway or was 

standing behind Collins right before he was shot, or whether defendant pulled the gun from his 

waistband, that is expected when people view the same event under traumatic circumstances. 

Brooks, 187 Ill. 2d at 133. Given the strength of the identification testimony, we do not find 

that the minor discrepancies and lack of physical evidence raise a reasonable doubt that 

defendant shot Collins. See People v. Rodriguez, 2012 IL App (1st) 072758-B, ¶ 48 (finding 

that “lack of physical evidence and minor inconsistencies do not render the evidence so 

unreasonable, improbable or unsatisfactory to justify reversal of the jury’s determination”). 

¶ 35 Defendant argues, however, that Drisdell was not a credible witness because he received 

benefits from the State in the form of rent, a security deposit, and moving expenses. He 

contends that West, the only eyewitness who did not identify defendant as the shooter, was the 

most credible because she did not know anyone involved in the case and appeared only 

pursuant to a subpoena. 

¶ 36 The testimony of a witness who received a benefit from the State is not unreliable per se; 

rather, as with other witness testimony, it is for the trier of fact to determine the witness’s 

credibility and the weight to be given his or her testimony. People v. Wheeler, 401 Ill. App. 3d 

304, 310-11 (2010). Even if we exclude Drisdell as a credible witness, Miller and Scott remain 

as witnesses who identified defendant as the shooter. “[T]he testimony of a single witness, if 

positive and credible, is sufficient to convict, even though it is contradicted by the defendant.” 

People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). While West did not identify defendant 

as the shooter, her description of the shooter matched that given by Miller and Scott. Also, the 

jury heard West’s testimony and, as was its duty, weighed that evidence against other witness 

testimony. This court will not substitute its judgment for that of the jury on these matters. We 

find that the evidence, viewed in the light most favorable to the State, was sufficient to convict 

defendant of first degree murder beyond a reasonable doubt. 

¶ 37 Defendant next contends that the trial court improperly denied his motion for a continuance 

to obtain the testimony of witness Martell Laura. Section 114-4(b)(3) of the Code of Criminal 

Procedure of 1963 (Criminal Code) (725 ILCS 5/114-4(b)(3) (West 2016)), provides that a 
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written motion for a continuance made more than 30 days after arraignment may be granted if 

“[a] material witness is unavailable and the defense will be prejudiced by the absence of his 

testimony.” We review the trial court’s denial of a continuance for abuse of discretion. People 

v. Flores, 269 Ill. App. 3d 196, 201 (1995). However, we will reverse the trial court’s 

determination only if the court abused its discretion and denial of the continuance prejudiced 

the defendant. People v. Ward, 154 Ill. 2d 272, 304 (1992). 

¶ 38 Defendant’s trial was set for August 22, 2016, but because the State could not locate several 

witnesses it wished to call, the trial was continued to November 14, 2016. On August 25, 2016, 

the trial court admonished Martell that he had to appear on November 14, 2016, but Martell 

failed to appear. The State informed the court, “our office did speak with him this morning. He 

is aware of today’s court date, he is in fear, does not want to come to court.” The trial court 

held the case over to the next day and issued a warrant for Martell to appear. Defense counsel 

spoke with Martell and arranged to transport him to the court to turn himself in on the warrant. 

However, Martell “was not present at the prearranged time and location.” The trial court 

granted a continuance until November 30, 2016, and Martell was informed of the new trial 

date. Again, Martell did not appear, and the court granted defense counsel a continuance until 

January 9, 2017. 

¶ 39 On January 9, 2017, defendant’s trial was set to begin, but Martell failed to show up in 

court as a witness. Defense counsel filed a motion for a continuance pursuant to section 114-

4, arguing that Martell’s testimony was material and would corroborate the defense’s theory 

of the case. The trial court denied the motion. As the court explained at the hearing on 

defendant’s motion for a new trial, “[t]his case has been pending since 2012. Mr. Laura was 

advised to be here. I had given continuance [sic] to get people here. He did not appear.” The 

court had given continuances to the defense on November 14, 2016, and on November 30, 

2016, to procure its witness. The trial court “advised the defense again 1-9-17 was the date. 

[The case] had been pending for five years and the court was doing everything it could to bring 

it to trial.” 

¶ 40 When reviewing a denial of a request for a continuance to secure the presence of a witness, 

we consider (1) the diligence of defendant, (2) whether defendant has shown that the testimony 

was material and may have affected the verdict, and (3) whether the exclusion of the testimony 

prejudiced defendant. People v. McClain, 343 Ill. App. 3d 1122, 1130 (2003). Even if we find 

that counsel was diligent in attempting to get Martell to court, defendant must also show that 

Martell’s testimony was material and its exclusion prejudiced him at trial. See People v. 

Gardner, 282 Ill. App. 3d 209, 215 (1996). 

¶ 41 Defendant’s contention is based on two handwritten statements. In a May 30, 2012, 

statement, Martell told the assistant state’s attorney that on May 28, 2012, he was in the area 

of 1503 South Spaulding Avenue hanging out with Collins. Defendant approached and asked 

if anyone had a phone. Defendant asked Irma to get something from the store. Defendant 

started walking back and forth, listening to Martell’s conversation with Collins. When Irma 

came back from the store, Martell heard “a loud gun shot” and Collins fell down. Martell ran 

from the scene. He stated that defendant was the only person standing behind him when Collins 

was shot. 

¶ 42 On October 2, 2014, Martell gave a statement to defense attorney Lisco and investigator 

Rosa at the Graham Correctional Center. Martell stated that he and Collins were members of 

the Sicko Boys gang and, five days before Collins was killed, he and Collins were involved in 
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a fight with the Breeds, a gang with territory near the Sicko Boys’ territory. Martell stated that 

“we whooped them real good.” Martell further stated that on May 28, 2012, he was outside 

1505 South Spaulding Avenue with Vaughan. He saw Vaughan’s Aunt Irma walking toward 

them when he heard two shots from behind. He “hit the ground and lay on his stomach.” 

Martell did not see the shooter nor did he see the shooter fire a gun. After firing the shots, the 

shooter ran toward Kedzie Avenue. Martell also stated that “the dude who shot” Collins was 

on house arrest at 1515 South Spaulding Avenue. 

¶ 43 Martell also stated that “he is thirsty for revenge against Derrick Miles.” While he was in 

Cook County jail, Martell “learned where Derrick Miles was being housed” and “he purposely 

got himself transferred from Division 5 to Division 1 so that he could kill Derrick Miles.” He 

also sent a message to fellow Sicko Boys gang members “to smash Derrick Miles on sight.” 

¶ 44 Defendant argues that Martell’s testimony was material because it would have supported 

the defense’s theory that Collins was shot in retaliation by a rival gang member rather than 

defendant. Martell stated that he and Collins were members of the Sicko Boys gang and they 

were involved in a fight with a rival gang days before Collins was killed. Evidence of gang 

membership or involvement in gang-related activity, however, is admissible only if sufficient 

proof exists that such membership or activity is related to the crime charged. People v. Smith, 

141 Ill. 2d 40, 58 (1990). Martell never connected the shooting of Collins, or anything else 

happening that day, to the gang-related fight. 

¶ 45 Furthermore, Martell’s other gang-related statements tended to implicate rather than 

exclude defendant as the shooter, which may explain his reluctance to testify in court. Martell 

stated that he was so “thirsty for revenge” against defendant that he got himself transferred to 

defendant’s division so he could kill him, and he sent a message to his gang to “smash” 

defendant. Since Martell and Collins belonged to the same gang, it is not surprising that Martell 

would want revenge against defendant if he believed defendant was the person who killed 

Collins. For these reasons, testimony that Martell and Collins were involved in a gang-related 

fight prior to the shooting was not material and would not have affected the outcome of the 

case. 

¶ 46 We also find that the absence of Martell’s testimony at trial did not prejudice defendant. 

Martell’s statements placed defendant at the scene when the shooting occurred, and he 

identified defendant as the only person behind Collins before he was shot. As such, his 

statements regarding the shooting substantially corroborated the accounts given by State 

witnesses Miller, Scott, and Drisdell, all of whom positively identified defendant as the 

shooter. While defendant contends he was never on house arrest, which is contrary to Martell’s 

statement of the shooter, that inconsistency by itself does not exclude defendant as the shooter. 

Martell may have merely been mistaken about defendant being under house arrest. Viewed as 

a whole, Martell’s statements regarding the shooting were substantially cumulative to the 

overwhelming evidence identifying defendant as the shooter. As such, defendant has not 

shown prejudice so as to merit a reversal of his conviction. See People v. Cox, 377 Ill. App. 3d 

690, 706 (2007). 

¶ 47 Defendant makes a related argument that the trial court erred in allowing the defense to 

publish only one of three photographs that Miller had identified as photos of Collins. The two 

photographs not published showed Collins brandishing a handgun. Defendant argues that the 

unpublished photographs “were material and probative because they supported the defense 

theory that Collins was a gang member who had been in a fight with a rival gang five days 
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prior to his death, and that he was shot in retaliation by a rival gang member.” Since the defense 

could not show these photographs to the jury, “coupled with the trial court’s denial of the 

defense motion for a continuance,” the defense had to abandon its theory that another person 

shot Collins due to a dispute between rival gangs.

¶ 48 It is within the trial court’s discretion to weigh the probative value and potentially 

prejudicial effect of photographs of the victim. People v. Armstrong, 183 Ill. 2d 130, 147 

(1998). “Even gruesome or disgusting photographs may be properly admitted into evidence if 

they are relevant to establish any fact at issue in the case.” Id. Defendant contends that these 

photos were relevant to show Collins was a gang member, but he does not cite any cases finding 

that a person’s mere possession of a gun is evidence of gang membership. No evidence 

presented at trial connected the shooting of Collins to gang-related activity; Martell’s 

statements also made no such connection. The trial court found the photographs far more 

prejudicial than probative, and its determination was not an abuse of discretion. 

¶ 49 Defendant next contends that he was denied his constitutional right to counsel and a fair 

trial where the trial court repeatedly interrupted defense counsel’s closing argument and 

sustained its own objections. Defendant has a fundamental right to make a proper closing 

argument in his favor based on the evidence and applicable law. People v. Stevens, 338 Ill. 

App. 3d 806, 810 (2003). This right is derived from defendant’s constitutional right to effective 

assistance of counsel. Id. If defendant was denied his right to make a proper closing argument, 

his conviction will be reversed regardless of whether he was prejudiced by the error. Id. 

¶ 50 Defendant is denied his right to make a proper closing argument if the trial court repeatedly 

interrupts counsel so as to curtail his closing argument. See People v. Heiman, 286 Ill. App. 

3d 102, 112-13 (1996) (the trial court interrupted defense counsel’s argument 40 to 50 times); 

People v. Crawford, 343 Ill. App. 3d 1050, 1060 (2003) (trial court interrupted defense counsel 

after two sentences and most of counsel’s closing argument was interrupted). These 

interruptions are often in the form of a rebuttal or other expression of the court’s opposition to 

defense counsel’s argument and reveal the court’s bias against defendant. Crawford, 343 Ill. 

App. 3d at 1060-61; see also People v. Mays, 188 Ill. App. 3d 974, 982-83 (1989) (the trial 

judge’s slamming of his pencil, heaving a sigh, and his facial gestures in response to defense 

counsel’s questions showed the judge “presumed the worst of defendant”). 

¶ 51 Unlike the trial court in Heiman and Crawford, the trial court here did not repeatedly 

interrupt defense counsel with rebuttal so as to curtail her closing argument. Defense counsel 

was well into her argument when the trial court first objected to her statements on reasonable 

doubt. The following exchange occurred: 

“MS. LISCO: And it’s the state, the state and the state alone, not the defense, who 

has the burden of proof. They must prove to you that they do have the right person 

beyond a reasonable doubt. Now, some of you have sat on civil juries before, where 

the evidence burden of proof was preponderance of evidence, a tipping of the scales. 

THE COURT: Ladies and gentlemen, sustained. Counsel will not define reasonable 

doubt. The jury will define reasonable doubt themselves. 

MS. LISCO: Well, proof beyond a reasonable doubt is a higher standard that that 

[sic] ladies and gentlemen. It requires more convincing evidence. So these disjointed, 

mismatching fragments do not comply with proof beyond a reasonable doubt. They 

don’t meet that burden and I’ll tell you why. Because the details are important.” 
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Defense counsel proceeded to tell the jury about the inconsistencies in the eyewitness 

testimony. Counsel went through the testimony of Miller and Scott. When she spoke of 

Drisdell, defense counsel emphasized his felony conviction and the fact he was paid to relocate. 

She called him a “fraudster.” Then the following occurred:

“MS. LISCO: Academic Advisor? Really? With a felony conviction? Do you think 

academic advisors are supposed to have felony convictions when they’re advising 

students and oftentimes our youth? I don’t think so. Now, he said he had that job since 

May of—

THE COURT: Sustained as to what you think, Miss Lisco. The jury will disregard 

attorneys’ opinions. Attorneys’ opinions are not evidence and should not be considered 

by you as evidence.” 

Counsel discussed the inconsistent statements of Miller and Scott. Regarding Scott, defense 

counsel argued: 

“I can tell you now, ladies and gentlemen, that this statement that he made—and 

make no mistake, this is his statement—he wrote it in his own handwriting—is 

irreconcilable with his testimony on the witness stand. You have a reasonable doubt 

right there, ladies and gentlemen. Was he lying then? Is he lying now? Which is it? 

You can’t have it both ways.”

The trial court did not object to this argument. The trial court did not sustain an objection until 

the State objected to defense counsel’s statement that “There’s a blue light camera on almost 

every block in this neighborhood, ladies and gentlemen.” After the State objected, the 

following transpired:

“THE COURT: Sustained. Ladies and gentlemen there’s been no testified [sic] 

presentedof such evidence. That’s stricken and disregarded. Continue with your 

argument, Miss Lisco, but not with regard to pod cameras. 

MS. LISCO: Judge, you’re absolutely right. Ladies and gentlemen, there’s no 

evidence of any pod camera in this case. 

THE COURT: Nor any existing out there. There’s no evidence they existed in the 

area.” 

Toward the end of defense counsel’s closing argument, she returned to the concept of 

reasonable doubt:

“MS. LISCO: The defense asks you to be critical of the evidence that you heard in 

this case. Look at the quality of that evidence as well, not just the quantity. If it leaves 

you wondering, then that’s reasonable doubt. 

THE COURT: Sustained. Ladies and gentlemen, that will be stricken from the 

record. Again, the jurors are the determinants of what is reasonable doubt, not the 

attorneys. 

MS. LISCO: You absolutely are the determiners of what’s reasonable doubt, ladies 

and gentlemen. And if you’re wondering which of the conflicting stories of Janique 

Miller or Tracey Scott to believe, that’s reasonable doubt. 

THE COURT: Sustained. Again, stricken. The jury will disregard. The jury will 

decide what is reasonable doubt, not the attorneys.” 

¶ 52 We find this case distinguishable from Heiman, Crawford, and Mays. Defense counsel’s 

closing argument comprised almost 33 pages of record, and the trial court interrupted her only 
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four times. We also find no indication that defense counsel was unable to fully present 

defendant’s theory of the case that he was innocent and the testimony of the State’s witnesses 

was unbelievable. Nor do we find that the trial court’s statements reflect an opposition to 

defense counsel’s arguments in the case. The trial court has discretion to regulate the substance 

and style of closing arguments, and we will not disturb its determination on the propriety of 

remarks absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 128 (2001). After 

reviewing the record, we cannot say that the trial court’s rulings were arbitrary, fanciful, or 

unreasonable or that no reasonable person would take the trial court’s view. See People v. Hall, 

195 Ill. 2d 1, 20 (2000). 

¶ 53 Defendant, however, takes issue with the trial court’s two objections to defense counsel’s 

statements on reasonable doubt, arguing that “the jury was left with the impression that the 

judge disagreed with defense counsel’s summation of the State’s evidence, and that the defense 

counsel had done something very wrong.” We disagree. Our supreme court has made clear 

“that neither the court nor counsel should attempt to define the reasonable doubt standard for 

the jury.” People v. Speight, 153 Ill. 2d 365, 374 (1992). Courts disfavor attempts by counsel 

to explain the reasonable doubt standard because “no matter how well-intentioned, the attempt 

may distort the standard to the prejudice of the defendant.” People v. Keene, 169 Ill. 2d 1, 24-

25 (1995). Counsel may discuss reasonable doubt and her view of the evidence and suggest 

whether the evidence supports reasonable doubt. People v. Laugharn, 297 Ill. App. 3d 807, 

811 (1998). Here, the trial court did not allow defense counsel to tell the jury that if the 

evidence leaves you wondering, “that’s reasonable doubt,” but it did allow counsel to suggest 

that the inconsistent statements by Scott supported reasonable doubt. We find no reversible 

error here. 

¶ 54 As to defendant’s final contention, the State agrees that under the one-act, one-crime 

doctrine, defendant’s mittimus should be corrected to reflect only one conviction on count IV, 

which is the greater offense of intentional murder. See People v. Artis, 232 Ill. 2d 156, 170 

(2009) (holding “that under the one-act, one-crime doctrine, sentence should be imposed on 

the more serious offense and the less serious offense should be vacated”). Therefore, we order 

the mittimus corrected to reflect only one conviction on the more serious offense.

¶ 55 IV. CONCLUSION 

¶ 56 For the foregoing reasons, defendant’s conviction is affirmed. We order the mittimus 

corrected to reflect one conviction of first degree murder on count IV, the more serious offense 

of intentional murder.

¶ 57 Affirmed; mittimus corrected.